Category Archives: PHCommentaries

HB3841 and SB2842 #RepublicAct10372


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Senate Bill 2842,[1] and its counterpart House Bill 3841,[2] were passed by Congress. It would appear that the consolidated bill [3] was transmitted to the President on 29 January 2013. [4] The consolidated bill has not been signed into law yet, as of writing, [5] [6] but sentiments against the legislation were made public on 14 February 2013,[7] and responded to by the Philippine Intellectual Property Office. [8]

Update: The consolidated bills were signed into law (Republic Act 10372) on 28 February 2013.


I. Development
II. Organizational matters: Sections 6, and 7; and proposed Section 9-A, RA 8792
    A. Warrantless Search
III. Definitions: Sections 171.3, and 171.9; and proposed Sections 171.12 and 171.13, RA 8792
    A. Communication to the public
    B. Reproduction
    C. Technology Measures, and Rights Management Information
IV. Assignment, Licensing, and Transfer: Sections 180, 181, and 183, RA 8792
    A. Statement of Accounts under the proposed Section 180.5
    B. Collecting Society accreditation
V. Limitations of copyright: Sections 184, 185, 188, and 190, RA 8792
    A. Limitation for the benefit of the blind, visually or reading-impaired persons
    B. Fair Use
    C. Reprographic reproduction of copies for libraries
    D. Removal of the allowance of limited importation under Section 190.1, RA 8293
    E. Rules relevant to importation and exportation
VI. Deposit: Section 191, RA 8792
VII. Term of Moral Rights: Section 198, RA 8792
VIII. Neighboring Rights: Sections 203, 204, 208, and 212, RA 8792
    A. Performers’ Rights
    B. Rights of Producers of Sound Recordings
C. Limitations on other rights (Section 212)
IX. Infringement and Institution of Actions: Sections 216, 217, 218, and 226; and the proposed Section 220A, RA 8792
    A. Technology Circumvention as Aggravating circumstance (Sections 216 and 217)
    B. Safe harbor (Sections 216 and 217, RA 8293; in relation to Sections 30 and 33, RA 8792)
    C. Disclosure of Information (Section 220A)
        1. Valid search and seizure; reasonable suspicion
        2. Public funds for public purpose, not for private gain
X. IP Policies for academic institutions: Proposed new Section 230
XI. Conclusion


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Article 133 Revised Penal Code #DAMASO


Licensed under CC Attribution-NonCommercial-NoDerivative 3.0 Philippine license.


I. Introduction
II. Article 133 as a crime against the Fundamental Laws of the State
III. Religious Freedom
    A. Provision(s) on the religious clauses
    B. Provision(s) on the Separation of Church and State
    C. Jurisprudence
IV. Discussion on Article 133 RPC
    A. Article 133, Act 3815 [1930]: Offending the religious feelings (Ofensa a los sentimientos religiosos)
    B. Is Article 133 RPC still operative?
        1. The end of theocracy at the advent of American colonization
        2. Origin of Article 133 RPC
            a. El Código Penal de 1870 (Spain)
            b. Penal Code of 1884 (Philippine Islands)
        3. Articles 233 and 571 of the Penal Code of 1884 in relation to the 1930 Revised Penal Code
        4. Reenactment of previously inoperative provisions of the Penal Code of 1884, through Articles 131 and 132 RPC
    C. Should “Crimes against religious worship” even be in Philippine penal statutes?
    D. Could Freedom of Speech be claimed as a defense for violation of a subsisting penal provision?
    E. Has Article 133 been challenged for its constitutionality?
    F. Are the elements of Article 133, without doubt, present?
        1. Elements of Article 133 RPC
            a. Acts complained of were performed in a place devoted to religious worship or during the celebration of any religious ceremony
                i. Place devoted to religious worship
                ii. During the celebration of any religious ceremony
                iii. Alternative scenarios in the clauses of the first element
            b. Act was notoriously offensive to the religious feelings of the faithful
                i. Notoriously offensive
                ii. Religious feelings of the faithful
    G. Act punishable under Article 133 RPC or under some other RPC provision?
        1. Acts not within purview of Article 133 RPC
        2. Was the act really punishable under Article 133 RPC?
V. Miscellaneous Issues
    A. Priests and Article 133 RPC
    B. Church interference on political matters
    C. Personal matters


I. Introduction

I cannot speak for or against the decision of the Metropolitan Trial Court of Manila [1] relating to the case of Carlos Celdran, who was found guilty of offending religious feeling under Article 133 of the Revised Penal Code (RPC), or Act 3815 [1930], on 28 January 2013, as it is an ongoing case. [2] [3] I can only look into legal precepts which may be relevant in appreciating the controversy. [4], and maybe stray once in a while on political matters incidental to the controversy.

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2013 Tubbataha mishap


Licensed under CC Attribution-NonCommercial-NoDerivative 3.0 Philippine license.


I. Background
II. Considerations
    A. Innocent Passage, and Sea Lanes
    B. Visiting Forces Agreement
III. Senate Bill 2738
IV. Proper Penalties, including Fine, and Compensation for Damages
V. Demand for US accountability


I. Background

The Tubbataha Reef Marine Park, located in the Philippines, is a UNESCO heritage site, as listed since 1993. [1] The park is protected under Philippine law, through Republic Act 10067. [2]

On 17 January 2013, the USS Guardian, a minesweeper belonging to the United States Navy (US Navy), after refueling at Subic in the Philippines, ran aground at the Tubbataha Reef Marine Park. [3] The ship ran aground after the ship captain allegedly ignored warnings from the Tubbataha Management Office (TMO), the body administering the park. [4] [5] It is also alleged that “[t]he ship’s commander ordered a general alert and deployed personnel into battle position when [Philippine TMO] rangers tried to approach their ship to assess the situation, forcing them to back off.” [6] The US Navy [7], and subsequently the US Embassy in the Philippines [8], have issued apologies, limited to the grounding of the USS Guardian and the resultant damage to the corals. The Philippine president, Benigno Aquino III, allegedly have said that the US apology is insufficient [9], while a Philippine legislator allegedly requested the Philippine government to request official apology from US President Obama himself and to pursue demands for higher compensation for the damage. [10]

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15 January 2013 #RA10175

Today marks the day for the oral arguments for and against the constitutionality of Republic Act 10175, or the Anti-Cybercrime law, at the Philippine Supreme Court. Netizens once again call for profile/account “blackouts” similar to that made on 2 October 2012, when the law was supposed to be made effective days after its publication (until its implementation was suspended due to a Temporary Restraining Order [TRO] by the Court).


I. Privacy of Communication and correspondence, and Right to Due Process
II. Freedom of expression, and Internet Libel
III. Actual controversy
IV. Cybercrime Law


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A test of the Senate’s ethical standards

The issue on the alleged plagiarism of Philippine Senators have been lingering for months now. Complaints have been filed with the Senate’s Ethics Committee recently. Will the Senate deemed the Senators’ acts as acceptable, else justifiable, within the Senate’s ethical standards? Will the Senate assert a standard more lenient than what is required in the academe, else less than the norms under Republic Act 6713?


I. Background
    A. Senator Sotto’s “Turno en contra” speeches
    B. Senator Pia Cayetano’s Breast Cancer-awareness speech
II. Implications of one’s articulation (Plagiarism viz Copyright infringement)
    A. Plagiarism
        1. Definition of plagiarism
        2. Academic Standards, and the determination of academic plagiarism
        3. Outside of academe: Judiciary
        4. Outside of acadame: Others
    B. Copyright infringement
        1. Copyright and copyright infringement
        2. The mechanics of Philippine copyright
    C. Plagiarism and Copyright infringement differ
III. Parliamentary immunity
    A. “No Member shall be questioned nor be held liable in any other place”
    B. Rationale of parliamentary immunity
    C. Relevant Senate Rule on Unparliamentary Acts and Language
    D. When no Rule applicable to a specific case
IV. Public’s continuing reservations in the conduct of public officials


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The appropriate response? #AMALAYER

Ignore, grumble, or articulate/profound something about it. Those are choices available to me when a topic trends on my Facebook and Twitter feeds. Let me take the last option for this one.

The #Amalayer hashtag trended yesterday in the Philippines. [1] Outside of the usual reactions, there is a facet in it that I am disturbed about.

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Decriminalizing Philippine Libel Laws?

I made reference to the move to decriminalize Philippine libel laws in “¿Para qué estáis en el gobierno?” and Republic Act 10175: Cybercrime Prevention Act of 2012. I use this opportunity to articulate my thoughts on the matter more extensively.


I. Current Libel Provisions
    A. Libel Provisions under Revised Penal Code (Act 3815)
    B. Libel Provision under the Cybercrime Prevention Law (Republic Act 10175)
II. The Legislative Proposal (House Bill 6391 and Senate Bill 3244)
III. Decriminalization of libel
    A. “Crime”
    B. Effect of decriminalization of libel
IV. Should we decriminalize libel completely?
    A. Agreement with the move to remove imprisonment as penalty
    B. Fine as a deterrent
    C. Absudity of decriminalizing libel but maintaining criminalization of slander
V. Other matters under HB 6391 and SB 3244


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“¿Para qué estáis en el gobierno?”

An interesting article from the Philippine Inquirer came out yesterday. [1] This appears to be resulting from the online backlash against Senator Sotto over his purported role in the controversial Cybercrime Prevention Act of 2012, especially as to the Senate insertion of the Section 4(c)(4) pertaining to Internet libel. [2]

If the newspaper’s quotes are to be taken to be accurate, Senator Sotto allegedly said [3]:

“Gusto nila magpa-file naman ako ng bill, alisin na natin ang libel para pwede ko na rin silang murahin (If they want, I will file a bill to remove libel so I can also engage them in mudslinging),” Sotto said in an interview over radio on Wednesday.

“Pwede, alisin natin para parehas na ang laban. Maganda yan, pag-aaralan ko yan hanggang Lunes (We can remove that to have a fair play. That’s a good idea. I will study that until Monday),” he said.

“Alisin na natin ang gag sa masama broadcast, sa radyo, sa TV. Kung malaya sa Internet, pwede silang mambastos, mambaboy…gawin na din natin sa media. Kailangan pare-parehas,” Sotto added.

Asked if he was serious about his proposal, the senator said, “Oo, tinatabla lang natin sila sa inyo (Yes, we’re just levelling the playing field.)”

“Hindi na decriminalizing, removing. Magda-draft ako in the next few days (We will no longer decriminalize libel, we will remove it altogether. I will make a draft in the next few days),” he said.

It would be somehow expected that reactions to these statement would be to the effect that such statements would be adolescent, and not one expected from a legislator. I leave that sentiment to others, as my attention is elsewhere.


I. What can we say and how we go about it?
II. For whose interest are legislations made?


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2 October 2012 Blackout

On 2 October 2012, Philippine netizens who are opposed to the Cybercrime Law started to censor their comments in Facebook and Twitter, and use black images as profile pictures therein, as a form of protest. I cannot blackout this blog since I am not under paid hosting. In lieu thereof, this is what I wish to say on the matter:

I █████ ████ ██ █████████ ██ ████████████ ██ ████████ ██ ███ ██ ██ ██ ██████ ██ █ believe that ███████ ██ ██ ███ ████████ █████ ██ ██ ██ ██ █████ ██████████ ██ █████ █████ ██ ███████ ███ ████ ███████ ██ ████████ ██ ███████████ █████ ██ the Philippine ██████████ ██ ███████ ████ █████ ████████ ████ ███ ██████████████ █████ ██ ███ ████████ ███ ██████████ ██ ███ ███████ █████ ████ ██████ ████ ██ ███████ ██ ██ ██ ██████ ████ ████ ██ ██ ██ ██████ ████████ ███ ████ ██ ██████ ██ ██ ██████ ████████ ██ █ █████ ███████ ██ █████████ ███████ ███ government█ ██ ██ ██ █████████ ██████ ████ ███████ █ ███ ████ ██ ███ ███████ █████ ██ █████ can ████████ ████ ██████ ███ █████████ ███████ ███████ ████ ██████████ █████ ███████ ███ do ████████ ███████ █ ██████████ ████████ ██ ████████ █████ ██ █████ ██ no ███ ██████ ████ ███████ ██ ████ ████████████ ██████ ██ ███ ██████ ███ ██████ ███████████████ ██ ██████████ ██ ███████ ██ ██████ █████████ ████ ███████ ██ █████ █████ ██ █████████ wrong. █ ████ ██ ███████ ████ █ ████ ██ █ ██████████ ████████

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Republic Act 10175: Cybercrime Prevention Act of 2012


Licensed under CC Attribution-NonCommercial-NoDerivative 3.0 Philippine license.


I. Introduction
    > Past proposals for an Anti-CyberCrime Law
II. Offenses under RA 10175
    > Child pornography under RA 9775, viz Section 4(c)(2) of RA 10175
    > Section 33 (a) of RA 8792, viz Section 4(a)(1) to (5) of RA 10175
    > New offenses under RA 10175
    > Other offenses under Section 5, RA 10175
    > Applicability to other penal laws, when crime committed using ICT, under Section 6, RA 10175
III. Contentious issue: Libel viz Freedom of Expression
    > Libel under Chapter 1, Title XIII of the Revised Penal Code (Act 3815 [RPC], 8 December 1930)
    > Libel under Section 4(c)(4), RA 10175
    > Freedom of Expression viz libel
    > Doctrine of privileged communication
    > ICCPR and General Comment No. 34
IV. Contentious issue: Privacy
    > Right to privacy
    > Section 12 to 17, RA 10175
    > Privacy in relation to Section 12, RA 10175
    > International Cooperation
V. Jurisdiction
VI. Admissibility of Evidence
VII. Takedowns
VIII. Conclusion


I
Introduction

There has been a lot of discussions observed days subsequent to the promulgation of Republic Act 10175, or the Cybercrime Prevention Act of 2012, on 12 September 2012. There are some who assail the law to be unconstitutional as it acts as a prior restraint to freedom of speech, or that it provides undue expanded interference of private activities in the Internet by the Philippine Government, among others. Let me form my opinion herein, without providing legal advice, regarding the present law in its final form.

Past proposals for an Anti-CyberCrime Law

The Anti-Cybercrime law was not a recent proposal. Prior versions have been introduced in previous Congresses but which have been archived when the previous Congresses adjourned, including the 14th Congress. It appears that prior versions were being pushed to meet (1) the urgency to penalize child pornography; (2) rectify the perceived weakness of provision(s) on computer-related crimes in Republic Act 8792, or the Electronic Commerce Act (2000); (3) the necessity of expanding the coverage of the applicability of electronic documents, or ITC-enable acts, to criminal/penal laws, especially those in the Revised Penal Code, where documents, or in which a computer may be used in the commission thereof, are involved; (4) the necessity to provide an efficient legal procedure/allowance in the acquisition of evidence by government agencies when crimes are being committed, or have been committed, through electronic means; and (5) arrangement towards international cooperation, as acts may be transnational.

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