SY 2012-2013, Second Semester
- RA 10173: How do it affects intimately to ordinary people??
- Is Senate Bill No. 3327 (Magna Carta For Philippine Internet Freedom) Better Than Republic Act No. 10175 (Cybercrime Prevention Act of 2012)?
This law is known as “The Data Privacy Act of 2012” is a special law protecting the individual personal information and communication system in the government and in the private sector. It is a new law passed recently in the Congress. I’m just asking myself what this is all about and how does it affects me or to other people such as in the recent video of “Amalayer” posted in the internet. Does the female commuter have the right of action against the people who posted her video in the internet?
The video spread everywhere on the net, like twitter, facebook and others. Different reactions are coming from people. Different versions of amalayer video were created. This is a question in my mind, how does this “Data Privacy Act of 2012” works to Amalayer? To wit:
SEC. 2. Declaration of Policy. – It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.
It is the policy of the state to protect the fundamental human right of privacy, so, where is the privacy of this “amalayer” the female commuter? My first question is, does her rights violated?
The scope of this “Data Privacy Act of 2012” doesn’t apply to all information. It has limitations. To wit:
SEC. 4. Scope. – This Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.
This Act does not apply to the following:
(a) Information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including:
(1) The fact that the individual is or was an officer or employee of the government institution;
(2) The title, business address and office telephone number of the individual;
(3) The classification, salary range and responsibilities of the position held by the individual; and
(4) The name of the individual on a document prepared by the individual in the course of employment with the government;
(b) Information about an individual who is or was performing service under contract for a government institution that relates to the services performed, including the terms of the contract, and the name of the individual given in the course of the performance of those services;
(c) Information relating to any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit;
(d) Personal information processed for journalistic, artistic, literary or research purposes;
(e) Information necessary in order to carry out the functions of public authority which includes the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. Nothing in this Act shall be construed as to have amended or repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No. 9510, otherwise known as the Credit Information System Act (CISA);
(f) Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and
(g) Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines
This Act has an extraterritorial application if the act, practice or processing relates to personal information about a Philippine citizen or a resident and the entity has a link with the Philippines, and the entity is processing personal information in the Philippines or even if the processing is outside the Philippines as long as it is about Philippine citizens or residents.
How this law affects to ordinary people? Does will affect it positively or negatively? What about if another Amalayer (the data subject) will comes in? Will he or she have right of actions that are available? And if he has, will he just be sleep with his right?
My second question is, was the manner of capturing and propagating of the video acceptable? The scenario was apparent that Amalayer (data subject) has no idea that somebody is capturing a video on her. Many accounts were created and people assumed that the owner of that accounts were Amalayer making it appear that data subject is in conspiracy with that scenario.
SEC. 12. Criteria for Lawful Processing of Personal Information. – The processing of personal information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:
(a) The data subject has given his or her consent;
(b) The processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract;
(c) The processing is necessary for compliance with a legal obligation to which the personal information controller is subject;
(d) The processing is necessary to protect vitally important interests of the data subject, including life and health;
(e) The processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or
(f) The processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.
My third question, is that the famous video of Amalayer a violation of “Data Privacy Act of 2012?
Reviewing the rights of the data subject? Does Amalayer exercised it? Are the provisions of law applicable to him? To wit:
SEC. 16. Rights of the Data Subject. – The data subject is entitled to:
(a) Be informed whether personal information pertaining to him or her shall be, are being or have been processed;
(b) Be furnished the information indicated hereunder before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity:
(1) Description of the personal information to be entered into the system;
(2) Purposes for which they are being or are to be processed;
(3) Scope and method of the personal information processing;
(4) The recipients or classes of recipients to whom they are or may be disclosed;
(5) Methods utilized for automated access, if the same is allowed by the data subject, and the extent to which such access is authorized;
(6) The identity and contact details of the personal information controller or its representative;
(7) The period for which the information will be stored; and
(8) The existence of their rights, i.e., to access, correction, as well as the right to lodge a complaint before the Commission.
How safe our country nowadays? Technology is everywhere. It keeps on improving everyday. It is easy to capture a memory and upload in a minute. Are there laws that fully protecting the rights of people like amalayer? If there is, is it working and properly implemented or it is just legibly written?
“ Justice and power must be brought together, so that whatever is just may be powerful, and whatever is powerful may be just”
The advent of computers and the World Wide Web have great impact in the society in making the lives of computer users easy as compared to their lives without the presence of computers in performing everyday tasks in their respective works and at home. One computer user must not question the power of a single mouse click or even a tap on the screen can make or go beyond.
It is better to have this type of technology introduced to the present society but as a responsible user, it is better to understand and analyze the advantages of this. Likewise, disadvantages must not be ignored. Careful analysis and assessment of disadvantages of using a particular technology should be given high importance.
Social media is a phrase being used around a lot these days, but it can sometimes be difficult to answer the question of what really a social media is. Media is an instrument on communication, like a newspaper or a radio, so social media would be a social instrument of communication. Majority of the netizens (computer users) found social media very helpful and advantageous.
Definitely because, social media was used to get in touch with our family, teachers/mentors, classmates, officemates and long lost friends. Since it cannot be avoided to be separated from the group of persons that been mentioned by physical distance, through technology we are able to know information about them and be updated on the current news about them and vice versa.
At present, disseminating information became very easy as compared before. A single tweet from Twitter account, post from Facebook account and other post on different social media channels may reach a long way and might create several comments from the receiver. Thus, ethical consequences were highlighted due to the fact that it might lead to the spread of misinformation that may be perceived as fact, the risk of identity theft and cyber-bullying.
In the Philippines, the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) was passed into law last September 12, 2012. The said law aims to provide punishment for certain cybercrime offenses (Section 4, RA 10175). However, the law does not have wide acceptance from Filipinos. Law experts and legislators, and academicians find the law flawed and unconstitutional. The said law allegedly violates the rights guaranteed by the 1987 Constitution to all Filipino citizens such as the freedom of expression, due process, equal protection of the law, double jeopardy and prohibition on illegal seizure.
As the issue was tackled from social media and media (newspapers, radio and television) everyday, some put blame to Senator who prior to the enactment of the law suffered cyber-bullying. Flood of protests against the law became evident nationwide. To add more clamor to the issue, a temporary restraining order (TRO) was issued by the Supreme Court on October 9, 2012 against the Cybercrime Prevention Act or Republic Act 10175. The TRO suspends the law in its entirety for a period of one hundred twenty (120) days.
Although R.A. 10175 does criminalize some acts that are indeed criminalizable, it does so in such a vague way that anything can be caught in its net and called a cybercrime.
The following were the disadvantages of R.A. 10175:
One of the most bothersome parts of the bill is section 19, which states that “Restricting or Blocking Access to Computer Data — when a computer data is prima facie found to be in violation of the provisions of this act, the Department of Justice (DOJ) shall issue an order to restrict or block access to such computer data.” What that means is that if anything you have posted looks like it is in violation of this act, the DOJ can issue an order to restrict or block access to your data. It looks like DOJ don’t need a warrant, they don’t need a court order.
Secondly, the insertion of the provisions of libel into the new law is among the things that poses danger to all internet and social media users. Under the present law, a person found printing or uttering libelous words against another person may be meted 4 to 6 years imprisonment while under the Cybercrime bill, those who post libelous comments through blogs and social media may be imprisoned for at least 12 years. Under the present law, a person can file libel charges against another person in the area where he or she had read the printed material or heard derogatory statements against him or her. It was not however, clarified if that will also be applicable to cyber crimes.
Thirdly, the National Bureau of Investigation, the Criminal Investigation and Detection Group or other intelligence units can get access to a person’s social network accounts and email contents. Some legislators admitted that they were not able to scrutinize the cyber crime bill well before it was passed Congress because of the bulk of resolutions they needed to attend to.
Lastly, aside from libelous statements posted in Internet blogs and social networks, the cybercrime law also aims to put a stop to cybersex, child pornography, cybersquatting, identity theft and unsolicited commercial communications.
As the issue became bigger, on November 12, 2012, Senator Miriam Defensor-Santiago filed the Magna Carta for Philippine Internet Freedom (Senate Bill 3327) and seeks to replace the controversial Cybercrime Prevention Act (RA 10175). According to the Lady Senator, Senate Bill 3327 addressed the deficiencies of RA 10175 and would protect the rights and freedoms of netizens while defining and penalizing cybercrimes.
Senator Miriam Defensor-Santiago has filed a bill crafting a Magna Carta for Philippine Internet Freedom (MCPIF) that would replace the recently enacted but still controversial Republic Act No. 10175, or the Cybercrime Prevention Act of 2012. Santiago’s Senate Bill No. 3327, that would repeal RA 10175, appears to be a more comprehensive measure providing not just prohibited acts and stiff penalties but also guarantees the rights and protection of Internet users in the country. While it provides for the freedom of speech and expression on the Internet, it also penalizes Internet libel and hate speech. While it protects the Internet as an open network, it provides stiff jail penalties and fines for such cybercrimes as hacking, cracking and phishing.
Is Senate Bill 3327 better than RA 10175?
Section 3 (Definition of Terms) of Senate Bill 3327 provides a more detailed and specific definition of the terms relating to such Cybercrime offenses. It specifically states that, whenever possible, the definition of terms relating to cybercrime shall be adopted from those established by the International Telecommunications Union (ITU), the Internet Engineering Task Force (IETF), the World Wide Web Consortium (WWWC), and the Internet Corporation for Assigned Numbers and Names (ICANN), and other international and transnational agencies governing the development, use, and standardization of information and communications technology and the Internet. Unlike the vague definitions provided Section 3 (Definition of Terms) of RA 10175, the definition of terms provided by Senate Bill 3327 is more specific and clearly states that it follows the international standard definition used.
Likewise, the Senate Bill 3327 discussed the most questioned provision of RA 10175, which is classifying online libel as a criminal act (Section 4 par.4, RA 10175). The libel provision provided in RA 10175 (Section 6) seems to be encompassing as it embraces the definition provided in Article 355 of the Revised Penal Code with the only qualification that it be committed online. Senate Bill 3327 defined Internet Libel as “a public and malicious expression tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, made on the Internet or on public networks.”(Section 33, A.1) It specifically requires malice to be present (A.2) and requires that the subject can be clearly identifies (A.3). Looking back, at all-encompassing definition provided in RA 10175, blind items usually used to discuss certain social personalities and/or political figures as a form of entertainment may be embraced. Furthermore, Senate Bill 3327, Section 33, A.4 assures the freedom of speech by providing expression of protest, dissatisfaction, true report made in good faith as well as expression intended to remain private between certain persons be exempted to constitute as online libel. This provision ensures protection to netizens particularly personal bloggers who use the internet as a platform to vent their feelings and opinions.
RA 10175 also provided an all-encompassing definition of Child Pornography. Section 4 (c)(2) provided the definition of Child Pornography given Section 4 (j) of RA 9775 (Anti-Child Pornography Act of 2009). The only qualification provided is the access any form of child pornography THROUGH A COMPUTER SYSTEM. Through the words used in RA 10175, it can be interpreted that as long as one clicked, posted or sent a video containing child pornography materials without any prior knowledge of its content may be held liable. Viruses and spam links are common these days. Some of it automatically posts contents on your social networking sites or sends private messages to your personal contacts. In case these spam links and viruses contained what should qualify as child pornography. The person who opened may be held liable under RA 10175. The owner of the an email address, social networking site or personal website may also be liable if he/she happened to be a victim of spam contents/viruses containing materials defined as child pornography. On the otherhand, Senate Bill 3327 seeks to amend Sections 4 (e) and (f) of the Anti-Child Pornography Act of 2009 (RA 9775). Section 33, C.2(e) and C.5 of Senate Bill 3327 requires prior knowledge and intention of the person in posting/publishing child pornography materials in the internet.
Senate Bill 3327 also provides greater protection against illegal searches and seizures which is guaranteed under Section 2, Article III of the 1987 Constitution. Section 19 of RA 10175 authorizes the Department of Justice to issue an order to restrict access to computer data which is found to be prima facie in violation of the Cybercrime Prevention Act of 2012. Senator Miriam Defensor-Santiago calls such provision as “take-down clause” and claims that it is a dangerous provision wherein the government through its’ acknowledged agency may cause a certain website blocked or restricted without due process of law.
The said provision is not included in Senate Bill 3327 as it is considered a violation of a right guaranteed by the Constitution.
Under Section 28 of Senate Bill 3327, a final ruling from the courts, issued following due notice and hearing should first be obtained before any person may seize data, information, or contents of a device, storage medium, network equipment, or physical plant, or seize any device, storage medium, network equipment, or physical plant connected to the Internet or to telecommunications networks of another, or to gain possession or control of the intellectual property published on the Internet or on public networks of another.
Unlike RA 10175, Senate Bill 3327 (Section 29) includes a stricter and detailed law against copyright infringement. Senate Bill 3327 assures the greater availability of free information on the internet and protection to property rights by providing a specific definition of online piracy. File sharing is one aspect that makes access to internet useful. Senate Bill 3327 fills what RA 10175 fails to provide, regulating the internet to ensure protection of intellectual property rights without violating individual freedoms to data access.
Another defect of RA 10175are Section 6 and Section 7 which many considers as a violation of the constitutional right against double jeopardy. A person charged under RA 10175 for online libel may still be charged the Revised Penal Code for libel even a single act was only committed.
While RA 10175 seems to be a promising law, a closer look at its provisions shows certain flaws which are tantamount to violations of certain rights guaranteed by the 1987 Constitution such as due process, equal protection of the law, double jeopardy and prohibition on illegal seizure. I agree that certain rights may be regulated for the greater protection of the society however, RA 10175 seems to be an all-encompassing law. Many of the terms provided in the said law are vague and susceptible to various interpretations. Although the advocates of RA 10175 claims that these “holes” may be filled up by its Implementing Rules and Regulations I believe that the Magna Carta for Philippine Internet Freedom (Senate Bill 3327) filed by Senator Miriam Santiago would be a better law.
It is indeed a fact that we need a strong law to crack down cybercrimes. We need it to prevent our country to be used by some as their hub for cyber-crimes. Our country is currently experiencing economic growth because of Information and Communications Technology (ICT) and we want to keep it up. Senate Bill 3327 provided solutions to the unconstitutional provisions of RA 10175. The bill also provide a detailed definition of what constitute a certain cybercrime act as oppose to the vague definitions on RA 10175.
The Supreme Court of the Philippines is set to hear oral arguments on the Cybercrime Prevention Act of 2012. The court will hear it on 20th of January 2013. If you would recall the high court issued a temporary restraining order for 120 days, after 15 petitions were filed before it, mostly seeking in one way or another the scrapping of the law or provisions of the law.
Much of the present government’s argument states that we need this law to fight cybercrime. Many of the arguments of pro-cybercrime law argued that without this law, government cannot do their job. Anti-Child Pornography and trafficking laws exist in the Philippines even prior to the Cybercrime Law. Libel likewise exists. Many of the actors supposedly hurt by attacks like being cyberbullied, are hardly cybercrimes— but egos bruised. And much of the propaganda on the Internet is a battle for publishing that has been in play since the printing press began and is no different today, except for the broader audience. What doesn’t exist and still won’t exist even if the cybercrime law is deemed constitutional is a national policy to actually thwart cybercrime, as well as a national cyberwarfare policy.
The truth of the matter is that fighting real cybercrime— cracking, copyright infringement, child pornography, privacy, espionage, financial theft are cross-boarder crimes were necessary. It requires finesse, and technology, and requires that actors— whether nation-states or non-state ones are on the network. The need technology, and people with unique skills from developers to network and systems administrators, and everything in between, including social engineering.
The Magna Carta for Philippine Internet Freedom is a broad, first step towards that goal. Simply, this proposed measure filed by Senator Miriam Santiago in the Senate hopes to address the shortcomings of the Cybercrime Law, and lays the foundation for real strategy for Philippine Cyberpolicy. It takes into consideration people’s rights, and from there grows to fight cybercrime, enact cyberdefense, lays the foundation for modernizing Philippine telecommunications and sets the tone for using the Internet as instrument of Philippine economic development. It is the answer to the Philippine government’s need for real cybercrime initiative by setting the right tone and voice. It lays the foundation for cyberdefense— which the world is fast moving. It sets the direction for modernizing Philippine telecommunications— like have you ever been pissed off at the Internet speed in the Philippines? The MCPIF takes a holistic approach to this.
The Magna Carta for Philippine Internet Freedom is meant to be a fair, and equitable law that balances rights, development, defense and economics. “Recognizing that the growth of the Internet and information and communications technologies are vital to the development and flourishing of an “information society,” where anyone can create, access, utilize and share information and knowledge, and thus enable individuals, communities and peoples to achieve their full potential in promoting their sustainable development and improving their quality of life, the State reaffirms its commitment to the full respect for human, civil, and political rights and the dignity of every human person, and shall guarantee the same in the crafting of laws and regulations governing the use of the Internet and of information and communications technology.”