Lunes, Mayo 5, 2014

MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM: HOW CAN THIS BE IMPROVED?

INTRODUCTION

Years ago, handwritten letters, voice tapes, and telegrams are the means of communication between families and friends. It takes some time before the letter can be read or before the voice tapes can be heard. Keeping in touch with love ones was quite difficult and more expensive. It needs several days or weeks before a response from them could be heard.
Nowadays, those means of communication had changed. Skype, Facebook, Twitter and other social networking sites, yahoomail, gmail and chat were introduced by the modern technology.

“Today you could surf the Web using the mobile. Contact and talk to family and friends via Facebook. Get the news, gossip and false news via Twitter. Speaking of news and opinion, today you could probably read something crafted in Washington, Tokyo, Paris and Mexico.” [i]

Indeed, means of communication is now made easier and even cheaper. Indeed, the information and communication technology and the internet had brought a lot of changes in every Filipino’s life. Because of these changes, the introduction of bills, rules and laws about the modern technology and the internet is inevitable. This is to cope up with the changing needs of the society brought about by technological advancement.

On July 1, 2013 during the 16th Congress, Senator Miriam Defensor-Santiago has filed a bill called Magna Carta for Philippine Internet Freedom (MCPIF). This was passed to replace the controversial Republic Act No. 10175, or the Cybercrime Prevention Act of 2012.

“According to Santiago, a group of concerned netizens--composed of software designers, IT specialists, academics, bloggers, engineers, lawyers, human rights advocates--approached her office with a draft of the MCPIF. The group formulated the MCPIF through discussions in an open Facebook group, email, Google Hangout teleconferences, and social media channels like Twitter”.[ii]

In her blog, the Senator had also said:

“The dangerous ‘takedown’ clause of R.A. 10175, where the government may have a website or network blocked or restricted without due process of law, is absent in the MCPIF,” Santiago said. “My bill specifically provides for court proceedings in cases where websites or networks are to be taken down, and prohibits censorship of content without a court order.”[iii]

From the words of Senator Santiago, it seems that this bill is an excellent one. It was drafted with the help of concerned netizens who are experts in their own field. Also, the loopholes of RA 10175 or the Cybercrime Prevention Act of 2012 were corrected.

 But there lies several questions: Is this bill really necessary? Is there a need to change or amend the law that already exists? Is this better than RA 10175? Or does it solve the ‘problematic’ issue raised in the previous law?

 To answer this, let us first know the importance of this bill.

IMPORTANCE OF THE PROPOSED BILL

I like this proposed bill because the rights in the constitution like the freedom of expression and right to privacy are properly observed.

As can be seen in Part 3,Section 4 (a) of the bill, the State shall protect and promote the freedom of speech and expression on the Internet, the right of the people to petition the government via the Internet for redress of grievances, the right of any person to publish material on or upload information to the Internet. These are the very rights granted by the Constitution.

However, although free expression is protected, Section 52 places limits on certain types of speech “inimical to the public interest”:

(1) Internet libel: defined as “public and malicious expression tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, made on the Internet or on public networks”;

(2) Hate speech: defined as “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” and;

(3) Child pornography. [iv]

York, on his analysis on the MCPIF had said: “Section 4 of the bill pertains to freedom of expression, “protecting and promoting freedom of speech and expression on the Internet” and protecting the right of the people to petition the government via the Internet for “redress of grievances.”  The right of citizens to publish to the Internet without the requirement of a license is also specifically addressed.” [v]

In addition, section 8 of the MCPIF discussed the right to privacy of data.

Section 7 addresses the right to innovation, allowing for State protection and promotion of innovation, and prohibiting persons from restricting or denying “the right to develop new information and communications technologies, without due process of law...”[vi]  

To quote, Senator Santiago said: “MCPIF ensures due process by providing strict guidelines for any collection of any data, including the securing of warrants, obligating notification and limiting seizure to data and excluding physical property.”[vii]

Section 9 (c) of the bill states that no third party shall be granted access to the private data or networks of a person by an Internet service provider, telecommunications entity, or such person providing Internet or data services. But it had provided an exception, which is upon a final court order issued in accordance with Section 5 of the said bill.

Section 10 protects intellectual property in accordance with the Intellectual Property Cod of the Philippines (RA 8293).

Section 9 refers to the protection of the security of data and 9(b) guarantees the right of persons to employ means “whether physical, electronic or behavioral” to protect the security of his or her data or networks. Sections 9(c) and (d) refer to the rights of third parties over private data, requiring a court order issued in accordance with Section 5 of the Act to grant access, and preventing third parties from being given property rights to the data accessed. [viii]

According to Santiago, Senate Bill No. 53, also known as the Magna Carta for Philippine Internet Freedom (MCPIF), will protect the rights and freedoms of Filipinos in cyberspace, while defining and penalizing cybercrimes.[ix]

In another quote, the senator had said:"While it is important to crackdown on criminal activities on the internet, protecting constitutional rights like free expression, privacy, and due process should hold a higher place in crafting laws".[x]

The Magna Carta for Philippine Internet Freedom promotes civil and political rights, and upholds and promotes Constitutional guarantees in cyberspace, as they would and should be in our daily lives. The #MCPIF is anchored on this principle: that the Constitution is our foundation as citizens of the Republic and equally as Filipino netizens in cyberspace. Our rights online are our rights offline.[xi]

Now that we know the importance of the bill, then we are ready to answer the questions above. I believe that this bill is really necessary. This will solve the ‘problematic’ issue raised in the RA 10175 or the Cybercrime Prevention Act of 2012.The basic rights granted in the Constitution, like the due process clause, right to privacy and freedom of expression, are all carefully observed. I believe that observing and granting all such rights is the most important of all.

HOW CAN THIS BILL BE IMPROVED?

The law however, has its loopholes. Senator Miriam said that the MCPIF does not suffer from overbreadth and vagueness in its provisions on libel, unlike the law it tries to replace. In fact, it treats libel as a civil liability rather than a criminal act, which is a step forward in the move to decriminalize libel. [xii]

 There is indeed a very clear definition of libel as specified in section 52(a)(i) of the proposed bill. However, to treat libel as a civil liability rather than a criminal act would lead to confusion and is questionable. The reasons on why it should be treated as a civil liability should be explained in detail in the law.

Article 355 in the Revised Penal Code specifically provides for the punishment of libel by writings or similar means which is prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

Under the MCPIF, internet libel shall only give rise to civil liability and the amount shall be commensurate to the damages suffered. The difference of the two should be mentioned in the law which gave rise to their difference in penalty or punishment.

Also, internet libel becomes a lighter offense compared to oral defamation because the former results to a civil liability while the latter results to imprisonment as a punishment. Such result should be taken into consideration by the proposed bill.

It was also stated in the bill that the State promotes universal access to the internet.[xiii] However, this right of universal access cannot be prohibited or controlled by any individual or entity but only the courts. As mentioned in section 5 (b) of the bill, a person’s right to unrestricted access to the Internet may, upon discretion of the appropriate Cybercrime Court whose jurisdiction is defined in this Act, be suspended as an accessory penalty upon final conviction of the criminal offenses mentioned in section 5(b)(i) (ii) and (iii).

Simply put, only the court can restrict such right under the circumstances mentioned in the law.   To conclude, no one except the court can deny such right granted.

However, it seems that there is contrary provision in the law. Reading from the lines of the law, there are other reasonable grounds so that a person or entity can restrict the right of universal access granted to every individual.[xiv] There is indeed an inconsistency of the provisions of the law. It must be redrafted so that confusion will not later arise.

Hence, the law should be drafted this way:

Section 5. Promotion of universal access to the Internet. –

(a)                    The State shall, within its jurisdiction, protect and promote universal access to the Internet.

(b)                    The right mentioned above cannot be denied or suspended except by  the following:

(1)   The appropriate Cybercrime Court in the following instances:

(i ) The felonies of robbery, theft, estafa, falsification, malversation, and usurpation of authority or official functions, as defined in appropriate penal laws, committed by through or using the Internet or information and communications technology;

(ii) Any criminal offense defined and punishable in the following special penal laws: the Anti-Trafficking in Persons Act of 2003 (RA 9208), the Anti-Graft and Corrupt Practices Act, the Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713), the Anti-Money Laundering Act of 2001 (RA 9160), the Violence Against Women and Children Act (RA 9262), the Special Protection of Children Against Abuse, Exploitation, and Discrimination Act (RA 7610), the Child and Youth Welfare Code (PD 603), the Anti-Child Pornography Act of 2009 (RA 9775), the Human Security Act of 2007 (RA 9732), or the Data Privacy Act of 2012 (RA 10173), committed through or using the Internet or information and communications technology; or

(iii) Any criminal offense defined and punishable by this Act.

(2)  Any person or entity offering Internet access for free, for a fee, or as an extra offering separate from the services already being offered, including but not limited to any hotel, restaurant, commercial establishment, school, religious group, organization, or association upon the following reasonable grounds:

The word “reasonable ground” mentioned Section 5(e) of the proposed bill is not clear. As to when a certain case or scenario is reasonable, the law is silent. The law should give examples of reasonable grounds or circumstances which could be used as a basis so that a person or entity can be qualified to restrict the right or freedom of the people to restrict internet access.

There may be some flaws but this bill is really a good one. I support this crowd sourced Act and hoping that in the near future, this will be passed into a law.


ENDNOTES:



[i] Juned, “Why Support the Magna Carta for Philippine Internet Freedom”. http://baratillo.net/2012/11/why-support-the-magna-carta-for-philippine-internet-freedom/comment-page-1/
[ii] “Magna Carta for Internet Freedom to Replace Anti-Cybercrime Law---”. http://www.senate.gov.ph/press_release/2012/1130_santiago1.asp
[iii] “Magna Carta for Philippine Internet Freedom-Miriam”. http://miriam.com.ph/newsblog/2012/11/
[iv] Jillian York,Electronic Frontier Foundation. “A Brief Analysis of the Magna Carta for Philippine Internet Freedom”. https://www.eff.org/deeplinks/2013/07/brief-analysis-magna-carta-philippine-internet-freedom
[v] Jillian York,Electronic Frontier Foundation. “A Brief Analysis of the Magna Carta for Philippine Internet Freedom”. https://www.eff.org/deeplinks/2013/07/brief-analysis-magna-carta-philippine-internet-freedom
[vi] Jillian York,Electronic Frontier Foundation. “A Brief Analysis of the Magna Carta for Philippine Internet Freedom”. https://www.eff.org/deeplinks/2013/07/brief-analysis-magna-carta-philippine-internet-freedom
[vii] N. Bordadora, Philippine daily Inquirer. “Santiago proposes Magna Carta for Internet”. http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet.
[viii] Jillian York,Electronic Frontier Foundation. “A Brief Analysis of the Magna Carta for Philippine Internet Freedom”. https://www.eff.org/deeplinks/2013/07/brief-analysis-magna-carta-philippine-internet-freedom
[ix] N. Bordadora, Philippine daily Inquirer. “Santiago proposes Magna Carta for Internet”
http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet
[x] Engineer Pierre Tito Galla, PECE, ABS-CBN News. Com. “Our rights online are our rights offline”. http://www.abs-cbnnews.com/opinions/03/03/14/our-rights-online-are-our-rights-offline
[xi] Engineer Pierre Tito Galla, PECE, ABS-CBN News. Com. “Our rights online are our rights offline”. http://www.abs-cbnnews.com/opinions/03/03/14/our-rights-online-are-our-rights-offline
[xii] N. Bordadora, Philippine daily Inquirer. “Santiago proposes Magna Carta for Internet”http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet
[xiii] Section 2(h), Magna Carta for Philippine Internet Freedom, Senate Bill 53. http://democracy.net.ph/mcpif/full-text/
[xiv] Section5(e),Magna Carta for Philippine Internet Freedom, Senate Bill 53. http://democracy.net.ph/mcpif/full-text/.







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