On
12 November 2012, Sen. Miriam Defensor-Santiago, filed Senate Bill 3327, “An Act Establishing a Magna Carta for
Philippine Internet Freedom, Cybercrime Prevention and Law Enforcement,
Cyberdefense and National Cybersecurity” or the "Magna Carta for Philippine Internet Freedom".
Said law is touted as the much-improved version, and is set to replace,
the embattled Republic Act No. 10175 or the “Cybercrime
Prevention Act of 2012″. The big
question then is, “is this proposed law actually a better one than the TRO’d
R.A. 10175?”
RATIONALE
Let us begin by understanding the rationale behind
laws/bills that seek to “police” cyberspace.
Act No. 3815, as
amended, more popularly known as the Revised Penal Code (RPC), took effect on January 1, 1932. Back then, the Bill Gates and Steve Jobs of
the world were only beginning to “produce a machine that can perform automatic
calculations and is programmable”[i].
In other words, our 1930s lawmakers could not have contemplated
computers, or certainly not the computers of today, when they enacted the
RPC. They could not have foreseen the
far-reaching effects and ubiquity that these machines would achieve some eight
decades later. They could not have
foreseen the rise of the information and communications technology (ICT) and
the power and influence of the Internet.
Thus, our RPC has
not provided for penalties for violations of rights committed with the use of a
computer or through the internet. And
following the Latin maxim, nullum crimen,
nulla poena sine lege, which means “there is no crime where there is no law
punishing it”, without a provision in our law penalizing computer- or
internet-related violations of rights then there is no crime and the victim is,
at least under our penal laws, without recourse (they can always, of course,
file a civil case).
Such a deficiency in
our penal laws coupled with the ease afforded by the ICT and the Internet to
commit crimes and evade detection is said to be the raison d'être for laws such as the Data Privacy Act of 2012, Electronic
Commerce Act of 2000, and the
more recent Cybercrime Prevention Act of
2012, and even the proposed Magna Carta for Philippine Internet Freedom.
President Benigno
Aquino rationalized the enactment of R.A. 10175 with the oft-quoted line from Eleanor Roosevelt, “With freedom
comes responsibility”.[ii]
This new law “establishes a legal framework to identify, investigate,
and punish crimes committed through online and computer platforms”[iii].
In his sponsorship speech of said law, Sen. Edgardo Angara reminded us
of the incident sometime in May 2000 when the Philippines gained notoriety
after “one of the most destructive viruses of all time was traced to a then
23-year old computer science dropout in Manila”[iv].
The infamous “I LOVE YOU” virus caused US$10 billion in software damage
and lost businesses and spread to over 55 million computers worldwide. However, since there was then no law
governing such activities, “we were unable to bring to justice a wrongdoer who
caused harm to millions of people and companies around the world”[v]. In July 2000, the Electronic Commerce Act of 2000 was enacted to fill this void in
our legislation but “eleven years later, the rapid rate of technological
development has outpaced our capacity to effectively police a borderless realm”[vi].
Thus, says Sen. Angara, “Internet usage has skyrocketed in the absence
of any appropriate legal framework”[vii].
Under this backdrop, he paints an ominous picture, “30 Million Filipinos who use the Internet regularly can become the next victim of cybercrime” [viii] (Emphasis supplied).
Others are of the
opinion, however, that the real reason behind the enactment of laws such as
R.A. 10175 is the strong BPO lobbying in the country. It has been said that the BPO industry has
received demands from their foreign clients for a “strong legal environment
that can secure their data from being stolen and sold”[ix].
Regardless of what
our lawmakers’ motives are for passing R.A. 10175, I am of the opinion that a “Cybercrime Law” is long overdue. Cyberspace is a fertile ground for violations
of people’s rights and victims of such violations must be given recourse in
law. Our rights must be protected,
wherever we may be, yes, even in Cyberspace; for in using the Internet and
becoming a resident of Cyberspace we do not then shed our integrity and our
rights as human beings. Otherwise put,
being a participant in Cyberspace is not a license for other such participants
to violate my Constitutionally-protected rights.
The more bloody
discussion then is the “HOW?”.
What
is “wrong” with R.A. 10175?
Our legislators have attempted to answer the
question of “how do we ‘police’ cyberspace?” with the enactment of R.A.
10175. However, if the uproar that met
such law is any indication, it seems this was a case where the cure was worse
than the disease. Protesters left and
right assail the law’s vague provisions whose net effect, it is claimed, is a
“chilling effect” upon the freedom of expression. In particular, some of the contentious
provisions of the law are:
Sec. 4(c)(4) Libel. The unlawful or prohibited acts of libel as defined
in Article 355 of the Revised Penal Code, as amended, committed through a
computer system or any other similar means which may be devised in the future.
The law’s provision
on on-line libel has met rigorous opposition.
On the one hand, it is attacked for being inconsistent with the
Philippines’ state obligations under the International Covenant of Civil and
Political Rights (ICCPR) in light of the UN Human Rights Committee’s considered
view that “criminal libel in the RPC is incompatible with freedom of
expression”[x].
Other camps are attacking the said provision for its lack of a clear
definition of the crime of libel and the persons liable so that virtually
anyone and everyone can be charged with a crime “even if you just like,
re-tweet or comment on an online update or blog post containing criticisms”[xi].
Personally, I do not
believe that there is anything to protect about libelous speech. The children’s rhyme “sticks and stones may hurt my bones but words will never hurt me”
is not entirely true. A person’s honor
and reputation so valued and painstakingly built for years can very easily be
destroyed by a malicious and derogatory comment. The risk is multiplied a million-fold
considering how a statement/comment can spread like wildfire with such ease and
speed through the Internet. The problem,
however, is that the definition of libel under the RPC, from which the
definition of on-line libel is based, is so worded that it does have the effect
of suppressing Constitutionally-protected speech. It does inspire the exercise of prior
restraint. With most people unable to
determine when their statements could be considered libelous, the law could
effectively silence even legitimate grievances.
Sec. 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. xxx (Emphasis supplied)
This provision is
problematic because the law does not provide for a definition or mechanism for
determining due cause. As has been pointed out in our Technology
and the Law class, a law that infringes on the right to privacy, such as the
above provision, should be narrowly construed but here there is nothing to
construe. This provision could easily be
abused, either intentionally or negligently, by law enforcement
authorities. Instead of protecting
people’s rights it could actually bring about more violations of such rights.
Sec. 19. 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 DOJ shall issue an order to restrict or
block access to such computer data. (Emphasis supplied)
At first blush, the above provision seems innocuous
enough. After all, it provides for prima facie determination which is not
inconsistent with the due process clause in our Constitution. However,
again, our discussion in our Technology and the Law class has brought to
fore the problem with this provision. A prima facie evidence is “that which is
standing alone, unexplained or uncontradicted, is sufficient to maintain the
proposition affirmed”[xii].
Under the Rules of Court, a prima
facie evidence that is not rebutted or controverted will be given due
course. This is what makes the above
provision questionable because the law failed to provide for a mechanism or
procedure by which owners of computer data may present rebuttal or
controverting evidence.
To summarize what I
have to say about R.A. 10175 is that: it is (1) vague and (2) it violates the
right to due process. It failed to
define the parameters of certain important concepts and failed to lay down the
procedure for the protection of our right to due process. Reading this law felt like reading a
“framework” or a “draft” of a law. It
appears that many of the issues it sought to address and many of its provisions
have not been completely fleshed out.
The law felt “unfinished”.
That being said, as
to the question of whether SB 3327 is better than R.A. 10175, I answer in the
affirmative. Here’s why.
Salient
features of SB 3327
Sec. 33. Internet
Libel, Hate Speech, Child Pornography, and Other Expression Inimical to the
Public Interest
Yes, there is still a provision on Internet libel,
which works for me. As I have pointed
out above, I believe there should be one.
However, unlike its predecessor, the provision on Internet libel under
SB 3327 has more specifically defined which acts are punishable and which are
not. Under Sec. 33.A.2 Malice as an essential element of internet libel,
it went a step further than the definition of liber under Arts. 353 and 355 of
the RPC by defining more precisely the element of malice in Internet
libel. The proposed law also makes the
positive identification of the subject an essential
element of Internet libel (Sec. 33.A.3), which to my mind is an added
safeguard against possible abuses of the provision on Internet libel. Even better, the law has enumerated the acts
which would not constitute Internet
libel. As it stands, this enumeration seems
comprehensive enough to cover Constitutionally-protected free speech. The proposed law also establishes Truth as a defense, to wit: “Internet libel shall not lie if the content of the expression is proven to be true, or if the expression
is made on the basis of published
reports presumed to be true, or if the content
is intended to be humorous or satirical in nature, except if the content
has been adjudged as unlawful or offensive in nature in accordance with
existing jurisprudence.” (Sec. 33.A.5).
These provisions should assuage the fears of netizens in regard to Internet libel’s proneness to abuse.
An
entirely new provision in the proposed law is that on Internet hate speech,
which should be applauded. Hate speech
is that which includes “communications of animosity or disparagement of an
individual or a group on account of a group characteristic such as race, color,
national origin, sex, disability, religion, or sexual orientation”[xiii].
While Internet hate speech is currently not a particularly big problem
in the Philippines, the proposed provision demonstrates foresight and will
serve as, hopefully, a sufficient deterrent against any such future acts.
Privacy: Defined
The proposed law has
also specifically defined “Privacy”,
which definition goes a step further than that guaranteed and protected by the
Constitution to include “informational self-determination”. “Informational self-determination” is a
person’s right to “determine what personal data is disclosed, to whom, and for
what purposes it is used”[xiv].
This is an important concept that is often overlooked. There appears to be a general belief that we
lose the right to the personal information we put on-line. The same is not true, of course, and we have
R.A. 10173, the Writ of Habeas Data, and now this proposed law to assure the
public that if their right to informational self-determination is in any way
violated the law has given them ample remedies.
Also included under
the right to privacy protected by this law is that of ensuring that
“information is not disclosed to anyone other than the intended parties”. This is usually included in contracts as
confidentiality clauses and will now, if SB 3327 is approved, be put into law
and read into every contract and transaction.
Sec. 8. Right to
freedom of speech and expression on the Internet
Another commendable
provision of the bill is that on freedom of speech and expression. Although admittedly, the 1987 Constitution’s
provision on freedom of expression should be broad enough to include speech and
expression on the Internet, this provision in SB 3327 puts in place a mechanism
and standard for preventing the abuse of such rights. Thus, while every person has the right to
publish material on or upload information to the Internet, the State and/or
person adversely affected by the exercise of such right is not without
recourse. The exercise of one's rights
are not always without consequences injurious to other people's rights; thus,
we have the principle of abuse of rights found under the Civil Code. In recognition of this truth, SB 3327
empowers the State to restrict access to information on the Internet or to
remove published material or uploaded information from the Internet but only
under specific conditions found under Sec. 8(4)(a).
Sec. 12. Protection
of Intellectual Property and SOTTOing; Sec. 20. Content Fair Use
The past year saw
multiple charges of plagiarism against Sen. Tito Sotto, prompting his chief of
staff, Atty. Hector A. Villacorta to come out and admit copying from a
U.S.-based blog for the senator's speech.
Atty. Villacorta defended his action on the premise that a blog is
public domain and, therefore, no plagiarism was committed by him.[xv] His statement is, although downright erroneous,
nevertheless, a common misconception.
This is, in fact, the defense of choice of people caught lifting off
material from the internet without proper attribution. To disabuse ourselves from this mistaken
notion, SB 3327 has provided for a provision expressly making any content
published on the Internet presumably copyrighted, except when explicitly made
otherwise by the author, subject to such conditions under relevant laws. But at the same time the law provides a
provision on Content Fair Use.
This is
characteristic of the general direction taken by SB 3327, which is to strike a
balance between freedom and regulation. Freedoms/rights
can be used and abused to the injury of another. This is the argument for the passage of laws
that “police” cyberspace. Yes, Internet
freedom assures the growth of ideas, innovation, sharing of information but it
can just as easily be used to violate copyrights, bully (hence the infamous
term, cyber bullying), violate privacy.
Therefore, it is beyond contest that we need to update our laws to keep
it at pace with the growth of the Internet and the ICT. We need a law that responds to the new issues
presented by this creature called the cyberspace. In my opinion, SB 3327 could do just that. One of the complaints about R.A. 10175 is
that it dealt with a technical subject written by non-technical persons. SB 3327 does not suffer the same defect. If it succeeds in becoming a law, SB 3327
would have accomplished strides in terms of updating our laws.
Sec. 23. Repeal of
the Cybercrime Law
And perhaps the most
welcomed provision of this bill is the complete and explicit repeal of the
much-criticized R.A. 10175.
To my mind, the
filing of SB 3327 is a testament to democracy at work. Our citizens voiced out, in no uncertain
terms, their denunciation of R.A. 10175 and our legislators, Sen. Miriam
Defensor-Santiago in particular, responded.
However,
as in any law, the proof of the pudding is in the eating. It is not entirely impossible nor unheard of
that a law that looks good on paper turns out to be a monster to
implement. Nevertheless, netizens, like myself, should have high
hopes for this bill. Let’s just hope
that it gets passed before new developments/advancements in the Internet or in
ICT make it obsolete.
[i] Shrinivas
Kanade; Who Built the First Computer;
http://www.buzzle.com/articles/who-built-the-first-computer.html
[ii] Greg Poling and Liam Hanlon; Legislative
overreach: The Philippine fight over internet freedom;
http://www.abs-cbnnews.com/insights/10/02/12/legislative-overreach-philippine-fight-over-internet-freedom;
October 2, 2012
[iii] Ibid.
[iv] Cybercrime
Prevention Act Sponsorship speech of Senator Edgardo J. Angara;
http://www.edangara.com/speeches?page=2
[v] Ibid.
[vi] Ibid.
[vii] Ibid.
[viii] Ibid.
[ix] JJ Disini; Cybercrime
Act: Features and issues;
http://opinion.inquirer.net/38218/cybercrime-act-features-and-issues; October
6, 2012.
[x] Ina Reformina; SC
gets 5th plea vs Cybercrime Act; http://www.abs-cbnnews.com/nation/09/28/12/sc-gets-5th-plea-vs-cybercrime-act
[xi] Karl John C. Reyes; FB 'likes', shares could be
grounds for libel, says Sen. Guingona;
http://www.interaksyon.com/article/44173/fb-likes-shares-could-be-grounds-for-libel-says-sen--guingona;
September 27, 2012.
[xii] http://www.balaod.com/what-is-prima-facie-evidence/
[xiii] Margaret Brown-Sica and Electronic Journal of Academic and Special Librarianship;
http://southernlibrarianship.icaap.org/content/v09n02/brown-sica_m01.html#_edn2
[xiv] Online Privacy:
Towards Informational Self-Determination on the Internet;
http://drops.dagstuhl.de/opus/volltexte/2011/3205/pdf/dagman_v001_i001_p001_11061.pdf
[xv] Patricia Denise
Chiu; Sotto aide takes blame but denies plagiarism, says blogs meant to be
shared; http://www.gmanetwork.com/news/story/270179/news/nation/sotto-aide-takes-blame-but-denies-plagiarism-says-blogs-meant-to-be-shared;
August 17, 2012
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