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Two Laws and Losses for Freelancers and Netizens
The Freelance Writers’ Guild of the Philippines’ (FWGP)

Statement on Aquino’s Cyber Laws
21 September 2012

In August and September of this year, the Philippine President signed two laws that “recognize the role of information and communications technology in nation-building and social and economic development.” These laws are:
RA 10173 or the Data Privacy Act (signed August 15, 2012), and
RA 1075 or the Cybercrime Prevention Act (signed September 12, 2012).
Both laws posture to provide cyber security but they are actually measures against the perceived lawlessness of cyberspace. They are likely to cause hindrance to nameless netizens, including those who are engaged in online freelance work.

The Data Privacy Act prohibits the “collection and processing of personal information” without prior and explicit consent of the person involved. That personal information may exist in a “material form or not,” and the holder of the information can “directly ascertain the identity of an individual.”

Under the Data Privacy Act, an individual’s racial or ethnic identity, marital or health status, religious, political affiliation, educational background and sexual life, among others, are defined “sensitive personal information.” If the personal information is to be used for “journalistic, artistic, literary or research purposes,” the writer may be allowed to access such personal information without the consent of the person involved.

Freelancers have other purposes outside what is defined by this law. They may be denied access to personal information relevant to their writing projects. They, after all, are not granted the same weight of authority and recognition as journalists or researchers with media or institutional affiliation. The Data Privacy Act upholds RA 53, which cannot compel journalists and their publishers to disclose their sources. Freelancers do not enjoy the same right. They may find themselves at risk along with their sources.

The law further requires that the “personal information controller” (a person or organization) must “implement appropriate organizational, physical and technical measures” to protect the personal information obtained. It is doubtful if freelancers can actually comply with this requirement. It effectively bars them from obtaining relevant information about an individual they are writing about.
The new CyberCrime Prevention Act expands the scope of libel as provided for by Article 355 of the Revised Penal Code to include those that are “committed through a computer system or similar means.” We all know that even factual information can be construed by a complainant as slanderous and defamatory. This provision virtually calls on netizens and online freelancers to stifle their thoughts or face criminal prosecution.

Under the CyberCrime Prevention Act, your computer can become the scene of the crime. Upon demonstration of a ‘”due cause,’” law enforcement agents are authorized to “collect or record data in real time as they are transmitted by a computer system.” We all know that just about anything can be rendered as a “‘due cause.’”

Though this law provides that “all data to be collected or seized will require a court warrant,” it virtually grants an all-inclusive authority to a complainant. One can request for a court warrant even on the basis of mere suspicion that a ‘”cybercrime’” is “about to be committed,” or if “there are no other means readily available for obtaining evidence”. The principle of prima facie, which dictates that a complainant must present sufficient and observable evidence in support of an accusation, is no longer honored by the Cybercrime Prevention Act. We, freelancers and netizens, are likely to stand before the stigmatizing effect of being criminal suspects.

The Data Privacy Act and CyberCrime Prevention Act are meant to protect and secure the computer system and data-base of the government and private sectors. These laws are instruments to protect political and corporate agenda. Part of that agenda is to make the Philippines an attractive investment destination for corporations seeking to take advantage of the cheaper rates of Filipino online workers. As netizens and freelancers, we are effectively forbidden from intervening in such an exploitative situation.

Both laws position netizens as threats to the cyber security requirements of the government and private sector. This is what is insidious about these two laws. Rather than laws that would enhance responsible citizenship through the free-flow of information, these two laws are poised to curb it. There is no provision in either the Data Privacy Act or the Cybercrime Prevention Act that pertains to netizens’ cyber security. If this is the case, then we are absolutely prepared to take it as our own ‘due cause.’

As admitted by the principal author of Senate Bill 2076, which became the CyberCrime Prevention Act, “traditional modes of consultation on proposed legislation may no longer be adequate to embrace the online community.” Nevertheless, he raised the possibility of an “opportune time to expand the reach of the legislative process in this digital age” (Sen. Edgardo J. Angara. Cyber Freedom: More Critical than Ever, http://mb.com.ph/node/350354/cyber-freedom). The time is now, Honorable Senator.

As members of the online community, we are stakeholders in the passage of law, which seemed to have relied on the expertise and interests of ICT specialists, business federations, and law enforcers. We demand the same. We do not want the Data Privacy Act and the Cybercrime Prevention Act to be amended just so our stakes can be inserted in either. A fresh start is required in order to ‘embrace the online community.’ For this to happen, the Data Privacy Act and the Cybercrime Prevention Act must be repealed.

Owen Swaine
6/10/2013 07:19:00

On a completely different subject. I am looking for legal writers/legal researchers for a legal project. Interested parties e mail me at owen@swainesolicitors.com

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