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.


[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.

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

  1. Pingback: Students’ Take: RA 10173, SB 3327 viz RA 10175 | Berne Guerrero

  2. Pingback: Abucejo, Vincent Tito « AUSL Tech & Law

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