After the holiday break and
gaining so much weight I might add, I come back with something new and
something old. Before the break starts, a very controversial law was passed,
gaining the whole nation’s interest, most if not all affected are the people who
often use the internet, the so called “netizens”. And I admit, I am one of
those ‘netizens’ that appealed before even reading the law itself since people
are buzzing about it. I only read it thoroughly when my brother asked me to for
his assignment. Yeah, shame on me for reacting first before reading the whole
law.
Since we are currently on the era
where the power of internet is immeasurable and most social networks are used
not only to connect with other people but scream opinions on certain topics,
either in a negative or a positive way, having these laws acts as buffers or reservoirs
of the post being made, or so they say. I suddenly remembered one of the most
controversial videos before, when YouTube was a bit new. Way back in 2007, Chris Crocker,
a fan of Britney Spears, posted a video on said site which garnered, as the
last time I checked, over 45 Million views. From that video, several responses are
made, such as parodies.
After that video, several other
videos and scandals came and become the hype, or rated to be the most viewed
videos. The most recent is the video that trended on twitter, the video of a female
public transportation passenger, now dubbed to be “Amalayer”. Now I checked on
my Facebook page, and I see the new video of a professor hitting his students,
or something akin to having a nervous breakdown. Such power the internet has.
Just a click of the mouse or a touch of a finger added by a simple hashtag and
you can spread rumours like a wild fire.
R.A. 10175 - AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION,
INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER
PURPOSES or commonly known as the
Cybercrime law became one of the most controversial topic on the latter part of
2012. It was passed and signed last September 2012, divided into thirty-one
sections with eight chapters, which criminalized several offenses, such as
illegal access or commonly known as hacking, data interference, device misuse,
cybersquatting, computer fraud, cybersex and spam. It
also includes laws against child pornography and libel. Its provisions apply to all Filipino nationals
regardless of the place of commission. Jurisdiction also lies when a punishable
act is either committed within the Philippines, whether the erring device is
wholly or partly situated in the Philippines, or whether damage was done to any
natural or juridical person who at the time of commission was within the Philippines. Regional
Trial Courts shall have jurisdiction over cases involving violations of
the Act(1).
As I have said, this law became
quite controversial on most social networks, gaining so much response, either
positively or negatively. Several petitions were filed to the Supreme Court,
however, the Supreme Court at first deferred on acting on the petitions making
the law effective for a week(2). There was a mass
protest made on several social networks which made the Supreme Court issue a
temporary restraining order on the law for 120 days(3).
While R.A. 10175 is serving its
120 days TRO, Senator Mirriam Defensor-Santiago has authored and filed a bill
known as Bill No. 3327 – MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM that would
repeal R.A. 10175. It is said that this bill will provide penalties and
prohibited acts while including the rights and the protection of the internet users (4). Majority claims that the law passed, RA
10175, restrains freedom of expression and freedom of speech as defined by the
1987 constitution.
Let me relate my opinion in
several provisions of RA 10175 before comparing it to the bill being passed to the
Philippine Congress.
I
– R.A. 10175 | CYBERCRIME LAW
(a) Libel
The Cybercrime Law of the
Philippines, as I have stated above is divided into 31 sections with 8
chapters, discussing different offenses, one being Libel.
The Revised Penal Code of the
Philippines defined libel as public and malicious imputation of a crime, or of
a vice or defect, real or imaginary, or any act, omission, condition, status,
or circumstance tending to cause the dishonour, discredit, or contempt of a
natural or juridical person, or to blacken the memory of one who is dead(5). It happened to be the provision of
RA 10175 that made several negative reactions, coming from different sectors
especially the Media and several legal institutions.
According to said law, the
prohibited act is that of Libel committed through computer system or any other
similar means which may be devised in the future(6).
Most often use the internet to vent out their opinions and frustrations. Some
therapist suggest that their patients blog every day, using it as a diary of
their life. I often check some of my favourite bloggers posts of their everyday
life, or their opinions in fashion. And clearly remember one of the bloggers
from Singapore, who has been a victim of a so called “internet bullying” or
others called it as “internet bashing”. It also happened to our very own
Filipino bloggers, several comments may be viewed as defamation or even libel,
but since, it is the internet, the so called bashers are often quoting their
constitutional right to freedom of expression. Not only have that readers
committed that offense but bloggers as well, although they often made a cry for
their freedom of expression as well.
The section regarding libel
serves as filter for that online bashing and several libellous articles on the
internet, however, the scope indicated on the said law is too broad that it is
already crossing the line of limiting several constitutional rights.
(b) Child
Pornography
The Cybercrime Law defines Child
Pornography in connection with another law, RA 9775 known as the Anti-Child
Pornography act of 2009.
RA 9975 enumerated several
unlawful/prohibited acts which would be constituted as a violation of said act,
such as (a) the employment or persuasion or coercion of a child to create or
produce any kind of child pornography (b) production of child pornography (c)
Publication or Selling of Child Pornography (d) Possession of any form of Child
Pornography with the intent to sell or reproduction or publishing it, etc. (7).
The only difference on of RA
10175 and 9775 is that on the new law of Cybercrime, the degree of penalty is
one degree higher when the offense is committed with the use of a computer.
This fact confused me because the scope of the anti-child pornography act also
taps into the use of the internet on the commission of the offense. So if an
offense is committed, which penalty would be followed on to whose jurisdiction
will it fall?
(c) Cyber-squatting
vis a vis Computer related Identity Theft
Defined to be the acquisition of
a domain name in bad faith to profit, mislead, destroy
reputation, and deprive others from registering the same. It may be made by
making an identical or similar to existing trademark registered or registering
the domain with an identical name (8).
Computer-related
Identity Theft as defined by the law is the intentional acquisition, use or
misuse of the personal information identity of another whether natural or juridical (9).
I often see this
thing, especially on e-mails claiming that so called “You have won ___, to
claim your price, click on the link” which happens to be either a virus or a
scam to get your email address and password or any personal information that your
account has. The person who acquired the data can access your email and may
even use your email to continue their scam.
Several other
personalities have this problem as well. Like I said, I am fond of reading
blogs and I sometimes look at their twitter, and it often confuses me because
whenever I searched for their name, for example, in twitter, there are five to
ten people who appear with the same name and same profile pictures. This is
what I like about the new law, is that even though in the internet, people are
protected from identity theft.
II
– Bill 3327 | MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM
The bill being
passed, in my opinion is a much clearer version of RA 10175. The bill
identifies not only the rights of the internet user but specifies the offenses that
a “netizen” may commit. Let me give my opinion to several provisions of the
bill.
(a) Hacking
Hacking is defined
by Section 27 of said bill to be an unlawful for any unauthorized person to intentionally
access or to provide a third
party with access to, or to hack or aid or abet a third party to hack into
data, networks, storage
media where data
is stored, equipment
through which networks
are run or maintained, the physical plant where the
data or network equipment is housed. The unauthorized access or unauthorized act of
providing a third party with
access to, or the
hacking into, data, networks,
storage media where
data is stored,
equipment through which networks are
run or maintained, the physical plant where the data
or network equipment is housed shall be presumed to be malicious(10).
We often see
hacking incidents on the movies. There is this American show that I often
watch, where in they have a female technical analyst that can hack a computer
and track as to where the network was pinged. I even catch an episode where it
was pinged from China to Europe before going to the States. And yes, it does
happen in real life as well.
Hacking is one
of the threats, which may result to identity theft or even result into war. I remembered
bumping on to news where in the Pentagon was hacked. Secured data may be used
or sell to different parties that are interested. Personally, this is one of
the internet offenses that I am afraid of since, if a person hacks your
account, they can use it to extort money from your contacts.
(b) Copyright Infringement
Copyright Infringement is the unlawful publication of a work
either in part or in full any content that he does not have any economic right
over. It is often related to plagiarism (11). It may be a photo or any form of
writing that was made originally. I see several photos on the internet,
especially on a website called deviantArt, and most of the photos posted by the
deviantartist relay their sources, as to who originally photographed the art or
as to who the inspiration for the particular work. I often see on the
description a disclaimer or the words “based on...”. For further comparison and
just for the discussion’s sake, I’ll use the case of Sen. Tito Sotto for this
particular section.
Several photos of the speech made by Sen. Sotto became the
topic of my news feed a couple of months back on my facebook account. It is
said that said speech is the Tagalog version of the late President Kennedy’s
speech and that it was copied on several blogs. Accusations flew and claims are
been made, but my use of this as an example is that, we often use several
quotations to our posts on the internet, and we often fail to use citations. On
the case of Sen. Sotto, the speech was posted on the internet without
citations.
(12)
(c) Piracy
Another section of the new bill pertains to Privacy. Yes, we
already have the Anti-Cam cording Law, but the provision on the said bill
extends into internet piracy. Download websites, torrents and such who distribute
movies or music without the consent of the owners of said mediums. Defining piracy
refers to the unauthorized copying, distribution and
selling of works in copyright (13).
The offense is very rampant on the internet since
not everybody is willing to pay on iTunes for music and movies. In comparison
to the previous law, the limitation and definition of the offense regarding on
piracy within the context of the bill is much better.
(d) Internet Libel, Hate Speech, Child Pornography
and Other expressions
Section
33 of the new bill discusses extensively the provisions regarding internet
libel, hate speech, child pornography etc. As I have previously discussed, most
bloggers and celebrities experiences the hate speeches. I can often see it on twitter
and sometimes they even blog about it. Some video posted on the internet often
have hate speeches or hate comments.
I
will focus on the hate speech provision on this part since this is one of the
most suiting on most can relate to this.
Hate
Speech defined by the law is a public and
malicious expression calling for
the commission of illegal
acts on an
entire class of persons,
a reasonably broad section
thereof, or a
person belonging to
such a class,
based on gender,
sexual orientation, religious belief
or affiliation, political
belief or affiliation,
ethnic or regional
affiliation, citizenship, or nationality, made on the Internet or on
public networks (14).
I
often see this on one of the YouTube superstars, like Ms. Michelle Phan who
posts video tutorials on the said site. I can often see, while checking her
videos some hate speech. Within the Philippines, I see this on as I have said
bloggers and other celebrities. There are forum sites where some who we call “haters”
of a particular person create speeches, sometimes vulgar and often delivered in
a very bad way.
Hate
Speech is not limited to comments or tweets but also to videos posted or linked
containing such offense.
Final Thoughts:
In
sum, I can say that the new bill is better than R.A. 10175. The MCFPIF bill
discusses extensively the offense as well as giving better rights to internet
users. R.A. 10175 is over broad, on its less than ten page discussion of the
law, however, Bill 3327 may be long, and yes, I tried to finish everything but
it was really long, however, it was meticulously created so that not only the
internet users have their right but their obligation on not overusing the power
of the internet is limited, and subject to punishment if they have committed
such offense.
References:
(1) – Cybercrime Prevention Act of
2012 | http://en.wikipedia.org/wiki/Cybercrime_Prevention_Act_of_2012
(2) -
SC Defers action on petitions vs Cybercrime Law |
(3) – SC Issues TRO vs Cyberlaw | http://newsinfo.inquirer.net/285848/sc-stops-cyber-law
(4) – Santiago Proposes Magna Carta
for Internet | http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet
(5) – Chan Robles – Revised Penal
Code : Article 353 Definition of Libel | http://www.chanrobles.com/revisedpenalcodeofthephilippinesbook2.htm#.UO_XueRwofU
Art.
353. Definition of libel. — A libel is public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending
to cause the dishonor, discredit, or contempt of a natural or juridical person,
or to blacken the memory of one who is
dead
(6) – Official Gazette – R.A. 10175 :
Chapter 2 Section 4 | http://www.gov.ph/2012/09/12/republic-act-no-10175/
(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.
(7)
– Lawphil.net – RA 9775 : Section 4 | http://www.lawphil.net/statutes/repacts/ra2009/ra_9775_2009.html
Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person:
(a)
To hire, employ, use, persuade, induce or coerce a child to perform in the creation
or production of any form of child
pornography;
(b)
To produce, direct, manufacture or create any form of child pornography;
(c)
To publish offer, transmit, sell, distribute, broadcast, advertise, promote,
export or import any form of
child pornography;
(d)
To possess any form of child pornography with the intent to sell, distribute,
publish, or broadcast: Provided.
That possession of three (3) or more articles of child pornography of the same form shall be prima facie
evidence of the intent to sell, distribute, publish or broadcast;
(e)
To knowingly, willfully and intentionally provide a venue for the commission of
prohibited acts as, but not
limited to, dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a
legitimate business;
(f)
For film distributors, theaters and telecommunication companies, by themselves
or in cooperation with other
entities, to distribute any form of child pornography;
(g)
For a parent, legal guardian or person having custody or control of a child to knowingly permit the child to engage,
participate or assist in any form of child pornography;
(h)
To engage in the luring or grooming of a child;
(i)
To engage in pandering of any form of child pornography;
(j)
To willfully access any form of child pornography;
(k)
To conspire to commit any of the prohibited acts stated in this section.
Conspiracy to commit any form of
child pornography shall be committed when two (2) or more persons come to an agreement concerning the
commission of any of the said prohibited acts and decide to commit it; and
(l)
To possess any form of child pornography.
(8)
–
Lawphil.net – RA 9775 : Section 6
| http://www.lawphil.net/statutes/repacts/ra2009/ra_9775_2009.html
(6) Cyber-squatting. – The
acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation,
and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or
confusingly similar to an existing trademark registered with the appropriate government agency at the time
of the domain name registration:
(ii) Identical or in any way similar
with the name of a person other than the registrant, in case of a personal name; and
(iii) Acquired without right or with
intellectual property interests in it.
(9)
–
Lawphil.net – RA 9775 : Section 3
| http://www.lawphil.net/statutes/repacts/ra2009/ra_9775_2009.html
(3) Computer-related Identity Theft. – The intentional acquisition,
use, misuse, transfer, possession, alteration or deletion of identifying
information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty
imposable shall be one (1) degree lower.
(10)
Bill
No. 3327 – Magna Carta for Philippine Internet Freedom | http://www.senate.gov.ph/lisdata/1446312119!.pdf
(11)
Bill
No. 3327 – Magna Carta for Philippine Internet Freedom | http://www.senate.gov.ph/lisdata/1446312119!.pdf
Section
29. Infringement of Intellectual
Property Rights. -
Copyright
infringement. - Subject to
the Intellectual Properly
Code of the Philippines, it shall be unlawful
for any person to publish or reproduce on the Internet, in part
or in whole,
any content that he does not have
any economic rights over, or does not acknowledge and comply
with the terms
of copyright or license
governing the intellectual
property rights enjoyed by
the content being
published or reproduced,
or falsely claims
having intellectual property
rights over the content he does not own.
A.2. Non-attribution or plagiarism of copy left
content shall constitute infringement.
A.3.
Non-attribution or plagiarism of free license or public domain content shall constitute infringement, but shall not be
subject to damages.
A.4. Subject
to the Intellectual
Property Code of the
Philippines, it shall
be unlawful for any person to
reverse-engineer any whole or part of any computer program, software,
code, or script, whether or not executable, that is the subject of a copyright,
and that he does not have
any property rights over, or does not acknowledge and comply with the terms of copyright or
license governing the intellectual property rights enjoyed by the computer
program being reverse-engineered.
(12) – Copy of a Photo | http://trendbucket.blogspot.com/2012/09/tito-sotto-tranlates-robert-kennedy.html
(13) – Wikipedia: Copyright
Infringement | http://en.wikipedia.org/wiki/Copyright_infringement#.22Piracy.22
(14) - Bill No. 3327 – Magna Carta
for Philippine Internet Freedom : Section 33 B1 | http://www.senate.gov.ph/lisdata/1446312119!.pdf
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