AN ANALYSIS ON THE SENATE BILL No. 53

 

 

BACKGROUND

 

 

Internet as defined by Senate Bill No. 53 is the global system of interconnected computer networks linked by various telecommunications technologies and that uses the standard Internet protocol suite. It is a global phenomenon which has shaped the very human conditions of life since 1994. It is used as a virtual public square where citizens may assemble and is outside of the sphere of jurisdiction of the States. Its overreaching influence has affected the sphere of social, political and the economic aspect of life. It has reshaped the definition of human communication itself as use of telephone communication has dwindled and instead replaced by internet based messaging such as Facebook, Twitter and Skype and E-mail.

 

Information and communications technology as defined by Senate Bill No. 53 is the integration of real-time communication services, non-real-time communication services, and telecommunications, computers, software, hardware, storage, and devices, which enable users to access, store, transmit, and manipulate information. The advent of technology such as the development of smartphones, Information and Communication Technology has become incorporated with everyday human life and is deemed a vital part of it. With much debate the United Nations has declared the right to internet access as a Human Right and denying access to the Internet a violation of Human Rights. The development of Internet access as a human right is due mainly to its relation to The Right to be informed of every citizen, his right to Criticize Government actions, his right to Freedom of Speech and his right to Freedom of Expression.

 

The internet has been used as a weapon for good and for bad, for example on 2011 in Egypt the Government blocked out access to the internet due mainly as a response to the Anti-Government criticism causing unrest which was forming in social media such as Twitter and Facebook where its users may publish contents for the whole world to see[i]. The effects of the blockage of the internet caused the upcoming civil uprising to be stalled, communications between the citizens and information about the cause of the unrest became unavailable for the whole world to see.

 

The Philippine Legislature has enacted various laws in order to keep up with the progressive advance of technology, such as the Electronic Commerce Act, Data Privacy Act, Rules on Electronic Evidence. Although due to the rapid advance in technology the legislature could only protect the public in vague sweeping terms and is now deemed outdated. In ** Senator Miriam Defensor Santiago sponsored the Senate Bill No. 53 An Act Establishing a Magna Carta for Philippine Internet Freedom, Cybercrime Prevention and Law Enforcement and Cyberdefense and National Cybersecurity also known by its short title as as the Magna Carta for Philippine Internet Freedom. It is envisioned to ensure that the Philippines and its citizens are able to meet the challenges posed by Information and Communication Technology and cyberspace, able to wield it and benefit from it in charting a better future[ii].

 

DISCUSSION

 

  1. Accessibility and Quality of Internet Service

 

Under the Senate Bill No. 53 the State shall protect and promote universal access to the internet. However, in order to make Internet Access a right to the Filipino citizens, a discussion must be made of the availability of the Internet to its citizens. A study done in 2011 shows that 4 out of 5 Filipino Citizens have access to the internet[iii]. According to the Broadband Commission “Given the importance of mobile in the economy of the Philippines, this would account for 6.9 percent of all GDP growth for the economy during the past decade,[iv]” Thus the use of Information and Communication Technology is a vital aspect in our state as a developing country. Most Filipinos still do not have internet access in their homes due mainly to the high prices, the low computer literacy of those aged 30+ and the lack of network signal to enable access to the internet in certain regions. The Philippines ranks 108th in the list of Average Connection speed in the Asia-Pacific Region in the 4th Quarter of 2013 which averages a measly 2.0mbps which pales in comparison to its neighbouring State of Korea which averages 21.9mbps followed by Japan with 12.8mbps. This is all following the irony that the Philippines is considered the most Social Media savvy in all countries.

 

The price of internet connection also remains to be a problem in the Philippine jurisdiction. The average Internet Service Provider in Manila offer a 2Mbps connection for P1, 000 for mobile phones and internet for homes. This pales in comparison to Singapore’s Sintel which offers 15 Mbps internet for SGD 36.90, or around P1, 312 a month or Thailand’s True Internet which provides 12 Mbps for about 799 baht or P1, 100 and Singapore’s MyRepublic also offers 1 Gbps for SGD 49.99 or just around P1, 777[v]. However, even the offer of 2Mbps is not being delivered, internet traffic which occurs when too many users connect and use the same connection at the same time and Throttling which is when Internet Service Providers limit the speed of the bandwidth in order to cater to more customers is a common practice.

One common complaint is the Fair Use Policy of Globe implemented in 2013 wherein users after having downloaded from the internet 1GigaByte of information is restricted to 2G browsing speed or the speed equivalent to 50-100kbps average. Considering the promise of the availability of LTE or 4G, customers are not getting what they are paying for. This underscores the need for the Government to regulate the Internet Service Provider companies in the Philippines. If the price of Broadband communication were to be reduced more Citizens would be able to access the internet in order to be informed of the matters contained therein.

 

  1. Unrestricted Internet Access

 

A problem which has invented itself in the uprise of the use of the Internet is the use and the viewing of its contents. Countries such as Norway and Switzerland contain a list of website with restricted access allegedly websites which contains child-pornography. China has taken the restriction one step further by restricting access to websites like Facebook and Twitter altogether. Restrictions in access of certain websites may be used in furtherance of good. Under Senate Bill No. 53 “No person shall be compelled to restrict access to information on the internet or to remove published material or uploaded information from the Internet except upon Order following a special proceeding for the purpose before a Regional Trial Court of competent jurisdiction…” A better view would be to authorize the National Telecommunication Commission to enact a list of prohibited website upon proper determination on grounds that the website is commonly being used to commit a crime such as “child pornography”. This is a more apt initiative coming from the Executive in accordance with its mandate of enforcing the law instead of being left to citizens who will struggle with the Judiciary in order to present its Legal standing to challenge a website.

 

Another practice which is found commonly in the corporate landscape is to prohibit employees from accessing websites such as Facebook, Twitter and other social media websites and to confiscate their mobile phones upon entering the premises as a view to increase business productivity. Under Senate Bill No. 53 ”No person or entities offering Internet access for free, for a fee, or as an extra offering  separate from the services already being offered… shall restrict access to the Internet or any other public communications network from within its private network, or limit the content that may be accessed by its employees … without a reasonable ground related to the protection of the person or entity from actual or legal threats, the privacy of others who may be accessing the network, or the privacy or security of the network as provided for in the Data Privacy Act of2012 (RA 10173) and this Act. Although Universal Access of the Internet is now a human right, I believe the matter would be better left to the discretion of the company under its “Business Prerogative”. As access to the internet promises hours of entertainment it may be deemed prejudicial to an employee’s productivity.

 

  1. Intellectual Property Law

 

Relevant to the discussion of the law is the issue of copyright. Users of social media and online storage devices frequently upload materials such as their literature pieces, pictures, compositions and data. An example when Copyright laws were invoked is when a Filipino named Christian Joy Trinidad allegedly submitted a modified version of a work found in DeviantArt a website where people submit their creations, which he modified to give a Filipino touch, to the ASEAN Art contest which he won.[vi] The fact that the submission was done in an internationally recognized competition should humble our lawmakers into thinking of ways to educate the youth of Intellectual property rights in the Internet. Copyright infringement is found aggressively in the internet where people treat the materials uploaded as a “free for all” or a public domain where the reverse is true. Information of how to prevent Infringement should be made available to the public.

 

Also relevant is the capacity of Internet and data providers to use the materials uploaded to them Under Senate Bill No. 53 “No Internet service provider, telecommunications entity, or such person providing Internet or data services shall have intellectual property rights over derivative content that is the result of creation, invention, innovation, or modification by a person using the service provided by the Internet service provider… data services, unless such content is a derivative work of content already owned by or assigned to the Internet service provider… data services acting as a content provider. The exception to the intellectual property rights of the person must be explicitly provided for via an end user license agreement to which both parties have agreed…” Where an end user license agreement is defined in the same bill as “The legal agreement between two parties, one of which is the user that stipulates the terms of usage of a device, software, or service”

 

The issue arises when the application presents a lengthy End User License Agreement. A majority of the internet users do not read the EULA due primarily to its length and legal technicalities involved in installing even the simplest application. A gag presented by GameStation a gaming company, during April Fool’s incorporated in its terms and agreement that by clicking agree “they agree that the company shall legally own their soul” although a choice was given in which they can opt out of the agreement, a surprising 88% people or 7,500 people agreed to the terms and conditions. [vii] The more pressing concern is when a company deemed vital for hard pressed technology people such as online storage device, requires you to give up a part of your right over your intellectual property in order for them to use. An example is in the End User License Agreement of Google Drive, it states that “You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours” which is qualified by the proviso “you give Google (and those we work with) a worldwide licence to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes that we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights that you grant in this licence are for the limited purpose of operating, promoting and improving our Services, and to develop new ones[viii]. Thus, in uploading your contents using their services, it is legal for Google and the many companies that we work with, to use your materials in promoting their services. Where usually they would hire marketing artist, they could instead grab any data they may deem apt to use in their advertisement or could make use of Computer codes in order to make their services perform better. In order to protect the integrity of our intellectual property our Government should aim to prohibit the use of data service providers of the materials uploaded by its users. It should provide that the status of the materials be clearly indicated in the first paragraph of the End User License Agreement in clear legible font to be seen in the first page. Furthermore, having given the budget in the S.B. No. 53 it should also include in its information dissemination lectures on Intellectual Property and how to prevent Infringement.

 

  1. Vicarious Liability

Under the Senate Bill No. 53 “it shall be presumed that any infringement of intellectual property rights by a minor was done with the knowledge and consent of his parents or guardians.” Hence, in accordance with the vicarious liability of the parents under the Civil Code any acts committed by minors in the internet causing civil liability will be shared by their parents. However, it is noted in our society that most homes do not have internet and the majority of the minors who use the internet go to Computer shops in order to avail of their services to access the internet. It is with a better view that the vicarious liability instead be transferred to the Computer Shops who itself should restrict the access of its computers in websites used for illegal activities. Computer Shops are also being commonly used as a prostitution ring wherein the customers of the Computer Shop display sexual and lewd activities for pay to internet users at home. Regulation of such business is also in order.

 

 

CONCLUSION

 

The enactment of the Magna Carta for Philippine Internet Freedom is a much welcome change to the Philippine technology environment. By signing it into law it is ushering a wave of reforms which will only help the economy of the Philippines. However there is still much to be needed specifically in the areas of implementation and reform. The poor status of our internet connection deserves much attention from the Government lest the Right to Internet access become an illusory right. The government should aim to create WiFi(Wireless Fidelity) Cities or City wide free access to the internet more particularly in the Business areas of Metro Manila, Metro Cebu and Metro Davao. However, the rural areas should not be forgotten, by enabling access to the internet in such areas a steady boom of development may be seen which will redound to the government.

Complementary to the Right of access to Internet to people should also be given the Right to access information, it is high time for the legislature to enact the Freedom of Information act. The Magna Carta for Internet Freedom should not be viewed as an ends but a stepping stone by the Philippines into technological advancement.

 

[i] [i] http://www.theguardian.com/world/2011/jan/26/egypt-blocks-social-media-websites

[ii] Senate Bill No. 53

[iii] http://www.philstar.com/nation/2013/01/18/898434/4-5-filipino-homes-have-no-internet-access

[iv] http://technology.inquirer.net/17060/only-3-out-of-10-filipinos-have-access-to-internet-report#ixzz30vbF3iP4

[v] http://www.abs-cbnnews.com/focus/04/23/14/why-philippine-internet-speeds-are-slow

[vi] http://technology.inquirer.net/35111/filipino-artist-copies-piece-from-digital-art

[vii] http://blogs.telegraph.co.uk/technology/shanerichmond/100004946/gamestation-collects-customers-souls-in-april-fools-gag/

[viii] http://www.google.co.uk/intl/en/policies/terms/regional.html

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