Abucejo, Vincent Tito

SY 2012-2013, Second Semester


Cyber Crime Law: Bad News or Good News?

R.A.10175 otherwise known as the “Cybercrime Prevention Act of 2012” is both a good news and a bad news for us. The good news is that this act introduces penalties to acts in violation of certain rights which were otherwise not sanctioned by fines or penalties. The bad news, however, is that most of us, if not all, cannot fully understand how this act would affect the cyberworld – and eventually our transactions and activities in the internet. Is regulation of the cyberspace for good? Or is it not? Is the “Libel Provision” proper? Or is it merely politicized? The only way to know and understand the meaning of this law is no less than seeing such law in the legal perspective and not in anything else.

The Cybercrime Prevention Act ought to penalize crimes in the cyberspace which were otherwise outside the realm of our penal and special laws. Most of the cybercrime offenses enumerated under section 4 of this law are acts which are deemed as crimes in the international concept, but are not covered by penal sanctions under our jurisdiction prior to the enactment of this law. This implies that while foreign states discourage said acts by imposing penal sanctions, our government likewise do not encourage the commission of said acts but without however putting a teeth to these words. The advent of this law is a leap of security and protection for what was then an unconquered space. The growth of technology encourages more and more transactions to be done in the cyberworld. What was then a transaction only possible in the real world can now be conveniently performed with just a click of a button. The apparent growth of social media and communication in the internet, just like in the real world, is prone to abuse and misuse. This is where the good news, courtesy of this law, comes in. Imagine having your school ID stolen and the security guard refuses to let you enter the school building because of his long time moto: “no ID, no entry”; like when someone steal or change your password in your personal email and there’s no way you could access your own mail again. How about being annoyed by irrelevant, deceiving and unsolicited commercials waiting that you’d eventually press the button and buy something from them, or clicking a link which will eventually hack or virus your computer. Would it be tolerable for you to take these matters sitting down with the hope that a lightning would eventually strike unto the culprit, or would you take action and implore the aid of our laws? If you’d choose the latter, then this cybercrime prevention law is good news for you but if you’re the culprit who enjoys spreading injustice in the cyberspace, then it’s not unusual if you’ll hack government sites and ask that the law be trashed in its entirety.

Yet, if this law is good news for us, why was it bombarded by protests and criticisms after its enactment? The law, among others, is seen as a curtailment of the freedom we long enjoyed and got accustomed with when dealing with the cyberspace. But aren’t these fears of conquer and curtailment merely a product of speculation? Take for instance the process before a search or seizure could be validly conducted under this law. Similar process or condition to that of any other crimes is required and observed. Under section 12 of R.A. 10175, (last paragraph thereof) a judge, like any other crime, must determine personally whether there is a probable cause before a warrant to search or seize a computer or devise may be taken effect. Nothing in this process could excite our mind to think of any conspiracy or whatever there is we see on T.V. because of three things. First, our government just can’t afford a computer like that in the movie “Eagle Eye” who could be very capable of monitoring every piece of activity we have. Second, it still abides with the rule of law through proper determination and supervision by our courts in the proper conduct of search, seizures and arrests. Third, the purpose of the law is to regulate the cyberspace and not for take over. Aren’t those hackers and identity thieves in the internet more troublesome than this law is? Cybercriminals have nothing to loose and no where to divulge because they either fear no sanction or are confident enough that there tracks are no where to be followed due to absence of a body regulating and overseeing the same.

In the past few years, we’ve seen several reports on cybersex dens and rampant child pornographies in the country. Yet again, we still see or hear reports of continuous operations of police officers against cybersex dens who are mostly financed or manned by foreign nationals. The full efforts of our PNP against these illegal establishments are deemed inutile due to the fact that no adequate law punishes this crime. Criminals manning these dens may easily re-establish and re-locate its facilities because the fangs of the law were not strong enough to completely terminate their operation. A proof to this effect is apparent on papers where, despite continuous police operations, more and more cybersex dens were apprehended and discovered even up to date. Moreover, the people behind these dens call more reason for alarm. Majority of these people manning these dens are foreign nationals. A reasonable man could easily be asking the question as to why would a foreign national choose to invest such business in the country as compared to the rest of the countries. Hmmmmmnnn(brief moment of silence), a simple rule on tourism dictate that if the country and the people are business friendly, investors are more likely to come for business. This could then be the reason why foreign nationals love to put up their sex dens in our country because this country is healthy for their business in two ways. First, there is no fear for sanction because our cyberspace is the epitome of freedom. Second, they can easily exploit our poor people who are in dire need of money. We could then recall that, before the cyberspace had been exploited by this type of business, there was first the sex den. This type of business was likewise manned by some foreign nationals and a few influential locals, but due to business reverses resulting from raids, tongpats and bail bonds, some chooses to re-invent and hence come cybersex dens. What an innovation and what a discovery there is from clever and business minds. In this case, if criminals can reinovate their illegal business, why can’t the law do the same? White Slave Trade under Article 341 of the Revised Penal Code which, among others, punishes the maintenance of sex dens falls short to include maintenance of cybersex dens within its punishable acts. R.A. 10175 therefore is relevant in this matter as it expressly punishes what the Revised Penal Code failed to punish. Good news once again not specifically for your private interest, but for the general public. Bear in mind that child pornography is one of the outcome of cybersex dens. Children are more likely to land on cyber dens than they are on beerhouses as white slaves. The convenience of not being known to customers where the den is situated repels the danger of having a minor sex worker who, in the eyes of the law, is so favored and protected. This very nature of a cyber den gave the basis why a higher penalty is imposed on child pornography under R.A. 10175 as compared to R.A. 9775 or the Anti-Child Pornography Act of 2009.

The abovementioned crimes such as child pornography, cybersex, computer hacking, computer-related indentity theft, or unsolicited commercial communications are easily identified as crimes either because other jurisdiction treat them as such, or that our conscience dictates that these are wrongful acts. However, there is a provision of this law that would mostly raise eyebrows and which stand between the thin lines of what is right and what is wrong. This is the provision which, in the eyes of the netizens, is most likely susceptible for abuse and curtailment our constitutional right to free speech. In particular, the inclusion of libel as a punishable actunder the law brought about numerous objections and speculations as to how said provision reached the corners of R.A. 10175. Every person seems to have his own view as to how libel, which is a felony, reached the territories of special laws. The president, senators, lawyers, media, bloggers or even common users of facebook and twitters have their own view on this matter. But these views may be summarized in two aspects – the Political and Legal aspect.

First aspect of how people rationalize libel under RA 10175 is by looking at the political antecedents before this Cybercrime Prevention Act was even considered as a law. We recall that the Cybercrime Bill quickly became a law faster than RH Bill and any other bill in the congress that time. The nearest political antecedent linked in the quick passage of the law was, if I recall it right, the issue of plagiarism against a senator. There seemed to be a magnetic attraction between this senator and the bill that people ought to blame Mr. Senator why libel was inserted in the final draft of the bill – even the author of the bill could not explain how libel got into his bill. People seem to be convinced that the bill was passed in aid of a bullied senator – but did this kind of thing already occur then? P.D. 1866 or our law against Illegal possession of Firearms and Explosives possess a deep secret as revealed by a law professor and a retired judge. The professor judge relayed that under P.D. 1866, if a person is apprehended in possession of an illegal or unlicensed firearm, he is liable under the law and will suffer the penalty as prescribed therein. But if said person was apprehended in possession of said illegal or unlicensed firearm while committing a crime (say, alarms and scandal under Article 155 of the Revised Penal Code) the crime of illegal possession is absorbed by the crime of alarms and scandal, and the penalty prescribed by the latter crime shall be the only penalty imposed irrespective of the penalty under P.D. 1866. Problem then, the professor added, is that the penalty imposed under alarms and scandal is lower than that imposed in P.D. 1866. Now then, a malefactor can easily evade a higher penalty in case of violation of P.D. 1866 by merely firing his gun to commit alarms and scandal. How could our legislators have missed this point? Speculations then arouse that P.D. 1866 was passed in aid of a bad boy actor who was apprehended for illegal possession of firearms. Whether this was true or not is unconfirmed, but the point being, how could the same speculation arise ones again; where a law is sponsored and passed by the congress for a special benefit to certain individuals. Whether intentional or accidental, one point is clear – enactment of law is a political act. It depends solely on the initiative of our legislatures, lobbyists and political demand. People may ask: “isn’t it that the people are the sovereign of a State?” How could these types of laws then withstand against public clamor? Despite constant battle against the libel provision inside and outside court houses, netizens and law makers still fail to meet to an agreement as to this point. But what is really the source of the public clamor to remove libel from the law, if not declaring the law unconstitutional in its entirety? Is it the fact that the credibility of the law was tainted and doubted because of the political antecedents prior to its enactment? Or is it the fact that adding libel to the equation creates an apparent treat to our exercise of freedom of speech?

Libel under R.A. 10175 is a different breed to that of libel under Article 353 of the Revised Penal Code. The former imposes a penalty, one degree higher than that imposed under Article 353. What was then punishable by imprisonment from six (6) months and one (1) day to four (4) years and two (2) months, is now raised to one degree higher or up to twelve years (12) of imprisonment. The deterrence of the law seem to be very efficient to the point that during its enactment, a lot of people feared posting comments and consciously add disclaimers to their posts for fear of imprisonment. Furthermore, Section 5(a) of the law also punishes those who aid or abet in the commission of libel. Hence, a person who likes, tweet, comment, re-post or share a libelous article is liable under this law. On a brief thought, if a netizen, when posting, sharing, liking, commenting or tweeting is always in danger of violating the law, isn’t this a constructive deprivation of our right to speech? Does this mean that I am now restricted to criticize public officials in the cyberspace where it is convenient to air sentiments and people have easy access to it? The author of the law, Senator Edgardo J. Angara himself, posits part of the answer to the question. In his article in Manila Bulletin [1], Sen. Angara opined: “The provision met stiff opposition, which I believe stems from misunderstanding. Every day, in newspapers and television, journalists speak their minds, even against particular people, practices, or establishments. They have not been jailed for doing so; the right to express our opinions is enshrined in the Philippine Constitution. Neither will they be jailed for doing likewise on the Internet.” he further added by saying: “The law does not in any way stifle the right to freedom of expression. Rather, it protects citizens and expands the scope of that right. Both the Constitution and common sense tell us that the protection of free speech and free press does not extend to malicious falsehood against one’s person or reputation.” In other words, why fear for the sanctions when you will not commit any violation. Those who fear punishments from the law are only criminals because there actions are not warranted by the Constitution; but those who do no wrong can always take shield from our laws. This is where the bad news is; we raised our voices first before we could ever take time understanding the situation. The bad news is not the fact that libel was inserted as a penal provision of R.A. 10175, but it’s our misunderstanding of the reasons and implications of such provision. Our view on the law then cannot be complete without looking at its legal aspect, for a law is to be understood in the legal aspect, as it is supposed to be, and nothing else.

Since R.A. 10175 made reference of libel in relation to the provision under the Revised Penal Code, the former libel is to be understood in the concept of a felony under Article 353 of the Revised Penal Code. Under Article 353, libel has the following elements: (1) There must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or, circumstance; (2) The imputation must be made publicly; (3) It must be malicious; (4) The imputation must tend to cause the dishonor, discredit or contempt of the person defamed. Among the elements abovementioned, malice (under the 3rd element) is the hardest to prove because in the case of People vs. Andrada [2], the malice or ill-will must be proved by clear and convincing evidence. There must be a proof of actual malice before a statement is considered libelous or that such statement must show injury or damage against the victim. Having said this, one does not have to be a law student in order to understand a malicious or injurious commentary. The implication brought about by the provision on libel is not a threat to freedom of speech or the press because, as opined by Sen. Angara, libelous words are not covered by free speech or the press. The Constitution did not in any way intended to enshrine in the bill of rights the freedom of the press so that men can tell untruthful stories against someone else, nor does free speech warrant total freedom of all words we utter. Our Philippine Bill of Rights under Article III of the 1987 Constitution, particularly the freedom of expression is borrowed from the Constitution of the United States of America. In the debate of the Madison’s version of speech and press clause, Madison revealed the intent of the clause which is: “To punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.” [3] Hence, if libel as a felony was accepted as a just and proper law by the people, why can’t we accept it to cover the cyberspace? Due to fast development of our technology, every single person (with proper qualification or none) becomes a critic in his own title. Worst, opinions, nowadays, whether correct or not, are much more futile when shown in the Internet. Imagine the vast users in the cyberspace and how one could easily convey information? It’s basically talking to the whole world with just your fingertips. Can we understand the standard of care required from us every time we seat behind that screen or write a comment, post or like the same? This were ones the very reason for the enactment of libel as a felony. Now that it re-innovates itself, is there a cause for alarm? Should we panic and be mad because there’s a special law prescribing a higher penalty on this crime that what it used to be? Imagine how hard it is to track down a comment down from its source when all you can see are nicknames of real users of mails, blogs or accounts. If libel is brought back to its original penalty for those committed in the cyberspace, will it deter people to stop committing this crime? We must understand that it is mostly the unknown which begets fear. Given proper time to understand this law, would our view to this provision and ultimately this law change? Why not wait for the implementing law, or better yet, participate in the drafting of the implementing rules so that our sentiments and doubts may be aired and clarified. The purpose of forming a State is to afford protection for its people by regulating the dealing between one another. If we therefore hate that the State is doing its job, or that we hate being regulated, why not dissolve this State and let’s govern ourselves independently. The only impact that this law have on us is that it sets boundaries and standards of our conduct in the cyberspace; the rest is on us to take. Ultimately, we are still free to do as we please, only that we are just reminded of how a civilized man (as expected from a subject of a State) should conduct one’s self.


Endnotes

[1] Page 11 of Views – Features Section, Published on Sunday, October 7, 2012

[2] C.A., 37 O.G. 1783 as cited in Criminal Law: Book II of Luis B. Reyes, 17th Edition

[3] W. BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND 151-52 (http://www.chanrobles.com/usa/us_supremecourt/constitution/amendment-01/20-freedom-of-expression.php) last access; December, 8, 2012


The Quest to the Cyber World: A Journey to Regulation of the Cyber Space

During the advent of R.A. 10175 (The Cybercrime Prevention Act of 2012), many hate protests and comments were thrown although some opined that the law is a leap to regulate the cyberspace. We note that prior to R.A. 10175, we already have R.A. 10173 (Data Privacy Act) and R.A. 8792 (Electronic Commerce Act of 2000) as our cyber laws. Yet, the quest for an effective cyber law goes on. There seem to be a thirst for a clear-tight rule which would govern the conduct in the cyberspace. R.A. 10175 was supposed to address the issue but it fall short towards peoples acceptability. What could have caused the bitter acceptability of this cyber law? At present, are we still discontented with our cyber laws that we still seek a better law on the matter? In this case, is Senate Bill Number 3327 otherwise known as The Magna Carta for Philippine Internet Freedom, the current would-be cyber law of the land, a better law than our recently approved cyber laws? S.B. 3327 seeks to repeal R.A. 10175 in toto and barely seek amendment of certain provisions of R.A. 10173 and R.A. 8792. Hence, in the course of this discussion, comparison of the bill is focused against R.A. 10175 since amendments under R.A. 10173 and R.A. 8792 are only for penalty purposes and some trivial matters.

S.B. 3327 is a bill sponsored by Senator Miriam Defensor-Santiago which ought to address the inadequacy of our present laws to cover certain acts in the cyberspace which if committed in the real world the same could constitute a crime or abuse of right. At glace, S.B. 3327 is more numerous in page compared to the past approved cyber laws (although along the process, said bill may be subjected to revisions which would eventually lessen its page number). Yet we cannot help but wonder whether this page numbers mean at all? R.A. 10175 was bitterly accepted due to its all encompassing provisions which permit several interpretations and covers acts which either appears to infringe private rights or raise people’s eyebrows and cause scratchy heads due to poor construction and/or express specification. Likewise, R.A. 8792 and R.A. 10173 were deemed inutile either for failure to include criminal cases on the admissibility of electronic evidence or for failure to be extensive, clear, and specific in the coverage of acts ought to be penalized in the cyberspace. Clashing sentiments for individual freedom in the Internet and for protection and security connive as one to create a chaotic battle ground for heated arguments. Yet at the heart of all this, we can see the face of the cyber law we seek: that which uphold individual right, define duties and protect from abuses committed in the cyberspace. Hence, in the course of the comparison, the discussion will revolve around three things: (1) whether the law promotes Internet freedom and use; (2) whether rights and duties of parties involved are clearly defined; and (3) whether there is proper regulation and implementation.

Promotion of Internet Freedom and Use

R.A. 10175 as a whole is a litany of all punishable acts committed in the Internet without however defining rights and protected expressions of an internet user. It seeks to define directly the punishable acts without further elaborating on the exceptions under said penal provisions. On the other hand, S.B. 3327 started by expressly stating under chapter III, section 4 that the State shall, within its jurisdiction, protects and promote the Internet as an open network. This, in impression is an express declaration from the law that the cyberspace remains to be a private aspect of communication and interaction by an individual and is thereby protected by privacy and no less than the constitution. By so stating, an express mandate and commitment to uphold the same is established unlike from a mere litany of penalties without air tight definition as to its proper goal – which is to uphold freedom and protection in the cyberspace. Furthermore, the law, in so phrasing, has already provided a clear guideline on how the law will be enforced and implemented by public officers unlike the confusingly worded section 12[1] of R.A. 10175 which, although state a requirement of a court order, has limited the same for collection, seizure or disclosure but not to the determination of due cause for such collection, seizure or disclosure and restriction or denial of access to the Internet. Whereas, section 6 paragraph 2 of S.B. 3327 expressly state that no person shall be restricted or denied access to the Internet without an order. The bill further added in section 6 the requirement of a NOTICE & HEARING before an order may be issued which R.A. 10175 failed to mention. The omission of an express mention of determination of DUE CAUSE under section 12 of R.A. 10175 is relevant in the upholding of property rights and privacy of an internet user which by the way was not even mentioned by the law to be in existent. Section 7, paragraph 1 of the bill expressly mentioned that the State shall, within its jurisdiction, protect the right of a person to gain or attain privileged access or control over any device over which the person has property rights. This in turn serves as a recognition of private and property rights of an individual which may not be infringed into even by the government without having complied with the requirements of our law for searches and seizure and most specially the determination of due cause for said government action. This again, was poorly addressed by R.A. 10175. Section 8 on Right to Freedom of Speech and Expression of the bill ought now to remedy the cause of bitterness by the public towards R.A. 10175 which, by way of observation in the cyberspace from blogs, comments, and tweets, was viewed to be a suppression of our Internet freedom for expression and use. In fair, R.A. 10175 never intended martial law in the cyberspace, yet it definitely failed to state such intention. The lack of defining the mitts and bounds of implementing said penalties and exercise of police power in the cyberspace were deemed futile to achieve the real purpose of the law. The unclear statements on certain provisions of the law seemed to have cloaked its spirit and basically put its completion towards administrative hands whose job, although to a certain degree authorizes the making of rules on its manner of implementation, could not warrant none deviation to the real spirit of the law as the law itself has failed to make its instructions clear. Furthermore, the law cannot effectively survive by mere Implementing Rules alone as judicial scrutiny could very well kill the discretions given to administrative officials in the implementation of the law brought about by its unclear and unspecific orders embodied in the very core of its provisions. It is note worthy that under our law, an administrative agency is not vested with the law making power but merely assists in the implementation of laws providing sanctions and defining rights which the Congress themselves must clearly supply. In this juncture, it can be said that this bill has a better hand. The provision on freedom of speech and expression has made FAIR USE WITHOUT SANCTION possible as the law clearly stated what it ought to protect and uphold. Unlike the negative way of defining an act by exclusion to those expressly mentioned punishable acts – as adopted by R.A. 10175, this bill started with the basic way of determining an act as a right before dwelling on prohibitions. In this way, an individual is properly appraised both his right and the States dedication of protecting them before dealing with abuses of rights because our basic rights are vested naturally and should not be made dependent on what is excluded as punishable since what is punishable is merely dependent on the same right which in the eyes of the law is abused and is in demand for justice. Right to privacy and security of data under sections 10 and 11 of the bill could very well be inutile if protection is not given to fair use and freedom to innovate and create without permission – under R.A. 10175, there was still no mention of this. Based on the sentiments of most Internet users during the passage of R.A., 10175, a common fear of Internet use and expression was felt by netizens. This was a result by the fact that the law defined fair use as to depend on what is excluded by the punishable acts it impose. In effect, it created a massive block out as to what Internet act is punishable and what is not.

Definition of Rights and Duties of Parties

Another key feature of S.B. 3327 is that it increases accountability by Internet providers to their consumers and the public by providing for rules on third party disclosure and quality of service and network fair use. R.A. 10175 operates as a mere cyber crime law or the litany of Internet crimes without establishing rights and freedom in the Internet. Furthermore, it is only directed to the offender as a user but not as the Internet provider. Nothing in the law, for example, provide for protection of the consumers from the abuses of telecommunication companies or provide for service standards of these entities. R.A. 7925 otherwise known as Telecommunications Policy Act of the Philippines at present does not cover Local Internet Service Providers, hence could not very well governed their conducts and duties to the general public. As to quality of service content, the MTRCB at present dwell by analogy as to regulating the cyberspace but are still left at thin air in the face of judicial scrutiny due to lack of legislative action vesting such power to this administrative body. All these and more should have been covered by R.A. 10175 if a complete regulation and protection in the cyberspace is to be sought to. A litany of the virgins might save us all but not a general litany of penal sanctions in the Internet. Classification between rights and liabilities of a user and Internet provider is wanting if the State ought to cover the Internet under its laws because these are the key figures which basically compose the Internet. An Internet is not possible without a provider, hence it is quiet unfair to regulate only the conduct of the people in general without however dwelling into the duties, responsibilities and liabilities of those who supply the system. This in turn is one of the major lapses of R.A. 10175 because it only concerns itself on imposing sanctions from the belief that rights and obligations may be had in that way.

Proper Regulation an Implementation

All the while, people remained clueless whether they’d post pictures, make comments or posts some likes for fear of Internet libel and the likes. In fair, this could merely be a result of ignorance of what is libelous and what is not but we cannot deny the fact that the law failed to supply a clear definition of what is punishable and what is not- most especially, what is fair use from not. Furthermore, the increased penalty to one degree higher than that prescribed by our Revised Penal Code on libel aggravated the matter. What are the odds of committing libel with a little or no clue of its covered acts? In fair, one could argue that we should not be ignorant of our own laws which in fact, are readily available for reading. Yet, we cannot close our eyes to the fact that our libel cases where battled by lawyers, most are really good at what they do, and not by mere ordinary netizen. Even our jurisprudence on libel would attest that a clear-cut definition on libel could not be had based on the series of flip-flopping decisions made in the past regarding the matter. What are the odds that one could be convicted of internet libel by mere posting of comment or like considering the penal sanction thereto? If so, what are the remedies available if filed with a libel case? If you are confident enough that your act is not covered, you could just disregard the complaint or have a not guilty plea and let justice do the rest. But how about if we put into equation the presence of a brilliant lawyer who could very much argue that your case is covered by internet libel or a judge itching to have you convicted? You’ll be left at the mercy of a merciful judge, a good lawyer or a favorable appeal respectively. Either way, these remedies could eat up a large amount of your time and money. If so, the panic reached to mind by the netizens is very well not baseless because, as ordinary citizens not well versed with the law, they could only avail of the quickest remedy possible by restricting their Internet transaction such as comments, views, likes, blogs, tweets and the like. Having said this, we might wonder what does the law seeks to deter. Is it the evil sought to be avoided by committing internet libel? or the exercise of freedom in the Internet? There seems to be a confusingly form of idea as to the purpose of raising penalty in Internet libel. In the first place, is it necessary at all? How does a libel on the Internet defer from a libel committed on print media or verbally in that case? A libelous act published even if not read by the people could very well qualify to a crime punishable by law irregardless of the manner of its publication. More so, a libelous comment in the Internet could be timely discarded as compared to that of the printed ones which could mean less damage to the reputation of the offended party. This is why, under S.B. 3327, it can be observed that only fine is imposed in Internet libel in lieu of imprisonment. This, in consideration of the above discussion, is sound than imposing imprisonment because a fine in itself is deterrent enough to punish the offender considering that a remedial measure of immediately discarding libelous comments may be had as compared to other forms of committing libel. The availability of this remedy would render imprisonment unjust and could even lead to further evil and non-encouragement of Internet freedom of use and expression. Furthermore, netizens has nothing to fear now or reason for excuses because section 33 paragraph AA[2] of the bill has expressly provided for the exceptions to Internet libel. It has even provided for valid defenses which may be availed of in order to appraise the people their respective rights and duties as regards this matter. Also, it is noteworthy that the bill has now punished plagiarism committed in the Internet, which although may arguably be covered by the Intellectual Property Law, has now provided for specific coverage and exclusions in relation to the imposition of penalties. Section 35 paragraphs 19 and 20 of the bill in relation to section 29 paragraph A.3.is a key provision of the bill in relation to plagiarism. It states that although plagiarism is a punishable act in relation to copyright infringement, free license or public domain content shall not be subject to payment for damages nor any other penalties. This implies that a netizen could not be so burdened in thinking whether he/she should copy every links and sites attributable to the picture he/she downloaded in goggle image as a primary picture so as to avoid committing plagiarism or copyright infringement in that matter because these stuffs are freely accessible and downloadable – a caveat though because under section 29 paragraph B of the bill, these computer program, script, code or software downloaded with intent to profit thereto are punishable and deemed piracy under the bill. However, what would happen if the gravaman is a minor who is not capable of discernment as to what is protected by copyright and what is not. The last paragraph of section 12[3] of the bill provided for the condition. In this case, the bill demands supervision from parents and guardians to their minor children or wards otherwise the former may suffer the consequences. This provision need be stated in order to clarify the duties and obligations in this certain instance.

As to implementation, a clear expression of the bill other than the summoning of administrative departments responsible thereto is the provision creating the cybercrime courts. Under section 21 of R.A. 10175, the RTC has jurisdiction over cyber crimes and a special cybercrime court is to be created which is manned by specially trained judges. This goal is basically the same as that ought to be achieved by S.B. 3327, but the former is so constructed in a lazy and general manner. Unlike R.A. 10175, the bill has provided for qualifications (such as academic and professional background) of a judge to man the cyber court. It further summoned court personnel of said cyber court to undergo training to suit the demands of the job. A mandatory continuing legal and information and communications technology education is further required to continually abreast a judge of the developments on the matter. Furthermore, the amendment to the AFP modernization act to include technologies which may be deemed helpful in the implementation of this bill is a serious step towards cyber regulation.

In sum, the major distinction between the current would-be cyber law and its predecessor is the manner of expressing its clear cut mandate. R.A. 10175 is a reflection of a crammed law hurriedly passed by the Congress due to some itchy demands. The general statements embodied in its very provisions could be said to be a product of inadequate brainstorming by the Congress and the people. If we could produce a bill a encompassing and adequate as Senate Bill Number 3327, there could be no room for administrative discretion, hence lessens deviation from the real spirit of the law. A clear-cut mandate and instruction from the body no less than granted the power to enact laws is wanting for us to properly regulate the cyber space, but such is not complete by itself. These instructions and mandate must reflect the intention of the people as the ultimate sovereign of the State. Furthermore, the Congress, in enacting laws, should always appraise the people their rights and duties under the law being enacted, before even thinking of penalizing them.


Endnotes

[1] Section 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

[2] AA. Exceptions to internet libel. – The following acts shall not constitute internet libel:

a) Expressions of protest against the government, or against foreign governments;

b) Expressions of dissatisfaction with the government, its agencies or instrumentalities, or its officials or agents, or with those of foreign governments;

c) Expressions of dissatisfaction with non-government organizations, umons, associations, political parties, religious groups, and public figures;

d) Expressions of dissatisfaction with the products or services of commercial entities;

e) Expressions of dissatisfaction with commercial entities, or their officers or agents, as related to the products or services that the commercial entities provide;

f) Expressions of a commercial entity that are designed to discredit the products or services of a competitor, even if the competitor is explicitly identified;

g) An expression made with the intention of remaining private between persons able to access or view the expression, even ifthe expression is later released to the public; and,

h) A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions, or of any matter of public interest.

[3] It shall be presumed that the parents or guardians of a minor shall have provided agreement and shall be bound to the terms of an end user license agreement should the minor in their care signify agreement to the end user license agreement. It shall be presumed that any infringement of intellectual property rights by a minor was done with the knowledge and consent of his parents or guardians.


Fifty Shades of Greed: A Discourse on Our Copyright Law

The Best Things in Life are Free! This is a moto seemingly inculcated and deeply rooted in our Filipino values and culture. What could be better than those freely offered and enjoyed without obligation or reciprocation on your part? Have you tried the free ride bus of Ang Dating Daan, went to Luneta Park on valentines day, parked in a parking lot without parking fee, ask relief goods, find a chair in a mall without the for customers only or do not seat sign, get a free ticket for a concert or even just to redeem a free and limited promo t-shirt? All of these have one thing in common, it attracts people – and the market industry knows it. Have you tried to look at your favorite shampoo, shop for grocery items, choose a post paid plan for your phone, buy yourself a shirt, or observe any of your market transactions? The key word for a best buy are the capital letters FREE. The more freebies they offer, the most likely you are to give in. In all things in terms of economic wisdom, this is the most basic principle that most people, if not all, would gladly adopt. The attitude of Filipinos on haggling for the best buy reflects our desire to as much as possible pay less for more because we are concerned in increasing our individual properties. Ladies and gentle men, the issues that are faced by our Copyright Law nowadays are but carved primarily by this attitude. This article is a response to the clamor for an effective Copyright Law in the Philippines that would strike a balance between Copyright Owners and Consumers. Although no prescription is advised, as the author is not a doctor, nor is he a legislator to propose a bill amending our present Copyright Law, the author for unknown reason is compelled to trace the bone of contention to pave way for a better Copyright Reform.

Rooting it out

Copyright, also known as Author’s Right relates to artistic creations, such as books, music, paintings and sculptures, films and technology-based works such as computer programs and electronic databases. [1] This is a concept of British origin brought about as a reaction to printers’ monopolies at the beginning of the 18th century. Charles II of England was concerned by the unregulated copying of books and passed the Licensing of the Press Act 1662 by Act of Parliament. [2] Then came Statutes of Anne, Paris Convention, Berne Convention and the creation of World Intellectual Property Organization which enhanced Intellectual Property and Copyright Laws and pave way to recognition and protection of individual rights to intellectual properties and expressions. The idea of Copyright and Intellectual Property is a product of Capitalism which recognizes and upheld individual rights and properties. To state otherwise, the concept of Copyright is basically all about money vis property. In the Philippines, we have Republic Act 8293 otherwise known as the Intellectual Property Code of the Philippines as the law primarily governing Philippine copyrights. Section 2 of RA 8293 provides in part that “the State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensure market access for our products xxxx” – money talks again. Basically, the facade of copyright laws is all about money matters, but it also upholds a deeper essence that is the protection of expression. These are the two ingredients that make up the right of a copyright owner. A copyright owner under RA 8293 is vested with Economic Right under Section 177 of said law and Moral Right under Section 193 of the same law. Economic Rights consists of the exclusive right to authorize or prevent (177.1) Reproduction of work or substantial portion thereto; (177.2) its transformation; (177.3) distribution or transfer; (177.4) Rental; (177.5) Public display; (177.6) Public performance; and (177.7) other performance to the public of the work. Simply put, the economic rights of the copyright owner covers all economic transactions and endeavors of his work which is basically premised on his right to property of his work and therefore the accessory right to its fruits and accessions. Moral Rights, on the other hand, is consist of the right to (193.1) Authorship and attribution of the work to the copyright owner; (193.2) Make alterations or withhold its publication; (193.3) Object any derogatory actions against his work which are prejudicial to his honor or reputation; and (193.4) Restrain the use of his name for works not of his creation or in a distorted version of his work. Again, this right is rooted to the property right of the creator to use and abuse his creation, to possess title thereto and facilitate its transfer. These two rights however are not absolute. Section 184 of RA 8293 provides for the limitations on copyright which in sum are “interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder’s legitimate interest” (184.2). Section 185 further allows any use without copyright owner’s consent as long as it constitutes Fair Use – still premised on subsection 184.2. Furthermore, copyright law protects only the form of expression of ideas but NOT the ideas themselves. So that this recently published article vis blog, although may reflect the same ideas of several scholars and writers may not necessarily infringe the works of the latter if the manner and form of expressing these ideas are wholly or substantially different and apart. This could very well be premised on the fact that everything is under the sun. Ideas are but products or adaptations of other ideas which, if mixed with some other ideas, would create a wholly different or an innovation of the old idea. Take for instance Aristotle’s principle on Thesis, Anti-thesis and Synthesis. It is basically the clash of ideas that bring about a new or improved form of idea – yet with the intervention of another’s idea. So do we have to ask permission to use other’s idea in order to create another idea? Possibility and development wise, NO. So, what is being battled and enforced by copyright owners under our copyright laws? Is it their thymotic sense of pride to be recognized and attributed for their work or is it quit a simple battle for individual property right? Based on the abovementioned provisions of RA 8293, the answer is both yet the prevailing factor is still money vis property talk. Copyright owners are but the deserving beneficiaries of any considerations which may be derived by virtue of their creations. It is basically money that makes the world go round in terms of copyright industry – that’s why its birthplace is capitalism. Yet, another factor adds to the equation – CONSUMERS. Again, section 2 of RA 8293 on Declaration of Policy states that “the industrial property system is vital to the development of domestic and creative activity xxxx and promote defusion of knowledge an information for the promotion of national development and progress and the common good”. Said industrial property system is not complete without the consumers, for no defusion of knowledge nor information may take place without the attendance of people who would absorb or patronize the same. But the law does not simply require that consumers should only eat the food of wisdom courtesy of authors and artists, for like any other restaurants, it comes for a price. The declaration of policy simply tells us the ideal aspect of the law but not quiet all – should we blame it to semantics then? If we interpret the law as a whole, it can be inferred that it is for the national development and progress that we protect the individual property rights of copyright owners, because they are the key to national progress and development – an investment of the country. However, a consumer too has his/her own property rights, so that if he/she patronizes a book of a copyright owner, the latter’s work in relation to the form in which it was expressed becomes the possession of the former – in this case, the book. If the consumer now exercises a right of ownership over the book, legally, he/she has all the rights appertaining to an owner to the extent of the property purchased – but the same of course is not absolute. RA 8293, among other laws, prescribes for the limitations of the use of said work to the extent that it does not prejudice the right holder’s legitimate interest (184.2) – in this case, those appertaining to the economic and moral rights of the copyright owner. In this point of view, if one should keep a score, both the copyright owner and consumer are at par with one another to the point that each has vested and limited rights under the law (economic rights for the former; and right to fair use for the latter). However, the interplay of culture sets a smoky reaction. Anyone could assume the shoe of either consumer or copyright owner, yet the attitude observed in playing each role is intended for a wholly different avowal. As a consumer, you would most likely haggle for less the selling price, yet as the copyright owner you would want your price to be as high as possible – thereby creating a double standard. However, you should not be shocked my dear Filipino friend because this is but consistent with our attitude of paying less for more and more for less. This very attitude is what complicates our copyright law, but this article is not intended to sermon for social change. Classical political thinkers don’t argue much on culture but uses culture as a vehicle for legal framework. To state otherwise, this attitude operates as the land on which our copyright laws should be planted. The protection and regulation afforded by our copyright laws should be based primarily on this attitude. This is not to say that our legislatures are unaware of this, however, awareness alone is none sense. Our copyright laws should reflect the balance of rights between consumers and copyright owners, and to constantly tip the scale in case one out ways the other. Piracy of books, DVDs, Music, computer programs, games – to name a few, are but consequences of our natural tendencies to increase our individual properties either for a lesser period or for a lesser cost. To root it out, what is happening at present in the copyright industry is but the consequence of the government’s inaction by failing to constantly balance the natural tendency and attitude of a consumer and copyright owner before even defining and limiting their rights under this matter. This is vital because the basis of regulation is the protection of one’s right from the abusive exercise of a right of another. [3] Since copyright law is basically about enforcement and protection of individual property rights, abuse usually occur when either consumer or copyright owner over claim their individual property rights to the expense of the other.

Comparing Seeds

In the international perspective, a man is still a man. Hence, a Filipino should not be ashamed nor boast his unique expression of greediness and frugality via paying less for more because all humans are created greedy – at least since capitalism and individual property rights were introduced. We all have tendencies and desires to increase our individual properties only that, our level of patience in terms of period of accumulating wealth varies. There are at least 50 Shades of Greed that are at our disposal as humans, so why feel unique for your greed when all of us have it. In the international arena, copyright laws of different States struggle basically because of constant clash between individual properties of copyright owners and consumers. Piracy for example is still rampant internationally – so don’t think Quiapo is its primary manufacturer. The development of technology carries with it other ways and forms of infringement. To name a few; the e-books, itunes or youtube are the primary challenge against copyright laws. If you ask whether our law (RA 8293) covers the following cyber transactions, the answer is a question. Is there itunes, ipad, or youtube on 1998 (the date when RA 8293 became effective)? It’s pretty obvious is it? The thing is, its not that easy to enact a law to include these matters in the cyberspace – even other States are struggling for a better copyright law. Different States employ various brands of copyright laws which are reflections of continuous struggle to balance consumer and copyright owner’s interests. In China for example, they have no equivalent to the doctrine of fair use but copyright law enforcement is lax – that explains the dvds. Protection under the copyright law also is quite limited. For example, recording of live sports broadcasts is not considered an infringement. Furthermore, no criminal liability is imposed in case of infringement when no monetary benefit is received. In contrast, US copyright law is much strict from enforcement to imposition of penalties. Criminal liability accrues even when no monetary benefit is derived from the infringing material. However, registration for copyright purposes is material in US since it evidence the enforcement of a protected right – in contrast to China who does not distinguish nor exercise preference between registered and unregistered work. These are few of the key brands of copyright laws which, by themselves, are reflections of subjective nature of the copyright industry. States adopt copyright policies based on the prevailing environment of the country. Different States face different problems in their respective copyright laws, but not all conflicts are results of the clashing interests of copyright owners and consumers. Few of the puzzles are attributable to other duties and priorities of a State. China for example limits the copyrighted materials crossing their border in order to protect its own local industry. However, this policy is of no consequence. Due to the scarce availability of foreign copyrighted materials, a local consumer has two options; (1) fly abroad and buy the desired copyrighted work, e.g. book/DVD or (2) look for a local copy that is not copyrighted. Of the two choices, the latter is much applicable to most consumers in terms of economic status – this situation is also true in the Philippines. Of the above situations and State’s response thereof, Philippines as a State could always chose what method would be used to address its copyright problems. Would it adopt a strict but formal process of US or the laxity of China? Both have their pros and cons, either way, it is for us to find the one that fits.

The Rotten Plant

At present, our RA 8293 is viewed as outdated and in need for retouch. An amendment of RA 8293 is being proposed which would add teeth to the law. Among others, the bill ought to increase the power of Intellectual Property Office especially in the conduct of warrantless searches and seizures – this particular idea was received bitterly. Scholars criticized the bill as granting more rights than heinous crime victims. But with our present copyright law, copyright owners are at apparent loss. The limited scope of said law and its failure to cope up with technological developments limit the level of protection which may be afforded under our copyright laws. On the other hand, enforceability is another thing. A singer or producer for example is almost certainly sure that 8 out of 10 Filipinos has unauthorized downloads of his song, but enforcing his right under said law is quite impossible without breaking into the privacy of another. An author on the other hand could be at a serious loss due to the availability of book alikes, yet the gravaman could always argue his way out under the fair use doctrine or for his right to use and abuse the same. However, not everything that is the result of infringement is always against the copyright owner. Unauthorized upload of a live performance to youtube for example, although unauthorized publicity is still a publicity – and publicity is beneficial for a celebrity. In short, it is only the economic aspect vis right of the copyright owner that is being infringed. With regard to Moral Right, all that is attributable to the author vis owner is not affected – plagiarism aside. Illegal downloads of music, books, and even recording of live performances does not affect nor separate the work from its owner. In short, the battlefield is only set for a purely economic matter vis the right to the fruits of the copyright work. In this case, if no monetary benefit is derived out of infringement, would it be proper to impose a penalty? Civilly, damages are but proper due to the loss of income or any fruits which properly appertain to the person who should properly receive the same. Criminally, Section 217 of the law pertains to infringement for monetary consideration such as but not limited to sale or trade. But a person in possession of an infringed material, although not maintaining the same for purposes of sale or trade may be put to prison by aiding or abetting – this is without prejudice to other laws penalizing the same act. However, it is noteworthy that the protection granted by law to copyright owners is to be interpreted as a form of incentive since the latter are vehicle for industrial development and diffusion of knowledge and information. Too much focus on the economic right of the copyright owner is futile to the society since a capitalist world has always the tendency to encourage accumulation of individual wealth in so far as it is legal without necessarily being just. In particular, a producer who invests for his talent is driven to lay the hen as many golden eggs as possible. To state otherwise, a side of our copyright industry is being used as purely for income generating purposes and crossing out its public purpose. This is not however the whole story – consumers have their own brand of abuse and greed. But we cannot close our eyes to the fact that copyright owners have their share of blame too. A capitalist society is structured in a way that goods and commodities are distributed based on individual’s economic means. Branded shirts for example are worn only by those who can afford them but that doesn’t mean that the poor are left naked. However, quality and luxury wise, them who are economically capable enjoy most of the pleasures, comforts and developments that the society can offer. For an individual in the upper and middle tier of the society, a P200.00 song album or P400.00 DVD is a reasonable price of commodity. However, most in our society are not that capable yet, these things should reach them in order to fulfill the public purpose of the law.

Planting a New

Our present copyright law is separated from the real world. Without further elaborating on technical matters, protection afforded to copyright owners are toothless bastard in their eyes, yet for consumers, provisions of the law are threatening and confusing if one dwells into their possible implications and analogous interpretations. The absence of a clear and inadvertent provision of the law permits different possibilities and a bunch of arguments. When the law shut its mouth, other will talk on its behalf. The matter on copyright law is very much confusing nowadays unlike before when men view society in tribes. The presence of a globalized society permits international trades of copyrightable items but without a uniform law governing them – in the sense that States varies in policies and level of enforcements. However, a standard of copyright law should be based mainly on moderation of greed between its parties. Copyright owners for example should be granted protection under the condition that they’d register and that prices shall not be unconscionable and that the period of protection should be shorter in order to constantly monitor its circulation and relevance. Limited copies of the work should be distributed immediately after registration in public libraries or facilities for the public who cannot afford them. It is only when the government should take the copyright industry as vested with public interest that the consumers would have no other reason but to comply. Taking seriously this matter is vital in the sense that consumers and copyright owners would not continuously battle and keep scores as to who of them are deriving most benefit. Piracy is an industry that also requires consumers. Satisfy the consumers and cross out reasons for them not to patronize piracy, then no pirate industry will live. If piracy could not be avoided, why not regulate them and issue involuntary sub copyrights to them as legal agents of the real copyright owner and impose tax on them subject to limitations on production. Part of the tax may be given to copyright owners. Since the form of expression of idea is what is protected, let those pirated copies of inferior quality be registered since they are made in inferior form subject to the abovementioned condition. Absurd it may be but this is the only thing that our copyright law should operate based on the real idea from which it was made. Again, it is noteworthy that copyright law took its roots as a reaction from printer’s monopolies. Hence, it is in this case that the government should always be kept on guard – avoiding the copyright law to be used as a vehicle for monopoly. To satisfy the greed of both consumer and copyright owner, the State should feed both of them in equal share and check in constant whether one should take the food of the other not because it legally belong to the other, but because by so doing, the other is left with starving.


[1] Copyright in Historical Perspective, p. 136-137, Patterson, 1968, VanderbiltUniv. Press. Copyrighthistory.com. Retrieved 2013-03-9.

[2] Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing.. p. 13. ISBN 978-1-84542-282-0

[3] see Article 19 of the New Civil Code

Advertisements
1 comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: