Victoriano, Karen Yvette

SY 2012-2013, Second Semester


R.A 10173 : Data Privacy Act of 2012, Its Edge and Downside and Some of the Provisions of the 1987 Constitution

Technologies nowadays play a big role in the country. The state recognizes the vital role of technology as part of building the nation.

Technology comes in different sizes, defferent kind but despite their differences all of them become very useful in our daily lives. Almost all of the aspect of life nowadays involved the use of technology. Like its very useful in the field of studies, transaction, business, jobs application and the likes.

I am personally addicted with everything online. I love searching dresses, accessories, gadgets and everything that i can buy only through on line transaction.

And in purchasing things online one is required to give their personal information such as name, address, email, phone number. One is required to fill up an order form in order for your order to be valid. Se are to be paid through credit card, cash transfer or meet-ups.

Booking of flight becomes very easy also. Just by searching the airline you wish to take you to your destination, you can now book online and just filled up the form by giving also your personal information.

With the fast evolvement of technology nowadays that requires giving of information. there is really a need to pass a law that will protect the individual’s personal information.

Many Thanks to data privacy law, electronic evidence law, cybercrime law and the likes. Now the rights of the people is protected against individual that might abuse it.

DATA PRIVACY ACT

Let us first define what a DATA AND PRIVACY is.

[1] DATA is a factual information (as measurements or statistics) used as a basis for reasoning, discussion, or calculation while [2] PRIVACY is the condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions. Before we start discussing the edge and downside of the data privacy act lets us go through first with what was the Data Privacy Act of 2012 is all about.

The Data Privacy Act of 2012 is [3] an act protecting an individual [4] personal information in information and technology and communications system in the government and private sector, creating for this purpose a National Privacy Commission. It protects the right of an individual’s personal information against the government employee and private sector who gathered the information. It is applicable to all types of processing specifically processing of personal information of the [5] data subject. Also includes processing of data and information of any of the juridical or natural person whether involved in the business or only located in the Philippines. The act aims protect the rights of individuals from any harmful effect of the information they will give to government and private sector.

The National Privacy Commission is the commission created primary responsible for the said act. The commission is task to administer and secure strict implementation of the act within the country and in line with the international standards. Some of its functions are to [6] receive complaints, institute investigation, issue desist and cease order, impose temporary bans, publish regular basis of guide to all the laws relating to data processing and the likes.

There are some limitations on the scope of the data privacy act. Some of the limitations are [7] it is not applicable to the information of an individual who is an officer employed in the government, an individual who is under contract with government, information necessary for the banks, personal information gathered by the journalist for their artistic, journalistic, literary works and the likes. The data privacy acts [8] affords protection to journalist and their sources from being compelled to reveal the personal information of their data subject or to reveal the sources of their news or report appearing in the public.

The act also lays down punishment to those individuals who will violate the data privacy act. The penalty imposed will be depending on the gravity of the offense committed. If for example an [9] individual negligently disclose personal information or accessing sensitive information, the penalty civil liability would be ranging from 500,000.00 but less than 2,000,000.00 and penalized by imprisonment ranging from one (1) year to three (3) years.

The act allows processing of personal information provided that the data subject consents the disclosure and the requisite set forth in the law has been followed. It also allows disclosure of information to the public in line with the principle of the state of transparency. Provided futher that the gathering of the information is for a legitimate purpose and it is processed in good faith and lawfully.

It also lays down the [10] rights of a data subject. The data subject must be informed of the content of the information that will be disclosed to public for him to be aware of the things he’s into. The data subject must be furnished with a copy of the information before the entry of his personal information in the processing system. He must be informed of the purpose and the reason why there is a need to disclose his personal information.

When the right of an individual is being violated under the data privacy act its remedy is by filing of a writ of HABEAS DATA. Any person who is aggrieved may file a writ of habeas data on the proper trial court as provided for in the law. Habeas data is defined in the A.M No. 08-1-16-SC OF 2008 as :

[11] is the remedy available to any person whose right to privacy in life, liberty or security is being violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or sorting of data or information regarding the person, family, home and correspondence of the aggrieved party.”

THE CONNECTION OF DATA PRIVACY ACT AND SOME OF THE PROVIONS OF THE 1987 CONSTITUTION (BILL OF RIGHTS)

Data Privacy Act of 2012 is an act in line with the [12] policy of the state that recognizes the vital role of the communication and information in nation building. Let us pass through some provisions on the constitution regarding the right to privacy in Communication and correspondence, freedom of expression which tackles the freedom of the press and expression.

The PRIVACY IN COMMUNICATION AND CORRESPONDENCE: DATA PRIVACY LAW

The right of privacy in communication and correspondence is embodied in 1987 Constitution on BILL of Rights article 3,section 3 provides:

“(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

The essence of the right to privacy in the constitution is the right of an individual to be left alone and to do whatever he wants to do without others intervening to it. In communication and correspondence privacy is defined as the right of an individual to communicate without the state interfering. [13] it provides that the right to privacy is inviolable and any evidence obtained in violation shall be inadmissible in court. This right of privacy embodied in sec. 3 of article 2 prohibits an individual from overhearing or recording the conversation of two individuals in private communication without the consent of the latter.

It is the right that respects one’s own privacy in communicating to other people privately. This right rest assures an individual that their right of communication will be free from any intrusion or surveillance by others.

The example of law that protects the right of an individual on privacy in communication and correspondence is the wire-tapping law. The [14] wire-tapping law is created to penalize person who is not allowed by the parties to record or obtained any part of their private communication or any words spoken by the parties. In the case of Salcedo vs. CA (1994), the case held that cassette tape is inadmissible when presented as evidence in court.

[15] during the trial, the respondent presented evidence which is in the form of cassette tape of the petitioner and of unknown person. The Supreme Court held that the cassette tape that is being presented as evidence is inadmissible.”

The data privacy act penalizes the acts of an individual who will disclose or use the personal information in connection with individual’s personal, family or household affairs. It protects individual’s right by being violated or exploited in public without its consent and knowledge of the purpose where it will be use.

Like the AMALAYER thing that become very popular recently due to her scandalous acts. The person who uploads the video is not cautious enough to think of the negative side of the act he or she committed. The video shows only the one side of the story.

How come that her personal information such as her name and her previous activity discloses to the public. The person or agency or tv network may be penalizes for the act of disclosing the personal information of a person without her knowledge and consent. And if she wishes to fight for her right, she can do so by filing a writ of habeas data in the proper court.

Maybe some of the people who don’t know anything about the law may not understand the cause and effect that may be brought to the person who upload the video. Maybe next be cautious enough. Learn to be sensitive of others feelings. As the golden rule tells us “ do not do unto others what you do not want others do unto you”

Freedom of expression and press and how data privacy act comes into play

Section 4. Article 3 of the Constitution provides that “ No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

Under the right to freedom of expression, it provides that a person may say or speak whatever he wants to say that he thinks vital. But despite its free call it has limitation, it is not an absolute right. Under freedom of expression is freedom of the press.

Press people may write anything he wishes or wants to right but it is subject to limitation. Every press must respect the right of an individual to privacy. It may target a public figure or an ordinary person but if it offensive, it may be sued in his capacity as a writer.

No one is excused to be sued especially when his writing are obviously erroneous or obtained just to destroy one’s dignity and there is nothing true about it. Like the coverage of the press to some issues that public should be informed, it is subject to limitation especially when it will cause danger to the public or it will not be helpful in the case or will affect the life of the accused, defendant or the witness.

In the case of the Ampatuan who blames for the murder of 58 people in Maguindanao during the filing of candidacy. The press is not allowed inside the court room and they are not allowed to use video in recording what is happening inside the court room because it may threaten the public and it may cause harm to the state witness.

In this situation the data privacy act comes along. The reason why press are not allowed inside to get a scoop to record everything is that the court is protecting their witness, from being exploited in the public that may cause harm to the person, family and property. The data privacy act aims to protect the personal information of a person from being disclose to the public.

The EDGE AND ITS DOWNSIDE

THE EDGE

As the country adopts and promulgates the data privacy act, of course it has its edge and downside. Some may say it’s a good law that will make our IT-call center boom in the international world. As it protects the rights under the said act but for sure there is a downside of the story. Let us discuss each and every effect of the data privacy act in the daily lives of the people.

One of the edges of the data privacy act is that it encourages people to transact business through online. Especially nowadays online shop is very popular due to the advance technology such as facebook, instagram, multiply. From those sites you will find things that are very affordable and things that you can only buy through online transaction.

It is now very easy to avail or buy a product on line through payment using paypal or credit card. The data privacy helps a lot to encourage people not to be afraid to transact business online. paying their bills through on line by filling up the personal information that they want to know. paying through credit card that their personal information might be disclose to public and might be use in some other transaction he/she doesn’t know.

Another edge is that individual identity may be protected against individual who may use others information to defraud the public or which we often called [16] IDENTITY THEFT. Identity theft is the assumption of a person’s identity in order, for instance, to obtain credit; to obtain credit cards from banks and retailers; to steal money from existing accounts; to rent apartments or storage units; to apply for loans; or to establish accounts using another’s name.

Since the numbers of consumers go online shopping and rely on the internet and other sources of electronic communication. There are a lot of dishonest people who uses the personal information of an individual to transact a business or to open a new credit card with false address and even uses the picture of the one whose identity id being theft.

It is very alarming when a popular individual identity is used in selling a product (as what I am saying a while ago, I’m an avid fan of online shops). Since they are known, public are easily interested in buying and not knowing that the account was faked. Here data privacy comes into play by penalizing the wrongdoer who uses the personal information of others in doing a wrongful act.

It also encourages people to help the nation in solving vital issues such as solving crimes. That people may not be afraid to tell everything they know and it is because of the data privacy act. The data privacy act helps protect the right of an individual against any government employee or private sector that will disclose their sensitive information to public.

One of the examples is the whistle blower. Whistle blowers will be given security as to not to know his personal information and will not be afraid that it will be disclose to public. Many witnesses are afraid to tell what they know and the reason behind it is that they are afraid that their families might have been in danger.

THE DOWNSIDE

The downside of the law maybe is that it is very broad. That it should lay down the punishable acts and that the penalties were so grave.


Endnotes

[1] Merriam Webster-definition of Data

[2] Black’s law dictionary- definition of privacy

[3] RA 10173 .personal information sec. 3 (g) Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual. (RA 10173)

[4] Data subject refers to an individual whose personal information is processed.(RA 10173, sec.3C)

[5] Functions of National Privacy Commission (RA 10173, Sec 7)

[6] Limitations of the scope of RA 10173 (Sec 4 A-G)

[7] Sec 5 of RA 10173. Protection Afforded to Journalists and Their Sources. – Nothing in this Act shall be construed as to have amended or repealed the provisions of Republic

[8] Act No. 53, which affords the publishers, editors or duly accredited reporters of any newspaper, magazine or periodical of general circulation protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.

[9] Penalties under RA 10173, sec. 25-37- chapter VIII

[10] Sec.16 of RA 10173- rights of the data subject

[11] A.M no. 08-1-16-SC

[12] art. 2 sec. 24 of the 1987 constitution

[13] art. 2 sec.3 of the 1987 constitution

[14] RA 4200

[15] Salcedo vs CA

[16] legal-dictionary.thefreedictionary.com


Is There Really a Need to Repeal RA 10175???

CYBERCRIME LAW OF 2012 (RA 10175) AND THE MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM (Senate Bill 3327).

In the fast pacing world today, information and technology became one of the factors why things come very easy. I am amazed, am sure you’ll agree, how technology plays a big role in our lives and how it evolved very fast from time to time. Every aspect of human life involves the use of technology such as in the field of studies, transportation, medical, widget, communication and the likes.

Communicating nowadays became very easy, unlike before where telegram is the only tool in communicating to our relatives in different side of the world which takes days or even months to receive. And for that, thanks to the one who discovered internet and to those people who formulated different programs in the computer that makes communicating very easy with just a span of a minute.

Hundreds, thousands or even millions of people uses computer every day or even every hour through their phones, ipod, ipad, android, laptop and the likes.

They are fund of surfing the net, opening their FB accounts to be updated with what’s happening to their friends and became one of the ways also to express their thoughts and feelings. Signing in with their twitter accounts to be aware with what’s happening to their favorite artist or with the one they’re following. Uploading pictures through the use of instgram where you can upload as many pictures as you want and to share it to the whole world.

I love how social media such as facebook touch everybody’s life. My heart melted whenever I browse my account and saw that everyone is trying to help in their own little ways, helping to spread the photo of a missing person, and eventually finding them.

But sometimes it can be the other way around. Sometimes or more often it can degrade or humiliate one’s own identity like the AMALAYER thing. It can be seen by a lot of people with just a span of a minute because of the internet. Anyone can easily utter or indict a person without first knowing the whole story.

Lots of people uses internet for different purposes such as in the business, online gaming, research, or as required by their jobs.

Online business or market has burgeoned in the recent years. Online shoppers or the netizens became very hooked in buying online because of its convenience. Almost every business today has their own sites. There you can find information about the said business, the products they are selling, the prices, location and the modes of payment.

Thus, use of computer together with internet became one of the hubbies of the generation today.

Though the use of internet became very useful, it has a dark side also. There can be a lot of crimes that can be committed like destroyings someone’s name or what we call internet libel, using one’s identity or identity theft, cybersex, pornorgraphy, terrorism through hacking one’s site and many more.

Therefore, we need a tough law to adopt with the fast changing world today because of the technology and the internet.

There has been a recent law which was passed last year and it is the cybercrime law of 2012 and here comes the senate Bill 3327 or the Magna Carta for Philippine Internet Freedom that was introduced by Senator Miriam Defensor-Santiago that was intended to repeal the former.

Let us discuss what SB 3327 and RA 10175 is all about and what are the prohibited acts in each law. After that we can now conclude whether the RA 10175 is lacking and if there is really a need to repeal RA 10175.

WHAT IS RA 10175?

Republic Act 10175 or what we known as Cybercrime Prevention Act of 2012 is an act defining cybercrime, providing for the prevention, investigation, suppression and the imposition of penalties therefor and for other purposes.

What is cyber? It refers to a computer network, the electronic medium in which online communication takes place. What is cybercrime? It is a crime involving the use of a computer, such as sabotaging or stealing electronically stored data (black’s law dictionary).

From the definition itself, this act aims to protect the rights of an individual against the harmful effect of using computer or any electronic medium.

It was the first law that was passed concerning issues that can be committed online.

Among the punishable acts are the offenses against confidentiality, integrity and availability of computer data and system. It prohibits the illegal access, illegal interference, data reference and any intentional or reckless alteration of the data without authority to do so.

It also prohibits the misuse of the devices which include the use, production, sale, procurement, distribution of a device, including the use of a computer program designed to commit an offense.

The law also reaffirms existing laws against child pornography, an offense under Republic Act No. 9779 (the Anti-Child Pornography Act of 2009), and libel, an offense under Section 377 of the Revised Penal Code of the Philippines, also criminalizing them when committed using a computer system.

Cyber squatting is also one of the punishable acts. It is an acquisition in bad faith intended to profit, mislead or destroy reputation of the person with similar name of the person or the registrant.

The other punishable acts are computer related fraud, forgery, libel.

The National Bureau of Investigation and the Philippine National Police is the one responsible for the efficient and effective implementation of this act. They organize a unit manned by specialized investigators who has expertise in the computer. The Department of Justice (DOJ) shall be responsible for assisting in investigations or proceedings concerning criminal offenses related to computer system or data, in collection of electronic evidence of criminal offense and in ensuring the provisions of the law are complied with.

The Regional Trial Court shall have jurisdiction over any violation of this act. Jurisdiction lie if any of the element of the crime is committed in the Philippines. There shall be a cybercrime court who will be manmed by judges who are trained in the cybercrime cases.

The punishment is fine or imprisonment and it will depend on what act is being violated.

>strong>WHAT IS SB 3327 or the Magna Carta for Philippine Internet Freedom?

It is an act establishing a Magna Carta for Philippine Internet Freedom, Cybercrime Prevention and Law Enforcement, Cyber defense and National Cyber security.

What is Magna Carta? Is a Latin word for “great charter” It is a document or piece of legislation that serves as a guarantee of basic rights.

The bill aims to protect the rights of an individual in the network or internet while acting on the cybercrimes.

It does not only protect the rights of an individual personal data in the cyber world but it also aims to use as cyber defense against cyber terrorism.

Senate Bill 3327 reaffirms states recognition of communication and information as a vital role in nation building. It guaranteed rights under the 1987 constitution and the privileges provided by the treaties and convention which the Philippines is a signatory.

The bill also aims to enable individuals, communities and people to achieve their potential in promoting their sustainable development and improving their quality of their lives. It guarantees full respect to human, civil and political aspects in crafting laws for the use of internet and information and communication technology.

The bill provides amendments to the AFP Modernization Act to ensure the country has weapons and defenses against cyber attacks by terrorists, violent non-state actors, and savage or enemy nation-states.

It mandates the Philippine National Police and the National Bureau of Investigation to combat cyber terrorism.

The bill also provides that if an act was performed through the use of device or equipment connected to the internet in violation of the Data Privacy Act, the Intellectual Property Code, Special protection of Children against Abuse, exploitation and determination, it will arise to a liability and the tortfeasor is liable.

The provision on libel in the Magna Carta was suggested to be a civil action and is punishable by a fine without imprisonment. The libel provision also provides for an exception. The following acts shall not constitute libel if it is an expression of protest against the government or dissatisfaction, an expression which is fair, true and done with good faith and the likes.

The one who is task to prosecute the prohibited acts is the Department of Justice. Within the Department of Justice, there will be an office created for treating cybercrimes, which shall be designated as the central authority in the enforcement of the act. The cyber court will have the exclusive and original jurisdiction of the case.

The bill also sets different jurisdiction. When one who commits the crime is outside the jurisdiction of the Philippines and involves a foreign state, group or individual, it will conform to the provision of an existing treaty or convention where the Philippines is a signatory.

IS THERE REALLY A NEED TO REPEAL OR TO AMEND REPUBLIC ACT 10175(the CYBERCRIME LAW of 2012)?

YES, there is really a need to repeal the Cybercrime Law of 2012 because of many reasons.

One of the reasons maybe is that RA10175 is very vague and over breadth and is lacking in some point.

As explained in the introductory note of Senator Miriam Santiago

“Although Philippine learned to harness ICT and the internet for good, the dark side of ICT and internet use has not been a stranger to our shore . . . . Over the years legislators have crafted measures to ensure the protection of the public such as the data privacy act, electronic commerce act. Unfortunately there remains legislation to but those acts must be updated to deal with the 21st century issues.”

Senator Santiago is correct that although there are lots of laws that protect the rights of an individual in the cyber world, there are still crimes that can be committed that are not included in the laws enumerated above.

It is true that there are a lot of crimes that can be committed through the use of internet and maybe Senate Bill 3327 satisfies what is lacking with RA 10175.

The second reason maybe is because it modernizes the Armed Forces of the Philippines.

I like how SB 3327 wants to modernize the Armed Forces of the Philippines (AFP). The AFP as the one who is leading or the first line on the external defense of the country needs to adopt to a more techie world.

The bill aims to gear the AFP with a tough team that has expertise in a cyber world. It also aims to develop among the AFP its cyber intelligence and cyber defense capabilities to enable them or detect when an individual, group or the state intercept or attempted, penetrate or cyber attack the Philippine Government.

Nowadays internet can be used as a tool to protest or used to threat the country. One of the recent examples is when some of the sites of the Philippine government, department or agencies are being hacked by Chinese to communicate their grievance regarding their claim on Scarborough shoal.

With this kind of situation SB 3327 provides an adequate step to defend our country. The bill aims to strenghten the power and scope of AFP as the leading defendor of the country against anyone who might attempt to destroy peace and harmony in the country.

The picture above is one of the examples why RA 10175 is to be repealed because it doesn’t contain any provision on how the government can solve this kind of problem.

The bill adheres to the state policies that renounces war as an instrument of national policy and adheres to the principle of peace, equality, justice, freedom, cooperation, and amity with all nations. The bill will strengthen the defense of the AFP against cyber terrorism or which is defined in the bill as Cyber defense. Only cyber defense and not cyber attack!

The third reason may be, why RA 10175 should be repeal is because of the libel provision.

Unlike RA 10175, the new bill specifically upholds the freedom of expression.

It allows netizens to express their thoughts and views on the internet provided that it does not disclose the name of a person he is referring. The cybercrime law specifically prohibits cyber libel unlike in the new bill it provides for an exception.

Internet libel is a public and malicious expression tending to cause dishonor, discredit, or contempt of a natural or juridical person, or to be blacken the memory of one who is dead, made on the Internet or network.

The libel provision of SB 3327 must be intentional to injure or there is malice for a libel to be punished. Libel shall not lie if it does not disclose the person he is referring except when the expressions is a protest against the government, or against foreign government, expression is fair and true and made in good faith.

The libel provision in the cybercrime law was a total prohibition of the right of the people to freedom of expression. Taking away the right to express their thoughts and views is like a total deprivation like what happened before during Martial Law.

How sad it can be if our right to freedom of expression is taken away. It is like a child who is deprived of candy and nothing to do but to cry. It is also like a mute and deaf that wants to speak but they can’t. All our lives we are allowed to free speech and I don’t know what it feels like to be taken away.

The libel provision on RA 10175 is punishable under the revised penal code while the libel provision provided in the Magna Carta for Philippine Internet Freedom will be punishable by a fine and it will be treated as a civil action.

Thus, another reason why RA 10175 should be repeal is because it contains provisions that are punishable by the revised penal code.

The electronic evidence rule (am no. 01-7-01-SC) applies only to civil action and proceedings, and to quasi-judicial and administrative cases. If this is the case, punishable act committed on libel under RA 10175 should not be patterned with the penalties prescribed in the Revised Penal Code for it to be admitted in court.

The RPC was made during the time when there was no internet or even computer. Therefore, for the evidence on libel to be admitted in the court it should be treated as civil action and eventually the electronic evidence rule will apply.

Sources:

http://www.gov.ph/2012/09/12/republic-act-no-10175/

http://www.gov.ph/2012/08/15/republic-act-no-10173/

http://legal-dictionary.thefreedictionary.com/cybercrime

Black’s law dictionary

http://www.chanrobles.com/rulesonelectronicevidence.htm

http://www.lawphil.net/statutes/repacts/ra2000/ra_8792_2000.html

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