Of Criminals and Creators: My Take on the Idea of a Freer and More Creative Internet via Less Restrictive Copyright Laws

 

            I love Youtube. I am even breaking my personal rule against speaking in superlatives in declaring that it is, in my biased opinion, the greatest website ever made. It is better than Facebook, or any social media in existence. It is better than Reddit, or any internet community there is. It is even better, I believe, than Wikipedia in terms of how much information it can give to the usual data consumer. While lately there have been no shortage of stupid videos and equally mindless commenters, especially in that part of Youtube that I frequently consume (gaming channels), nevertheless, there is no doubt that the amount of creativity that is exhibited by even the most ridiculous of channels that I subscribe to is outstanding. This may mostly be attributed to the content creator’s innate ability of creating entertaining material and also to the ease of use of most if not all of the latest gadgets and computers necessary to foster creativity. It may also be partly because of the accessibility of previously created material that may be used to compliment or form part of the new work — previously created material that is, from its very creation, protected by copyright laws not only of our country,[1] but of most of the jurisdictions in this modern world.[2]

 

Youtube videos and Philippine copyright law

            Now you may ask: “what kind of videos are you  talking about?” or “where in Youtube can I find videos that are informative or that teach useful life skills while at the same time using copyrighted material?” Well, first of all, let me just say that you are not Youtube-ing enough if you think that all that are uploaded in the site are videos of cats playing “Bohemian Rhapsody” on a piano, or of a perky, overly enthused elevator operator, and other similar videos. Second, like I said, there are a lot of helpful channels or channels that spread great ideas that use copyrighted material though inadvertence. And finally, simply attributing authorship of a song or an excerpt of a video or a photograph to its creator is not enough; authority to publish the creation should first be obtained.

            A little disclaimer though before I say anything that I may regret in the future: my citation of examples in this article is never meant to attack the credibility of or impute the commission of a crime against the channels cited. On the contrary, by the end of this article it should be clear that what I am doing is that I’m actually defending their side (though they never asked for it) based on the thesis that what they are doing should not be illegal anymore in this day and age by reason of, and I agree with Prof. Lessig here, “common sense.[3]”

            One prime example is the blogilates channel,[4] a video blog series created by fitness expert Cassie Ho showcasing many Pilates workouts and other combinations of physical exercises. What makes Cassie’s videos unique from other popular workout vlogs (a video blog) like that of Mike Chang’s[5] or FitnessBlender’s[6] is that she does her workouts based on the beats of the most popular pop songs of our time. Here’s one of her most popular workout videos[7], the workout being done in tune to one of the most popular songs lately: Carly Rae Japsen’s “Call Me Maybe”. Here’s another one[8]: An earlier workout focusing on the abdominal and other core muscles, with Daft Punk’s “Harder, Better, Faster, Stronger” and two other songs playing in the background. The idea and presentation of the workout videos are quite good, probably leading to her channel being one of the most popular exercise channels on Youtube with over 800,000 subscribers and with some videos garnering up to almost 3 million views. The videos are easily relatable since most people do not workout using music from underground bands or indie bands whose music are relatively less accessible than your typical pop music heard on the radio. Regardless, popular as these videos are, it seems that from the perspective of Philippine Laws (If, hypothetically, our laws apply to the case) the videos infringe copyright.

            Let us go a little local. There is this rather popular blog founded by chef and restaurateur Erwan Heusaff, where the articles cover different topics centered on food; food that are, from the blog’s banner, “sometimes healthy, sometimes fatty.” He compliments the articles and topics published in The Fat Kid Inside[9] (the blog’s title) with well-made cooking videos uploaded on Youtube showcasing how a recipe closely tied to the particular topic is executed. Most of the time though, the videos, especially the older ones, are presented with a song playing in the background. The selection is superbly made and the music is quite adept at conveying the relaxed atmosphere of the kitchen where the video is set. Still, the songs playing in the background are copyrighted material and, barring any situation I am ignorant about, like if the song is a part of a creative commons license, this means the right of owner is protected from unauthorized expression. And if enforcement of the right is sought, a case with a factual background not much different from the pending California case Lenz v. Universal Music Corporation may erupt.

            I am guessing that even with just this two I have made my point clear in stating that there are videos in Youtube that not only show high levels of creativity but also very educational, insightful and helpful to the typical interested viewer. The next question that can be asked then is how I arrived at the opinion that these videos violate copyright laws.

            Under the Philippine Intellectual Property Code, a copyright protects original literary and artistic works from the moment the work is created.[10] “Musical compositions, with or without words” are included in the term “literary and artistic works.[11]” One of the “economic rights” enjoyed by the copyright owner is the “exclusive right to carry out, authorize or prevent: xxx 177.5. Public display of the original or a copy of the work.[12]” Now, the rights conferred by law to the copyright owner are by no means absolute. The exercise of these rights is limited by the same law that grants them. There is a whole chapter dedicated to limitations on the copyright and this includes the often used doctrine of “fair use,” and other rules meant to define what does not constitute copyright infringement. But the PIPC does not expressly define what acts or omissions constitute copyright infringement, unlike the law on patents[13], trademarks and service marks[14] defined and protected by the same Republic Act. From the law, however, it can be easily inferred that copyright infringement is committed simply by the exercise of a right exclusive to the copyright owner beyond the limitations of the law.

            Careful examination of the limitations set by law will allow one to make many different conclusions as to whether there is infringement or not with each video published in the format I have described in the two examples above. But my opinion stands that while the authors of the video respect the “moral right[15]” of the copyright owner to have the work attributed to him, the same is not the only requirement so as to not commit copyright infringement. Authority or permission to “display the original or a copy of the work” must first be given by the owner of the copyright to the one who incorporates the work into the video he publishes on Youtube in order for the video to not infringe the right of the copyright owner. However simple that requirement may sound on paper, it is logistically impossible for the copyright owner to grant each and every one of the Youtube users who seek to include the copyrighted music in their video a license to do such act. The easiest solution done by the Youtube users, possibly in order to continuously enjoy creative freedom without sacrificing the promptness of their uploads, is to do away with the licensing altogether thinking that the copyright owner will not be able to see the infringement and exercise his rights. This now becomes problematic because the law on copyright in this case becomes less of a preventive law (that is, it prevents the commission of copyright infringement) and becomes remedial in a sense in that it turns into a mere basis to curtail the creativity of vloggers after the publication of the video with threats of expensive and lengthy litigation, pitting them against, more often than not, a corporate giant.

 

Enter Larry Lessig

            I first came across the ideas of Professor Lessig during one of my many Youtube binges. A few years ago, I discovered TED,[16] a Youtube channel associated with the website[17] whose banner, “Ideas Worth Spreading,” summarizes clearly their purpose in making the speeches they feature available to the widest audience possible. I discovered TED when I read an article featuring a speech[18] about how implementing the game features of the popular online role-playing game World of Warcraft into everyday life would make for a better learning and living experience for everyone. One[19] of TED’s videos on Youtube is a speech by Professor Lessig entitled:  Laws That Choke Creativity. In this speech he tells the story of one John Philip Sousa who in 1906 complained that the invention of a “talking machine” (the radio) saying that it will ruin the artistic development in the United States at that time because young people will no long sing and would only listen to other people singing. Lessig claims that Mr. Sousa was kind of correct in what he pointed out since the pre-internet culture of the past century was what he called a “read only culture,” as opposed to a “read-write culture” before the “talking machines” were invented. Prof. Lessig likened in a way the emergence of more published user generated content through the internet to going back to the times when young people would sing their own songs before the radio was popular. He talked about how “common sense” was made the basis of changing the rules on the exercise of property rights over land when the aircraft was invented and became widely used. He mentioned “amateur culture” or the culture “where people produce for the love of that they’re doing and not for the money” and how the same is prevalent in the way the youth express themselves through remixes of popular works; works that are copyright protected. He made a comment on how the law has yet to implement “common sense” in order to change copyright laws so that the amateur culture will flourish without threat of legal sanctions. This eye-opening speech was uploaded into Youtube way back in 2007.

            Just a few weeks ago, I finally got to watch another uploaded video[20] of a speech delivered by Prof. Lessig. This one was referred to our class by our Technology and the Law professor who attended the very same conference where the speech was delivered. The title of the speech: “Leyes que limitan la creatividad.” Now, know very little Spanish but that to me sounds a lot like “laws that limit creativity.” Once I started to listen to the speech however, I quickly realized that I was right, that Prof. Lessig is, in essence, explaining the same ideas he was trying to convey more than half a decade ago. He even made reference to the TED speech I was talking about above. Listening to the speech made me a bit concerned at how, after this much time, very little ground was gained by his and the other advocates’ side in this war of attrition. Their side even suffered some casualties (quite literally) but it was not for nothing. The defeat of SOPA is significant and it showed that the “netizens” do have a collective voice and that they are determined to fight for change, and boy do I believe copyright law needs to be changed.

 

The need for reform

            Copyright and all intellectual property rights are supposed to foster creativity and inventiveness. Section 2 of R.A. 8292, as amended states:

“Section 2. 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. (n)”

IP rights, I think (and is clear from the above quoted law), is based on the simple theory that the financial rewards from getting exclusive rights over something you created or thought about is a great incentive to create more good stuff or even better stuff than before. Some studies show, however, that this theory is actually a fallacy.

            From the “extensive” amount of research I did (read: I googled some key words), I found a very interesting video that showed how the theory I mentioned above is debunked…by science! The video[21] basically gives a few scientific studies as proof that financial rewards don’t always lead to more creative people. The video showcases a speech delivered by Daniel Pink, Author of “Drive,” a book which tackles the subject of motivation and how it is not as simple as it seems (FYI: I haven’t read it, sorry, but I may in the future, who knows), and compliments the speech with a series of drawings on a white board illustrating Pink’s points in a way that is easier to grasp (again, such creativity!). In the video, Pink mentions some studies that tell us that while cash is a good motivator when it comes to repetitive work, it does not have the same effect in the case of creative work. Pink explains that studies have shown (and at the same time baffled economists) that when it comes to highly cognitive and creative work, there are other types of rewards more satisfying than cash. He then reports that the same studies showed that cash is even bad for creativity; that the pressure to make something happen is actually bad for creativity; and that this is where non-cash rewards become more effective. He used mastery of the work (i.e. just making things in order to improve on making those things), autonomy in the workplace, and even social significance of the work being done as examples of these non-cash rewards.

            Clearly, these studies support Professor Lessig’s advocacy to reform the copyright system. Even in a world where creative commons licenses exist, there is still room for improvement. While the right to have the work attributed to the author should never be abolished, the scope of fair use can be still be enlarged; the limitations on copyright can still be increased; heck even the period of the protection, in my opinion, should be shortened (think about it, why should an author enjoy exclusivity benefits from the grave for 50 more years after his death). Think about it, the creative channels I have mentioned above were ballsy enough to disregard copyright law, and look at what resulted from this disregard. More of those informative, helpful, artistic, and most importantly FREE videos are appreciated. And surely, more of those videos will come when people are no longer afraid to express what they want without laws shackling their creativity. When money does not move people to create, the logic behind IP rights cannot stand. When copyright and other IP rights do not serve its purpose, the rules should change. It is that simple; it is just “Common sense.”

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[1] Republic Act No. 8292, as amended, otherwise known as the Intellectual Property Code of the Philippines.

[2] Signatory countries to the Berne Convention for the Protection of Literary and Artistic Works (1886), the Universal Copyright Convention (1952), the Universal Copyright Convention (1971), the TRIPS (1994), and the WIPO Copyright Treaty (1996).

[3] Larry Lessig: Laws that choke creativity. November 15, 2007.  Youtube. http://www.youtube.com/watch?v=7Q25-S7jzgs. Accessed: 9/23/2013

[4] blogilates. Youtube channel. http://www.youtube.com/user/blogilates?feature=watch. Accessed: 9/23/2013

[5] Mike Chang’s Six Pack Shortcuts. Youtube channel. http://www.youtube.com/user/sixpackshortcuts. Accessed: 9/23/2013.

[6] FitnessBlender. Youtube channel. http://www.youtube.com/channel/UCiP6wD_tYlYLYh3agzbByWQ. Accessed: 9/23/2013.

[7] Call Me Maybe Mighty Squat Challenge. April 16, 2012. Youtube. http://www.youtube.com/watch?v=xDpB8pWEjhk&list=TLvLIUNODb8ieen4sPhU8bTGRXrmWcEdYk. Accessed: 9/23/2013.

[8] POP Pilates: Intense Ab Workout! (Full 10 min). August 9, 2010. Youtube. http://www.youtube.com/watch?v=od0j4aNDGKM&list=TLyLSoLZ1GWlIyB7XCXF-6t3WPljjW0ikR. Accessed: 9/23/2013.

[9] The Fat Kid Inside.  http://thefatkidinside.com. Accessed: 9/23/2013

[10] Section 172. R.A. No. 8292, as amended.

[11] Section 172, par. (f), R.A. No. 8292, as amended.

[12] Section 177. R.A. No. 8292, as amended.

[13] Section 76, R.A. No. 8292, as amended.

[14] Section 155, R.A. No. 8292, as amended.

[15] Section 193, R.A. No. 8292, as amended.

[16] TED. Youtube channel. http://www.youtube.com/user/TEDtalksDirector?feature=watch. Accessed: 9/26/2013

[17] TED: Ideas Worth Spreading. http://www.ted.com/. Accessed: 9/26/2013

[18] Jane McGonigal: Gaming can make a better world. Mar 17, 2010. Youtube. http://www.youtube.com/watch?v=dE1DuBesGYM. Accessed: 9/26/2013

[19] Ibid. at 3.

[20] Conferencia de Lawrence Lessig: “Leyes que limitan la creatividad” (part 1). August 30, 2013. Youtube. http://www.youtube.com/watch?v=RIV1UE_RZ-c&list=WL1F40C0C514993A5D. Accessed: 9/26/2013

[21] RSA Animate – Drive: The surprising truth about what motivates us. April 1, 2010. Youtube. http://www.youtube.com/watch?v=u6XAPnuFjJc. Accessed: 9/26/2013.

Freedom and Nike Frees: in Defense of the Fashionable Spectator

Picture this scenario: You are a working class citizen of Brazil; your friends are as well; like most Brazilians, you’re crazy about football; you are very much excited for the next FIFA World Cup of Football that your country will be hosting in 2014; 2014 comes and you save up a lot of money in order to watch all of the games to be played in your hometown; likewise, you save up a lot of money in order to buy both the home and away kits of the Brazilian national team, sporting the name of the current bearer of the legendary number ‘10’, Neymar; The kits feature a big Nike ‘swoosh’ on the left chest part of it, opposite the Brazilian team logo; come game time, you and your friends are pumped to see your favorite team play against the current FIFA rankings leader, Spain; you line up hours before the start of the game but as soon as you reach the gate, the big bouncer stops you on your track and says that you and all your Nike wearing friends cannot enter because, like in the past World Cups, Nike is not the ‘official’ sponsor the 2014 FIFA World Cup; you argue with the bouncer, you even asked for one of the organizers, but to no avail; all that hard work netted you nothing but the opportunity to watch the games on your couch with a remote on one hand and a wasted ticket in the other. Who will you blame for your mishap? FIFA? The Government? Or no one but yourself? Maybe you should start blaming the entirety of the marketing “geniuses” of the world.

Ambush marketing: an overview

In an effort to make the most out of their marketing budgets, companies come up with plenty of gimmicks. Some pay for product placement in TV shows and movies, while others hire big name celebrities to endorse their products. But probably one of the weirdest of these gimmicks came into the international limelight during the 2006 FIFA World Cup hosted by Germany.

Before a game between the national teams of The Netherlands and Cote d’Ivoire, a mass of Dutch fans marched towards Stuttgart, Germany in order to support their team.[1] A big group of Dutch supporters donned pairs of orange (the Dutch team’s colors) lederhosen (a Bavarian cultural outfit popularized by its use during yearly Oktoberfest) branded by Bavarian Beer, a not-so-popular Dutch beer brand.[2] FIFA, probably in an effort to protect its biggest sponsor that year, Budweiser, issued orders to forbid entry to the supporters unless they strip down and remove their branded outfits.[3] The security personnel acceded to the orders and the supporters were left to watch the game in their underwear, leaving the Gottlieb-Daimler-Stadion full of raving half-naked Dutch men and women.[4] Naturally, the (distracted) African team lost 2-1 to the Dutch. Despite the failure, if you can call it that, the event was naturally captured and reported by the international media, thus, ambush marketing was made known and so did Bavarian Beer. Bavaria Beer again did the same act during the last FIFA World Cup but they upped the ante a bit and decided instead to use thirty-six beautiful models instead of thousands of underdressed fans.[5] Business pundits and the media labeled this marketing stunt at ambush marketing.

Definition and history

BusinessDictionary.com[6] and many other references give a standard definition of ambush marketing thus:

“A marketing technique in which advertisers work to connect their product with a particular event in the minds of potential customers, without having to pay sponsorship expenses for the event. An example of ambush marketing might involve selling music merchandise just outside the grounds of a concert without the consent or awareness of the concert promoters, relying on association with the concert to drive sales.”

This method of marketing products came about as a result of the “privatization” of sports events which started with the 1984 Olympics hosted by the city of Los Angeles.[7] The 1984 Olympics was the first of its kind to be completely funded by private firms eager to sponsor the event. Prior to the 1984 Olympic Games, there were no limitations in the number of sponsors, thus the field of sponsors was diluted and there was very little pride in being one.[8] This all changed in the 1984 Games when, I presume, the sponsors started to be limited and started paying premium price in exchange for being labeled the “official” sponsor at a certain category. The trend continued through the Olympic Games following LA 1984 up to the very recent one: London 2012.

During the London Games, there was a ban on large groups of people wearing “visibly branded” clothing.[9] The organizers maintained this stance as a way to protect the businesses that were prepared to invest, saying that this is how the funds for the Olympics are to be obtained else more of the taxpayer’s money will be used.[10] Regardless, non-official sponsors were able to market their products  through means that are outside of the control of the spectators. Take Nike for example: during the London 2012 Games, it was able to outplay the organizers and the official sponsor Adidas by outfitting its sponsored athletes, over 400 of them, with neon colored shoes which could easily capture the eyes of not only the crowd but also that of those watching at home.[11] I expect this scheme to continue in the future and I’m betting the organizers of future events do to.

The Future

As long as there is prestige in sponsoring big events like the Olympics or the Football World Cup, there will be marketing teams that will be left out in bagging that exclusive sponsorship deal. With that in mind, the organizers of upcoming events are already gearing up against potential ambush marketers.

The upcoming FIFA World Cup to be hosted by Brazil for instance has already made it one of the aspects of the organization to focus on as part of its brand protection.[12] The organizers of the event marked ambush marketing as a “prohibited marketing activity,” which can be direct or indirect in nature.[13] The organization reasons out that ambush marketing “puts FIFA’s commercial programme directly at risk by trying to devalue official sponsorship,”[14] which is why it is considered illegal. The FIFA website describes the different kinds of ambush marketing thus:

“A direct association is established when a brand tries to link itself directly to the event, be it through advertising or promotions such as ticket giveaways, use of the tournament designations, etc. An indirect association aims to achieve an association with the event without making a direct link, often implementing creative campaigns aimed at achieving a link to the event. Marketing activities by non-sponsor companies that seek to take advantage of the huge public interest in the event through physical on-site presence can also be categorised as prohibited. The common denominator of such prohibited marketing activities is that they primarily seek free advertising.”[15]

The organization claims that the effect of brand protection is, ultimately, a better fan experience.[16]

The upcoming Commonwealth Games to be held in Glasgow follows the steps of the London Olympics Committee in prohibiting unauthorized marketing within pre-determined ‘event zones.’[17] The prohibition against ambush marketing within the zones includes those done on private lands, as long as the same is within the event zone.[18]

Talking ‘what-ifs:’ Philippine legislation against ambush marketing

Ambush marketing legislation around the globe

Hosting an event as big as the Olympic Games or the Football World Cup requires not only the participation of the private corporations who act as local organizers of the event and the international bodies, like the Olympic Committee and FIFA, but also the government of the host country. Easing the burden of the host government may even be the biggest reason behind the complete privatization of the funding of these kinds of events. This is also why governments of these host nations go through great lengths to provide indirect protection for the sponsors through the organizers and even grant powers to these organizers akin to governmental regulatory powers. I will be citing three examples of legislation enacted by the national governments of the host countries for the purpose of protecting the rights of the sponsors of the events hosted. These laws provided for powers of regulation, powers of enforcement and even punishment for violators.

In preparation for South Africa’s hosting of the biggest football spectacle in the world in 2010, its parliament enacted Act No. 61 of 2002 or the Merchandise Marks Amendment Act of 2002. This law was made to amend the country’s Merchandise Marks Act of 1941 with the purpose of including the upcoming (at that time) FIFA World Cup as a protected event. But this law also came with penal sanctions. The law came with a new Section giving power to the country’s Minister of Trade and Industry to designate an event as a protected event. Paragraph (2) of the inserted Section made it unlawful, during the period which an event is protected, for a person to “use a trade mark in relation to such event in a manner which is calculated to achieve publicity for that trade mark and thereby to derive special promotional benefit from the event, without the prior authority of the organiser of such event.”^[19] It further designated the person who contravenes subsection (2) as guilty of an offense. The law was finally made to affect the FIFA World Cup after the country’s Minister of Trade and Industry published a final notice designating the 2010 FIFA World Cup as a protected event under the law.[20] On the strength of this law, two of the alleged organizers of the 2010 Bavaria Beer stunt described above, were arrested from their hotel rooms in Johannesburg, South Africa.[21] Their passports were even confiscated.

The London Olympic Games and Paralympic Games Act of 2006[22] was enacted for the same reasons as the South African law above was except it is for the Olympic and Paralympic Games held in London back in 2012. A whole chapter of the act was dedicated to the regulation of advertising during the two prestigious events. Section 21 (1) of the Act provides that “[a] person commits an offence if he contravenes regulations under section 19.”[23] Section 19 refers for the powers that the Secretary of State shall have in regulating the advertising during the events. The law provides further for penalties for offenses under Section 21 (1) which included fines. Furthermore the chapter on advertising, particularly Section 22, gives the law enforcers power of entry in order to enforce the law.[24]

In 2008, the same parliament that enacted the London Games Act above enacted the Glasgow Commonwealth Games Act of 2008.[25] The two statutes’ penalties are mostly the same even down to the amount of fine but what makes the Glasgow Games Act unique is that it punishes even the body corporate, Scottish partnership or an unincorporated association other than a Scottish partnership along with the individual directly responsible for the violation.[26]

Will our government actually enact laws similar to this one in order to protect corporate interests in case we host an event like the ones described above? Before that, we should first have a history lesson and determine if that scenario is possible.

Can we host such an event?

Even excluding the recently concluded FIBA Asian Basketball Championships, the Philippines have played host to a number of international events in the past that required extensive media attention. This statement also excludes the numerous beauty pageants that the country hosts on a regular basis because while such events also attract the international crowd, these cannot compare to sports events that require massive funding in order to organize.

At least once in each of the past three decades, Manila hosted the South East Asian Games.[27] The first was in 1981, then again in 1991, and the latest was in 2005.[28] Manila also hosted the Asian games in the past, specifically the Second Asian Games way back in 1954,[29] and the beautiful island of Boracay is set to host the 2013 Asian Beach Games, which coincided with the centennial celebrations of the Asian Games (called the Far Eastern Games when it was started in 1913).[30] The quadrennial FIBA World Championship of Basketball was also once held in Manila.[31] This was in 1978, when it played host to all the games up to the thrilling final wherein Yugoslavia defeated the Soviet Union 82-81.

Thus, if history is to be the judge, the country is surely capable of hosting a big sporting spectacle. Although the said events may not be in the level of the Olympic Games, but those in the level of world championships of a specific sport will surely attract international visitors and international sponsors to a certain extent as to require the protection of sponsors from ambush marketing tactics.

More ‘what-ifs:’ the scenario, the rights, the tests and the conclusion

            Now hypothetically, what if one day the Philippines will again be hosting a big sporting event and in order to fund the event the organizers will need various companies to advertise their products during the event as an official sponsor. Can the protectionist stance of the various nations that came before the country deeply favoring the corporate agenda, if adapted by the Philippines, stand against the well-entrenched democratic right to free speech? I believe NOT.

The people’s right

Fr. Joaquin G. Bernas, a renowned law professor and constitutionalist pointed out the importance of the freedom of expression in his award winning book. He said that the right is important for three reasons, thus:

“There are several reasons why freedom of expression is guaranteed by the Constitution. For some, freedom of expression is essential for the search of truth. This is the marketplace idea which posits that the power of thought can be tested by its acceptability in the competition of the market. Another reason offered is that free expression is needed for democracy to work properly. The citizen-critic has to be given the information required for him to be able to perform his civic duty. Still another reason is a very personal one. Freedom of expression promotes individual self-realization and self-determination.”[32] (emphasis supplied)

The first two reasons for the importance of the right to free expression is more or less concrete now, there being many precedents citing the primacy of the freedom of the press and academic freedom over other right as well as the right of the state to intrude on those rights. However, this is not the case with the third prime reason.

While the freedom to wear whatever a person wants to wear can be generally accepted as part of the right to free expression, this is usually invoked in relation to other rights like the right to associate and freedom of religion. In the case of German, et al. v. Gen. Barangan,[33] the petitioners invoked their right to wear their group’s colors while they marched towards St. Jude church in order to attend mass. They were not allowed to do so because they marched to the church with clenched fists and while reciting anti-government words. The Supreme Court sided with the presidential guards claiming that the march was not done in good faith and that the “petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to translate the same into action.” It is however good for our discussion to point out the dissenting opinion of Justice Makasiar. He wrote:

“Their wearing yellow T-shirts and clothing and bearing yellow emblems or banners, are forms of expression which are also protected by the constitutional guarantees of freedom of expression in general, and religious freedom in particular.”

Although only an obiter, this will nevertheless serve as evidence that there is a right to wear whatever one wants and that it is tied to the right to free expression.

The Universal Declaration of Human Rights firmly declared that “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[34]” (emphasis supplied) It cannot be denied that the way one dresses himself is a form of media to convey ideas and express ones personality. Clearly then, even international law protects a person’s freedom to wear whatever he wants.

The government/organizers/sponsor’s interest

In our scenario, the people’s right to free expression and the people’s interest in keeping this freedom are countered by three distinct interests of three distinct entities. The government has an interest in improving its international reputation. It has interest in showing to the world that it can do things with international impact. It is basically interested in gaining prestige. The organizing entity has interest in obtaining funds in order to run the show. It is interested in obtaining such funds in the most efficient way possible and in obtaining such funds without burdening the government and the people of the host country. The sponsoring private entities on the other hand have a compound interest to be protected: it wants to promote its product/s and it wants to restrict its competitors’ ability to promote their own product/s. The sponsors paid large sums of money for the exclusivity and they expect their interests to be protected in exchange for those sums.

Violating the right to free expression and the tests to see if there is a violation

The grant, by legislation, of the power to do enforcement measures in order to fight ambush marketing, even if the government is not the actual actor in the enforcement, is still dangerous since it gives the private entities organizing the event the means to violate the people’s right to freely express themselves. There are two ways of violating the freedom of speech clause found in our constitution. The first is termed “prior restraint.” It means “official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.[35]” An example of prior restraint is movie censorship,[36] censorship of a published material,[37] or any form of censorship of pre-recorded media. Prior restraint can also be associated to exorbitant or unjust license fees and taxes.[38] The second way, termed “subsequent punishment”, is more or less self-explanatory.

These methods of curtailing freedom of expression are just that, they are the means. It does not follow that whenever the government prevents the publication of material or provides for punishment for unlawful publication that there is a violation of the right to free speech. The right to free speech was never intended to be absolute. Only when the means used are unjust or unreasonable do these restraints and punishments become violative of the people’s right.

When then is prior restraint or subsequent punishment valid? Well there are tests to determine validity of governmental acts and then there are those speech deemed clearly to be unprotected. The examples of the latter are publication of seditious speeches, of obscenity, or libelous imputations, and publication of copyrighted material. As for the tests, there are three that have been given clear recognition: the “dangerous tendency,” the “clear and present danger” and the “balancing of interests” tests. For this analysis we will use the “balancing of interests” test since the first two will more often than not apply only to big politically charged speeches that could topple governments and are directed thereto. This matter at hand is not that kind, especially considering that the effect of the expression to be weighed against the interest of the government is very minimal and seems to be indirect.

Applying the test

The balancing of interests test requires, as the name expresses, that we balance the conflicting interests in order to determine which “demands the greater protection under the circumstances presented.[39]” When a law not very different from the foreign examples I’ve given above is passed in order to prevent ambush marketing during an prestigious sporting event that the country is hosting, I believe that the law will ultimately fail when the interests of the corporations and the organizers are measured against that of the people.

As for the provisions preventing the spectators wearing clothing branded with trademarks of non-sponsors, it can easily be considered prior restraint that is both unreasonable and unjust. The spectators not only paid good, hard earned money in order to buy the said piece of clothing but they also paid good, hard earned money in order to buy the ticket to watch the game live. This means that while the non-sponsor profited from the spectator buying his merchandise, the organizer did as well since the spectator bought a ticket in order to watch the event. The economic effect therefore to the organizer of letting a single spectator to watch the games inside the stadium is negligible since the fact that he is wearing the merchandise of a non-sponsor is offset by the money brought in by the spectator’s buying of the (often overpriced) ticket. Further, even if the organizers allow people wearing the merchandise of a non-sponsor inside in order to watch from the stands, how can the image imprinted onto the shirt of such spectator compare to the sizes of the banners of the official sponsors littering the event site. The effect of allowing entry to the interest of the sponsor is, again, very minimal compared to the effect of disallowing entry to the spectator.

Punishing those found to be guilty of ambush marketing is likewise unjust and unreasonable when the punishment is directed to the persons who actually exercised their right to express themselves. This should be a defense of the alleged marketer and only when he is proven to have done the illegal acts in utter bad faith or under the direction of a company who will directly profit from the marketing can he be found guilty and be punished with a fine. The fines to be paid, however, of the companies that directly profited from the illegal marketing should be much higher than that ordered to be paid by the hired marketer because in this scheme, the people who actually do the acts punishable are nothing more than media through which the product is advertised. They are not much different than billboards in that they are made to be the means to publicize the products of the non-sponsor.

Regardless, the semi-legality of the punishment does not erase the fact that what this hypothetical law does is to unreasonably and unjustly restrain a person’s right to express himself and dress as he desires and such is the essence of the right we are striving to protect. And this is reason enough to not allow a similar law to be passed if ever such is required.

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[1] James Emmett. Rise of the pseudo-sponsors: A history of ambush marketing. SportsPro Media. http://www.sportspromedia.com/notes_and_insights/rise_of_the_pseudo-sponsors_a_history_of_ambush_marketing/. Accessed: 8/27/2013

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Marina Hyde. Another triumph for Fifa’s chillingly efficient rights protection team. The Guardian. http://www.theguardian.com/football/2010/jun/15/fifa-bavaria-beer-orange-dresses. Accessed: 8/27/2013

[6] Ambush Marketing. BusinessDictionary.com. http://www.businessdictionary.com/definition/ambush-marketing.html. Accessed: 8/27/2013.

[7] Ibid. at 1.

[8] Ibid.

[9] What not to wear and bring: Olympic spectators’ guide. ITV.com. http://www.itv.com/news/2012-07-20/guide-to-the-olympic-stadiums-and-security-what-you-cannot-take-in-to-the-olympics/. Accessed: 8/27/2013

[10] Faine Greenwood. Branded clothes come under scrutiny in London Olympics flap. Global Post. http://www.globalpost.com/dispatches/globalpost-blogs/world-at-play/london-olympics-organizers-may-ban-spectators-wearing-wron. Accessed: 8/27/2013

[11] Noel Young. How Nike pulled off brilliant ambush marketing in the Olympics. The Drum Magazine.
http://www.thedrum.com/news/2012/08/22/how-nike-pulled-brilliant-ambush-marketing-olympics#DxY9pzBGV87OfHLH.99. Accessed: 8/27/2013

[12] Brand Protection. FIFA.com. http://www.fifa.com/worldcup/organisation/marketing/brand-protection/index.html. Accessed: 8/28/2013

[13] Prohibited marketing activities (ambush marketing). FIFA.com. http://www.fifa.com/worldcup/organisation/marketing/brand-protection/prohibited-marketing/index.html. Accessed: 8/28/2013

[14] Ibid.

[15] Ibid.

[16] To guarantee a positive fan experience. FIFA.com. http://www.fifa.com/worldcup/organisation/marketing/brand-protection/fan-experience/index.html. Accessed: 8/28/2013

[17] ‘Ambush marketing’ prevention rules for Glasgow 2014 Commonwealth Games published. Pinset Masons, Out-Law.com. http://www.out-law.com/en/articles/2013/may/ambush-marketing-prevention-rules-for-glasgow-2014-commonwealth-games-published/. Accessed: 2/28/2013

[18] Ibid.

[19] Section 2, Act No. 61 of 2002 of the Parliament of South Africa. http://www.sa2010.gov.za/sites/sa2010.gcis.gov.za/files/a61-02.pdf. Accessed: 8/28/20013

[20] Notice 638 of2006 of the Minister of Trade and Industry of South Africa. http://www.sa2010.gov.za/sites/sa2010.gcis.gov.za/files/28877.pdf Accessed: 8/28/2013

[21] Iain Macintyre. Bavaria backs Dutch “beer babes” in advert row. Radio Netherlands Worldwide. http://www.rnw.nl/english/article/bavaria-backs-dutch-beer-babes-advert-row. Accessed: 8/28/2013

[22] London Olympic Games and Paralympic Games Act of 2006. Legislation.gov.uk. http://www.legislation.gov.uk/ukpga/2006/12/pdfs/ukpga_20060012_en.pdf. Accessed: 8/28/2013

[23] Ibid. Section 21 (1).

[24] Ibid. Section 22 (1).

[25] Section 36, Glasgow Commonwealth Games Act 2008. Legislation.gov.uk. http://www.legislation.gov.uk/asp/2008/4/pdfs/asp_20080004_en.pdf. Accessed: 8/28/2013

[26] Ibid. Section 36 (1).

[27] History of the SEA Games. Olympic Council of Malaysia. http://www.olympic.org.my/web/gamesrecords/sea/sea_history.htm. Accessed: 8/28/2013

[28] Ibid.

[29] 1954 Asian Games. Wikipedia. http://en.wikipedia.org/wiki/1954_Asian_Games. Accessed: 8/28/2013

[30] June Navarro. Philippines to host 2013 Centennial Asian Games. Inquirer.net. http://sports.inquirer.net/8165/philippines-to-host-2013-asiad-centennial-games. Accessed: 8/28/2013

[31] VIII World Championship (Manila 1978). Linguasport.com. http://www.linguasport.com/baloncesto/internacional/mundial/1978_MANILA_gd.htm. Accessed: 8/28/2013

[32] J.G. Bernas, S.J. The 1987 Constitution of the Republic of the Philippines: A Commentary. 2003 Edition. Rex Book Store, Inc. Page 223.

[33] G.R. No. L-68828, March 27, 1985

[34] Article 19. Universal Declaration of Human Rights.

[35] Ibid. at 32. Page 225.

[36] Freedman v. Maryland, 380 U.S. 51 (1965); Iglesia ni Kristo v. Court of Appeals, G.R. No. 119673, July 26, 1996

[37] New York Times v. United States, 403 U.S. 713 (1971); Burgos, Sr. v. Chief of Staff, AFP, G.R. No. L-64261, December 26, 1984

[38] Grosjean v. American Press Co., 297 U.S. 233 (1936)

[39] American Communications Association v. Douds, 339 U.S. 383

The Tulay’s Dilemma: A Look into the Data Privacy Act and Phone Numbers

Would the act of giving another person’s number without his consent violative of Republic Act No. 10173, more commonly known in its two year existence as the Data Privacy Act? A short question no doubt but it nevertheless is a complex one that should be discussed and a clear answer thereto be established. Sadly, short questions are prone to long and weaving answers. An absolute answer of “Yes,” or an unqualified answer of “No” can only be uttered once all the facts relative to the question of law have been established and all the other factors are certain. A famous law professor’s famous law professor once bragged that she passed the bar simply by writing only two words at the beginning of each and every answer: “it depends.” This problem is no different. The answer depends on a number of factors obviously not established in the question as it is worded. This article will serve as an exposé of those factors and how they affect the final answer to the simple query above.

In our vernacular, a tulay is a person who “bridges” the hearts and minds of two friends together into the harmonious and oftentimes complicated process of love and limerence. I will be using a group of friends, A and B, and the object of B’s (or their) obsession, C, as well as a third party, D, in giving examples of the crimes I will be discussing here. Now, bridging two people together may be done in a  variety of ways but one of the most common in today’s high tech world is by the sharing of phone numbers of the tulay’s single friends to his or her other single friends, phone numbers that are, nowadays, almost as sacred to a person as his or her name. A simple set of otherwise unrelated digits are converted into means by which people connect, interact, even build entire relationships with simply by these numbers’ input into a telecommunication device. These phone numbers are undoubtedly a part of the owner’s identity, a part of the information that make up the owner’s collective “data,” or simply a part of the owner’s “personal information.” Republic Act No. 10173 defines “personal information” thus:

“(g) Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.[1]”

While under the Act, a phone number is not a “sensitive personal information[2]” of the “data subject,[3]” except when it falls under the fourth sub-paragraph of paragraph (l), nevertheless, it is clear from the foregoing definitions and from the declaration in Section 4 of the law as to the scope thereof that a phone number is covered by the law under “personal information” as it is defined.

Consent defined.

From the provisions of the Act, one can see that what will determine whether the act of “giving a person’s number without his consent” will depend on these factors: (1) the nature of the job and the duties arising therefrom of the one who gives the phone number; (2) the nature of the job and the duties arising therefrom of the one who receives the phone number; (3) the existence of malice in the acts of the giver and the receiver; (4) and the authority of these persons to give the phone number. But before all the above mentioned factors should be discussed, we should first define what is meant by the word “consent.”

Consent in law is used in a variety of ways. In contract law, it is one of the essential requisites of a valid contract,[4] the absence of which would make the contract void.[5] A defect or vitiation of consent, like lack of legal capacity, or when the consent is made with mistake, violence, intimidation, undue influence, or fraud, makes the contract voidable[6] under our law. Consent in contract law may also be express, or implied.[7]

Consent also makes appearances in our penal laws. Sexual intercourse without consent is Rape.[8] Violation of Domicile is committed when a public officer or employee “[searches for] papers or other effects found [in a dwelling] without the previous consent of [the] owner.[9]” An officer of corporations, partnerships, and the like are liable if he consents to or knowingly tolerates the involvement of the corporation, partnership, etc. in drug trafficking.[10]

But, in general, consent under the laws is defined as the “voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another,[11]” or more recently as an “agreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person.[12]” From the foregoing, I believe the concept of “consent” is quite easy to grasp, but in case one needs a simpler definition, a popular[13] internet video defined consent (the video author was referring to a rape case, but it can nevertheless apply to any case where consent is required) as the existence of a “yes” and not the inexistence of a “no.[14]” Hence, in order to say that the data subject has given his or her consent to be the subject of data processing, he or she must have given her approval thereto, i.e. that he or she said “yes,” and not that he or she did not say “no.”

Acts Punishable under the Act related to the questionable act of giving another person’s number without his/her consent.

As to disclosure of personal information, the law provided for many safeguards[15], among them are the various punishable acts that may impute criminal liability to the one who disclosed the information. As with all crimes, these declarations making acts punishable under the law should be construed strictly and only a clear declaration that an act is a crime will suffice to convict a person under this Act.[16]

Four (4) punishable acts apply to disclosure of personal information. These are found in Sections 25, 28, 31, and 32. Section 25 punishes unauthorized processing of personal information while Section 28 punishes processing of personal information and sensitive personal information for unauthorized purposes. Section 31 and 32 more directly involve disclosure as these sections punish malicious (Section 31) and unauthorized (Section 32) disclosure.

The unconsented giving of someone’s phone number may constitute “Unauthorized Processing of Personal xxx Information” OR “Processing of Personal xxx Information for Unauthorized Purposes.

This and the next proceeding discussion is premised on the fact that the term “processing,” under the Act, encompasses a lot of procedures that can be done to personal information. The act provides:

“(j) Processing refers to any operation or any set of operations performed upon personal information including, but not limited to, the collection, recording, organization, storage, updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data.[17]”

Thus, from the definition it may be argued that the “giving” of someone’s personal information, like a phone number may violate this section is such “giving” is part of a procedure embraced by the term “processing,” i.e. when giving is necessary for organization, storage, use, and so on.

The crime designated under the law as “unauthorized processing of personal and sensitive personal information[18]” is committed when the following elements are proven:[19] (1) that the offender is any person; (2) that he processes personal information or sensitive personal information (this carries a heftier penalty); and (3) that the data subject did not consent to the processing of the same, or that the Act or any existing law did not authorize such processing. What is peculiar to this provision and Section 28 is the fact that it is the data subject who controls whether the act of processing is violative of the Act. The question of whether or not the processor is a criminal under Section 25 all boils down to whether or not the data subject gave his or her consent to the processing of his personal information.

To illustrate this way of violating the law consider the following circumstances: let us say A, an employee of Globe Telecommunications, works as a person who maintains the databases of the company in relation to the end users of its services; he has a friend B who is an agent of the National Intelligence Coordinating Agency and is tasked to stealthily collect information about citizens and aliens alike who are being investigated by the agency; B developed romantic feelings for C (a suspected rebel) over the course of his “investigation”; B, with proper authority from his superiors to consolidate information, asks for the phone number of the C from A, who is authorized by Globe to provide the same; A immediately complies thereto, thereby becoming the tulay of B and C.

Let’s review the facts in relation to the law: the first element is complied with because A is a person; the second is complied with because the nature of his work qualifies him to be a “personal information processor[20]” and he processes the information by consolidating the same with the database of B an agent of a “personal information controller;[21]” and finally C obviously did not consent to the consolidation of her personal information. A, therefore, is now not only considered the perfect wingman but is also considered a CRIMINAL under this law, his act of giving C’s number to B being a violation of Section 25.

Just like the preceding criminal act, “processing of personal information and sensitive personal information for unauthorized purposes[22]” is a crime defined in the Act that relates to the giving of phone numbers because of the wide-encompassing definition of the term “processing.” In order to commit an act violative of this Section in the Act, three elements must concur[23]: (1) that the offender is any person; (2) that he processes personal information or sensitive personal information; and (3) that while the data subject DID consent to the processing of the same, the act complained of was beyond that authority, or that the Act or any existing law did not authorize such processing. Here, it can be read that consent of the data subject is still a controlling factor but in this case the one processing and thereby the one committing the crime is punished for his breach of what was agreed upon between him and the data subject.

An illustration of this violation can be seen when the facts of the last story was altered a bit. Instead of the fact that C did not give her consent at all to Globe and to its agent A, a violation of Section 28 would have been committed by A had C’s consent been actually procured but such consent did not allow for the consolidation of C’s personal information with the database of B and the NICA, she consented only to the recording, organization or storage of her number. Here the consent was freely given but the since the personal information processor went beyond the rights waived by the data subject through her consent, it can be said that she did not consent to the consolidation and therefore did not consent to the giving of her phone number to B.

Giving someone else’s phone number without his or her consent may amount to “Malicious Disclosure” or “Unauthorized Disclosure.”

Now let us go to the crimes intended to punish illegal disclosure of data under the law. First is “malicious disclosure” which is embodied in Section 31[24] of the Act. Again, from my own interpretation of the words of the statute, I believe that the requisites in order to be liable under this Section are: (1) that the offender must be a personal information controller, or a personal information processor, or any of its officials, employees or agents; (2) that he or she discloses information relative to any personal information obtained by him or her; (3) that the information disclosed is either unwarranted or false; and (4) that the disclosure is with malice or bad faith.

The terms are fairly easy to understand, except “malice” and “bad faith” both of which have legal definitions established in our jurisprudence. The two are almost always intertwined and used together. One of the latest decisions of the Supreme Court defined malice as “the doing of an act conceived in the spirit of mischief or criminal indifference to the rights of others or which must partake of a criminal or wanton nature.[25]” Another new case, on the other hand, ruled that bad faith does “not simply connote bad judgment or negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a known duty through some motive or interest or ill will that partakes of the nature of fraud.[26]”

Hence, the crime of malicious disclosure can be illustrated by modifying the example discussed above in this wise: even though A is good friends with B, let us say that he (A) is also secretly in love with C; A could not uphold the Bro Code,[27] and decided instead to disclose the number of D, another Globe subscriber who A knows and hates; D now, due to the disclosure made by A, is being investigated by the government as a suspected rebel, to the prejudice of D’s privacy rights.

All the elements are present: A is a personal information processor; he discloses D’s personal information (his phone number) which was obtained by A in his capacity as an employee who maintains the databases of Globe Telecommunications; the disclosure was unwarranted since what was asked from A was the number of C; and the disclosure was malicious and was done in bad faith because A deliberately disclosed the unwarranted information to the prejudice of the owner of the information simply because he hates D. A is therefore liable for malicious disclosure under Section 31.

As for “unauthorized disclosure,” the Act defines the crime in the negative. Under Section 32 (a) of R.A. No 10173, a “personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the [section on Malicious Disclosure] without the consent of the data subject” shall be liable for the crime designated as unauthorized disclosure.

From my understanding of the Section, the elements required to be proven in order to convict a person accused of violating Section 32 (a) of this Act are: (1) that the accused is a personal information controller or personal information processor or any of its officials, employees or agents; (2) that he or she discloses information relative to any personal information obtained by him or her; (3) that such disclosure was without the consent of the data subject; and (3) that the disclosure does not fall under malicious disclosure. This crime can plainly be illustrated by the same example I gave for unauthorized processing of personal information, except that instead of the purpose of B being to consolidate the information obtained by his office and that of A’s, the purpose here is simply to obtain the number of the girl he has been obsessing about, C. If A obliges, he is liable for unauthorized disclosure.

Conclusion

All the above examples fit into the simple question stated at the very beginning of this article. In each of the situations a person “gave” another person’s phone number to a third person without the consent of the owner of the number. Very thin lines separate these four crimes from one another when it comes to the “giving” of phone numbers to a third party, as evidenced by my examples. And most importantly, in all of these cases, we discovered that the person who gave the number may be criminally liable under R.A. No. 10173, provided, that the elements of the crimes as discussed above are alleged and shown to exist. The short answer then to the short question propounded above is a not so easy “YES.”

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[1] Section 3 (g), R.A. No. 10173

[2] Section 3 (l), R.A. No. 10173 states that:

“(l) Sensitive personal information refers to personal information:

(1) About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations;

(2) About an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings;

(3) Issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, and tax returns; and

(4) Specifically established by an executive order or an act of Congress to be kept classified.”

[3] Section 3 (c), R.A. No. 10173 defines a data subject as “an individual whose personal information is processed.”

[4] Article 1318 (1), The New Civil Code.

[5] Jurado, Comments and Jurisprudence on Obligations and Contracts, 11^th Revised Ed. (2002, Rex Book Store, Inc.), page 566 citing 8 Manresa, 5^th Ed., Book 2, page 608.

[6] Ibid., page 523.

[7] Article 1320, The New Civil Code.

[8] Article 266-A, Revised Penal Code, as amended.

[9]Article 128. Revised Penal Code, as amended.

[10] Section 30, R.A. No. 9165, as amended.

[11] Black’s Law Dictionary, 6^th ed., page 305.

[12] Ibid. 9^th ed., page 375.

[13] It has been viewed more than 275,000 times.

[14] “WTF HAPPENED IN STAUBENVILLE?” a video by user lacigreen. http://www.youtube.com/watch?v=z86oaQ4aLcM (accessed July 4, 2013).

[15] Like those declared under Chapters III to VII of the Act.

[16] This is essentially the maxim nullum crimen, nulla poena sine lege, that is, “there is no crime when there is no law punishing it.”

[17] Section 3 (j), R.A. No. 10173

[18] Section 25 , R.A. No. 10173 states that:

“Section 25. Unauthorized Processing of Personal Information and Sensitive Personal Information. – (a) The unauthorized processing of personal information shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

(b) The unauthorized processing of personal sensitive information shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.”

[19] Disclaimer: this is based on none other than my rookie interpretation of the words of the statute.

[20] Section 3 (i) states that:

“(i) Personal information processor refers to any natural or juridical person qualified to act as such under this Act to whom a personal information controller may outsource the processing of personal data pertaining to a data subject.”

[21] Section 3 (h) defines this person as:

“(h) Personal information controller refers to a person or organization who controls the collection, holding, processing or use of personal information, including a person or organization who instructs another person or organization to collect, hold, process, use, transfer or disclose personal information on his or her behalf. The term excludes:

(1) A person or organization who performs such functions as instructed by another person or organization; and

(2) An individual who collects, holds, processes or uses personal information in connection with the individual’s personal, family or household affairs.”

[22] Section 28

[23] Ibid. at 19.

[24] It provides:

“Section 31. Malicious Disclosure. – Any personal information controller or personal information processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her, shall be subject to imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).”

[25] Lagaya vs. People, 677 SCRA 478(2012) citing Lucas v. Sps. Royo, 398 Phil. 400, 411; 344 SCRA 481, 490 (2000).

[26] Aliling vs. Feliciano, 671 SCRA 186(2012) citing Nazareno v. City of Dumaguete, 590 SCRA 110, 141-142 (2009).

[27] NOT a real law or code (unless you’re a bro)