“I think it’s fair to say that personal computers have become the most empowering tool we’ve ever created. They are tools of communication, they’re tools of creativity, and they can be shaped by their users” -Bill Gates
Indeed, computer is the most powerful tool that man has ever created. With the help of the internet, this powerful tool may be used in different ways, in communication or even boosting one’s economy and it may even be the channel or forum for every individual to express their feelings or sentiments. However, this great convenience comes with greater responsibility and duty, not only to be mindful of the rights of other people but also, the duty of the government in coming up with a protection for every individual. By that, the Legislative body of the Philippines had passed several laws seeking to protect the rights of Filipino netizens and providing for a penalty for those who will commit a crime through the use of the ICT. For one, RA10173 or the Data Privacy Act of 2012 and another would be the controversial Cybercrime law.
Recently, the Philippines was shaken by the passing of RA10175, also known as Cybercrime Law. Filipinos went hysterical about it and at least 15 petitions were filed before the Supreme Court seeking to declare said law as unconstitutional. On the other hand, the Supreme Court in addressing this problem, issued a 120 day Temporary Restraining Order to stop the implementation of the law.
Is RA10175 BAD?
To help you understand the subject matter of this article and before I dig deeper, let me just express my sentiments about RA10175. Is RA10175 a bad law? I honestly believe that this law is a GOOD law, considering the fact that it seeks to prevent identity theft, fraud and even child pornography. The problem however, which triggered me and the filipino netizens to react, is that the law has loopholes which cannot be left unnoticed because it violates the rights of the people which were secured by the Constitution.
For one, there is a libel provision in the law. Netizens were afraid that the government itself, who must protect their very right to freedom of expression, as mandated by the Consititution, will be the one violating it. The law provides for a heavy penalty for any person who would post, through social networking sites, any libelous statements.
Another issue in this law is the violation of the right of the people to privacy. The Constitution, particularly Section 3 (1), Article III, 1987 Constitution provides:
“The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
It is clear, therefore, that there must be a lawful order of the court. In this case, however, RA10175 gives the government a blanket authority to collect and seized data prior to the issuance of a court order for the same.
As I go along with the discussion, I will try to compare provisions of RA 10175 and SB 3327 to come up with a conclusion on which of the two is better.
NEW LIFE, NEW HOPE!
Worry not my friends and fellow netizens, with the advent of SB3327 an act establishing magna carta for Philippine internet freedom, cybercrime prevention,and law enforcement, cyberdefense and national cybersecurity, which was introduced by Senator Miriam Defensor Santiago, there is a window of opportunity waiting for us. And if this becomes a law, there would be, indeed, new life and new hope for the Filipinos.
Let’s backtrack a little; this senate bill was passed by Senator Santiago to address the problem in RA10175. It is said to be the first law, if ever, to be crafted through crowdsourcing, which she describes as a process of getting the job done by tapping people on the Internet.
According to Santiago, it was concerned netizens that include software designers, information technology experts, academics, bloggers, engineers, lawyers and human rights advocates who went to her with a draft of the MCPIF. She said the group formulated the MCPIF through discussions in an open Facebook group, e-mail, Google Hangout teleconferences and social media channels like Twitter.
After going through the bill, I noticed this outstanding provision waving at me. Section 23 of the bill expressly repealed RA 10175 in its entirety. It only means that, if this would become law, Filipinos should not be afraid anymore. Their rights to freedom of speech and right to privacy are fully protected by the bill. Senator Santiago said:
“While it is important to crack down on criminal activities on the Internet, protecting constitutional rights like free expression, privacy and due process should hold a higher place in crafting laws.”
Another provision that caught my attention is section 6 paragraph 2. It states that no person shall be deprived of internet access until and unless there is an order issued by a court of competent jurisdiction. This provision clearly upholds our Constitutional guaranteed right to due process. Section 1 of Article III of the 1987 Constitution provides:
“No person shall be deprived of life, liberty or property without due process of law”
Contrary to the provision of RA 10175, particularly section 19 thereof, it provides that when a computer data is prima facie found to be in violation of the law, the DOJ has the power to issue an order to restrict or block access to such computer data. The provision of the law gives the government the blanket authority and wide discretion to determine whether or not there is violation of the law. It gives the DOJ a power that may be abused if not used or exercised properly.
Another interesting provision of the bill is section 36 thereof. The proposed bill took a big step in decriminalizing libel through the use of internet. The provision provides that libel will only give rise to civil liability and the amount shall be commensurate to the damages suffered. Unlike in RA 10175, libel is a criminal offense and the penalty to be imposed of is one degree higher than that provided in the Revised Penal Code. This is absurd and alarming at the same time, the only qualifying circumstance for the higher penalty is the use of information and communication and technology.
Worthy to note is section 33 (A.4) and (A.5). Netizens, especially journalist, would have the freedom to express their sentiments against the government without the threat of being prosecuted or to be held liable for their acts. Section 33 (A.4) provides for the exceptions to internet libel. Some are: a.) Expressions of protest against the government; b.) Expressions of dissatisfaction with the government, its agencies or instrumentalities, or its officials or agents, or with those of foreign governments. On the other hand, if in case an individual is prosecuted or being held liable for internet libel, Section 33 (A.5) comes into play. This particular provision provides netizens with a defense. Internet libel will not lie not lie if the content of the expression is proven to be true, or if the expression is made on the basis of published reports presumed to be true, or if the content is intended to be humorous or satirical in nature, except if the content has been adjudged as unlawful or offensive in nature in accordance with existing jurisprudence.
Furthermore, a prosecution under the proposed bill will bar any further prosecution of the act as a violation of the Revised Penal Code and other special laws. This is expressly stated in Section 40 of said bill. Contrary again to Section 7 of RA 10175 in which prosecution under the said law shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. The provision of the proposed bill upholds the rule on double jeopardy which is mandated by our Constitution. Section 21 Article III of the 1987 Constitution provides:“No person shall be twice put in jeopardy of punishment for the same offense.”
“A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill, having no legal effect, violates no constitutional right or duty.”
-Montesclaros vs COMELEC GR No. 152295
Having said that, the proposed bill has no legal effect, it confers no rights, it imposes no duties and it affords no protection. Regardless of how perfect it was crafted or how beautiful the intention is, still, we cannot rely on it.
However, as a nation and as responsible netizens, we cannot just sit. We can do something just like what we did when RA 10175 took effect. We once raised our voice to protect our rights. We can do that again now so that this SB 3327 may be given importance. In my humblest opinion, the proposed bill is almost perfect compared to RA 10175, and if it becomes law, it will change the entire future not only of the Philippines but its people.