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 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 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.  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.
 Jose Jesus M. Disini, Jr., et al. Vs. The Secretary of Justice, et al.
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