Miyerkules, Hulyo 2, 2014

Kinakalawang na utak at kamay

The heart knows no logic. It does not gauge fault,
imperfections nor does it see the possibility of a beautiful tomorrow.
It lives in the now,
savouring every minute of blinding illusions.
And although circumstances may dictate a darkly sealed fate,
the heart dives into it anyway, blissfully even.

As the owner of the heart, you fear like a parent for its child.
The early years of caring for it
like anything else does not matter
Time passes, and you are torn between its growth
and your wanted caution.
You write rules but the heart constantly breaks them.

The heart knows no logic. You cannot direct its course,
You cannot contain it, you cannot speak for reason
It lives in the now,
Seeing nothing but the beauty of loving even in the absence of being loved
And although circumstances may dictate a darkly sealed fate,
The heart dives into it anyway, blissfully even.

As the owner of the heart, you fear like a parent for its child
You are saddled with pain for the wounds of the heart,
You long to keep it still in your arms, but you know more than that,
because the heart does not exist for you to keep.
As the owner of the heart, you cringe at that feeling of helplessness,
Knowing that the countless disillusions or brokenness does not matter, because
The heart will dive into it anyway, blissfully even.

first attempt in translating

Aking mahal na anak, sa araw na Makita mong ako ay tumatanda na, ipinapakiusap ko ang iyong pagtityaga,  higit sa lahat, subukan mong unawain ang aking pinagdaraanan.

Kung sa tuwing tayo ay mag uusap, paulit ulit ako sa aking mga sinasabi, huwag mo sana akong pangunahan at sabihing “nasabi mo na iyan kanina”. Pakiusap ko lamang ang iyong pakikinig. Subukan mong alalahanin ang mga panahon noong ikaw ay maliit pa lamang at paulit ulit kitang binabasahan ng istorya sa gabi hanggang sa ikaw ay makatulog ng mahimbing.

Kung ako man ay tumangging hugasan ang aking sarili, huwag ka sanang magalit , huwag mo akong lapasatanganin  dahil ditto. Naalala mo pa ba ang mga pagkakataong hinahabol kita para lang ikaw ay maligo?

Kapag ako ay Makita mong mangmang sa bagong teknolohiya, bigyan mo ako ng panahon upang mapag aralan ito at huwag mo sana akong tignan ng ganyan…alalahanin mo mahal kong anak, buong tiyaga kitang tinuruan sa madaming bagay kagaya ng pagkain ng maayos, paano mag suot ng damit, pagsuklay ng iyong buhok at pakikipagsapalaran sa mga isyu ng buhay sa araw araw…Sa araw na Makita mong ako ay tumatanda na, ipinapakiusap ko na ikaw ay maging pasensyoso, higit sa lahat, subukan mong intindihin ang aking pinag daraanan.

Kung  sa mga pagkakataon, malimot ko na ang aking mga sasabihin, bigyan mo ako ng panahong alalahanin ito, at kung hindi ko na magawang  umalala, huwag kang kabahan, o maging irritable, o hambog. Alamin mo lamang sa iyong puso, na ang pinaka mahalaga para sa akin ay ang makasama ka.

At kung ang aking mga pagod na paa ay hindi kasing bilis kagaya ng dati, sana ay ibigay mo ang iyong kamay kagaya ng pag gabay ko sa iyo noong ikaw ay natututo pa lamang mag lakad. Sa pagdating ng mga araw na iyon, huwag kang malungkot.  Samahan mo lang ako at intindihin ng may pagmamahal, habang tinatahak ko ang daan patungo sa pagtatapos ng aking buhay.


Pahahalagahan ko at ipagpapasalamat ang panahon at galak na ating pinagsaluhan. Kasama ang malaking ngiti at pagmamahal na dati pamang mayroon ako para sayo, gusto ko lamang sabihin na mahal kita, aking anak. 

My dear girl, the day you see I'm getting old, I ask you to please be patient, but most of all, try to understand what I'm going through. If when we talk, I repeat the same thing a thousand times, don't interrupt to say: "You said the same thing a minute ago"... Just listen, please. Try to remember the times when you were little and I would read the same story night after night until you would fall asleep.
When I don't want to take a bath, don't be mad and don't embarrass me. Remember when I had to run after you making excuses and trying to get you to take a shower when you were just a girl?
When you see how ignorant I am when it comes to new technology, give me the time to learn and don't look at me that way ... remember, honey, I patiently taught you how to do many things like eating appropriately, getting dressed, combing your hair and dealing with life's issues every day... the day you see I'm getting old, I ask you to please be patient, but most of all, try to understand what I'm going through.
If I occasionally lose track of what we're talking about, give me the time to remember, and if I can't, don't be nervous, impatient or arrogant. Just know in your heart that the most important thing for me is to be with you.
And when my old, tired legs don't let me move as quickly as before, give me your hand the same way that I offered mine to you when you first walked. When those days come, don't feel sad... just be with me, and understand me while I get to the end of my life with love. I'll cherish and thank you for the gift of time and joy we shared. With a big smile and the huge love I've always had for you, I just want to say, I love you ... my darling daughter.
Original text in Spanish and photo by Guillermo Peña.
Translation to English by Sergio Cadena

Lunes, Mayo 26, 2014

Implications of the amendments on the Intellectual Property Code of the Philippines

IMPLICATIONS OF THE AMENDMENTS ON THE INTELLECTUAL PROPERTY CODE

The evolving needs of society on intellectual property rights have demanded the parallel improvement of various regulatory structures around the world. Most countries have come a long way in protecting the creative minds of its citizens from the evils of copyright, trademark, and trade name infringement.  Notably, the initiatives seem to be directed towards harmonization of regulatory provisions and structures with Philippines in tow. One of the manifestations of the push for improvement is the passage of Republic Act No. 10372 which amended certain provisions in the Intellectual Property Code of the Philippines.

However, despite the purported aim of the legislators to strengthen the law on intellectual creations, the aforementioned act was strongly criticized by various legal practitioners. In the article of Dimacali[1], it was reported that Atty. JJ Disini who is considered to be a technology law expert, expressed his inhibitions on certain changes made in the Intellectual Property Code.  He was quoted saying that the new law allowed for warrantless arrests and seizures in violation of the Constitution, has dangerously expanded the meaning of infringement, and has provided for the vicarious liability of mall owners when infringement is proven to take place within its facilities.

In the same article, other problems such as the abolishment of the consumer’s right to import copyrighted materials without the consent of the copyright owner and exception of personal use to the economic rights of copyright owners and producers were likewise mentioned.

For its part, the government has issued a clarification on the criticisms held against the new law on the website of its Official Gazette[2]. On the issue of importing copyrighted materials, it explained that the new law in fact took out the limitation on the number of copies that may be imported contrary to claims that importation in itself was prohibited if made without the consent of the copyright owners. It states: “Only the importation of pirated or infringed material is illegal. As long as they were legally purchased, you can bring as many copies you want, subject to Customs regulations”. In terms of the warrantless searches and seizures, it stated: “The IPO may visit establishments based on reports and complaints; this in itself is constitutional. However, if the IPO intends to perform a search and seizure, it must comply with constitutional requirements, such as having a search warrant. A warrant wouldn’t be required, however, if the IPO is accompanied by the Bureau of Customs or the Optical Media Board—two agencies that can perform a search and seizure on their own right without a warrant (per Republic Act No. 1937 and 9239, respectively).”  

This paper will discuss the implications of the above mentioned issues together with the following changes in the new law: added requirement for the designation of societies that will manage the owners’ economic rights, change in the wordings of “fair use of a copyrighted work”, amendment on the period of protection in light of delineating moral rights from economic rights, and the added alternative of statutory damages as a claim for infringement.

Warrantless searches and seizure
Section 7 of the Intellectual Property Code[3] was amended to include within the powers of the Director General and Deputies Director General, the power to “conduct visits during reasonable hours to establishments and business engaging in activities violating intellectual property rights and provisions of this act based on report, information or complaint received by the office.”  Atty. Disini, as reported in the article of Dimacali[4], stated that the quoted provision is in violation of the constitutional right of people against unreasonable searches and seizures. This interpretation is further bolstered by the clarification made by the government[5] where it confirmed that a search warrant will not be required in the event that the IPO is accompanied by the Bureau of Customs or the Optical Media Board.

The Constitution safeguards the right of the people to be secure in their houses, as such the bill of rights[6] provides: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable (emphasis supplied), and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and persons or things to be seized.” 

Well settled is the rule that the Constitution is the supreme law of the land and no statute can be passed that contravenes the former. The interpretation of Atty. Disini that the amendments on the said section are violative of the constitution must be upheld because it clearly does not provide for the above quoted constitutional limitation. Should this provision continue to be left without the proper rectifications, it will set a bad precedent that statutes may eventually render the constitution worthless.

Moreover, the sound protection consistently established by our jurisprudence against unreasonable searches and seizures will drastically be dented and eventually crack the foundation of the basic human rights of the people. This power, without the proper safeguards is very much susceptible to abuse and arbitrary exercise by cunning and greedy officers. It can open the floodgate for harassment or extortion and lead to the detriment of legitimately operator of businesses. In the same vein, the projected hesitation of businesses to operate in the Philippines, may affect our economy in general.

Expansion of the definition of infringement
Another criticism thrown against the R.A. 10372 is the expanded definition of “infringement” which included the making of temporary copies as an act of infringement. Sec. 171.9 of R.A. 8293 was amended to read as follows: “Reproduction is the making of one or more copies, temporary or permanent (emphasis supplied), in whole or in part, of a work or a sound recording in any manner or form xxx.”  According to Atty. Disini[7], the provision implies that the temporary usage of a pirated software, whether the same be made in a coffee shop or not, will constitute infringement already. He explained thus: "The mere act of running software which triggers the OS to temporarily copy software into random access memory (RAM) already constitutes infringement.” 

The government[8]has explained that the interpretation of the expanded definition by critics is not accurate as it pertains to the making of multiple copies to be utilized for distribution that is punishable. In its FAQ section, it stated thus: “Infringement in this context refers to the economic rights of the copyright owner. So, if you transfer music from a lawfully acquired CD into a computer, then download it to a portable device for personal use, then you didn’t commit infringement. But if, for example, you make multiple copies of the CD to sell, then infringement occurs.”

It can be noted that the clarification made by the government is based on the intent of the proponents of the act while the contention of legal experts is based on what is written in the law itself. A plain reading of the provisions of the amendment will divulge that the interpretation of the critics is proper because Sec. 171.9 in defining “reproduction” does not make any qualification as to intent nor number of copies. On the contrary, it merely added the word “temporary” in its definition which highlighted the intention of the lawmakers to include all forms of reproduction in relation to infringement.

The problem posited by this change is the lack of qualification in law which would delineate the temporary reproduction for personal use from the temporary reproduction for the purpose of committing infringement. One cannot simply rely on the interpretation made by the government for the implementation of the law because it can change throughout the course of events. Ultimately, what is specifically written in the law will prevail and hence a qualification must be made to address the discussed implication.

Vicarious liability of mall owners and other owners of establishments

Sec. 216 (b) of R.A. 8293 was amended to include the liability of “another person who commits an infringement if the person benefitting has been given notice (emphasis supplied) of the infringing activity and has the right and ability to control the activities of the other person.” The critics expressed their apprehension against the said provision due to the seemingly automatic liability of owners of establishments wherein infringement may take place without being given a leeway to take appropriate action against people who commit infringement. On the other hand, it was explained that the liability of the mall owners and other establishments will only attach after they have been given ample time to address the infringement activity after they are given notice of the same.

However, the interpretation of the critics is not without basis because of the noted lack of additional elements for the liability to attach. Again, sole reliance on the interpretation of the implementing department or proponents of the bill is not legally sound and the needed requirements must be established in the law itself to ensure proper implementation. It is suggested that an additional requisite be made before the liability can attach to owners of establishment such as a specific duration of time after they receive notice of infringement activities to gauge their willingness to address the problem.

It is submitted that the vicarious liability of mall owners and other business establishments is an additional barricade against the evils of infringement. It can be reasonably expected that the mall owners are aware of the activities being conducted by its tenants and they cannot escape liability on the excuse of ignorance. More often than not, they are inclined to turn the other cheek when it comes to illegal activities of their tenants in exchange for the consistent return of investments. There is thus the need to positively impose upon these owners of establishments the responsibility of putting an end to infringement activities that are very well within their control. The role of the owners is not confined to profit making but extends to the need of the protection of the public as part of the economic enrichment of our country.

Importation of copyrighted materials

Perhaps one of the most resounding criticisms against the amendment is on the importation of copyrighted materials. Originally, Sec. 190.1 and 190.2 of R.A. 8293 provided for the importation of copyrighted materials for personal use. It has given a limitation of one copy for personal use and three copies for the use of any religious, charitable, or educational society or institution.[9]  Sec. 14 of R.A. 10372 has deleted the allowance, thus: “Sections 190.1 and 190.2 of R.A. 8293 are deleted in its entirety.”  Yet again, the government has attempted to clarify that the deletion of the mentioned provisions are aimed to take away the limitation of copies of copyrighted materials that may be imported. In the same article of Dimacali[10] it explained: “Amendments to the Intellectual Property Code have removed the original limitation of three copies when bringing legitimately acquired copies of copyrighted material into the country. Only the importation of pirated or infringed material is illegal. As long as they were legally purchased, you can bring as many copies you want, subject to Customs regulations.”

With the retention and amendment of Sec. 190.3 of R.A. 8293 the Commissioner of Customs is “empowered to make rules and regulation for preventing the importation or exportation of infringing materials…”, it is deemed that the clarification made by the government cannot find basis in law and that it in fact presents more limitation than freedom. As Atty. Disini has posited “What's going to happen now is that copyright owners can simply go to the Bureau of Customs and say that copyrighted items can't be imported except by certain identified persons.”

Requirement for the designation of societies that will manage the owners’ economic rights

Sec. 183 of R.A. 8293 provides for the designation of societies of artists, composers and other right holders that will collectively manage the copyright owners’ economic or moral rights. It was amended to add that the said societies must first secure the necessary accreditation from the Intellectual Property Office. This addition is a positive indication of the political will to properly secure the rights of copyright owners. Certainly, the accreditation of societies will lead to strengthen their credibility and a more efficient regulation of their affairs.

Change in the wording of “fair use of a copyrighted work”

Originally, Sec. 185 of R.A. 8293 has utilized the word “multiple copies” to allow for the fair use of copyrighted materials but this was amended to “limited number of copies” by R.A. 10372[11]. It can be gleaned from the amendment that the purpose of the author of this bill is to restrict the number of copies for classroom use, scholarship, research and other purposes. As opposed to the word “multiple” which is defined as “several or many”[12], “limited” clearly implies a more restricted number of copies although not specified.  Under this purview, the concept of fair use is consistently established with the expression that the dissemination copyrighted materials for classroom use and others are reasonably restricted.

Amendment on the period of protection in light of delineating specific moral rights

Sec. 198[13] was amended to qualify the term of the moral rights of an author from during the lifetime plus 50 years to during the lifetime plus in perpetuity. It further qualified the coverage of protection under the posthumous term and confined the same to the right of the author to be attributed. The other rights stipulated under Arts. 193.2, 193.3 and 193.4 which are restrictions on the use of copyrighted materials have been expressly made to be coterminous with the economic rights of the author. It is deemed that the creation of dichotomy of protection between the attribution and restriction of usage is but proper and practical in view of the real purpose of our law. Aside from the respect to be given to authors, the law likewise aim to provide the public with quality materials coming from these well endowed authors. After all, the enrichment of the public’s knowledge is the moving power for our country’s improvement.

Added alternative of statutory damages as a claim for infringement

Sec. 216.1 was amended to add an alternative to claim actual damages which is the statutory damage. It states: “The copyright owner may elect (emphasis supplied), at anytime before final judgment is rendered, to recover instead of actual damages and profits, an award for statutory damages for all infringements involved in an action in a sum equivalent to the filing fee for the infringement action but not less than Fifty thousand pesos...” This provision is deemed to be a floodgate for unjustifiable claims for profit. It must be noted that the structure of our laws and jurisprudence when it comes to awarding damages is based on either the capacity of the losing party to actually pay the amount claimed and the definite loss sustained by the aggrieved party. The design is to rule out the possibility of lawsuits to become a money making business as opposed to other countries which have awarded excessive claims and known to be clogged with baseless law suits. In providing for the actual damages, our law confines the claim of the aggrieved party to the value of actual loss sustained while the other forms of damages take into consideration the circumstances that may not be obtained through pecuniary estimation. Should the law do-away with the restriction on award for damages, and provide this statutory damage as can be seen in the amendment without any specification as to the maximum amount that may be recovered, there is a possibility that shameless claimants will come forward and claim said statutory damage instead of actual damages. This can further lead to harassments suits that will work to the detriment of perfectly legitimate businesses.

Ultimately, R.A. 10372 is designed to improve the safeguards of intellectual property rights and the fair use by its public. However, as discussed above, the loopholes found within its provisions cannot be left unheeded because the issuance of clarificatory statements or opinions from the government will be insufficient in litigation. In addition, the said opinions are deemed to change alongside the current political agenda or demands of the public. The lawmakers must be able to provide us with stable and sound laws to ensure the unbiased protection of the various stakeholders.







[1] TJ Dimacali, “New IP Law allows warrantless searches, 'erases' right to personal use”, http://gmanetwork.com/news/tag/intellectualproperty, last retrieved: 5/23/2014
[3] Sec. 7, R.A. 8293, Intellectual Property Code of the Philippines as amended by R.A. 10372
[4]TJ Dimacali, “New IP Law allows warrantless searches, 'erases' right to personal use”, http://gmanetwork.com/news/tag/intellectualproperty, last retrieved: 5/23/2014
[5] Official Gazette of the Philippines, http://www.gov.ph/2013/03/11/infographic-faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/, last retrieved: 5/23/2014
[6] 1987 Philippine Constitution, Sec.2 Article 3, Bill of Rights
[7] TJ Dimacali, “New IP Law allows warrantless searches, 'erases' right to personal use”, http://gmanetwork.com/news/tag/intellectualproperty, last retrieved: 5/23/2014
[8] Official Gazette of the Philippines, http://www.gov.ph/2013/03/11/infographic-faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/, last retrieved: 5/23/2014
[9] Sec. 109.1 (a)(i-iii), R.A. 8293, Intellectual Property Code of the Philippines
[10] TJ Dimacali, “New IP Law allows warrantless searches, 'erases' right to personal use”, http://gmanetwork.com/news/tag/intellectualproperty, last retrieved: 5/23/2014
[11] Sec. 12 of R.A. 10372, An act amending certain provisions of R.A. 8293, otherwise known as the “Intellectual Property Code of the Philippines”, 2012
[12] Merriam-Webster Dictionary, United States of America, 1989
[13] Sec. 198 of R.A. 8293 The Intellectual Property Code of the Philippines as amended by R.A. 10372

Martes, Mayo 6, 2014

How to improve SB 53


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.



[1] Jose Jesus M. Disini, Jr., et al. Vs. The Secretary of Justice, et al.
[2] Practice of Obtaining ideas or content by getting contributions from a large group of people, and especially from an online community