MY TAKE ON SENATE BILL NO.53
The internet is a telephone. It is a medium ofa communication that evolved from sending simple mail to sophisticated social networking. Information can be stored and accessed using the internet. Information stored floats in the cytoplasm of the artificial virtual world until someone accesses it or deletes it. Since its inception more and more people by the year use the internet because of the seemingly limitless information it provides. And the Philippines is no exception to this global trend.
According to the report of AGB Neilsen, a market research company, in 2011:
- 33% of Filipinos access the Internet;
- 52% of Filipinos have a computer with high speed Internet connection at home;
- Already close to one quarter of Filipinos Internet users (24%) access the Internet on a daily basis via mobile phone;
- Over two thirds of Filipino digital consumers (67%) have visited social networking sites;
- 40% use email; and
- The Philippines ranked second highest for the number of people who have ever “liked” or followed a brand, company or celebrity on a social networking site.
The Senate Bill No. 53, known as Magna Carta for Philippine Internet Freedom, was proposed by Sen. Defensor-Santiago. The purpose of the bill is to establish a comprehensive framework for the administration of the Internet in the Philippines, a task that should be jointly undertaken by the government and private sector. She considers the internet as a new technology and has the same impact when the printing press and the telegraph first came about. According to her such innovations should be harnessed for the common good which includes the preservation and promotion of individual rights as guaranteed under the Bill of Rights.
The Bill was a product of crowdsourcing – meaning the provisions of the bill was proposed by Information Technology experts and the internet community. It was also proposed to clarify the libel provision of the cybercrime law and sought to repeal the same. I can say nothing wrong from the bill in terms of the technical aspect as I am not specialized in that field however I may argue in the legal and remedial aspect of the bill.
Sec. 4 of the bill provides for the right to freedom of speech and expression on the internet. Par (a)(ii) of the same section protects the right of the people to petition the government via the Internet for redress of grievances. The 1987 constitution provides for the same provision under Sec. 4, Art III. However concerns may arise. How can the people petition via Internet? The procedures and the specifics should be laid down as to who may file the petition, where to file the petition, and how to file via internet. This would create a problem as to how the petition can be authenticated. A petition via internet would mean that the petition is not paper-based but electronic-based. It would seem difficult for a notary public to notarize the petition as he needs to sign the same and retain a copy thereof. Does this mean that a petition via internet need not be notarized? If that would be the case then such petition would become a simple complaint letter that anyone may file. The purpose of the said provision under the constitution is to provide the people a means to complain government abuses without fear of reprisal. Also however that every person must be protected from wrongful accusations. The purpose herein of the notary public is to ensure that everything stated in the document is true to the best knowledge of the complainants and attesting that they personally made the same without bad faith. If a petition via internet need not be notarized then how can the same be authenticated – that it is true and without bad faith.
Too broad is the power of the state under Sec. 4 (c) of the bill which provides for the power of the state to restrict a person’s internet freedom upon judicial order when the information creates a present danger of a substantive evil that the state has a duty to prevent and when the information is not protected expression under the standards of the community or audience.
Firstly what do you mean by substantive evil that the state has a duty to prevent? Second how do you determine the standards of the community or audience?
In a general sense the state has the duty prevent all types of evil whether private or public (crime) such as libel, rape, murder, theft, robbery etc. However relating evil with internet freedom, I guess the evils that can be committed through the use of internet are evils against national security and others such as libel, theft etc. but certainly not rape as the same requires the touching the human organs, rebellion as the same requires actual assembly of men, illegal or arbitrary detention as the same requires the custody of a person etc.
Does this mean that if the information subject of the order relates to the details of an upcoming rebellion, his internet freedom may not be restricted but when the information relates libel, he may be restricted as the latter can be committed through the internet and the former cannot? Or does this provision require substantive evils prejudicial to national security that would justify restriction? Clarification must be had on this one. I propose that these evils should cover evils that can be committed using the internet as well as evils against national security.
As to the second, according to the bill an expression is protected or not depending on the standards of the community or audience it is directed. How can you determine such standard is not directed against any audience but rather the general at large? And what do you mean by protected expression? Protected under the copyright law or the freedom of expression of the constitution? An expression (constitution) is not protected depending on the standards of the community as it is protected directly by the constitution regardless of the mood the people. The same can be said also under the copyright law because a published document is protected from the moment of its creation regardless of the standards of the community. Because of its vagueness, I propose that this provision should be removed. Moreover, in consonance with the policy of the state under the bill, one’s internet freedom should not be restricted simply because the community feels that the same should not be a protected expression.
Sec. 5 of the bill provides that the state shall promote universal access to the internet and that a person right to unrestricted access may be suspended by the court of competent jurisdiction pending final judgment upon showing that there is a strong likelihood that the accused will be able to facilitate the commission of the offense so charged unless such order were issued. However what do you mean by “strong likelihood? This would create a different quantum of evidence.
Under our rules, the recognized quantum of evidence are probable cause (that a person has probably committed a crime), preponderance of evidence (greater weight), substantial evidence (amount of evidence which a reasonable mind might accept as adequate to justify conclusion), and proof beyond reasonable doubt (moral certainty which produces conviction in the mind of an unprejudiced person). Former chief justice Puno also added and clarified another quantum of evidence which is clear and convincing evidence which is that degree of evidence higher than preponderance of evidence but lower than proof beyond reasonable doubt.
The bill does not state what kind of quantum needed to justify restriction of a person’s restriction to access the internet as it only states “strong likelihood.” I propose that the bill should state clear and convincing evidence as the proper quantum to justify internet access. With this the state may guarantee internet freedom in lieu with the bill’s purpose and at the same time protect citizens from evils that may arise due to internet access.
Under the same provision a person may voluntary waive his right to internet access upon proof of preponderance of evidence. I propose that the quantum of evidence sufficient to prove waiver should be substantial evidence. Preponderance means greater weight of evidence while substantial evidence means amount of evidence which a reasonable mind might accept as adequate to justify a conclusion. An evidence sufficient to justify a conclusion of waiver would be a written waiver or performance of acts tending to show waiver. With this quantum the state may guarantee and protect the people’s right to universal access.
The bill also provides for provisions against plagiarism however the bill does not specifically state how plagiarism is committed in violation of the law. Some say that a copy of at least five words is already considered as plagiarism however this may only be considered as common law which is not binding and such differs in various jurisdictions. It may be remembered that Sen. Sotto plagiarized the speech of former U.S President Kennedy. The only difference is that Sen. Sotto’s speech is translated into tagalog. May that be considered as plagiarism? Sen. Sotto even went further by plagiarising a blogger’s publications on the internet. Despite the Senator’s secretary and speech maker apologizing for plagiarizing as he is the one who prepared the speech, the senator continuously denied plagiarizing. Clarifications should be made on when and how plagiarism is committed and what are the exceptions.
I guess the most important provision of the bill is the provision on internet libel as a cybercrime seeking to repeal the cybercrime law. Under the bill, internet libel is punished only as a civil offense while libel in its general form under the Revised Penal Code is punished as a criminal offense. This means that violators of the internet libel law would only pay damages as compared to imprisonment under the Criminal Code.
Senator Defensor-Santiago stated that this would be the first step in decriminalizing libel. According to Senator Recto many of the members of the senate are in favor of decriminalizing libel. According to the United Nations, Philippine laws on libel is too excessive and the same violates the International Covenant on Civil and Political Rights that the Philippines signed in 1986.
While I don’t disagree that libel should not be decriminalized however this would create an apparent absurd situation. Internet libel is only a civil offense while libel under the Revised Criminal Code is a criminal offense which means that a person who publishes an article via internet cannot be imprisoned while another who publishes on the newspaper may go to jail. In other words, if you want to avoid going to prison don’t publish your libelous material on the newspaper but rather on the internet. This provision would render the provision on libel under the Revised Penal Code, although enforceable, nugatory. It is in my opinion that a law that is not effective is as good as no law at all. I believe that if the Philippines wants to decriminalize libel then that should done in its totality.
During the 25th anniversary of the internet, the founder of the internet Tim Berners-Lee has called for the “Magna Carta” of the internet and wishes for the establishment of a digital bill of rights to ensure that the internet is accessible to all. Like I said from the start that the internet is a telephone. And similar to a telephone it must be accessible to all. But it should be understood that no right is absolute. Every right has limitations and the bill of rights as well as well the so called digital bill of rights Mr. Berners-Lee calls for is no exemption to this limitation.
In the world of law, your right ends where the nose of the other begins. In other words you must not use right to trample on the right of others. Your freedom of speech should not be used to destroy others reputation.
I do not disagree that the internet should be accessible to all as it can provide information that is not found in text books. But the use of the internet, although universal, should be done responsibly.