Is the Magna Carta for Philippine Internet Freedom better than the Cybercrime Law? 

The controversial Republic Act 10175 or known as Cybercrime Law of 2012 was signed by President Benigno Aquino III on September 12, 2012¹ and was made effective last October 3, 2012, fifteen (15) days after its publication. Since then, it  has been the subject of hot debates and protests questioning about its constitutionality.  Media claims that  it curtails press freedom. Invitation to sign up the petition against it was posted in the internet.²  Every internet user who has the opportunity to voice out their opposition against said law made it as a shout in their ‘FB’ or Facebook account or some have spoken out in chanced television interviews. Every reaction is based on a person’s personal interpretation³ of the law as the implementing Rules and Regulation is yet to be issued. 

In response to petitions filed, the Supreme Court issued a temporary restraining order (TRO) to stop the the implementation of Republic Act No. 10175 Act of 2012 for 120 days.  The SC, in its regular full court session, also set oral arguments on the cases on January 15, 2013.⁴ Senator Miriam Defensor Santiago authored the Senate Bill 3387 or the Magna Carta for Philippine Internet Freedom.

The law and the senate bill shall be dissected and understood in the light of my own understanding and appreciation of the law and the bill.

1.      Scope-  The scope of Republic Act 10175 is limited to the definition of cybercrime, providing for its prevention, investigation, suppression and imposition of penalties and used the "all catch" phrase,  for other purposes. Whereas, the Senate Bill 3327 or Magna Carta for Ineternet Freedom is wider in scope as stated in its long title and to quote, "An Act Establishing a Magna Carta for Philippine Internet Freedom, Cybercrime Prevention and Law enforcement, cyberdefense and

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¹  Republic Act 10175, Section 31, Page 17.

² “I will not be silenced….NO TO RA 10175”, http://www.nujp.org/no-to-ra10175/. 08 January 2013.

³ Toral, Janette, Digital Filipino, http://digitalfilipino.com/introduction-cybercrime-prevention-act-republic-act-10175/. 09 January 2013

⁴ Panaligan, Rey G. “Cybercrime Law Stopped”. Manila Bulletin Publishing corporation, http://www.mb.com.ph/articles/376433/supreme-court-issues-tro-against-ra-10175-or-cybercrime-prevention-act-2012#. 09 January 2013. 

national cybersecurity.” From the title of the Magna Carta alone, it respects the right or freedom to use the internet but it puts a limitation to this for those who will misuse, abuse or disuse it. Magna Carta as defined By Merriam-Webster dictionary is a charter of document consituting a fundamental guarantee of rights and privileges. Indeed, the bill authored by Senator Miriam Santiago did not just simply made a definition of what a cybercrime is but it emphasized that is both a right and privilege. As a right, the State recognizes it but as a privilege, such right will need to be regulated. The scope also covered Cyberdefense and National Cybersecurity. In the Cybercrime Law, it defined only cybersecurity in its definition of terms and referred to all the provisions in the Revised Penal Code for other violations related to the national security. The Revised Penal Code was made effective way back in January 1, 1932⁵ and there are no computer or cybercrime to speak of at that time. This, did not fill in the missing detail of the law.

2.      Declaration of Policy - Both the Cybercrime Law and Magna Carta in the declaration of policy recognized the vital role of communication and information in nation building. However, the policy in Magna Carta is all-encompassing and reiterates that the laws and implementing rules and regulation is in accordance with the 1987 Philippine Constitution. It affirms the State's commitment to the Filipino people for the observance of constitutional rights and the implementation of constitutional law, which is supreme to all other laws.  It guaranteed that the constitutional rights of the people are given primary importance, which was not stated in the Cybercrime Law. The policy of the Magna Carta is very detailed and comprehensive. It tries to show that it will take a balancing act considering all the interests of the people, from the impact to its users, down to the respect for the basic rights and even to the innovation and development of programs to enhance the Philippine economy by harnessing information and technology.  Whereas, Cybercrime Act focused on the detection, facilitation and prevention of cybercrime.

3.      Definition of Terms – Obviously, the definition of terms in the Magna Carta is much wider in scope as it enumerated, clarified and standardized computer lingo by using world wide web and technically accepted terminologies. While Cybercrime Law limited itself with only 17 definition of terms, Magna Carta has 60 terms, excluding sub-definitions. A technical terminology per se is already difficult to undertand especially for a layman or non-information technology person and not all computer users are technical savy. With more terms being defined in the Magna Carta, it will set a common understanding of the technical terms and this will minimize misinterpretation and remove vagueness of the provisions of the law.

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⁵ Republic Act 3815, Article 1.

4.   Law versus Bill –In Section 16 of Chapter IV (Duties Related to the Promotion of Internet Freedom) on duties and state agencies and instrumentation, it designates that the Department of  Information and Communication as the lead agency,  for overseeing the development and implementation of plans, policies and programs on the use of internet and information and technology in the Philippines but in coordination with other agencies which are likewise responsible with other related laws of the land. In the same way in the Cybercrime Law, the lead agency in charge for the implementation of the law  is the Office of the Cybercrime which will be under the Department of Justice.  I think the Department of Information and Technology is  the proper agency to do the job since it will have experts(lawyer, technocrats or Information Tehcnology practioners or Computer Engineers) , the very people who understand science and technology hamornizing with the Constitution and other laws of the land as well as with international law. Changes with the Rules of Court shall also be effected as this produces a new classification of evidence. With a clearer Implementing Rules and Regulations, the Magna Carta will establish which evidence are relevant or irrelevant. Since Technology is dynamic and evolving, it will also be the right agency to prepare the Implementing Rules and Regualtions and draft Special Procedures, update new information, etc.

The Magna Carta also proposed the creation of a special court for cybercrime cases which I agree. The said court will handle all cybercrimes cases just like tax cases for Tax of Appeal, or Family Courts for domestic cases. The procedures may be incorporated under Special Proceedings of the Rules of Court.

In the Magna Carta⁶, it proposed an amendment in the Intellectual Property Law,  In Chapter 3, Section 18 of the Magna Carta for Philippine Internet Freedom, it defined intellectual property rights over internet based creation which was not yet defined in the Intellectual property Code. The proposed amendment in the Intellectual Property Law as quoted below: 

(n) CODE, SCRIPTS, COMPUTER PROGRAMS, SOFTWARE APPLICATIONS, AND OTHER SIMILAR WORK, WHETHER EXECUTABLE IN WHOLE OR AS PART OF ANOTHER CODE, SCRIPT, computer programs, SOFTWARE APPLICATION OR OTHER  SIMILAR WORK;.

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⁶ Santiago, Miriam Defensor. S. B. 3327, Magna Carta for Philippine Internet Freedom.

Without this specific provision, it will be broad and vague as to classify the form of intelellectual creation or if the Intellectual Property Law can define it - how does this creation be protected by the said law, the same way that industrial design or utility model is.  This form of intellectual creation already abound but the right of the creator remains unprotected.  This adds to the enumeration of the different forms of intellectual creations and remove vagueness and misinterpretation of the law. The Cybercrime Law is supposed to protect technology inventions or intellectual creation but such was not made clear in the Cybercrime Law of 2012. The Cybercrime Law provides for the penalties for its violation but limited the different cybercrimes to cybersecurity, violation against integrity of the information, cybersquatting without including the protection of intellectual creation and those to be considered as intellectual creation under this form.

The Magna Carta also proposed to amend Section 172 of the Intelellectual Property Code, 

172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression OR PUBLICATION, as well as of their content, quality and purpose.

If any work is protected by this proposed Magna Carta regardless of any form of publication, does it mean that any audio-visual presentation or article written or videos uploaded in the internet will be protected by this Magna Carta? Is the sexual act or any similar act videotaped be considered as an intellectual creation? Will an intellectual creation of a sexual act taken/videotaped by the parties, one of them uploaded it in a social network and was downloaded by another internet user be considered a violation of an intellectual property on the basis of the proposed provision? Of course, this is protected by the Republic Act 9995 or  Anti-Photo and Video Voyeurism Act of 2009", as stated in the prohibited act, (d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.⁷ But how do this law be harmonized in the Magna Carta?

  

Section 11 of the Magna Carta also covered local Internet Service provider which protects the consumers of internet service and the providers alike. Right now, there is no direct agency where complaints can be filed against internet service providers which charges expensive fees but quality of cable connection is not satisfactory. Complaints are passed on to the Customer

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⁷ Republic Act 9995, “Anti-Photo and Video Voyeurism Act of 2009”, Section 4. d.

Service Relations Officer of a subcontracted agency but more often no feedback are given to consumers or if there is, no solution is offered to them. An irate consumer may just decide to shift to another provider but there are only few players in the market which leaves the poor consumer to just get used to the bad service. The agencies that assist customer complaints can be the Department of Trade and Industry for consumer products or the National Telecommunications commissions for calls or SMS related concerns. However, because of the volume of complaints, it is difficult for these agencies to act on all these. The Magna Carta stipulated one important and relevant concern of consumers when it comes to postpaid users of SMS, cable or cellular phone usage that is the correction of errors⁸ in the billing statement issued by the service providers. To wit,

 Section 20 (E) TIMELY CORRECTION OF ERRORS IN BILLING AND THE IMMEDIATE PROVISION OF REBATES OR REFUNDS BY THE UTILITY WITHOUT NEED FOR DEMAND BY THE USER;

   

With the Magna Carta, the right of the consumer on rebates and refunds without need of refund is protected.  

It clarifies ambiguous provisions of the Anti-Trafficking in Persons Act of 2003 but how will a foreign national based in his country and is involved in human trafficking by advertising, promoting Filipino women or prostitute in the internet? Will this not be beyond the jurisdiction of the Philippines even if Article Two of the Revised Penal Code provides this as an exemption? Is this considered an international law? Is this covered by a treaty?

Under the Revised Penal Code, Libel is defined as 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 dead⁹. The Magna Carta introduced a new genre of libel – that is internet libel. However, it is defined in the same way as libel is defined in the Revised Penal Code.  

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⁸ Santiago, Miriam Defensor. S. B. 3327, Section 20 (E), Magna Carta for Philippine Internet Freedom.

⁹ Revised Penal Code. Title 13, ‘Crime Against Honor’, Chapter 1, Section 1, Article 353.  

Internet libe1¹⁰. - Internet libel is a public and malicious expression tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, made on the Internet or on public networks.

           

There is really no need to introduce this term as this will be covered under the Revised Penal Code’s definition of Libel.

The Cybercrime Law seemed to have been ‘half-baked’,  just for the purpose of having a law to penalize cybercrimes than none at all. The increasing issues on cybercrimes or violation against internet use must be the driving force why the lawmakers have rushed into legislating for one. However, the law has vague and broad areas that invite many misinterpretation. While, the Cybercrime Law appears to be a shortened or an abridged form of a copied law, the Magna Carta is so comprehensive in its provisions that one may get ‘lost in translation’ and you may wonder if you are reading the provisions of Intellectual Property Law or still the Magna Carta of the Internet Freedom Use. Nevertheless, it is a better and comprehensive version of  the Cybercrime Law. Therefore, the Cybercrime Law must be repealed by this Magna Carta of Intenet Freedom authored by Senator Miriam Santiago!

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¹⁰ op. cit. Section 33, A.1.