Republic Act No. 10372 Amending Republic Act No. 8293, The Intellectual Property Code of the Philippines

Why are intellectual properties so important? What is its role in the society? In a country? In the world? The answer is very simple - intellectual properties contribute a lot in the development of a country. As defined by the World Intellectual Property Organization or WIPO, intellectual property refers to the creation of the mind, such as inventions, literary and artistic works, and symbols, and names, images and designs used in commerce. Without the new ideas and inventions that artists come up with, a country would much likely depend on the ideas of the other countries. And if a country would not have its own ideas, they would be like dummies relying on others and not stand on its own.

In the business world, companies come up with their own trademarks. In this way, they stand out from the other companies. This trademark is their own and it cannot be used by other companies because it is protected by the intellectual property law. From the sound of it, it's like a company's trademark is the company's face, if it was a human being. The face which others would recognize easily upon seeing it. A face of a person that is different and unique from all the other faces of the people all over the world. The face which was given to a person and only him or her has that face.

The next question is, why is it important to protect these intellectual properties? Why not let others use these ideas that we come up with? The answer is not as simple as in the first question. Intellectual properties are protected in order to avoid piracy and counterfeiting. As stated by STOPfakes, which was launched to serve as a one-stop shop for U.S. tools and resources on intellectual property rights:

"According to FBI, Interpol, World Customs Organization and International Chamber of Commerce estimates, roughly 7-8% of world trade every year is in counterfeit goods. That is the equivalent of as much as $512 billion in global lost sales. Of that amount, U.S. companies lose between $200 billion and $250 billion. IP theft has a major impact at home, too: according to the U.S. Customs and Border Protection, in fiscal year 2010, nearly 20,000 seizures of counterfeit and pirated goods with a total domestic value of $188.1 million and a manufacturer’s suggested retail price of $1.4 billion were intercepted before entering the United States. The total domestic value of counterfeit products seized presenting potential safety or security risks seized was $42 million.

Which sectors are most affected? IP theft poses a risk to all industry sectors; those most commonly affected by IP theft are manufacturing, consumer goods, technology, software, and biotechnology, including pharmaceuticals."

With the findings discussed above, it clearly shows that if intellectual properties are not protected, there would be a lot of losses. All efforts used by companies in coming up with new products or inventions would be put to waste if other companies would steal these ideas and produce the products like it is their own and offer it for a cheaper price when in fact, it is worth much more than that.

In the Philippines, one the most serious problems regarding intellectual properties is the selling of pirated DVDs. It's like on every street of the country, you will be able to find a store selling these pirated DVDs. There are even some vendors who just walk around the streets like the takatak boys, but instead of selling cigarettes, candies and newspapers, they sell pirated DVDs. In some markets and malls, Class A bags, shoes, watches and jewelries can be found. It really looks authentic and it is much cheaper but the quality is not that good and it is illegal. Yes, there is a law in the Philippines protecting intellectual property rights. Until now it is a struggle implementing this law, but there are also improvements as to the approaches dealing with piracy in the country. An article of Philippine Star even mentioned that the IIPA, a private sector coalition of trade associations representing US copyright-based industries working to improve international protection and enforcement of copyrighted materials formed in 1984, submitted a report to Optical Media Board regarding the improvement of the government in the dealing with the problem of piracy. A portion of the article stated that:

"The IIPA also elevated the Philippines to a Commendable Special Mention Category “to denote positive progress in several key areas for protection of creative content warranting recognition,” thereby removing the country from its watchlist category."

The IIPA even cited that these are “evidence of the will of the Philippine government to tackle piracy and create space for legitimate creative businesses to grow.” So, there really is an improvement in the approach used by the government of the Philippines in dealing with the problem of piracy.

The third question is, what is the implemented law in the Philippines protecting intellectual property rights? The Intellectual Property Law of the Philippines is R.A. 8293. It is an Act prescribing the Intellectual Property Office, providing for its powers and functions, and for other purposes. Section 2 of the said Act reads as follows:

"Declaration of State Policy. - The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act.

The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good.

It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines."

Some provisions of R.A. 8293 are amended by R.A. 10372 in order to protect intellectual property rights more effectively, but there are flaws in these amendments. A report even stated that the new law threatens to deprive the Filipinos of their right to bring home copyrighted music, movies and books from abroad because Section 190 of R.A. 8293 concerning the importation of a copy of a work for personal purposes was amended in R.A. 10372. The provision of Section 190 in R.A. 8293 reads as follows:

"Importation for Personal Purposes. - 190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances:

(a) When copies of the work are not available in the Philippines and:

(i) Not more than one (1) copy at one time is imported for strictly individual use only; or

(ii) The importation is by authority of and for the use of the Philippine Government; or

(iii) The importation, consisting of not more than three (3) such copies or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.

(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed three (3).

190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor's right of action.

190.3. Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation of articles the importation of which is prohibited under this Section and under treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported."

Sections 190.1 and 190.2 in the above-mentioned provision were deleted in their entirety in R.A. 10372. And Section 190.3 wad renumbered and amended as the sole provision under Section 190. The deletion of Sections 190.1 and 190.2 would clearly deprive the Filipinos of their right to enjoy the works of the other countries. According to Raissa Robles, a blogger who writes about Philippine politics and currently a correspondent of South China Morning Post,

"Everyday, many Filipinos arrive in Manila, bringing back with them books as well as  DVDs and CDs of music and movies they bought in other countries for their personal use.

They can do this without fear of being questioned because it’s a right specifically granted “to persons or families arriving from foreign countries” under Section 190 of the Intellectual Property Code of the Philippines or Republic Act 8293."

But because of these amendments, Filipinos arriving from foreign countries would now have to fear bringing home music, movies and books for they will be penalized under R.A. 10372. The principle of dura lex sed lex may be applicable in this case, but in  my opinion, such amendment in the said Sections is unreasonable. What would be violated if Filipinos bring home music, movies and books they got from abroad and it is only for their personal use? What if they got it as a souvenir? What if they are a big fan of the artist or the author? I cannot see the logic of deleting these Sections when there will be no harm done at all. It may be the way of the government of encouraging the Filipinos to love their own music, movies and books, but I think depriving the Filipinos to love other works from abroad is too much. Well, maybe it can be a way, but it is not the only way.

According to Robles, it was the Intellectual Property Office which played an active role in drafting the amendments to R.A. 8293. And when she asked Ricardo Blancaflor, the IPO Director General, regarding the deletion of such provisions, the latter's reply was:

“The greater good has to be served. This law is for everybody. I think instead of people criticizing it, I think people should recognize it’s a long awaited legislation. It was done within the bounds of the law The good side of the law should also be highlighted. Hindi negative that some interest groups are pushing.

We should be congratulated for the great work we are doing.”

So, I guess we should be thankful that we are being deprived of our rights? Our right of being free from criminal liability when we prefer works of other countries. It is like we are being compelled to not like the things that we really like. It's really absurd, in my opinion.

Section 212.1 of R.A. 8293 which states that natural persons may use for their own personal purposes the works of performers and the sound recordings was also deleted in R.A. 10372. Another right deprived from the Filipinos.

Raissa Robles also pointed out that in jailbreaking Apple products, people may be held criminally liable for copyright infringement because the amendments by R.A. 10372 introduces, for the first time in our criminal law, the concept of “digital rights management” (DRM) – which also covers how we use digital devices on the Internet and which behaviors are considered criminal.

Atty. JJ Disini, a technology law expert agrees with Robles. According to Atty. Disini in an interview by the GMA Network,

"In the old law, it's very explicit that, when you're coming into the country with your personal media collection, even if the copyright owner says that you can't bring them in, you can go and point to the law and say that you're allowed to do that but that provision has now been removed."

On the other hand, the Intellectual Property of the Philippines (IPOPHL) responded on Robles' blog entry and said:

"Contrary to Ms. Robles' insinuations, returning Filipinos can in fact bring home more copies for personal use that fall under the fair use exceptions... Moreover, the IPOPHL has a very good working relationship with the Bureau of Customs, hence, there can be no misinterpretation of the real intention of the amendment.

The deletion of sections 190.1 and 190.2 in fact allows for religious, charitable, or educational institutions to import more copies, for as long as they are not infringing or pirated copies, so that more Filipino students in the country may use such works,"

 In addition to IPOPHL's response, a report by the Philippine Star, regarding the same issues, stated that with these amendments, there is no more limit to the entry of copyrighted products into the country for personal use. According to Cagayan de Oro City Representative Rufus Rodriguez, a principal author of the bill, the deletion of the provisions did  not mean that Filipinos are prohibited from bringing home music, movies and books from abroad as long as it is for their own personal use. What's confusing about this statement is that Section 14 of  R.A. 10372 reads as follows:

SEC. 14. Sections 190.1. and 190.2. of Republic Act No. 8293 are deleted in their entirety.

"The importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright" - this provision was deleted in its entirety. It is very clear. The right of the people was deleted in the amendments done in R.A. 10372. There was nothing in the amendments stating that music, movies and books from abroad may be used by Filipinos for their own personal use.

Regarding jailbreaking, Rodriguez said that it is merely an aggravating circumstance that increases the penalty for copyright infringement and that what is prohibited is the illegal downloading of copyrighted works for it violates a copyright.

If the deleted provisions show that Filipinos are deprived of some rights, but according to Rufus Rodriguez, a principal author of these amendments, and what the IPOPHL has to say about Robles' insinuations, there are no rights violated by such amendments, then it would be very confusing for the Filipinos. How can the Filipinos know which they should comply with - what they understand from the law itself or what the principal author and the IPO say about it?

Another issue arising from these amendments is that it allows warrantless searches as stated in a report in GMA Network. In this report. Atty. Disini said that:

"The newly amended Intellectual Property Code of the Philippines (RA 8293) allows warrantless searches of business establishments and offices for violations of IP rights. Also, the amendments seek to expand the meaning of infringement to include the making of temporary copies. Finally, mall owners, lessors, and online content providers wil become more vulnerable to infringement done by others."

According to Atty. Disini, the amendment in Section 7 of R.A. 8293 in unconstitutional. The provisions of this Section reads as follows:

"Section 7. The Director General and Deputies Director General.

7.1. Functions. - The Director General shall exercise the following powers and functions:

a) Manage and direct all functions and activities of the Office, including the promulgation of rules and regulations to implement the objectives, policies, plans, programs and projects of the Office: Provided, That in the exercise of the authority to propose policies and standards in relation to the following: (1) the effective, efficient, and economical operations of the Office requiring statutory enactment; (2) coordination with other agencies of government in relation to the enforcement of intellectual property rights; (3) the recognition of attorneys, agents, or other persons representing applicants or other parties before the Office; and (4) the establishment of fees for the filing and processing of an application for a patent, utility model or industrial design or mark or a collective mark, geographic indication and other marks of ownership, and for all other services performed and materials furnished by the Office, the Director General shall be subject to the supervision of the Secretary of Trade and Industry;

b) Exercise exclusive appellate jurisdiction over all decisions rendered by the Director of Legal Affairs, the Director of Patents, the Director of Trademarks, and the Director of the Documentation, Information and Technology Transfer Bureau. The decisions of the Director General in the exercise of his appellate jurisdiction in respect of the decisions of the Director of Patents, and the Director of Trademarks shall be appealable to the Court of Appeals in accordance with the Rules of Court; and those in respect of the decisions of the Director of Documentation, Information and Technology Transfer Bureau shall be appealable to the Secretary of Trade and Industry; and

c) Exercise original jurisdiction to resolve disputes relating to the terms of a license involving the author's right to public performance or other communication of his work. The decisions of the Director General in these cases shall be appealable to the Secretary of Trade and Industry."

In R.A. 10372, the provision above-mentioned is amended as follows:

“Sec. 7 The Director General and Deputies Director General. –

x x x

b) Exercise exclusive appellate jurisdiction over all decisions rendered by the Director of Legal Affairs, the Director of Patents, the Director of Trademarks, the Director of Copyright and Other Related Rights, and the Director of the documentation, Information and Technology Transfer Bureau.  The decisions of the Director General in the exercise of his appellate jurisdiction in respect of the decisions of the Director of Patents, the Director of Trademarks and the Director of Copyright and Other Related Rights shall be appealable to the Court of Appeals in accordance with the Rules of Court; and those in respect of the decisions of the Director of the Documentation, Information and Technology Transfer Bureau shall be appealable to the Secretary of Trade and Industry;

c) Undertake enforcement functions supported by concerned agencies such as the Philippine National Police, the National Bureau of Investigation, the Bureau of Customs, the Optical Media Board, and the local government units, among others;

d) Conduct visits during reasonable hours to establishments and businesses engaging in activities violating intellectual property rights and provisions of this Act based on report, information or complaint received by the office; and

e) Such other functions in furtherance of protecting IP rights and objectives of this Act.”

Article 3, Section 2 of the Constitution states that the people have the right to be secure in their persons, houses, papers, and effects against reasonable searches and seizures of whatever and for whatever purpose. It also provides that a search warrant is needed in such searches. The amendment in Section 7 of R.A. 8293 gives the Director General and Deputies Director General the authority to conduct visits to establishments and businesses without search warrants. Even if a complaint, report or information is filed before the office stating that an establishment is engaged in activities violating intellectual property rights, a search warrant must still be obtained first before conducting such visits, in accordance with the provisions of the Constitution.

With all the issues arising from these amendments as stated above, I think it is still debateable whether the R.A. 10372 is a better law than R.A. 8293. There are a lot of pros and cons in these amendments. It may be beneficial to copyright owners and intellectual property rights may be more protected because of these amendments, but the people would also be deprived of their rights due to too much "protection" for these intellectual properties. In my opinion, it should meet halfway where the law would still effectively protect intellectual property rights and at the same time, it would not violate any provision of the Constitution and the people would not be deprived of any of their rights.

References:

Robles, R. Congress Erased Every Filipino's Right To Bring Home Music, Movies and Books From Abroad. February 14, 2013. http://raissarobles.com/2013/02/14/congress-   erased-every-filipinos-right-to-bring-home-music-movies-and-books-from-abroad/. Accessed May 19, 2013

Diaz, J. P-Noy Signs IP Code Amendments. March 8, 2013.             http://www.philstar.com/business/2013/03/08/917004/p-noy-signs-ip-code-amendments. Accessed May 19, 2013.

Republic Act 10372: Amending the Intellectual Property Code of the Philippines (R.A. 8293). http://jlp-law.com/blog/republic-act-10372-amending-the-intellectual-property-code-of-the-philippines-ra-8293/. Accessed May 17, 2013.

Calica, A. Alliance Lauds Phl Efforts Against Piracy. February 22, 2013.             http://www.philstar.com/headlines/2013/02/22/911736/alliance-lauds-phl-efforts-against-piracy. Accessed May 19, 2013.

WIPO. Emerging Issues in Intellectual Property. http://www.wipo.int/about-ip/en/studies/. Accessed May 19, 2013.

STOPfakes.gov. How Serious a Problem is Counterfeiting and Piracy?  http://www.stopfakes.gov/learn-about-ip/ip/how-serious-problem-counterfeiting-and- piracy. Accessed May 19, 2013.

Republic Act 8293: An Act Prescribing the Intellectual Property Office, Providing for its Powers and Functions, and for Other Purposes. http://www.lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html. Accessed May 17, 2013.

           

Dimacali, T. New IP Law Allows Warrantless Searches, Erases Right to Personal Use. February 14, 2013.http://www.gmanetwork.com/news/story/294998/scitech/technology/new-ip-law-allows-warrantless-searches-erases-right-to-personal-use. Accessed May 17, 2013. 

[Disclaimer: This blog is for our Technology and the Law class only. The contents of this entry is the writer's opinion and is not intended in any way to serve as a legal advice.]

R.A. No. 10173: Sufficient Mechanism to the Introduction of a National I.T. System in the Philippines

People say that the internet makes everything easier for them, but using the internet also has its disadvantages which may put the users in danger. According to an article, the common uses of the Internet are for (1) browsing, either for research purpose, information or to learn some new things; (2) communication in the forms of emails, chats, video and chats, and video conferences; (3) to build and take part in discussion forums; and (4) the buying and selling over the internet, or online shopping.

For research purposes, users have to make sure that they would also look into other sources aside from the internet because there are a lot of wrong information on the internet. In the use of emails, chats, video chats, and video conferences and taking parts in discussion forums, it may be easier and less costly than the use of cellular phones or sending of telegrams, but due to the internet, some users are having a hard time socializing and communicating with other people in front of them and prefer to just socialize with other people in front of their monitors. In online shopping, the buyer is required to enter his/her credit card number in order to effect payment.

With all the people around the world, how many of them are protected from all the disadvantages of using the internet?

According to NBC News,

"Government restrictions on the Internet have risen over the past year around the world as regimes use violence against bloggers and turn to censorship and arrest to squelch calls for reform."

And due to the disadvantages of the use of the internet, some countries have already monitored their users, and even implemented restrictions. A report on NBC News stated that:

"Pakistan, Bahrain and Ethiopia saw the biggest rollbacks in Internet freedom since January 2011 and were among the 20 countries out of 47 assessed by Freedom House that declined in their rankings. In contrast Tunisia, Libya and Burma, all countries that have seen dramatic political opening or regime changes, improved over previous years along with 14 other countries, the U.S. group, which advocates democracy and open societies, said. Vietnam handed out stiff jail terms to three high-profile bloggers for their bold criticism of government handling of land rights issues and corruption. Estonia topped the list of countries for freedom of the Internet with the United States in second place, according to the Freedom House report. The rankings were based on obstacles to Internet access, limits on content and violations of user rights. Estonia has a highly developed online culture that includes online voting and access to electronic medical records and some of the lightest content restrictions in the world, the report found. The United States has fallen behind in Internet speed and cost and broadband availability.

Methods for controlling free speech on digital media also have grown more sophisticated and diverse the past year.

Governments have passed new restrictive laws in 19 states. In Iran, censors have improved software for filtering content and hackeddigital certificates. In Pakistan, virtual private networks are banned. And in 14 countries the governments have followed China's lead in hiring armies of commentators to manipulate online discussions."

In the Philippines, Administrative Order No. 308 was issued by President Fidel V. Ramos in 1996. A.O. No. 308 is entitled "Adoption of a National Computerized Identification Reference System." Its purpose is to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities. The Philippines introduced the use of the internet to improve and uplift public service, but there were also flaws in such Administrative Order.

In the case, Blas F. Ople vs. Ruben D. Torres, et. al., G.R. No. 127685, the Petitioner prayed that A.O. No. 308 be invalidated due to two constitutional grounds: (1) it is a usurpation of the power of Congress to legislate; and (2) it impermissibly intrudes on our citizenry's protected zone of privacy. The petitioner contended that:

A. The establishment of a national computerized identification reference system requires a legislative act. The issuance of A.O. No. 308 by the President of the Republic of the Philippines is, therefore, an unconstitutional usurpation of the legislative powers of the Congress of the Republic of the Philippines.

B. The appropriation of public funds by the President for the implementation of A.O. No. 308 is an unconstitutional usurpation of the exclusive right of Congress to appropriate public funds for expenditure.

C. The implementation of A.O. No. 308 insidiously lays the groundwork for a system which will violate the Bill of Rights enshrined in the Constitution.

The Supreme Court ruled in favor of the petitioner, Blas F. Ople. In the decision of the Court, it was stated that it is beyond the power of the President to issue A.O. No. 308, and that A.O. No. 308 should not be even considered as an Administrative Order. The decision also stated that the A.O. No. 308 violates the right to privacy. A portion of the decision reads as follows:

"While the Congress is vested with the power to enact laws, the President executes the laws. The executive power is vested in the Presidents. It is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance. Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations.

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. The essence of privacy is the right to be let alone.

The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources — governments, journalists, employers, social scientists, etc. In the case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent fail to perceive the danger that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens."

But in his dissenting opinion, Justice Kapunan stated that the President has the right to issue A.O. No. 308, and that:

"The National Computerized Identification Reference System was established pursuant to the afore-quoted provision precisely because its principal purpose, as expressly stated in the order, is to provide the people with the facility to conveniently transact business with the various government agencies providing basic services. Being the administrative head, it is unquestionably the responsibility of the President to find ways and means to improve the government bureaucracy, and make it more professional, efficient and reliable, specially those government agencies and instrumentalities which provide basic services and which the citizenry constantly transact with."

The issues in this case are (1) whether the issuance of the A.O. No. 308 is unconstitutional; and (2) whether such Administrative Order violates the right of the people to privacy.

I agree with what Justice Kapunan and Justice Mendoza said in their dissenting opinion. An Administrative Order is defined, under the 1987 Administrative Code, is an act of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.

In issuing Administrative Order No. 308, the President's purpose was to improve government bureaucracy. As the administrative head, the President has the right to issue such order to ultimately achieve administrative efficiency. Moreover, such Administrative Order does not require all the people to avail the benefits that A.O. No. 308 provide. It is merely voluntary.

In implementing A.O. No. 308, advanced methods of the Biometrics Technology may pose danger to the right of privacy of the people but the standard set states that:

"The need to provide citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities; the computerized system is intended to properly and efficiently identify persons seeking basic services or social security and reduce, if not totally eradicate fraudulent transactions and misreprentation; the national identification reference system is established among the key basic services and social security providers; and finally, the IACC Secretariat shall coordinate with different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology. Consequently, the choice of the particular form and extent of Biometrics Technology that will be applied and the parameters for its use (as will be defined in the guidelines) will necessarily and logically be guided, limited and circumscribed by the afore-stated standards. The fear entertained by the majority on the potential dangers of this new technology is thus securedly allayed by the specific limitations set by the above-mentioned standards. More than this, the right to privacy is well-esconced in and directly protected by various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and certain laws, all so painstakingly and resourcefully catalogued in the majority opinion. Many of these laws provide penalties for their violation in the form of imprisonment, fines, or damages. These laws will serve as powerful deterrents not only in the establishment of any administrative rule that will violate the constitutionally protected right to privacy, but also to would-be transgressors of such right."

The standards set show that the information of the people will be protected by the government. And in cases where it is possible that information may be disclosed, there is a sufficient number of laws prohibiting and punishing any such unwarranted disclosures.

According to Justice Mendoza, A.O. No. 308 does not violate the right of the people to privacy because such Order requires only an identification system based on data which the government agencies involved have already been requiring individuals making use of their services to give.

After reading the case of Ople vs. Torres and all the separate opinions of the Justices who heard such case, it may be concluded that there would always be pros and cons in adapting into the advancement of technology. New developments may really be hard to adapt at first, but it may be regulated of standards and methods will be set. And if violations would really be inevitable, corresponding penalties should be provided by the government.

When Republic Act No. 10173, entitled AN ACT PROTECTING INDIVIDUAL PERSONAL INFORMATION IN INFORMATION AND COMMUNICATIONS SYSTEMS IN THE GOVERNMENT AND THE PRIVATE SECTOR, CREATING FOR THIS PURPOSE A NATIONAL PRIVACY COMMISSION, AND FOR OTHER PURPOSES, the government clearly stated that the right to privacy of the people would be protected by such Act. Section 2 of the Act reads as follows:

"SEC. 2. Declaration of Policy. – It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected."

Just like in A.O. No. 308, the people would have to give out their information to the government and rely that the latter would protect the information given. There is also an agency responsible in administering and implementing the provisions in order to ensure the compliance of the people with the standards set, both in the R.A. 10173 and in A.O. No. 308.

The only difference in A.O. No. 308 and R.A. No. 10173 is that in the latter, the government was able to emphasize on the provisions stating how the information given by the people would be protected.

Section 20 of R.A. No. 10173 speaks of the measures to be observed in order to protect the personal information of the people against any accidental or unlawful destruction, alteration and disclosure, as well as against any other unlawful processing. The provision reads as follows:

"SEC. 20. Security of Personal Information. – (a) The personal information controller must implement reasonable and appropriate organizational, physical and technical measures intended for the protection of personal information against any accidental or unlawful destruction, alteration and disclosure, as well as against any other unlawful processing.

(b) The personal information controller shall implement reasonable and appropriate measures to protect personal information against natural dangers such as accidental loss or destruction, and human dangers such as unlawful access, fraudulent misuse, unlawful destruction, alteration and contamination.

(c) The determination of the appropriate level of security under this section must take into account the nature of the personal information to be protected, the risks represented by the processing, the size of the organization and complexity of its operations, current data privacy best practices and the cost of security implementation. Subject to guidelines as the Commission may issue from time to time, the measures implemented must include:

(1) Safeguards to protect its computer network against accidental, unlawful or unauthorized usage or interference with or hindering of their functioning or availability;

(2) A security policy with respect to the processing of personal information;

(3) A process for identifying and accessing reasonably foreseeable vulnerabilities in its computer networks, and for taking preventive, corrective and mitigating action against security incidents that can lead to a security breach; and

(4) Regular monitoring for security breaches and a process for taking preventive, corrective and mitigating action against security incidents that can lead to a security breach.

(d) The personal information controller must further ensure that third parties processing personal information on its behalf shall implement the security measures required by this provision.

(e) The employees, agents or representatives of a personal information controller who are involved in the processing of personal information shall operate and hold personal information under strict confidentiality if the personal information are not intended for public disclosure. This obligation shall continue even after leaving the public service, transfer to another position or upon termination of employment or contractual relations.

(f) The personal information controller shall promptly notify the Commission and affected data subjects when sensitive personal information or other information that may, under the circumstances, be used to enable identity fraud are reasonably believed to have been acquired by an unauthorized person, and the personal information controller or the Commission believes (bat such unauthorized acquisition is likely to give rise to a real risk of serious harm to any affected data subject. The notification shall at least describe the nature of the breach, the sensitive personal information possibly involved, and the measures taken by the entity to address the breach. Notification may be delayed only to the extent necessary to determine the scope of the breach, to prevent further disclosures, or to restore reasonable integrity to the information and communications system."

While Section 22 of the same Act speaks of how sensitive personal information should be protected by the heads of agencies. The provision states that:

"All sensitive personal information maintained by the government, its agencies and instrumentalities shall be secured, as far as practicable, with the use of the most appropriate standard recognized by the information and communications technology industry, and as recommended by the Commission. The head of each government agency or instrumentality shall be responsible for complying with the security requirements mentioned herein while the Commission shall monitor the compliance and may recommend the necessary action in order to satisfy the minimum standards."

Sections 20 and 22 of R.A. 10173 are the provisions lacking in A.O. No. 308 which caused the petitioner to file a petition alleging that the Order violates the right to privacy of the people. A.O. No. 308 failed to assure the people that all personal information given will be protected by the government.

Wherefore, I think R.A. 10173 will provide sufficient mechanism to the introduction of a national I.T. system in the Philippines without the Constitutional issues that have arisen in the case of Ople vs. Torres. Due to the provisions in R.A. 10173 emphasizing the measure on how the personal information will be protected, such Act should no longer be considered as a threat to the privacy of the people.

References:
1. http://www.lawphil.net/judjuris/juri1998/jul1998/gr_127685_1998.html. Accessed May 5, 2013.
2. http://www.gov.ph/2012/08/15/republic-act-no-10173/. Accessed May 5, 2013.
3. http://www.nbcnews.com/technology/technolog/more-countries-restrict-internet-stifle-critics-report-1B6042342. Accessed May 5, 2013.
4. http://www.bizymoms.com/computers-and-technology/uses-of-the-internet.html. Accessed May 5, 2013.





[Disclaimer: This blog is for our Technology and the Law class only. The contents of this entry is the writer's opinion and is not intended in any way to serve as a legal advice.]