Senate Bill 53- Magna Carta For Internet Freedom
The Internet and Information Communication Technology or ICT have created a vast ocean of possibilities- a parallel universe perhaps where an individual may freely choose his own identity, creates his own destiny and pretty much do whatever he wants. It may have defied the laws of physics at least figuratively, where his physical body may be in two or more locations at the same time and provides for one to communicate across borders and oceans.
With information just one click away, people tend to be lawyers, doctors or even rocket scientists in one day and engage in highly-academic debates even without any formal schooling. And when people are given this kind of power, and like Prometheus who gave fire to humans, it comes with a certain price and unintended consequences.
Internet is a double-edged sword. It provides and boasts for progress, creativity and freedom. While it may overthrow governments and suppress the evils of society, it may also be used to destroy and change one’s life forever. Hence, as a matter of obligation the State seeks to regulate the use of such, and balance the interests of different stakeholders.
When the internet was first used in 1994, Congress has passed measures to regulate the use and for the protection of the public, such as the Electronic Commerce Act or RA 8792 and the Data Privacy Act or RA 10173. However, there still remains a void in the information society that Santiago believes that laws that have an impact on cyberspace must address the realities of the present and the challenges of the future.[ii]
With the passage of the highly contentious Cybercrime Prevention Act of 2012, Senator Miriam Defensor Santiago filed Senate Bill No. 53 or An Act Establishing A Magna Carta For Philippine Internet Freedom, Cybercrime Prevention and Law Enforcement, And Cyberdefense and National Cybersecurity. The Senator explained that the time has come for the establishment of a comprehensive State framework for the administration of Internet and information and communication technology in the Philippines, “a task that should be jointly undertaken by the government and the private sector”.[iii]
Freedom Of Speech And Expression
Article 3, Section 4 of the 1987 Constitution provides that, No law shall be passed abridging the freedom of speech, of expression or of the press, or the right of the people peaceably assemble and petition the government for redress of grievances. Such declaration presents two aspects, namely: freedom from censorship and prior restraint and freedom from subsequent punishment.
Hence, in Part 3 Section 4 (ii) of Senate Bill 53, it reads, The State shall, within its jurisdiction: (ii) Protect the right of the people to petition the government via the Internet for redress of grievances. Such protection given by the Senate Bill 53 recognizes the clamor of the whole citizenry against the ill effects of the previous Cybercrime Prevention Act which everyone believes would unduly restrict the people’s freedom in redressing their grievances against the government. While it provides for its protection, the State is also given the tool for a valid governmental interference of the people’s freedom of speech. Section 4c of the same bill provides for the grounds for a valid governmental interference on free speech.
(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, or any of its political subdivisions or agencies including government-owned or controlled corporations, shall be issued only upon the following grounds:
(i) the nature of the material or information subject of the order creates a clear and present danger of a substantive evil that the State has a right or duty to prevent;
(ii) the material or information subject of the order is not protected expression under the standards of the community or the audience toward which the material or information is directed; and
(iii) the publication of the material or the uploading of the information subject of the order will constitute a criminal act punishable by laws enumerated in Section 5 of this Act.
The author believes that the grounds set forth would unduly restrict the courts in determining whether there is a valid governmental interference. The bill should also recognize other tests of valid governmental interference such as the Balancing of Interests Test. As held in Zaldivar v. Sandiganbayan, The Supreme Court said that the “clear and present danger rule” is not the only test which has been recognized and applied by the courts. Another criterion for permissible limitations on freedom of speech and of the press is the balancing of interests test, which require courts to take conscious and detailed consideration of the interplay of interests in a given situation. The courts should be given a wide latitude in determining and balancing the interest of the citizens in redressing their grievances against the government and at the same time taking in consideration that the institutions should well be respected and protected against expressions that demean, ridicule and degrade the institutions.
As held in the case of In Re: Column of Ramon Tulfo, The Supreme Court held that Freedom of the press is subordinate to the decision, authority, integrity, and independence of the judiciary and the proper administration of justice. While there is no law that restraint or restrict or punish expression of disfavor, it must be not be done and used as a vehicle to satisfy one’s irrational obsession to demean, ridicule, degrade and even destroy the courts and their members.
To take matters worse is the fact that the publication or uploading of information should constitute a criminal act. Is the clear and present danger rule not enough for the courts to determine the effect of one’s expression? Would it mean that we can demean, ridicule and attack the integrity of political institutions provided such information shall not constitute a criminal act defined in section 5 of the bill? Expressions of disfavor, discontent and criticism of official conduct is different from expressions to ridicule, degrade and destroy the integrity of social and political institutions of society. There may be expressions posted or published on the internet that undermine and ridicule the integrity of the vital social institutions of the country but on the other hand, does not constitute criminal liability. And based on Senate bill 53, one of the requisites or grounds is that it should constitute a criminal act. In effect, we can have expressions published on the internet degrading and demeaning words against the government or institutions provided it does not constitute a criminal act, and hence protected speech. One should differentiate the other through judicial interference wherein courts should be given wide latitude to determine the extent and possible effects to the institution’s integrity. The bill, as the author believes, should not restrict but rather offer permissible and reasonable limitations to the courts to determine the expressions on a case-to-case basis. The bill should offer no other grounds for a judicial order, except one established by jurisprudence and should be given wide latitude to balance the interest of the State’s integrity against public ridicule and embarrassment and the public’s constitutional guaranties on freedom of expression. The valid tests for governmental interference i.e. Clear and present danger rule and Balancing of Interests Test used by the courts and established in jurisprudence is enough for the courts to determine whether or not an individual’s expression is protected or not and calls for a governmental interference.
Section 52 (a) of the Senate Bill No. 53 defines “Internet Libel” 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. This is in consonance with the definition of libel defined under Article 355 of The Revised Penal Code. What it made interesting and open for debates are the exceptions to internet libel under Section 52(v) of the bill, which states:
Exceptions to internet libel – The following acts shall not constitute internet libel:
(1) Expressions of protest against the government, or against foreign
(2) Expressions of dissatisfaction with the government, its agencies or
instrumentalities, or its officials or agents, or with those of foreign governments;
(3) Expressions of dissatisfaction with non-government organizations,
unions, associations, political parties, religious groups, and public figures;
(4) Expressions of dissatisfaction with the products or services of
(5) Expressions of dissatisfaction with commercial entities, or their
officers or agents, as related to the products or services that the commercial entities provide;
(6) Expressions of a commercial entity that are designed to discredit the
products or services of a competitor, even if the competitor is explicitly identified;
(7) An expression made with the intention of remaining private between
persons able to access or view the expression, even if the expression is later released to the public; and,
(8) A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions, or of any matter of public interest.
Exceptions in (1), (2), (7) and (8) are well recognized in law and are indeed considered exceptions to libel under Revised Penal Code, exceptions in (3), (4), (5), and (6) seems to pose some possible threats and adverse effects on trade and business in the country. It has been well recognized in law the interest of the public to express their dissatisfaction and grievances toward official conduct and the government. As noted above, there are tests used for a valid governmental interference on speech and at the same time recognizes constitutional guaranties. There are numerous cases upholding the rights of the people on freedom of speech and expression. As held in the case of U.S. v. Bustos, 37 Phil 731, the individual is given the widest latitude in criticism of official conduct. The Supreme Court considered criticism as a “scalpel that relieves the abscesses of officialdom.” In Ayer Productions v. Judge Capulong , 160 Scra 86, the tribunal upheld the primacy of freedom of expression over Enrile’s right to privacy. It is worthy to note that the Court ruled that a public figure’s right to privacy is narrower than that of an ordinary citizen. However, in the case of commercial entities like private individuals, it places no distinction. Hence, it can be inferred that ordinary citizens or persons, natural or juridical is placed on equal footing since enterprises are not considered as public figures. This may pose problems and unintended effects on the owners of these private enterprises when the Senate Bill no. 53 places expressions of dissatisfaction with products and services or commercial enterprises as one of the exceptions to internet libel.
I do understand the intention of such exception as when I have seen on Facebook a recent article together with a photo regarding an incident where a customer found dead insects in his food. The article became viral and people started calling for a boycott to the said fastfood restaurant. Probably, this kind of scenario propelled the framers of the bill to include it as one of the exceptions on internet libel. However, this one-sided approach could be detrimental to the owners or to the business industry as a whole. If I am an owner of a company, I could hire a bunch of people to post and write articles against my competitors in the industry. This I think would be cheaper, fast and indirect advertisement for my company. Consequently, I would see my competitors crumble into pieces because of the black propaganda I have made against them. And what about the liability of the people I hired to write such articles and posts? They can set up the defense that they are just airing their dissatisfaction to these commercial enterprises and such articles are exempted from internet libel. It would then create a business industry characterized by unfair and unhealthy competition among businesses. And in some cases, businesses may be deprived of their right to due process as they can be easily judged based on public perception through the use of the internet. They cannot even validate whether such expressions posted on the internet against them were true since there is an automatic exemption granted to them by the law. The author believes that this should not be the case. With the exception granted under the proposed bill, people can easily taint the reputation and name of a commercial enterprise without any regard whether such reports were true or not as there is an absolute exemption given under the proposed bill.
On the part of the public, due to the proposed exemption on internet libel on expressions of dissatisfaction to commercial enterprises, the State only encourages the public to post and air their grievances through the internet instead of availing well recognized measures granted to them by the law. We have the Consumer Act and other possible remedies to correct the wrong practices of these enterprises. However, this cannot be done when you encourage, exempt and protect the public to express and air their grievances and dissatisfaction in the internet where the alleged offending party is not given the opportunity to hear his side of the story nor set his own defenses. For example, instead of filing a formal complaint before the Department of Trade and Industry or to the local health department regarding poor sanitation practices of some enterprises, I would go home and just post the incident to the internet. We are then creating an impression that the internet is the fastest and cheaper way to solve our problems without any regard to decency, fair play and proper notice and hearing to the alleged offending party. And the worst part of it is that once you have posted something, it is there forever and will be instilled in the minds of the public whether it is true or not.
As a proposal, the law should not grant such exemption and instead expose them to the requirements for internet libel. Through these elements, the owners are on equal footing against those people who only have ill motives toward their business. It also serves as protection for them since there is a determination of malice and positive identification of the subject as bases for the expressions against them. On the other hand, the public can also raise truth as defense for their expressions of dissatisfaction towards these enterprises. Also, the public will then be informed and rethink before expressing their thoughts against enterprises, and instead avail themselves of the bureaucracy afforded by the government to the public.
[i] Ernie Reyes, InterAksyon.com · Tuesday, July 2,2013. http://www.interaksyon.com/infotech/miriam-files-internet-freedom-bill-to-counter-anti-cybercrime-law.