A planet of more than 7 billion inhabitants; more than two (2) billion personal computers, fifteen percent of which carry the Apple brand; and more than five (5) billion cell phones, smartphones and tablets, the Earth has become a world of interconnected digital natives and immigrants, communication devices, and computers through a worldwide network called the Internet.
There have been profound changes brought by the computerization, convergence, and continuing globalization of networks.
There have been concerns on “the risk that computer networks and electronic information may be used for committing criminal offenses and that evidence relating to such offenses may be stored and transferred by these networks.”
Many countries saw the “need for cooperation between States and private industry in combating cybercrime and the need to protect legitimate interests in the use and development of information technologies.”
The same countries also believed “that an effective fight against cybercrime requires increased, rapid and well-functioning international cooperation in criminal matters.”
This is why the Council of Europe, joined by the United States and other non-Council members adopted the international agreement called CONVENTION ON CYBERCRIME (CCC).
Records show that the Philippines was a participant and, in fact, a signatory of the Convention which encourages Parties to follow a suggested format and/or provisions of a Cybercrime Prevention Law.
After a careful read of the Philippines’ Cybercrime Prevention Act of 2012, and the Convention on Cybercrime (CCC), I am not surprised that the Philippine legislators copied, almost verbatim, most of the provisions of the former from the latter.
The only problem is that some important provisions of the CCC were omitted and the Philippine legislators inserted some that have no place in the law.
The entire Chapter II dealing with all the Punishable Acts, except for the insertion of LIBEL and Sections 6 and 7, all came from CCC.
The provision on Corporate Liability is also a virtual copy of the CCC article (12).
If not because legislators are encouraged and permitted to copy the provisions of the CCC, they could have been easily accused of Plagiarism or even Copyright Infringement in some jurisdictions.
Upon learning of the legislators’ copying, my barber expressed disappointment because he thought Senator Sotto and his staff worked so hard on coming up with the legislation.
“Article 15 – Conditions and safeguards (CONVENTION ON CYBERCRIME)
- Each Party shall ensure that the establishment, implementation and application of the powers and procedure provided for in this Section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1996 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.
- Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter alia, include judicial or other independent supervision, grounds justifying application, and limitation of the scope and duration of such power or procedure.
- To the extent that it is consistent with the public interest, in particular the sound administration of justice, each Party shall consider the impact of the powers and procedures in this section upon the rights, responsibilities and legitimate interests of third parties.”
In its Preamble, the CCC also recognizes the applicability of international human rights treaties which “reaffirm the right of everyone to hold opinions without interference, as well as the right to freedom of expression, including the freedom to seek, receive, and import information and ideas of all kinds, regardless of frontiers, and the rights concerning the respect for privacy.”
Nowhere in the copied Philippine Cybercrime law does it reflect the said conditions and safeguards.
On the contrary, LIBEL has been added despite its absence in the CCC, and in other Cybercrime laws of foreign countries including the United States. It omitted offenses related to infringements of Intellectual Property Rights and yet it added Section 6 of the Philippine law, which states;
“All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.”
A cell/smart phone use could increase a criminal’s penalty by one degree higher. In fact, Infringement of Intellectual Property rights in the Revised Penal Code such as Articles 187 and 188 (Trade Name and Trademarks) could be included if committed by, through and with the use of ICT. The most widely violated laws in the Internet are Intellectual Property Rights.
By knowingly omitting it, our legislators must have unknowingly included it.
In my last week’s column on the Cybercrime law, I emphasized that the new law should be “read, interpreted, and enforced” together with Sections 1-4 of Article III of the Philippine Constitution. The said provisions deal with the Bill of Rights relating to Free Speech, Unreasonable Searches and Seizures, Privacy of Communications and Correspondence, and Equal Protection of the laws.
These are built-in constitutional safeguards that Internet users could utilize; that Judges could use for the interpretation of statutes, and that law enforcers including the Department of Justice could consider in implementing and applying the law. They are superior to any statute.
The Implementing Rules and Regulations of the law might still cure some of the defects. The Supreme Court could declare some parts of the law unconstitutional and let the rest remain valid. A bill could be introduced to amend it and invite the public including bloggers and Internet users to express their views.
The House of Representatives should probably take the initiative. After all, their version of the Cybercrime bill did not include Libel and other insertions made by the Senate.
“Who should order the search and/or seizure of one’s computer or block access to data, Judge or the Secretary of Justice?”
Cybercriminal: “Judge. It is cheaper and easier to bribe a Judge.”
Law-abiding Internet User: “Now, Justice Secretary – member of “Daang Matuwid Team. Later, after CJ Sereno's Judicial Reforms, Judge."
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