How Senate Bill 53 can be
improved
Senate
Bill No.53, also known as the Magna Carta for Philippine Internet Freedom has
gained popularity over the internet as a proposed substitute to the infamous
Cybercrime Law. It can be recalled that the passage of the Cybercrime law has
caused a public clamour for its provision on internet libel which was deemed to
be an infringement of the constitutionally protected right to freedom of
expression. Although the Supreme Court in its recent decision[1]
had the occasion to clarify the meaning of internet libel and declare as
unconstitutional some of the provisions in the Cybercrime law, many groups
still push for the passage of the Senate Bill No. 53 as an attempt to further
protect the internet users in general.
It is said
that the bill was crowd sourced[2]
and was a product of the efforts of various participants who had but one united
purpose which is to level the citizens’ on line rights with off-line rights. [3]
The lengthy bill covers almost all of the rights granted to the citizens as
found in our laws, the right to freedom of expression, protection of privacy
and over intellectual properties may be said to have been highlighted in its
provisions.
There
is no doubt that the proponents of the bill intends to address the various
issues in the usage of the internet that has been plaguing our country due to
the lack of existing laws and ever evolving technology. Due to the vast
mechanisms available over the internet, a hybrid of legal issues was conceived
and the Philippine courts were clogged with pending resolutions. Undoubtedly,
the initiatives to institutionalize the information and communications
technology benefit our country in many ways.
The
sprouting issues can rightfully guide our legislators in predicting the evils
to be curbed, the viability of the bills and its implications. However, the
said issues or the public opinion must likewise be filtered in the legal aspect
so as not to violate the Constitution and existing laws.
The
legislators must sift through the demands of the public and scrutinize which
claims are valid and just. It is not the job of the legislators to be swayed by
public opinion and blindly draft bills which can only boost their popularity at
the expense of the quality of laws to be passed. Although well meaning and
timely, Senate Bill No. 53 seems to contain some provisions that are simply
results of highly publicized controversies.
The
paper focuses on the five provisions of the bill to wit: one of the grounds for
a judicial action of prior or subsequent restraint of one’s internet rights,
non-liability of creators or innovators of information and communications
technology, right to security of data, ICT-enabled prostitution and Internet
Libel. Alongside the discussion of the said provisions are solutions on how it
can be modified or enhanced for the improvement of the bill.
The
bill fully recognized the right to freedom of speech and expression on the
internet and stipulates that a prior restraint or subsequent punishment in
relation to one’s Internet’s right can only be infringed upon a proper judicial
order. It further provides the grounds for the issuance of such order, one of
which is that when the nature of the material or information creates a clear
and present danger of a substantive evil that the State has a right or duty to
prevent.
It is
true that the State, through its police power may regulate the rights of its
people, especially if the same creates a clear and present danger. It is
however suggested that since the same principle is already well- entrenched in
our laws and in our jurisprudence, it may be more beneficial if the
“substantive evil” and “right or duty to prevent” be categorized or classified
to be given flesh and blood for a more powerful enforcement of the State’s chosen
actions. It can be added that the danger to the state may be an economic issue,
security issue, health issue or the like.
The
importance of the suggestion is that it provides a limitation both on the
rights of the citizens and of the State. In classifying or enumerating the
dangers posed to the state, the latter does not have the power to arbitrarily
exercise its power to infringe on the rights of the citizens over the internet.
At the same time, the State is given leeway to apply law based on the unique
circumstance of each case because the dangers posed to the state as stipulated
are not specifically listed but simply classified. Our laws cannot be vague as
to leave the state or any of its branches any room for an arbitrary exercise of
its power. Every action must have a basis found in law or else there will be an
opportunity for an abuse of power which is detrimental to the operation of any
state.
On
another note, according to Section 7, par. C of the bill, any person who shall
have created, innovated or otherwise developed a new information and
communications technology shall not be penalized for the action of its users. This
provision harbours a risk to unique or unprecedented situations that may demand
for a form of liability. Although the insertion of this provision is understood
to be a step to liberalize and encourage the development of our information and
communications technology, the sweeping declaration of non-liability treads on
dangerous waters, although currently unseen. It must be remembered that the
mechanisms in our technology are ever evolving and that the legal issues are
dragged along with it.
Legislators
must be armed with the solution to the scenario that the innovations or
creations in information and technology may ultimately be utilized for a
punishable offense in the future. Given this scenario, it is suggested that the
provision be modified to cover a liability in case the same creator, inventor
or innovator has designed the information and communications technology in such
a way that an illegal act can be facilitated or committed.
With
this additional provision, it can be taken to mean that the creators shall not
be generally liable for the actions of the users of its information and
communication, however there is neither an escape from liability, when the same
has in fact been created for the purpose of illegal acts or omissions that is
punishable by law. This shall be couched in general terms so as to cover all
the other unique cases that may arise in the future.
As to the
right to security of Data, Section 9, par. C provides that a third party cannot
be given access to the private data or networks of a person by an internet
service provider except when a final order has been issued. It further provides
that as a condition precedent to action for access that the person owing such
data be first properly notified of such request by the internet service
provider. It stipulates that a person shall not be deemed to have
been properly notified unless the person has acknowledged the notification of
the request for access and has agreed to grant or refuse access.
It must
be recognized that one’s right to Security of Data is not absolute. From the point of view of the third person
that may have a valid substantial interest over the data of the owner, this
provision may prove to be a hindrance to the exercise of the former’s own
rights which must similarly be protected.
To
illustrate, if the third person has a favourable judgment against the owner of
the data and the enforcement of such involves necessary access to the same data,
it is just that such third party be granted access. However, to accomplish
this, the third party would have to go through the internet service provider
and the latter is mandated to furnish a notice to the owner of the data. In
addition, the service provider can only be deemed to have served the notice if
the owner of the data has “agreed to grant or refuse access” which means that
an active response from the owner is mandatory.
The
dilemma that such provision brings is that it creates power on the part of the
owner to hinder a perfectly valid judgment by simply ignoring the notice of the
internet service provider. The solution to this problem must address both the
manual delivery of notice and electronic delivery of notice because it is
inevitable that the latter has a probability of failure.
In
terms of electronic notice, it is deemed appropriate that Sec. 22 of the
Electronic Commerce Act on Time of Receipt of Electronic Data Messages or
Electronic Documents be modified to be made applicable to Sec. 9 of Senate Bill
53. The former provides that: “Unless
otherwise agreed between the originator and the addressee, the time of receipt
of an electronic data message or electronic document is as follows…If the
originator and the addressee are both participants in the designated
information system, receipt occurs at
the time when the electronic data message or electronic document is retrieved
by the addressee…If the electronic data message or electronic document is
sent to an information system of the addressee that is not the designated
information system, receipt occurs at
the time when the electronic data message or electronic document is retrieved
by the addressee, or if the addressee has not designated an information
system, receipt occurs when the
electronic data message or electronic document enters an information system of
the addressee.”
Although
this provision specifically applies between an originator and an addressee, it
can nevertheless be applied to a notice sent by the internet service provider
to the owner of the data by modification. Receipt can be deemed to occur at the
time the owner of the data has retrieved the notice or once it has entered the
information system of the addressee, whichever is appropriate. This
constructive notice prevents the owner of the data from unjustly refusing the
third party that has valid claims over the same data and leaves the internet
service provider no room for inaction when the third party makes the request.
It can
be argued that the right of a person over data privacy cannot be waived
impliedly and that it is protected by our very own Constitution. However, as
previously mentioned, the rights of a third party are equally important with
the rights of a person over his data. The latter cannot work to the injustice
of the former and if the same is being used to circumvent an otherwise valid
judgment, the person abusing his right to privacy must necessarily suffer the
consequences of his actions.
Section
50 of the bill on ICT-Enabled Prostitution, provides that it shall be unlawful
to use the internet or telecommunication networks for the purpose of enabling
the exchange of money or consideration for services of a sexual or lascivious
nature, or facilitating the performance of such service. In addition, it states
that the services must be performed by one or more unwilling third party adults
under threat or duress. The last provision sets a dangerous precedent as it
seems to imply that sex trade over the internet may be considered legal if
performed by a consenting adult. Furthermore, threat or duress is an element that
must be present before the same can be considered illegal.
It must
be noted that in our Revised Penal Code (RPC) Articles 202 and 341 identifies
the crime of prostitution, and that a special law provides for the engagement
in prostitution which is the Anti Trafficking in Persons Act. Article 202
provides: “Women who for money or profit,
habitually indulge in sexual intercourse or lascivious conduct, are deemed to
be prostitutes” and Article 341
of the RPC penalizes anyone who “engages
in the business or shall profit by prostitution or shall enlist the services of
any other for the purpose of prostitution”. The special law provides that
Trafficking in Person “ refers to the
recruitment, transportation, transfer or harboring, or receipt of persons with
or without the victim's consent or knowledge, within or across national borders
by means of threat or use of force, or other forms of coercion, abduction,
fraud, deception, abuse of power or of position, taking advantage of the
vulnerability of the person, or, the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person
for the purpose of exploitation which includes at a minimum, the exploitation
or the prostitution of others or other forms of sexual exploitation, forced
labor or services, slavery, servitude or the removal or sale of organs.”
To
eliminate the notion of required “unwillingness” off a third party for the
performance of the service in prostitution to be covered by the bill, it is
suggested that the last sentence of the first paragraph of Section 50 which
reads “Provided, the services shall be
performed by one or more unwilling third-party adults under threat or duress.”
be stricken out. In addition, this will cover people who perform the sexual
services themselves without the help of other people. This is in recognition of
the fact that prostitution may be committed without the connivance with pimps
or facilitators of the crime.
Lastly,
in terms of internet libel, it is admirably apparent that the proponents of the
bill have undertaken steps to improve the limitations of libel. A cursory
reading of section 52 of the bill reveals that the modifications were tailored
after real issues that were raised for the past decade. It is however notable
that the proponents expanded the provided exceptions from liability, one of
which is the expressions of a commercial entity that are “designed to discredit
the products or services of a competitor”.
It is
opined that the said exception must not be recognized due to the fact that it
can fall squarely within the ambit of libel as a crime. Our Revised Penal Code
states that libel is a “public and malicious
imputation of a crime, or of a vice or defect, real o imaginary, or any act
omission, condition or 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.”
The
gravamen of the offense in libel is the intent to injure or malice that comes
with the imputation of a crime or the act to the offended party. Hence, the
very wordings of item number 6 in the exceptions, to wit: “designed to discredit” runs counter with the
very evil that the law aims to curb. It is clear and undisputable that there is
malice and intent to cause damage if one acts upon a design to discredit.
If the same will be allowed, commercial
entities will be empowered to run amok against its competitors in the market to
the point that libellous materials will bombard the consumers’ screens and
computers. The said exception in the bill also covers those that explicitly name
the competitors. One can only imagine the chaotic scenario of commercial
entities finding ways to discredit their competitors as they scramble to have
their respective revenues skyrocket. With the hidden agenda of the said
commercial entities and high volume of available information, there is a danger
of questionable credibility and eventual loss of confidence in the market. This
may be said to be an extreme situation, but note that it is not far-fetched.
The
freedom of expression, although constitutionally guaranteed, must be taken in
the proper context. As previously emphasized, it is not an absolute right. It
cannot be utilized to have an unfair advantage over another competitor which
has rights equally vested in our laws.
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