MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM: HOW CAN SENATE BILL 53 BE IMPROVED?

by yedahy

As stated in a press release published over the website of the Senate of the Philippines, dated July 3, 2013, Senate Bill 53 or the Magna Carta for Philippine Internet Freedom (MCPIF) is now the “new pet”[1] of Senator Miriam Defensor-Santiago, after working on the passage of the Reproductive Health Bill. “The new bill, if passed, will repeal the controversial Cybercrime Prevention Act, or Republic Act No. 10175”.[2]

The MCPIF began in August 29, 2012 as a “crowdsourcing” (Democracy.Net.PH, 2013) initiative of Democracy.Net.PH. It was drafted on Google Docs, and discussed through Twitter and Facebook.[3] The bill was built through an “ICT-enabled public participation”[4] composed of software designers, IT specialists, bloggers, engineers, lawyers and human rights advocates.[5]

The MCPIF, if passed, aside from repealing the Cybercrime Prevention Act, which was mentioned earlier, will also guarantee a mass of other freedoms, including, but not limited to; firstly, the freedom of expression as enshrined in Section 4 of the bill which although protected, is nevertheless not without limitations as is provided in Section 52; secondly, the freedom to innovate under Section 7; thirdly, the Right to Privacy as provided for in Section 8 on the protection of the privacy of data and Section 9 which refers to the protection of the security of data and; finally, the protection of intellectual property online as provided for in Section 10 of the bill in accordance with the existing Intellectual Property Code of the Philippines (RA 8293) as well as fair use in Section 39 and Section 48 on dealing with intellectual property infringement.[6]

This, now, is the difficult part, to meet the demand (read: how to improve MCPIF) of the title to this blog. While the MCPIF is already multi-sectoral as it can get, considering its crowdsourcing journey online and the number of participants who helped to draft it, there are some things which I felt were left out.

The goal of the Magna Carta for Philippine Internet Freedom, as pointed out by Victor Barreiro Jr. in his article in Rappler is to strike a balance between “protecting peoples interest, both in terms of protecting intellectual property and stopping libelous or hateful messages from becoming commonplace online”[7] and protecting the people’s right to their freedom of expression, which the Cybercrime Law or RA 10175 fell short of.

However, some part of the current ‘alternative’[8] to RA 10175 left questions unanswered or seemed to me as too vague or broad that it needed some qualifications.

 

Clear and Present Danger Rule

 

Section 4(b)[9], Part 3 on the Internet Rights and Freedoms, will require a judicial order for prior restraint or subsequent punishment if found to be among any of the grounds provided for under Section 4(c)[10]. These parts of Section 4, if I may, have to be improved. In Section 4(b) and the corresponding grounds provided for under Section 4(c), in order for any restraint or punishment be meted out against an offender, I felt that (i) and (ii) of Section 4(c) must concur instead of just either of them standing on its own as a ‘ground’. In that it would provide that for the clear and present danger rule to apply against a material or information, such must first be proved as not a protected expression under the standards of the community or the audience toward which the material or information is directed.

According to Isagani Cruz:

Under the clear and present danger rule, speech becomes unprotected if it presents a clear and present danger of a grave and imminent evil which the government has a right to prevent. The feared evil must have gravity and proximity, meaning there must be seriousness and immediacy about the danger sought to be prevented.[11]

The idea to incorporate both grounds is  a minute step to at least justify the application of clear and present danger rule on materials or information published over the internet. It must be noted, that the application of the clear and present danger rule was geared towards print and broadcast media, which is within easy access amongst the general public. Materials or information posted over the internet was never foreseen to be within its ambit. The participants may have overlooked the fact that although the audience of the internet is limitless, there are sites which are exclusive to certain groups, eg. reasonable requirements to gain access. Hence, the material or information has to be that which presents a danger before an audience to which it is presented.

“The First Amendment, from which our constitutional right to freedom of expression and of the press was patterned from, limits the federal government from making any law or regulation that would ban or indirectly tend to suppress – that is, “chill” – speech or expression. Historically, the First Amendment has been interpreted broadly to protect individuals from government attempts to suppress political, ideological, or scientific ideas or information, and to defend against government incursions on freedom of expression in art, literature, movies, and music.[12]

“Its interests are not limited to authors and publishers; readers have a right to receive information and judge its value for themselves.”[13]

 The first Amendment right to receive information is rooted in the fundamental public interest in the free and open exchange of ideas and information. The open dialogue protected by the First Amendment covers “every sort of publication which affords a vehicle of information and opinion,” including literature. Advances in computers and telecommunications may change the concept of “the press” from one in which one organization publishes for many to one, in which many share information amongst themselves. These changes pose a challenge to the power of the government to regulate access to and ownership of communications media.[14]

This same challenge applies to our own Freedom of Expression and of the Press, this time, those made over the internet.

It is established that scientific communication can be limited when necessary to protect overriding national aim or national security. But would the limit, including the clear and present danger rule, collectively negate the right of free speech and free press in the field of science?

 

Freedom of Information

 

The right of Filipinos to information held by government is guaranteed by no less than the Constitution’s Bill of Rights. Article III, Section 7 of the Constitution states: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to limitations as may be provided by law.”

Section 13(a)[15] is an attempt to open our rights to Freedom of Information via the internet. I felt that this section should be read vis-à-vis the Freedom of Information (FOI) Bill, because if we want Freedom of Information, might as well demand that amount of information from our government commensurate to the demands of our constitutional right.

What I felt was lacking in Section 13(a) is the absence of uniform and speedy procedure for access to information, which is addressed in the FOI Bill.

What is under consideration in Section 13(a), or as how I read it in Section 13(b)[16], are only those information that have been uploaded by government agencies online, it lacks a provision on  mechanisms whereby citizens would want to request information, those which aren’t provided yet or are not made readily available online.

According to Transparency and Accountability Network’s Primer on Freedom of Information in the Philippines:

Access to information is differently and inconsistently applied across government agencies. There is no uniform manner of making and responding to requests. Agencies are thus able to use the absence of uniform procedure to frustrate the exercise of the right. The closest procedure that Congress has provided is contained in Section 5 of the Republic Act 6713 or the Code of Ethical Standards for Public Officials and Employees.[17]

 

High-speed Connectivity

 

Section 15(d) on the Strategic Objectives of the DICT includes ensuring universal and high-speed connectivity at fair and reasonable costs.

I find the above provision dubious in the light of data capping by lead telecommunication providers in the country.

According to Democracy.Net.PH:

Data capping, also known as bandwidth capping or broadband capping, is a data traffic management/traffic control methodology employed by the internet service providers, network service providers, and telecommunications entities. Data capping is the “throttling” – purposefully limiting the amount of data transfer on a communications medium or channel (bandwidth) – of a subscriber’s or end user’s bandwidth.[18]

“Data caps are often stated in service providers’ fair use policies. Fair use policies are meant to be enforced to protect abuses, such as illegal sharing of copyrighted material or media and text messages spamming using unlimited messaging promotions.”[19]

Over the past few months, there have been complaints over data capping, aggravated by issues on spam SMS and slow internet connection. The National Telecommunications Commission is already looking into instituting new rules; it has also called the attention of a telecommunication company, Globe.[20]

Accroding to Grace Mirandilla Santos in her article on telecomasia.net:

The NTC does not prohibit data capping. Telecommunication companies are allowed to implement their respective Fair Use Policies to protect their subscribers against the less than 5% who hog 80% of the bandwidth. In principle, imposing a data cap makes sense. When you have a finite amount of bandwidth and a growing pool of subscribers, it is logical to put a usage cap so that all consumers would be able to get the same service. Also, data capping is a “global industry practice” of telecommunication companies anywhere in the world, one ISP said in a statement. But in reality, subscribers buy into unlimited data plans because of what they need, not because of what they think the ISPs could actually offer, because they to offer service as advertised.[21]

What is more revolting about data caps is that it does not discriminate the abusive data hoggers from the typical consumer. “Once the predetermined data usage threshold is reached, the consumer is informed by the ISP and his connection is shifted to 2G browsing speed regardless of reason for reaching the cap.” [22]Data capping as implemented in the country is unreasonable and indiscriminate.

This area in the law has to be clarified, Democracy.Net.PH, the one who led the drafting of the Magna Carta for Internet Freedom, even dedicated an article discussing how data capping is dangerous to competition and consumers’ rights.[23]

My only qualm, and humble suggestion in this part of the law is that, they clarify the issue of data capping to consumers and require telecommunications company to not deceive consumers with their exaggerated advertisements, eg. Unli Data Plans, which isn’t unlimited to begin with. Also, qualify what is meant by high-speed internet so expectation and reality can at least meet halfway. As a consumer, and an internet dependent citizen, more than my outcry for internet freedom, is my freedom to cry foul over not being given the service that I paid for, that even if there is a need to cap, it should be made not at the expense of innocent subscribers.

To close, there is so much to look forward to once this Bill becomes a Law, as it does not only guarantee and protect freedom of speech on the internet but also “protects user privacy from government surveillance and censorship” (Berners-Lee, 2014).

“Our rights are being infringed more and more on every side, and the danger is that we get used to it. So I want to use the 25th anniversary for us all to do that, to take the web back into our own hands and define the web we want for the next 25 years.”[24] – Tim Berners-Lee, Founder, World Wide Web.

 

 

 

 

 

 

 

 

[1] “Press Release – After the RH Law: Magna Carta for Internet Freedom is Miriam’s New Pet Bill.” Latest News. N.p., n.d. Web. 02 May 2014. <http://www.senate.gov.ph/press_release.2013/0703_santiago.asp&gt;.

[2] Ibid 1

[3] “Democracy.Net.PH Marks First Anniversary of the Drafting of the Magna Carta for Philippine Internet Freedom (#MCPIF).” Home. N.p., n.d. Web. 3 May 2014. <http://democracy.net.ph/democracy-net-ph-marks-anniversary-drafting-magna-carta-philippine-internet-freedom-mcpif/>.

[4] Ibid 3

[5] Ibid 1

[6] “A Brief Analysis of the Magna Carta for Philippine Internet Freedom.” Electronic Frontier Foundation. N.p., n.d. Web. 3 May 2014. <https://www.eff.org/deeplinks/2013/07/brief-analysis-magna-carta-philippine-internet-freedom>.

[7] “Internet freedom and the universe online.” Rappler. N.p., n.d. Web. 3 May 2014. <http://www.rappler.com/life-and-style/technology/20013-internet-freedom-and-the-universe-online&gt;.

[8] Ibid 1

[9] “A person’s right to publish content on the Internet, or to remove one’s own published content or uploaded data, is recognized as integral to the constitutional right to freedom of expression and shall not be subject to any licensing requirement from the Sate.”

[10] “(i) the nature of the material of 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.”

[11] “Freedom of Speech in the Philippines.”Suite. N.p., n.d. Web. 5 May 2014. <https://suite.io/renato-bautista-jr/23ma2j3>.

[12] “First Amendment.” The IT Law Wiki. N.p., n.d. Web. 03 May 2014. <http://itlaw.wikia.com/wiki/First_Amendment&gt;.

[13] Martin v. City Struther, Ohio, 319 U.S. 141 (1943)

[14] Ibid 12

[15] “The State recognizes that the internet and ICT can facilitate the dissemination of information and the promotion of transparency in governance. Therefore, subject to the provisions of the Data Privacy Act of 2012 (RA 10173) and the applicable laws on government information classification, the State shall, within practicable and economically reasonable limits, provide for and maintain a system that shall allow the public to view and download public information on plans, policies, programs documents, and records of government.”

[16] “The State shall publish and make available for download, in readily processed formats, such as plain text documents, comma-separated value spreadsheets, or open standard multimedia data, and its authenticity readily verifiable through a checksum standard as determined by the Internet Engineering Task Force or a similar globally recognized standards organization…”

[17] “A Primer on Freedom of Information in the Philippines.” Transparency and Accountability Network. N.p., n.d. Web. 5 May 2014. <http://www.tan.org.ph>.

[18] “Caps Locked: Why data caps put a lid on progress.” Home. N.p., n.d. Web. 5 May 2014. <http://democracy.net.ph/caps-locked/>.

[19] “NTC summons Globe on data caps, eyes new fair use rules.” Rappler. N.p., n.d. Web. 5 May 2014. <http://www.rappler.com/business/industries/215-tech-biz/49979-ntc-globe-internet-data-caps>.

[20] Ibid 19

[21] “Of data capping, competition and consumer rights.” News and analysis for Asia’s telecom operators. N.p., n.d. Web. 5 May 2014. <http://www.telecomasia.net/blog/content/data-capping-competition-and-consumer-rights?Grace%20Mirandilla-Santos>.

[22] Ibid 21

[23] Ibid 18

[24] “Web founder Berners-Lee calls for online ‘Magna Carta’ to protect users.” Reuters. Thomson Reuters, 12 Mar. 2014. Web. 5 May 2014. <http://www.reuters.com/article/2014/03/12/us-internet-bernerslee-idUSBREA2B0PC20140312>.

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