Proposed Improvements on the Magna Carta for Philippine Internet Freedom (MCPIF)

PROGRESSIVE INTERNET USAGE IN THE PHILIPPINES

Reforming Senate Bill No. 53

 

 

The Philippine Internet

 

The Internet was first introduced in the Philippines on March 29, 1994, through the Philnet, a product of the minds of a group of young computer science teachers from the country’s leading universities, seasoned project managers, and network engineers.[i] It has, from then on, become an integral part of the daily lives of Filipinos.

 

While there is no denying that the Internet is one of the most, if not the most, useful tools in communication, businesses, academics, among others, history has shown that the Internet has likewise been employed by many as a venue  for committing crimes and felonies. Quoting a 2010 report of the security software firm Symantec, a primer released by the Department of Justice (DOJ) claimed that as many as 87 percent of Filipino internet users (nearly nine out of 10) were identified as victims of crimes and malicious activities committed online.[ii] These included being victimized in activities such as malware (virus and Trojan) invasion; online or phishing scams; sexual predation; and services in social networking site like Facebook and Twitter.[iii] In the said primer, cybercrime was defined as one which is committed “with or through the use of information and communication technologies such as radio, television, cellular phone, computer and network, and other communication device or application.”[iv]

 

Cyber Crime Act: Oppositions and Enactment

 

The foregoing led to the introduction of the House Bill No. 5808[v] and Senate Bill No. 2796[vi], which were morphed and subsequently signed into a law, the Republic Act (R.A.) No. 10175[vii], the first in the Philippines to criminalize certain computer and Internet-related acts. Noteworthy is the fact that while there were existing laws prior to the enactment of R.A. No. 10175 that govern such acts, such as Republic Act No. 8792 or the Electronic Commerce Act of the 2000, said laws merely regulate certain activities that may be conducted using the computer and the Internet. Hence, the need to address the more pressing issues brought about by the changes in time and circumstances.

 

Amidst the overwhelming oppositions to the Cyber Crime Act, the Supreme Court issued a temporary restraining order (TRO) for a period of 120 days, preventing the implementation of the same. The TRO was, however, lifted upon the lapse of the said period in December 2012.

 

On February 11, 2014, the Supreme Court finally settled the question on the constitutionality of the assailed provisions of the Cyber Crime Act. In its decision in the case of Disini vs. Secretary of Justice[viii], the High Court held that the Act is constitutional except for three provisions therein, viz, Section 4(c)(3)[ix], which prohibited, as a general rule, unsolicited commercial communications; Section 12[x], which allowed real-time collection of traffic data by law authorities; and Section 19[xi], which gave the DOJ the power to restrict or block computer data when prima facie found to be in violation of any provisions of the Act. As such, it is regarded as good law to date, insofar as the constitutional provisions are concerned.

 

There remain qualms, however, on the Cyber Crime Act, notwithstanding the Disini decision. One feature of the said decision, which, according to many, may impede certain rights that are enjoyed by an ordinary Filipino Internet user is the refusal of the Court to declare the provision on online libel as unconstitutional as a whole. Instead, the Court opted to uphold its constitutionality but only with respect to the original author of the post.[xii] Hence, if one merely shares or likes an allegedly libelous post without posting a separate libelous statement not part of the original post, such person may not necessarily be indicted in online libel. The Court opined that cyber libel is merely an extension of the crime libel as contemplated in the Revised Penal Code[xiii], hence, may verily be penalized. Not only did the Court uphold its constitutionality, It sustained the higher penalty to be imposed upon violators of the cyber libel provision, on account of the very nature of the act.[xiv]

 

To date, a number of advocates prepare the filing of a Motion for Reconsideration of the Disini decision. These advocates, who include lawyers, activists, journalists and academics, claim that “online libel will add to the continuing threat against free speech and expression”[xv] and that the Disini decision is “another huge step back for freedom of expression in a time when other countries are moving towards decriminalizing libel.”[xvi] Some of the said advocates contend that the mere fact of the continued existence of libel in the Revised Penal Code, more so of its being buttressed in the Cyber Crime Act, is a violation of the International Covenant on Civil and Political Rights (ICCPR), to which the Philippines is a signatory and which was enforced in 1987.[xvii]

 

Repealing the Cyber Crime Act[xviii]: The Introduction of the Magna Carta for Philippine Internet Freedom (MCPIF) as Senate Bill No. 53

 

First filed by Senator Miriam Defensor-Santiago in the 16th Congress, Senate Bill No. 53, entitled “Magna Carta for Philippine Internet Freedom”, promises a refinement of the controversially opposed Cyber Crime Act – a better and a more modernized treatment of the issues which the latter either failed to discuss or incorrectly or inappropriately dealt with.

           

Dubbed as the country’s first ever crowd-sourced piece of legislation, the bill paved the way for the participation of social media users in its creation. Crowdsourcing, as it is defined now, is the “practice of obtaining ideas or content by getting contributions from a large group of people, and especially from an online community.”[xix] Through the help of experts in the field, the bill is conveniently divided into ten parts and 85 sections, the most pertinent of which include Part 3, entitled ““Internet Rights and Freedoms”, which bans internet censorship and data discrimination and promotes net neutrality, among others; Part 4 which creates the Department of Information and Communications Technology (DICT), the proposed executive department that shall focus on information and communications technology policy-making, among others; Part 6, entitled “Regulations for the Promotion of Internet Rights and Freedoms”, which explicitly repeals the much-assailed law, the Cyber Crime Act; Part 6, entitled “Cybercrimes and Other Prohibited Acts” and Part 7, entitled “National Cybersecurity, Cyberdefense, Counter-Cyberterrorism, and Counter-Cyberespionage” which defines these crimes; and Part 8, which  provides for penalties therefor.

 

Quoting a news article, Senator Defensor-Santiago claims that her bill “does not suffer from overbreadth and vagueness in its provisions on libel, unlike the law it tries to replace” and that “it treats libel as a civil liability rather than a criminal act, which is a step forward in the move to decriminalize libel.”[xx] The senator was referring to the Cybercrime Prevention Act of 2012 or Republic Act 10175, which various sectors criticized for allegedly violating freedom of expression and giving the government too much power over Internet users.[xxi] According to her, the bill provides for appropriate mechanism and command structures within the government to address ICT-enabled threats and promote online access and social benefits.[xxii]

 

As earlier pointed out, the Internet has clearly become part of the daily lives of Filipinos. However, although the Philippines has the fastest growing Internet audience in Southeast Asia,[xxiii] studies show that it only reaches 33 million people in the country, a mere 3.5 out of 10 Filipinos or 35% of its population, as of November 2013.[xxiv] During January 2014, each user in the Philippines spent an average 6.2 hours per day online through a desktop or laptop and 2.8 hours logged to the Internet through a mobile device.[xxv] Further, in another recent study, the Philippines was shown to have a rather slow Internet speed, at a mere rate of 3.5 Megabits per second (Mbps).[xxvi] The country is now ranked 155th in the world in terms of Internet speed.[xxvii]

 

Clear, then, is the need of (1) effectively reconstructing existing laws governing Internet and computer-related activities; (2) ensuring that the Internet, which remains to be a privilege granted to a few, transforms into a right that may be availed of by many; (3) upholding the rights and freedoms enjoyed by Filipinos by extending the same onto the use of the Internet; and (4) creating an avenue where Internet speed in the country becomes at par with its Asian neighbors’.

 

The MCPIF: Its Highlights and Lowlights

 

In its primer, it is said that the MCPIF has four key principles, viz, “civil and political rights enshrined in the Constitution should be recognized and promoted in cyberspace; ICT should be harnessed to improve governance and empower citizens; ICT is a powerful driver of the national economy; and the country should prepare for the security challenges of the future without violating Constitutional rights of citizens.”[xxviii]

 

Some of the more applauded features of the bill include (1.) its assurance of 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; (2) its mandate upon government agencies to provide security for the data they collect from citizens to ensure their right to privacy; (3) its provision for court proceedings in cases where websites or networks are to be taken down; (4) its prohibition against censorship of content without a court order; (5) its prohibition against double jeopardy; (6) its clarification on  the mandate and organization of the proposed Department of Information and Communications Technology (DICT); (7) its preparation on the proposed DICT, law enforcement agencies, and the military with provisions for handling cybercrimes; (8) its amendments to the AFP Modernization Act to ensure the country has weapons and defenses against cyber attacks by terrorists, violent non-state actors, and rogue or enemy nation-states; and (9) its mandate upon the Philippine National Police and the National Bureau of Investigation to combat cyberterrorism.[xxix]

 

While it is almost unanimously agreed upon by the advocates of Philippine Internet freedom that the MCPIF is breath of fresh air as compared to its predecessor, the Cyber Crime Act, some still maintain that there remains room for improvement in this much-awaited legislation.

 

Sir Tim Berners-Lee, the inventor and founder of the worldwide web, himself  believes that the web that he invented had come under increasing attack from governments and corporate influence and that new rules were needed to protect the “open, neutral” system.[xxx] This proposal from Berners-Lee arose from his criticisms against spy agencies’ surveillance of citizens.[xxxi] He maintains that there must be a neutral internet that can be relied on without the people being worried about what is happening at the back door and that examines the impact of copyright laws and the cultural-societal issues around the ethics of technology.[xxxii]

 

In the United States, the proposal for a digital bill of rights ensures that there will be no surveillance without suspicion, and that digital communication and behaviour will be treated with the same respect and legal due process that we expect for offline communication and behaviour.[xxxiii]

 

 

Improving the Improvement: On To Progress in Internet Usage

 

Internet Libel vis-à-vis Freedom of Speech

 

Libel, under the Revised Penal Code, is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.[xxxiv]

 

As earlier noted, the provision on Internet libel under the Cyber Crime Act has been held constitutional by the Court but only as regards to the original author of the libelous post. The MCPIF narrowed down the applicability of Internet libel by providing for certain exceptions thereto[xxxv], particularly expressions of protest and dissatisfaction against the government and private entities, among others, and by providing that truth be a valid defense against a charge on Internet libel.[xxxvi]

 

Noteworthy, however, is the omission of any provision with respect to expressions against a natural person in his capacity as such, as an exception to the applicability of Internet libel. Hence, there is nothing in the said bill that protects a parent who, for instance, retaliates, through the use of his personal blog, on a parent of a child who has bullied his own child. By attacking the parenting skills of this person, through his “online diary”, the blogger opens himself to criminal liability for Internet libel. While the bill provides for truth as a defense and while the fact of bullying may verily be proven as true, the poor parenting skills of the other parent, which is subject of the attack in the blog, may not be as easily proven.

 

Take the case of the Filipino-American mother who posted pictures of her toned and trimmed body with her three kids with the caption, “What’s your excuse?” which sparked anger among mothers who supposedly do not have time to go to the gym and take care of themselves.[xxxvii] Had this happened in the Philippines and had Filipino mothers reacted with the same defensive and angry opinions, the latter would have been indicted on Internet libel at the instance of the one who posted the pictures, had the MCPIF already existed as a law; more so if it were the Cyber Crime Act.

 

Another absurdity is this – X, a young man who was left by his ex-girlfriend, Y, for a richer man, posted on his public Twitter account a statement which reads, “Tang ina mo, Y, mukha kang pera!” Realizing after five seconds that his post was too harsh and it was but a mere result of all the pain he felt, he deleted the same. One of his followers named Z, however, saw the tweet, took a screenshot of it and sent the same to Y. May X now be charged with Internet libel? Yes, the bill seems to provide so. Fickle-mindedness and heart aches, after all, are not valid defenses under the bill.

 

In other words, the MCPIF would have been a “better” law if comments, imputations and reactions posted through the Internet were to be excluded altogether from the purview of libel, as contemplated in the Revised Penal Code. There are three (3) justifications behind this proposal. First, posts on the Internet are not of the same nature as those made through the means provided for under Article 355 of the Revised Penal Code. Internet posts, such as comments on Facebook and modified tweets on Twitter, are, more often than not, spur-of-the-moment reactions of individuals on a certain issue. As compared to the media provided for under the Revised Penal Code, these posts do not undergo prior scrutiny and editing, hence, the authors thereof should not be held equally liable as their counterparts who use such other media. Second, a provision which excludes Internet posts from the contemplation of the Code is a big step towards the ultimate goal of decriminalizing libel. This may pave the way for Congress to re-think provisions in the Code on libel and, hopefully, repeal or amend the same. Third, Section 4 Article III of the 1987 Constitution which reads, “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.” This right is enshrined in and protected by the Constitution itself. Ergo, while there is no denying that a person may suffer from attacks posted online by another, criminal liability is uncalled for. This argument brings us back to the second justification which aims to hold the person who posted civilly liable to the one attacked, but not criminally to the State.

 

Network Neutrality

 

“When I invented the Web, I didn’t have to ask anyone’s permission.”[xxxviii] These were the words of Berners-Lee when he expressed his concerns on network neutrality. He explains, “Net neutrality is this – If I pay to connect to the Net with a certain quality of service, and you pay to connect with that or greater quality of service, then we can communicate at that level.”[xxxix]

 

Just recently, the European Parliament voted to stop Internet providers from charging for preferential access to their networks. This legislation forces Internet providers to treat all traffic the same regardless of its source.[xl]

 

In the Philippine setting, leading Internet providers are known to be offering their subscribers different deals which tend to favor certain website so as to produce more revenue by enticing such subscribers to greater data usage. The MCPIF seeks to restrict, if not prohibit, this practice by the incorporation of Section 12[xli] therein. Through this provision, Internet providers may either offer deals which do not favor the more popular websites, such as Facebook and Twitter, but those that likewise cater to the users of les popular sites or they may choose to take down all deals, which may hurt the consumers, especially those on prepaid subscription take advantage of promos offered by these providers.

 

Hence, two (2) propositions are offered in this paper to further buttress Section 12 of the MCPIF. First, network neutrality must not only be promoted, but must be mandated or required upon these Internet providers without giving them the option of compromising the quality and affordability of their services to the subscribers. This way, big domestic businesses may look into partnering with Internet giants such as Facebook, Twitter and Instagram by gaining their revenue from the latter, and not from the Filipino subscribers who can only shell out so much for Internet usage. Second, while the existence Section 12 in the MCPIF is commendable, the penalty imposed under Section 62[xlii] for the violation of provisions of the bill, including Section 12 thereof, renders dubious the intent of the authors of the bill to punish corporations that are errant in complying with the letter of the [soon-to-be] law. Ergo, it is proposed in this paper that either a higher fine be imposed or, better yet, a separate provision be added specifically for violations of Section 12 of the bill.  This way, Internet subscribers can be assured of the sincerity of the authors of the bill to maintain and promote network neutrality.

 

Protection of Intellectual Property

 

The MCPIF recognizes and bolsters the existing laws in the Philippines on the protection of intellectual property. As a matter of fact, Section 10 protects intellectual property online in accordance with the existing Intellectual Property Code of the Philippines (RA 8293).[xliii]  Section 10(c) prevents Internet service providers and telecommunications entities from gaining intellectual property rights over derivative content that is the result of “creation, invention, innovation, or modification by a person using the service provided by the Internet service provider, telecommunications entity, or such person providing Internet or data services.”[xliv]

 

The subject bill, while adopting certain amendments to the Intellectual Property Code set forth by Republic Act No. 10372[xlv], on one hand, likewise creates its own amendments thereto, on the other. A commendable amendment is the introduction of the concept of copyleft, which may be defined, in the language of the layman, as a method of providing free access to the results of original work and of encouraging people to reproduce and even modify this work on an equally free basis.[xlvi] Copyleft is thus diametrically opposed to the traditional concept of copyright, which nowadays people seem to be trying to use to cover absolutely everything, from genes to intellectual property.[xlvii]

 

The aforesaid provisions are laudable and may only be improved only as a matter of form – that is, that the provisions governing intellectual property be placed under the same part or chapter of the law, should the MCPIF be approved. Further, once it becomes a law, the implementing rules and regulations of the bill, especially those with respect to provisions on intellectual property, should be designed in such a way that copyright is protected while copyleft is being promoted.

 

Restrictions on Fair Use Policy and Data Capping

 

Data caps, also called bandwidth or broadband capping, is a method by which Internet service providers (ISPs), network service providers, and telecommunications groups manage or control their data. This is done through a process known as throttlling, where the amount of data sent and received on a given communications channel – or bandwidth – is lessened.[xlviii] Data caps are often stated in service providers’ fair use policies. Fair use policies are meant to be enforced to protect abuses, such as the illegal sharing of copyrighted material or media and text message spamming using unlimited messaging promotions.[xlix]

 

One of the country’s leading telecommunications companies and Internet provides, Globe Telecoms (Globe for brevity), has been summoned by the National Telecommunications Commission (NTC) to explain several complaints on its Fair Use Policy. As defense, Globe maintained that the implementation of its fair use policy will curb piracy and illegal torrenting, as well as abuses.[l]

 

To address this issue, the authors of the MCPIF included therein Section 37, which deals with the quality of service and network fair use, which does not absolutely prohibit data capping but merely regulates the same.

 

Should the present bill become a law, new provisions implementing the procedure on data capping would be a welcoming sight. Hence, while Internet providers, such as Globe and Smart, may still be allowed to maintain their respective data capping policies, stricter rules need to be imposed on them in informing their subscribers on the same prior to the latter subscribing to their postpaid plans. Hence, a contract containing the provider’s fair use policy in micro font size should not suffice. There should be a provision either in the law itself or in its Implementing Rules and Regulations (IRR) mandating the Internet providers and their agents to orally explain to the subscribers the implications of their fair use policies and to include the same in all the advertisements promoting their postpaid subscriptions. Only through this may the subscribers be thoroughly apprised of the limitations in the data plans they subscribe to.

 

Creation of the Department of Information and Communications Technology (DICT) vis-à-vis adjudication of MCPIF violations

 

The entire Part 4 of the bill is dedicated to the discussion of the creation, functions and powers of the Department of Information and Communications Technology (DICT).

 

Quoting Senator Teofisto Guingona III, who filed Senate Bill No. 2144 which mandates the Department of Transportation and Communications (DOTC) to focus on transportations and which seeks to create a separate entity which shall deal with communications, having a department that would exclusively focus on issues relating information and communications technology (ICT) has become a vital need inasmuch as the internet has become an indispensable tool in bringing people together and as a growing industry, there is a need to ensure that ICT is regulated and that it will benefit the general public.”[li]

 

Quasi-judicial functions remain, however, with the National Telecommunications Commission (NTC), which shall be attached to the DICT. In other words, an administrative determination is still a condition precedent prior to the institution of judicial proceedings. Section 67 of the bill provides for the existence of a Cybercrime Court. The bill is silent, however, as to the number of cybercrime courts that shall be assigned in specific judicial regions, as in the case of Special Commercial Courts.

 

Universal Access

 

In her analysis on the MCPIF, Jillian York of the Electronic Frontier Foundation notes that, while Section 5 of the bill explicitly promotes universal access to the Internet, Section 5(b) allows for the suspension of an individual’s Internet access as an accessory to other penalties upon conviction of certain crimes, with certain checks and balances.[lii] She adds that, remarkably, Section 5(e) prevents persons or entities offering Internet access for free or for a fee (including hotels, schools, and religious groups) from restricting access to the Internet or limiting content that may be accessed by guests, employees or others “without a reasonable ground related to the protection of the person or entity from actual or legal threats, the privacy of others who may be accessing the network, or the privacy and security of the network as provided for in the Data Privacy Act of 2012 (RA 10173) or this Act.”[liii]

 

Hence, under the universal access provision in the MCPIF, a private company may not be able to restrict the use by its employees of websites, such as Facebook and Twitter, if such use is not “ground related to the protection of the person or entity from actual or legal threats, the privacy of others who may be accessing the network, or the privacy and security of the network as provided for in the Data Privacy Act of 2012 (RA 10173) or this Act.” Thus, upon passage of this bill into a law, there remains very little legal basis, if any, behind certain companies blocking websites for the sole purpose of prohibiting their employees from accessing the same during hours that they are supposed to be working. Certainly, this could not have been the intent of the authors of the bill for this may severely hurt the operations of these private companies who are known to make profit from the time rendered by and the productivity of their employees. It is urged, then, that such ground be added to the exceptions to the provision on universal access to protect the interest of the owners of these enterprises who are entitled to the return of their investments.

 

Affordable and Speedy Internet

 

The Philippines has the third-slowest Internet speed in locations surveyed in Asia and the Pacific by content delivery network Akamai, ahead of Indonesia and India[liv] and as earlier noted, it is among the slowest in the world and it has only 35% of its population accessing the Internet.

 

In response, the MCPIF seeks to amend the Public Telecommunications Policy Act of the Philippines by providing that Internet providers may offer value-added services (VAS) but a provision on high-speed internet shall not be classified as VAS. The MCPIF likewise includes in the objectives of the DICT under Section 15 the task of ensuring “universal access and high-speed connectivity at fair and reasonable costs.”

 

The measures as to how this type of connectivity at such costs may be had are unclear. Hence, it is proposed in this paper that the government, through this bill or through any other law, should determine a minimum speed that Internet providers must meet prior to being granted a franchise to provide Internet services. Note that what is being proposed is a minimum Internet speed, the non-compliance of which may be a ground for the suspension or revocation of the subsisting franchise of an Internet provider. This minimum Internet speed must be agreed upon by the provider and the subscriber in the contract that they shall be entering into and must clearly appear in all the advertisements of the Internet provider. Further, such connectivity and cost must not merely be aimed by the DICT or any department concerned, but must explicitly appear in a summation of Internet rights to be enjoyed by Filipinos.

 

Form and Structure of the Bill itself

           

Not lawyer and layman-friendly – this was an initial impression on the structure and form of the bill itself. While the technical definitions of terms which call for such are of immense help in truly understanding the concepts which may be new to the ears of both lawyer and layman, there must certainly be a means to part the provisions according to the subject matter such that one who seeks to understand how intellectual property, for instance, is treated in the MCPIF need not read the entire bill to know what he seeks to know.

 

In fine, while there may be many ways on how the MCPIF can be improved on, the bill is a great step towards progress with respect to Internet usage. As Jillian York has put it, the crowdsourced Act is a success story[lv] and may verily be considered as a better law compared to its predecessor, the Cyber Crime Act.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[i] Jim Ayson, “The Philippine Internet turns 18: Is anyone still counting?”, February 29, 2012, http://www.gmanetwork.com/news/story/249810/scitech/technology/the-philippine-internet-turns-18-is-anyone-still-counting. Last seen on April 25, 2014.

[ii] Christine O. Avendano, “87% of Filipino Internet users have been victims of cybercrimes–DOJ”, Philippine Daily Inquirer, January 1, 2013, http://technology.inquirer.net/21557/87-of-filipino-internet-users-have-been-victims-of-cybercrimes-doj. Last seen on April 25, 2014.

[iii] Id.

[iv] Id.

[v] “Cybercrime Prevention Act of 2012.”

[vi] “Cybercrime Prevention Act of 2011.”

[vii] “AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES.”

[viii] G.R. No. 203335, February 11, 2014.

[ix] Section 4(c)(3) of R.A. No. 10175 reads:

 

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

 

x x x x

 

(c) Content-related Offenses:

 

x x x x

 

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

 

(i) There is prior affirmative consent from the recipient; or

 

(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or

 

(iii) The following conditions are present:

 

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;

 

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

 

(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.

[x] Section 12 of R.A. No. 10175 reads:

 

Sec. 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.

 

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

 

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

[xi] Section 19 of R.A. No. 10175 reads:

 

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

[xii] Supra note viii.

 

xxx                         xxx                         xxx

 

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were enacted. The culture associated with internet media is distinct from that of print.

 

The internet is characterized as encouraging a freewheeling, anything-goes writing style. In a sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed with which such reactions are disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will deal with next in relation to Section 5 of the law.

 

xxx                         xxx                         xxx

[xiii] Article 353 of the Revised Penal Code reads:

 

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

[xiv] Supra note viii.

 

xxx                         xxx                         xxx

 

As the Solicitor General points out, there exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using other means. In using the technology in question, the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.

 

xxx                         xxx                         xxx

[xv] Interview with Bayan Secretary Gen. Renato Reyes, “Groups continue to oppose Anti-cybercrime Law, Manila Bulletin Online”, February 19, 2014, https://ph.news.yahoo.com/groups-continue-oppose-anti-cybercrime-law-151819513.html. Last seen on April 27, 2014.

[xvi] Id.

[xvii] “Roll out red carpet for Internet users, senators told”, Rappler, March 3, 2014, http://www.rappler.com/nation/52026-online-libel-senate-hearing. Last seen on May 1, 2014.

[xviii] Section 42 of S.B. No. 53 reads:

 

SECTION 42. Repeal of the Cybercrime Prevention Act. – The Cybercrime Prevention Act of2012 (RA 10175) is repealed in its entirety.

[xix] Kevin A. Lagunda, “Group pushes for alternative law”, Sunstar, September 19, 2013, http://www.sunstar.com.ph/cebu/local-news/2013/09/19/group-pushes-alternative-law-304083. Last seen on May 2, 2014

[xx] Ayee Macaraig, “Miriam proposes new anti-cybercrime law”, Rappler, November 20, 2012, http://www.rappler.com/nation/17045-miriam-proposes-new-anti-cybercrime-law. Last seen on April 26, 2014.

[xxi] Id.

[xxii] Ernie Reyes, “Miriam files Internet freedom bill to counter anti-cybercrime law”, Interaksyon, July 2, 2013, http://www.interaksyon.com/infotech/miriam-files-internet-freedom-bill-to-counter-anti-cybercrime-law. Last seen on April 27, 2014.

[xxiii] Katherine Visconti, “PH Internet audience growth fastest in Southeast Asia”, Rappler, August 1, 2013, http://www.rappler.com/life-and-style/technology/35384-philippine-internet-audience-growth-comscore. Last seen on May 1, 2014.

[xxiv] Nicole Baldivia, “The State of Philippine Internet Usage 2013 (Infographic)”, November 11, 2013, http://www.forward.ph/blog/the-state-of-philippine-internet-usage-2013-infographic/. Last seen on May 2, 2014.

[xxv] “Philippines leads Asia Pacific for internet use”, February  19, 2014, http://www.digitalstrategyconsulting.com/intelligence/2014/02/philippines_leads_asia_pacific_for_internet_use.php. Last seen on May 2, 2014.

[xxvi] Matikas Santos, “Gov’t blamed for PH’s slow Internet speed”, Inquirer, May 1, 2014, http://technology.inquirer.net/35871/govt-blamed-on-phs-slow-internet-speed. Last seen on May 3, 2014.

[xxvii] Matikas Santos, “PH has slowest internet in Southeast Asia”, Inquirer, April 21, 2014, http://technology.inquirer.net/35596/ph-has-slowest-internet-in-southeast-asia. Last seen on May 3, 2014.

[xxviii] Supra note xviii.

[xxix] Id.

[xxx] Jemima Kiss, “An online Magna Carta: Berners-Lee calls for bill of rights for web”, The Guardian, March 12, 2014, http://www.theguardian.com/technology/2014/mar/12/online-magna-carta-berners-lee-web. Last seen on May 3, 2014.

[xxxi] Id.

[xxxii] Id.

[xxxiii] Tim Farron and Julian Huppert, “Parliament has failed to do its digital duty. We need a bill of rights”, The Guardian, March 7, 2014, http://www.theguardian.com/commentisfree/2014/mar/07/parliament-digital-duty-bill-rights-liberal-democrats-surveillance. Last seen on May 3, 2014.

[xxxiv] See Section 353, Act No. 3815 otherwise known as “Revised Penal Code”.

[xxxv] See Section 52(v), Senate Bill No. 53.

[xxxvi] Ibid., Section 54(iv).

[xxxvii] Gel Santos Relos, “Controversial Fil-Am mom asks: ‘What’s your excuse?’”, October 26, 2013, http://asianjournal.com/editorial/controversial-fil-am-mom-asks-whats-your-excuse/. Last seen on May 4, 2014.

[xxxviii] “Net Neutrality: This is serious”, June 21, 2006, http://dig.csail.mit.edu/breadcrumbs/node/144. Last seen on May 4, 2014.

[xxxix] Id.

[xl] “European Parliament adopts ‘net neutrality’ law”, Manila Bulletin, April 4, 2014, http://www.mb.com.ph/european-parliament-adopts-net-neutrality-law/. Last seen on May 4, 2014.

[xli] Section 12 of S.B. No. 53 reads:

 

SECTION 12. Promotion of Network Neutrality. – No person or entity shall restrict the flow of data or information on the Internet on the basis of content, nor shall any person institute and employ means or methods to favor the flow of information on the Internet of one class of data or information over another on the basis of content, except:

 

(a)     if the data or information whose flow is being favored is used to solely to manage the security or service quality of a network, or of an Internet or data service, and;

(b)     the data or information whose flow is being favored cannot be used for any other purpose other than the management of security or service quality of the network.

[xlii] Section  62 of S.B. No. 53 reads:

 

SECTION 62. Penalties for Other Violations of the Magna Carta for Philippine Internet Freedom. – A fine of not more than Five hundred thousand pesos (P500,000.00) shall be imposed for a violation of other sections of the law not covered by the preceding sections.

[xliii] Jillian York, A Brief Analysis of the Magna Carta for Philippine Internet Freedom, Electronic Frontier Foundation, July 8, 2013, https://www.eff.org/deeplinks/2013/07/brief-analysis-magna-carta-philippine-internet-freedom. Last seen on May 4, 2014.

[xliv] Id.

[xlv] “AN ACT AMENDING CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8293, OTHERWISE KNOWN AS THE “INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES”, AND FOR OTHER PURPOSES”

[xlvi]http://thebrain.mcgill.ca/flash/pop/pop_copy/pop_copy.html. Last seen on May 4, 2014.

[xlvii] Id.

[xlviii] “NTC summons Globe on data caps, eyes new fair use rules”, Rappler, February 8, 2014, http://www.rappler.com/business/industries/215-tech-biz/49979-ntc-globe-internet-data-caps. Last seen on May 4, 2014.

[xlix] Id.

[l] Id.

[li] Charissa Luci, “More senators seek creation of DICT, Manila Bulletin”, March 3, 2014, http://cached.newslookup.com/cached.php?ref_id=443&siteid=2364&id=5057275&t=1393836566. Last seen on May 4, 2014.

[lii] Supra note xliii.

[liii] Id.

[liv] Supra note xlviii.

[lv] Supra note xliii.

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