SENATE BILL 53 “MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM”
HOW CAN THIS SENATE BILL BE
IMPROVED?
Chapter I Introduction
Chapter II The Evolution of Senate
Bill 53
Chapter III The four Pillars of
MCPIF
Chapter IV The so-called Bill of
rights
Chapter V The Salient Features
Chapter VI Grey areas in the Bill
Chapter VII how can this bill be
improved?
A) Advocacy
B) The
Provisions
C) Considerations
Chapter VIII Conclusions
Chapter I
Introduction
In 2012, as May we recall, Senator
Angara introduces Republic Act 10175 otherwise known as the Cybercrime
Prevention act of 2012 which gives rise to controversies and thousands of
people including netizens opposed aggressively in the enactment of the said
law. The Cybercrime law aims to protect the rights of the people in the
cyberspace against criminals who sells, reproduce, interfere, hacked unlawfully
without authority; and the like by means of cyberspace. According to the
netizens, the Cybercrime law violates certain constitutional rights of the
people particularly to their freedom of speech. The said controversy leads them
to file a petition before the tribunal court to assail the constitutionality of
the said law. In the case of Disini vs Secretary of Justice which was
promulgated on recently on February 2014. The Supreme Court held that Ra 10175
is Constitutional expect for certain provisions that was specially mentioned in
the said case.
Chapter II
The Evolution of Senate Bill 53
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After Republic Act 10175 was signed by President Benigno Aquino III and became into law on September 2012. Senator Miriam Defensor Santiago previously introduced on November 2012, two months after RA 10175 became into law, the Senate Bill 3327 which is now, the Senate Bill No. 53 otherwise known as the “Magna Carta For Philippine Internet Freedom” Senator Santiago re-filed the said bill on July 1 2013. It was also known as MCPIF for brevity. Some netizens even used hashtags #MCPIF to spread the support of the said bill by means of social media.
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Before we go any further, let us
first find out the history of senate bill 53. This bill was drafted by netizens
from different fields of careers; some of them are bloggers, social media
users, subscribers and those who involved in computer related professions and
the like. They group themselves via social media and further created their own
domain website which was democracy.net.ph the MCPIF team advocates the civil
and political rights of the people in the cyberspace.
In relation to their advocacy, their
second goal is to promote the bill to every citizen of the Republic of the
Philippines to waken up their awareness of their constitutional rights
especially to their freedom of speech and freedom of expression and to support
the bill through social media. According to them, this bill would be considered
as the first Crowdsourced bill here in the Philippines. A Crowdsourced bill is
an online activity to combine efforts in which case they solicit or rather ask
support from a large group of individuals on their own initiative in order for
them to accomplish a certain task. Similarly, the MCPIF team consolidated their
efforts to draft the bill via online which could be somehow analogy in
exercising their right to initiative as provided in the 1987 constitution of
the Philippines.
The MCPIF team had a hard time and
took enough efforts before the bill was recognized by our honorable senators
when they endorsed the same into the senate. They first endorsed the bill with
Senator Pia Cayetano, then afterwards with Senator Guingona III but none of
them response to their proposal until after few weeks later. The proposal was
recognized and accepted in the office of Senator Miriam Defensor – Santiago.
Today, the senate bill 53 is still pending on the Philippine Legislature, but
according to the records, Senate bill 53 has already been passed for first
reading of both Senate and the House of Representatives. Now it cannot be
denied that the bill was drafted clearly as to leave no doubt in both
professionals and in layman’s perspective. However, considering that it is
still pending in the bicameral committee, it is said to be that this bill has
to be improved and enhance for faster approval and further implement it as soon
as they can since the Cybercrime law has already been upheld by the Supreme
Court its constitutionality, it’s time for our legislators to act and
concentrate to enhance and pass this bill in support of the Anti- Cybercrime
act of 2012.
The main question is whether the
Senate bill 53 is necessary to pass in order for them rebut the
constitutionality of the Cybercrime Law of 2012? What are the ways to promote
and give the legislators of their attention to this bill? What is the effect of
this bill into our society? Does the Senate bill 53 is really intended to
repeal the Anti- Cybercrime act of 2012? These questions would further be
discussed into the next chapter.
Chapter III
The four pillars of MCPIF
As we have discussed earlier, the
bill provides for the civil and political rights of people in cyberspace. As
per Senator Miriam Santiago stressed that this bill is really intended to
repeal or to counter the controversial law which they referred the Anti-
Cybercrime act of 2012. The main highlight of this bill is to uphold the free
speech of Filipinos in cyberspace since the cybercrime law provisions according
to some of the netizens is too broad and vague that could possibly penalize the
innocent users of the internet especially to those people who are involve in
social media in the modern era. Now the MCPIF team had built four pillar on the
bill, what are they? They are Rights, Governance, Development and Security.
What are these all about? Lets start with RIGHTS: these rights
referred to political and civil rights, these rights shall be fully guaranteed
by our constitution in cyberspace both online and offline.
GOVERNANCE.
This is addressed to our government, which provides that:
xxx xxx xxx
Section 2. Declaration of Policy. –
(a) The State affirms that all the rights, guarantees, and privileges provided
by the Bill of Rights and the Constitution, as well as those established under
general principles of international law and under treaties and conventions to
which the Philippines is a signatory, shall govern in the use, development,
innovation, and invention of information and communications technology (ICT)
and the Internet by the Filipino people.
(b) The State affirms its commitment
to the people and to all nations that, in the crafting of laws and regulations
governing the use of the Internet and of ICT, these shall be subject to the
parameters set forth under the Constitution.
(c) The State reaffirms the vital
role of communication and information in nation-building, as stated in Article
II, Section 24, of the Constitution;[i]
xxx xxx xxx
DEVELOPMENT the
bill encourage that it seeks to innovate advanced technology in the modern
generation which also provides social benefits that will be undertaken by the
government and private sector and lastly SECURITY, that protect the
Filipino people against any threats committed from cyber means provided in the
bill. The specific rights provided in the bill would be further discussed in
the next chapter. These four pillars are the so- called foundation of the bill
aside from our 1987 constitution which tends to support the main objectives of
this bill.
Chapter IV
The So called Bill of Rights
The Senate Bill provides Internet
Rights and Freedoms; this was indicated in Part 3, Page 12 of the bill. It
cannot be denied that we often compared this bill into RA 10175. Why? Because
as per Senator Miriam Defensor Santiago claimed that this bill is really
intended to repeal RA 10175. The latter does not provide any rights and
freedoms pertaining to internet. Hence, it led to polemic controversy through
the year until it was contested and stride the case into the Supreme Court.
And for that matter, our fellowmen
who drafted this bill came up with the idea to provide methods to cast aside
all the vagueness questioning the rights to freedom of speech, freedom of
expression, right to privacy and the like from RA 10175 which was allegedly
violated since the three mentioned rights is the most cited ground that was
being asserted as part of their argument who questioned the validity of Ra
10175.
Moving on to the senate bill 53, the
following are the Internet rights and freedoms provided in the bill:
a) Right to Freedom of speech and
Expression on the Internet; b) Universal Access; c) Right to privileged Access
to and control and devices; d) Protection of the freedom to innovate and create
without permission; e) Right to privacy of data; f) Right to security of data;
g) Protection of intellectual property; h) Protection of the internet as an
open network; i) Promotion of network neutrality; j) Transparency in governance
and freedom of information
By incorporating this, hopefully there
would no longer doubts as to the constitutionality of the law, in case this
bill is approved by our president. The provisions pertaining to rights and
freedoms would surely accredit by public at large especially for those who are
involved in the cyberspace as part of their daily lives either they used it for
living or for any other purpose unless it is unlawful. Since the parameters of
this bill is also intended to gleam the rights and freedoms on the internet of
people into the limelight without jeopardizing nor violate any precautions that
the government might encounter into the near future nor without limiting the
acts of the netizens or the people who is part in the cyberspace world unless
it is unlawful
What is the relevance of this? In
the internet world or otherwise known as cyberspace, some of the people are
either bloggers who used to post article via online for living regardless of
their objectives, Legitimate online sellers, Social Media users such as
facebook, twitter and the like; White hackers who normally performed this for a
living as part of their profession and etc… however on the downside, the
intention of the people in the cyberspace are dissimilar, it may be lawful or
unlawful. Technologies these days are so advanced which likely tend to induce
evil motives whether for profit or not. This is what our government seeks to
prevent.
By providing these rights, these
people who cause damage to another person in the cyberspace cannot just explain
its justification on the basis that he is authorized to do so or he does not
have any intention to commit these cyber offense against the person whether
online libel , cyber bullying or any other means. Why? Because these reasoning
are baseless, once again, this bill gives its ample protection to guarantee the
rights and freedoms in the internet to the people. In other words, this so
called bill of rights serves as a safeguard or shield against unlawful act
committed by means of internet, network and the like.
Without these, the public, the
netizens, the concerned Filipino people will not stop in asserting their rights
and freedoms that would be raise in the actual case in the near future. There
would be no jurisprudence that would govern, support and addressed mechanisms
in the advanced technologies here in the Philippines. It would be an endless
litigation.
Chapter V
Salient Features
I have noticed that some of the
provisions of the bill refined the most disputable provision in RA 10175.
Please be mindful that in this particular chapter, I will only discuss some of
the provisions in the bill that really caught my attention. I will not fully
tackle all of the provisions in spare parts. Now, Let’s start first with Libel,
Section 52 of the bill provides internet libel, hate speech, Child Pornography, and Other Expression Inimical
to the Public Interest. It provides more detailed and clearer discussion of
what really constitute internet libel without violating any constitutional
right. The provision is not vague and it provides that “malice”, and Positive
identification” as an essential element of internet libel. It also provides a
list of exceptions which does not constitute as an internet libel. The contents
under section 52 under fully satisfied my requirements especially for those
users who used social media in their everyday lives regardless of their
purpose. Since these days, 9 out 10 people here in the Philippines use social
media networks often times especially in facebook and twitter which usually
involved a lot of chaotic situation or which we often called “internet war”.
Some users who in
turned to be the author of the libelous status or post should be responsible in
every situation whenever he will post, upload or express his sentiments in the
social media. in other words, “think before you click”. Undoubtedly, this is a
democratic country, however, our government still needs to provide means and
methods to penalize all the wrong doings that might be prejudicial to the
interest in the community. And on top of that, the libel provision here in the
bill only penalize the offense for civil liability only. As compared in the
cybercrime law, it punishes libel as a criminal offense, such provision does
not have a wide acceptance into the public which gave rise to voluminous
petitions in the Supreme Court.
Second, Illegal Search and
seizure. This provision makes it clear that the government cannot deprive a
person’s right in relation to his internet right without the judicial order. On
the contrary, the cybercrime law as we may recall, the provision regarding real
time collection of traffic data, restricting or blocking access to computer
data by department of justice, calls the attention of the court to clarify the
intent of the legislature regarding this. Since it is violative to a person’s
right under our 1987 constitution, and this actually refers to due process law.
Now the Magna Carta bill clarifies the following:
Xxxx xxx xxx
Section 4 (c) Any State
action that constitutes prior restraint or subsequent punishment in relation to
one’s Internet’s rights shall be authorized only upon a judicial order issued
in conformity with the procedure provided under Section 5 of this Act. Provided,
that notwithstanding Section 5, any such judicial order issued upon motion of
the Republic of the Philippines, any of its political subdivisions or agencies
including government-owned or controlled corporations, shall be issued only
upon the following grounds[ii]
Xxxx xxx xxx
Third, Violation of Security
Data. The bill provides Hacking, Cracking, Phishing. Although the
cybercrime law already provides for certain cyber offenses. However, some
of the people opposed it, as the definition is very vague and broad which makes
it criminalize other people beyond the scope of the cyber offense. Now, the
bill provides a plain meaning which could be understood by an ordinary person
and makes the offense covers under certain limitations by the bill.
Fourth, the bill also provides National
Cybersecurity, Cyberdefense, Counter-Cyber terrorism and Counter –
Cyberespionage. Previous internet laws that was enacted here in the
Philippines, does not provide cyber offenses in relation to National interest.
As may we recall, the I LOVE YOU virus worm that was created by our fellow
Filipino Onel de Guzman who successfully attacked millions of computers in the
year 2000. Eventually, there are no specific law that could be charged against
him. This scenario may not be the proper category for this provision, but this
may be somehow analogy to what the government intended to prevent in the
future. Going back to I love you virus, the legislature enacted E-commerce Act
afterwards.
On the contrary, the former was drafted way back during the 20th century, Now the government in the modern generation need a better version of law that address realities of the present and challenges of the future.As per DND secretary Voltaire Gazmin stressed “as we become increasingly dependent on information and communication technology, we are also confronted with cyber threats. While cyber security previously focused only on individual hackers, recent trends show that attacks against government portals could come from organizations. Thus, we need to develop our cyber-related capabilities as we secure our channels of communication” [iii]
Chapter VI
Grey areas in the Bill
There is couple of provisions that
caught my attention. And I found that the construction of these provisions
makes them ambiguous or doubtful. The first example would be found in Section
13 paragraph d of the bill which provides the following:
Xxx xxx xxx
Section 13 (d) The State shall maintain websites or applications
with mechanisms to allow for the public to provide feedback, lodge complaints,
or report instances of malfeasance or misfeasance. Such mechanisms shall not
disallow anonymous feedback, complaints, or reports, and the State shall take
appropriate steps to protect persons making feedback, complaints, or reports
from retaliation or persecution. [iv]
Xxx xxx xxx
Although this does
not violate any constitutional right as what the others usually invoked. In
this case, I believe it is highly impossible to maintain a website neither
application to provide means whereby people can report complaints, feedbacks
and the like. As if the government can entertain such matters constantly. The
government has been lodged with pending transactions which is inimical to the
national interest and that has been idle for a prolong time. This provision is
no longer necessary, since its is impractical especially when a report or
complaint is so serious that is very disturbing to the interest of individuals.
The question is that, how would the government guarantee that every feedback
,complaint, report that they will received is genuine? Since, these matters may
actually lead to fraud, cyber offense directly against the state. In other
words, this provision is infeasible.
Another example of
grey area in the bill is section 52 paragraph a (iv) which talks about internet
libel. I know assailing internet libel in the internet laws are too mainstream
but I thought this part of provision makes it interesting since the bill makes
the offense libelous as long as there is “Malicious intent” and “positive identification” as an essential element of the offense. However, the
bill qualified the following:
xxx xxx xxxx
Section 52 par (a)
(iv) Truth as a
defense. – Internet libel shall 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.[v]
xxx xxx xxx
My point is that,
it is not necessary that the expression alleged to be libelous should be proven
to be true. Why? In reality, whether true or not, the mere fact that the
offended party has been damaged and there is an malicious intent on the part of
the author. Such acts should suppose to constitute as an internet libel
already. The offense internet libel would no longer relevant if the legislative
intent has to deal with the truthfulness of the offense. It cannot be denied
that the revised penal code under Article 361 it states there that the
defendant shall be acquitted in case the libelous charged is true. However, be
mindful that in Magna Carta Philippine internet freedom the bill seeks to
penalize the internet libel for civil liability only. In other words, whether
the libelous mark, use the reasoning of “Truth” as a defense or not, or whether
it is proven to be true, the offense of libel shall still be established
as long there is a malicious intent on the part of the author. That way,
the former could be an exception to the rule that “the truth shall be an
absolute defense in internet libel.”
Chapter VII
How can this bill be improved?
A. Advocacy
This bill is still pending on the
legislature since year 2012, it is now year 2014 and yet the congress has not
yet gives its attention to pass this bill. Why is that? I believe the main
reason why this bill is still idle is because it does not yet surpass its
pointed issues in the public media. It cannot be denied that a certain bill
would not be ripen as a national issue not until the media got its attention to
criticize it whether in a good or bad way. Unfortunately, some of us have forgotten
the MCPIF bill and rather focus their attention into other issues which they
found more highly controversial in the recent news or shall we say they would
rather focus their attention to what is “trending” in the
recent case. In which case, we need to provide certain means to resurrect this
bill, although it was mentioned in the second chapter that Senator Miriam
Santiago re-filed this bill on July 1, 2013, as if the bill have forgotten in
the legislature.
Does the MCPIF team who drafted this
bill have lost their interest in promoting this bill? Although the team has
formerly strived enough efforts to endorse this bill in the senate, in the
recent case, I have noticed that this team has lost its interest in promoting
this bill. Why do I say so? Remember the http://democracy.net.ph/ I have search
about their social accounts in the social media, in the facebook and in their
twitter. I will not deny that I tried to join in their group accounts to fully
interact with them or so that I can be a part of their advocacy. Sadly to say,
I am not sure whether this team has forgotten the bill or has lost their
interest? Or they just rely the promotion of this bill into the congress?
Despite of its slow process, the MCPIF team have not yet speak about the recent
updates of this bill. Considering that these people who drafted this bill had
their own personal lives. Now what is our solution?
Croudsourcing a bill is one of the
social side of strategy. Nobody knows what is really the current situation of
MCPIF team. To strengthen their advocacy in this bill, they still
need to rethink more efforts to plan certain strategies and innovations to
motivate interested people across the nation, what this bill is really about.
Their freedom and rights, advantage, opportunities, benefits, and lastly, to
realized how this bill would affect their lives in the future. Maybe they can
provide programs and collaborate with private sectors in the IT industry to
interact and explain or informed these interested people about the bill. That way,
if the MCPIF team achieve with this kind of strategy, the
government would received an effective response from the public either good or
bad. These kind of solution might aid the MCPIF team and the senator who
introduced the bill to promote awareness and easily passed the bill. As I
mentioned earlier, the more famed it gets, the more the government will accept.
B. the Provisions
B.1 Internet Capacity and Usage
Philippines is a developing country,
on the contrary, Our internet is still a puzzle waiting to be
assembled. Although this bill does not really aim to address the issue on
internet capacity and usage. Why am I saying this? I would not further
discussed about the usage of internet here in the Philippines, but My point is
that, the provisions here in the bill fails to provide means and method to
encourage the government and the private sectors as well to plan and develop
ideas and lastly, for them to get their attention on the
infrastructure components. Internet is one of the basic needs of individuals
especially in the business field. It is one of the elements of technology which
helps us to makes our lives easier. As time goes by, Internet in the modern
generation highly extend economic opportunities and key services to millions of
people. However, these chances may not be met if the Philippines lack of
efficient high speed internet in the ICT sector.
B.2 Internet Libel Provision
Another thing is the liability
aspect of the internet libel provision. Once again, this topic may be
overexposed or too mainstream to be discussed as far as the internet law is
concerned. But to clear out any ambiguities, the bill must be improved as to
provide a specific provision to address this problem, since this topic relating
to internet libel is still debatable, despite the case of Disini vs Secretary
of justice was promulgated last February 2014. Now what is the issue? As may we
recall, there is a controversy that majority of the netizens wanted to
decriminalize libel as a cyber offense since the cybercrime law makes libel as
a criminal offense as an extension of the revised penal code. In other words,
they just want to make it appear, that libel should only be penalized as a
civil liability. Now to provide a solution for this, the MCPIF team came up
with Magna carta Philippine internet freedom amending the libel provision
provided in the Cybercrime law. The bill does not provide any provision
penalizing libel as a criminal offense.
even though the bill decriminalized
the liability of internet libel which is highly acceptable to the public at
large; which provides under:
Xxx
xxx xxx
section 63 (ad) violation of section
51 (a) internet libel – this shall only give rise to civil liability and the
amount shall be commensurate to the damages suffered.[vi]
Xxx
xxx xxx
Although the provision is very
clear. On the contrary, the bill still needs to clarify that the Rules
provided in the revised penal code relating to the crime of libel shall not be
applicable to Magna Carta Philippine Intenet Freedom bill. Why?
First,To prevent further voluminous petitions to question the constitutionality
of the bill. By inserting this provision, there would no longer doubt as to the
applicability of the offense. Second, to prevent any confusion as to
applicability of the rules. Why? The Exception to the general rule of libel
between the Revised penal code and the bill are different. The bill expands the
exceptions to the internet libel as compared to the revised penal code. This
may be favorable to some individuals especially those who are involved in the
social media, some may be not since they think it may not be necessary. Well,
this is a democratic country, but at the end of that day, when it comes to
laws, our legislation’s decision will prevail.
C. Considerations
The ultimate question is that, what
is the effect in case Senate bill 53 became into law? Undoubtedly, most of the
provisions of Senate bill 53 is identical to RA 10175 and the provisions of the
former was drafted by our fellowmen. Obviously, if this bill became into law,
it would surely repeal RA 10175 or the cybercrime law. But the controversy
doesn’t end there, assuming that the bill now became a law, would there be a
full guarantee of implementation, notwithstanding the fact that it cannot be
avoided that it may also be subject to attacked again to questioned its
constitutionality, not just an ordinary citizen who does not involve in the
government but a citizen who is a public official that may came from the
legislature nor judiciary as the case may be, this is possible. The provisions
indicated in the bill came from the will of Filipino people itself, it may seem
an infinite scenario again if they cite the constitutionality of MCPIF on the
ground that it violate certain rights provided in the constitution. To avoid
this scenario, the government may provide mechanisms, in case this bill would
be pass, to encourage and influence the public about the good side and effects
of this law. This may sound quite politics, but currently considering the
condition of the Philippines in the ICT sector, the government and the public
at large shall combine its efforts through collective action for the
development internet laws especially in this particular bill. In other words,
the rules pertaining to internet shall be liberally construed in favor to
lawful internet users.
Chapter VIII
Conclusions
to sum it up, the magna carta
Philippine internet freedom bill if passed would undoubtedly guarantee to
shield our liberties against unscrupulous acts in the cyberspace both online
and offline regardless of whether or not an individual is an expert in the
computer field. Nevertheless, the legislature need to put this bill in the
limelight since our internet laws here in the Philippines needs to strengthen
in order for us to adapt further jurisprudence in actual cases since
technologies now these days in the modern generation have increasingly broaden
its transactions and communication and further provide innovations regarding
electronics. Hence, We need a proper statutory remedy that will empower our
government in case a person whether natural or juridical has malicious intent
to commit cyber offenses against an individual.
In my humblest opinion, as a
courtesy to the MCPIF team, they fully drafted this bill very well. Considering
that these people, does not involve in the law profession to be an expert to
make laws. On the brighter side, in drafting this bill by their heart, by fully
aware of what rights they are entitled and deserve, this could not be bad for a
novice who wants to improve and secure internet rights and freedom of Filipino
citizen that will address challenges, issues and offenses related to the use of
cyberspace. The government have to put their trust to the people at large
especially those people who drafted this bill. That way, these collective
actions would build a strong foundation to increase the IT Literacy here in the
Philippines.
The technologies in this generation
are increasingly developed. Meanwhile, there would still be criminals that are
progressively developing new unlawful mechanisms to attack an individual, system
or networks and the like.
To come up for a solution, It is the
role of the legislative power to provide legal remedy governing our
jurisdictions and to ensure security in cyber space. Hence, The adoptions of
the provisions provided in the Magna Carta Philippine Internet Freedom bill
shall be taken as soon as they can, for the better development of our economy
in the ICT sector.
REFERENCES
image source (a) = http://www.demotix.com/news/1727573/demonstrators-protest-anti-cybercrime-law-manila#media-1727570
image source (b) = http://democracy.net.ph/statement-on-the-filing-of-the-magna-carta-for-philippine-internet-freedom-senate-bill-no-53/
image source (c)
= http://www.massacademy.in/index.php?p=&a=our-salient-features
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