A Brief Analysis of the Magna Carta for Philippine Internet Freedom
The past couple of years have seen a growing interest in Internet regulation developed in a multistakeholder environment. From Brazil to Jordan, such participatory processes have yielded mixed results, but around the world, many activists, policymakers, and other stakeholders remain optimistic that multistakeholder-developed regulation is possible.
Cut to the Philippines, where the Magna Carta for Philippine Internet Freedom (MCPIF)—a crowdsourced document—was recently filed as House Bill No. 1086 by Rep. Kimi Cojuangco and as Senate Bill No. 53 by Senator Miriam Defensor-Santiago.
If passed, the MCPIF would repeal Republic Act No. 10175 (the Cybercrime Prevention Act of 2012), which we joined several local organizations in opposing last year. The MCPIF would also guarantee a host of other freedoms; here is our guide to some of the key elements of the bill:
Section 4 of the bill pertains to freedom of expression, “[protecting] and [promoting] freedom of speech and expression on the Internet” and protecting the right of the people to petition the government via the Internet for “redress of grievances.” The right of citizens to publish to the Internet without the requirement of a license is also specifically addressed.
Section 4(c) limits State use of prior restraint or subsequent punishment in relation to Internet-related rights only upon a judicial order conforming with provisions laid out in Section 5, and only under certain circumstances. Section 4(d) protects persons from being forced to remove content beyond their means or control, specifically addressing mirrored and archived content.
Although free expression is protected, Section 52 places limits on certain types of speech “inimical to the public interest”:
Internet libel: defined as “public and malicious expression tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, made on the Internet or on public networks”;
Hate speech: defined as “public and malicious expression calling for the commission of illegal acts on an entire class of persons, a reasonably broad section thereof, or a person belonging to such a class, based on gender, sexual orientation, religious belief or affiliation, political belief or affiliation, ethnic or regional affiliation, citizenship, or nationality, made on the Internet or on public networks” and;
Atypically, the definition of Internet hate speech is incredibly limited, with the Act stating that it shall not lie if the expression “does not call for the commission of illegal acts on the person or class of persons that, when they are done, shall cause actual criminal harm to the person or class of persons, under existing law” and if it “does not call for the commission of illegal acts posing an immediate lawless danger to the public or to the person who is the object of the expression.”
While Section 5 explicitly promotes universal access to the Internet, Section 5(b) allows for the suspension of an individual’s Internet access as an accessory to other penalties upon conviction of certain crimes, with certain checks and balances.
Remarkably, Section 5(e) prevents persons or entities offering Internet access for free or for a fee (including hotels, schools, and religious groups) from restricting access to the Internet or limiting content that may be accessed by guests, employees or others “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 and security of the network as provided for in the Data Privacy Act of 2012 (RA 10173) or this Act.”
Section 7 addresses the right to innovation, allowing for State protection and promotion of innovation, and prohibiting persons from restricting or denying “the right to develop new information and communications technologies, without due process of law...”
With certain exceptions provided for in the Intellectual Property Code, Section 7(b) states that “no person shall be denied access to new information and communications technologies, nor shall any new information and communications technologies be blocked, censored, suppressed, or otherwise restricted, without due process of law or authority vested by law.” Innovators are also protected from liability for the actions of users.
Right to Privacy
Section 8 provides for State promotion of the protection of the privacy of data, with Section 8(b) providing the right of users to employ encryption or cryptography “protect the privacy of the data or networks which such person owns or otherwise possesses real rights over.”
Section 8(d) guarantees a person’s right of privacy over his or her data or network rights, while 8(e) requires the State to maintain “appropriate level of privacy of the data and of the networks maintained by it.”
Section 9 refers to the protection of the security of data and 9(b) guarantees the right of persons to employ means “whether physical, electronic or behavioral” to protect the security of his or her data or networks.
Sections 9(c) and (d) refer to the rights of third parties over private data, requiring a court order issued in accordance with Section 5 of the Act to grant access, and preventing third parties from being given property rights to the data accessed.
Section 10 protects intellectual property online in accordance with the existing Intellectual Property Code of the Philippines (RA 8293). 10(c) prevents Internet service providers and telecommunications entities from gaining 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, telecommunications entity, or such person providing Internet or data services.”
Section 39 addresses fair use, declaring that “the viewing, use, editing, decompiling, or modification, of downloaded or otherwise offline content on any computer, device, or equipment shall be considered fair use” with certain provisions.
Section 48 deals with intellectual property infringement, with 48(a)(ii) notably defining the “non-attribution or plagiarism of copyleft content” as defined in section 38 as infringement.
In addition to the sections detailed above, the Act covers a range of other issue areas, including hacking, cyber crime, and human trafficking. The Act also creates an Office of Cybercrime within the Department of Justice to be designated as the central authority in enforcement of the Act. Notably, special courts in which judges are required to have specific expertise in computer science or IT are also designated to hear and resolve all cases brought under the Act.
Overall, the crowdsourced Act is a success story and we support our allies in the Phillippines as they work to push it forward in the Senate.
Bonus: Read the story of how the Act was crowdsourced!