THE DEFICIENCY OF THE DATA PRIVACY ACT AND ITS INTERNAL RULES AND REGULATIONS

Introduction

An advocate of individual privacy Gary Kovacs once said “Privacy is not an option, and it shouldn’t be the price we accept for just getting on the Internet.” – G. Kovacs is a San Francisco Bay Area technologist. He is the Chief Executive Officer of AVG Technologies.

Personal privacy is a natural and fundamental right. Even at the early stages of civilization, the emergence of concern to privacy has long been sought. Looking back in the middle ages where spears, axes and wooden shields is your common luggage and induction to the army is the common profession, right to privacy has already been abided. As quoted “Medieval people had no such assumptions about privacy.  In a medieval village or a castle, a community of people living close together, it was assumed that everyone knew everyone else’s business, perhaps even better than they did.” As gleaned, people then already had an instinctive feeling of respect to one’s personal dwelling, and this is the times when landlords practically rules over everything as far as their eyes can see (C. Dale Brittain, professor of medieval history. Life in the Middle Ages. Jan 14, 2015.)

Right to data privacy is a human right. To keep up with the changing times, and undeniable clamour against the modern intrusion against one’s personal information, Philippine legislature enacted Republic Act No. 10173 or the Data Privacy Act of 2012. It aimed to strengthen and legitimize the State’s crusade against violators of data privacy of private individual and government officials or employees in their private capacity. However, despite its noble advocacy the law lacks teeth in certain aspects.

The law slept for awhile. Although the law was enacted way back 2012, the first Commissioner of the National Privacy Commission (NPC) only took his oath of office in March 6, 2016. This resulted in almost four years of inactiveness since the law took effect. It goes without saying that the NPC is still undergoing its preliminary stages of doe’s and don’t. Virtually, a fledgling born in a wrong time, since 4 years is enough to breed new changes in technology.

The release of the Implementing rules and regulation (IRR) was delayed and insufficient. The IRR is needed to provide the clear guidelines on dealing with data breaches; establishing data breach policies and response protocols and crafting safety standards, among others. Without it the law remains a mere scrap of paper. The IRR states that the NPC will handle all investigations and complaints in violation of RA. 10173 to wit:

SEC. 7 Functions of the National Privacy Commission. – To administer and implement the provisions of this Act, and to monitor and ensure compliance of the country with international standards set for data protection, there is hereby created an independent body to be known as the National Privacy Commission, winch shall have the following functions:

(b) Receive complaints, institute investigations, facilitate or enable settlement of complaints through the use of alternative dispute resolution processes, adjudicate, award indemnity on matters affecting any personal information, prepare reports on disposition of complaints and resolution of any investigation it initiates, and, in cases it deems appropriate, publicize any such report: Provided, That in resolving any complaint or investigation (except where amicable settlement is reached by the parties), the Commission shall act as a collegial body. For this purpose, the Commission may be given access to personal information that is subject of any complaint and to collect the information necessary to perform its functions under this Act;

It is of the writer’s opinion that this specific provision gives the NPC an unbridled power that may be lead to abuse and corruption. By not providing for a holistic procedure as when and how a person can resort to courts as their last bulwark who is adjudged adversely by a final decision of NPC leaves the procedure of appeal vague and unjust. “Congress can vest to administrative agencies judicial and quasi-judicial powers. This must be in the form of an express delegation to be effective” as quoted (Ruben E. Agpalo. Administrative law, law on public officers and election law. p.12, 2005). The grant of quasi-judicial power to an agency carries with it the power to issue and promulgate rules and procedure for the proper exercise of its adjudicatory power, even thought the enabling law is silent on the matter (Angara v. Electoral Commission, 63 Phil. 139, 1936).

Having said, the IRR should have further provided the proper procedure as to what remedy to take in case of unfavourable decision of NPC. Although the right to appeal is not a part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provision of law (Cu-Unjieng v. CA, 479 SCRA 594, 601). Also, while the right to appeal is not a constitutional, natural or inherent right. It is still a statutory privilege and of statutory origin (Canton v. City of Cebu, 515 SCRA 441, 448)

The law is reactive but not proactive. A closer scrutiny to the law reveals the lack of guidelines which a natural or a juridical person undertake in case a personal data information of a person falls into their hands whether intentionally, negligently or for some reason or another. It does not impose a duty on the part of subsequent holder of the data information on what to do after acquiring such. In is only reactive because the law becomes useful only when the personal information has already been held for a relative time, about to be processed, processed or when the real owner decides to file a complaint.

In a 2008 report titled ‘For Your Information: Australian Privacy Law and Practice’ (Report 108),  it recommended that the Privacy Act be amended to impose a mandatory obligation to notify the Privacy Commissioner and affected individuals in the event of a data breach that could give rise to a real risk of serious harm to the affected individual. Data breach notification is good privacy practice. Notifying individuals when a data breach involves their personal information supports good privacy practice, for the following reasons: (1) Notification as a reasonable security safeguard – As part of the obligation to keep personal information secure, notification may, in some circumstances, may be a reasonable step in the protection of personal information from misuse, interference and loss, and from unauthorized access, modification or disclosure (2) Notification as openness about privacy practices – Being open and transparent with individuals about how personal information may be handled is recognized as a fundamental privacy principle. Part of being open about the handling of personal information may include telling individuals when something goes wrong and explaining what has been done to try to avoid or remedy any actual or potential harm (3) Notification as restoring control over personal information – Where personal information has been compromised, notification can be essential in helping individuals to regain control of that information. For example, where an individual’s identity details have been stolen, once notified, the individual can take steps to regain control of their identity information by changing passwords or account numbers, or requesting the reissue of identifiers (4) Notification as a means of rebuilding public trust – Notification can be a way of demonstrating to the public that an agency or organization takes the security of personal information seriously, and is working to protect affected individuals from the harms that could result from a data breach. Customers may be reassured to know that an agency or organization’s data breach response plan includes notifying them and relevant third parties.

The writer strongly encourages notification in appropriate circumstances as part of good privacy practice, and in the interest of maintaining a community in which privacy is valued and respected.

Consequently, we demand the NPC to voluntarily put in place reasonable measures to deal with initial data breaches including obliging subsequent users and holders of data information to immediately notify the true owners of the data, under the pain of stringent punishment in case of non-compliance therewith.

Giving away one’s personal number transgresses right to privacy. In modern times, getting in touch with someone entails calling him via telephone and cell phone. This is an accepted norm. A vital question presents itself however, “Is the Disclosure of Someone’s Mobile Number to a third person without the owner’s consent a Violation of R.A. No. 10173? While the writer applauds the interpretation of legislature that “it is not” an encroachment, it must be rejected respectfully taking in to account the modern way of living. Right to privacy encompasses the right not to be disturbed. Imagine a branch manager in a bank on a Monday tight schedule where he hardly makes various calls to all sorts of people be it client, colleagues, head office personnel etc. only to be disturbed by a number of text messages and calls from enthusiastic sales agents selling their promos, discounted products, health care insurances, loans, real estate properties and not to mention the spam messages. Evidently, a clear distraction of your right to peace of mind.

Our private mobile number was undervalued by legislature. Unwary its significance “Personal Information” was defined by Congress as 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. Worthy of mentioning that telecommunication companies now offer product packages including a phone with a new sim card along to be paid on instalments. This entails filling up a form where you’re personal information is written, thus surrendering before the telecoms. Accordingly, your name, addresses at other particulars are now traceable by merely identifying your mobile number.

Extraterritorial application of the law may be counterproductive to our economy. The law provides an overseas application over Filipino citizen or resident. It means that person covered may enforce his data privacy rights even against companies abroad. This would likely present obstacles to some industries, such as the IT-BPO wherein they gain access through their local BPO companies over personal information of their employees obviously for administration purposes. In effect technically subjecting them by the obligations set forth under the law. If this happens, foreign employers might feel unsecure and discouraged in investing in the Philippines.  The result will be the downsizing of the employment machinery of local branches here.

In an article written by Edward Barbour-Lacey titled “BPO in the Philippines Could Jumpstart Economic Growth” Posted on October 7, 2014. He underscored the significance of the industry. Over the past decade, the Philippines’ BPO industry has seen tremendous growth – revenues and employment have expanded tenfold since 2004. The industry sees an average yearly growth rate of 20 percent. Filipino employees are particularly attractive to BPO employers – they tend to be very fluent in Western-accented English. While the BPO industry employees just two percent of the country’s workforce, the industry has had a positive effect on a number of other business areas, such as the retail, real estate, and telecom industries.

At any rate, the writer both expresses her gratitude and dismay as to the fast-tracking of the law. However, while we recognize the laudable efforts of our Congress in their pursuit to strengthen privacy laws, we want raise our concern as to the fragmentalistic approach of the law. As Legal scholars Katharina Pistor and Chenggang Xu describes an incomplete law in the article “How Countries Deal with Incomplete Law.” 2003.

 

Lawmakers cannot foresee all situations in which the law may be applied or needed. Changes in social conditions, innovations in markets and developments in new technologies may create circumstances not contemplated when the law was created. A very specific law may very quickly become obsolete. So, legislatures often formulate general law that can be applied to all conditions and individuals covered under the law. While a general law prevents arbitrariness with respect to the application of the law, it makes it impossible to create a complete law. New circumstances always arise.

In fine, a plain reading of the provisions of the Data Privacy Act of 2012 clearly shows the legislature’s continuing concern to the protection of the right to privacy consistent with the continuing advancement in technology.  As succinctly explained in Whalen vs. Roeis:

“We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures.”

In Ople vs. Torres, the Supreme Court underscored in no uncertain terms, that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. It merely requires that the law be narrowly focused and compelling interests justify such intrusions. Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. Any law or order that invades individual privacy will be subjected by the Court to strict scrutiny.

Conclusion:

The law has all the good intentions for the promotion of the Constitutional right of Right to Privacy. The legislature’s intent was well reflected in the provisions where it tried to uphold privacy when due and still balanced it and protected the person in times its intrusion becomes necessary and authorized. A plain reading of the law, even by a lay man will easily agree with it and feel protected by it.      However, reality does not end where the law ends. Reality in its application and enforcement is still the gravamen of the right, for what use is the right when it remains only in paper.

In the penultimate, the writer concludes that its implementing rules and regulations lack the other safeguards and teeth to extend the rights and protection given by the law.

The implementing rules of the Data Privacy Act provides that employees and officers of the NPC after their severance from employment are obligated to maintain confidentiality perpetually all information obtained during their service. While non-disclosure is one thing, penalty in case of breach thereof is another. The IRR failed to provide how and in what manner the secrecy should be maintained. It also neglected to specify details as to what information is covered and up to what extent. The evident incompleteness of the regulation will ultimately defeat the purpose intended by the law which is to safeguard the privileged information.

Nonetheless, all is not at lost. What matters is that the Legislature already has provided a Law which recognizes such rights and favored its protection.  Experience, necessities and the ever-growing technological environment will be the follow up guides in later on amending and improving the Implementing Rules.

 

Sources:

2015. Dale Brittain, professor of medieval history. Life in the Middle Ages. Jan 14, 2015.

http://cdalebrittain.blogspot.com/2015/01/privacy-in-middle-ages.html

 

For Your Information: Australian Privacy Law and Practice’ (Report 108), 2008.

https://www.oaic.gov.au/agencies-and-organisations/guides/data-breach-notification-a-guide-to-handling-personal-information-security-breaches

 

Edward Barbour-Lacey titled “BPO in the Philippines Could Jumpstart Economic Growth” Posted on October 7, 2014.

http://www.aseanbriefing.com/news/2014/10/07/future-philippines-bpo-industry-jumpstart-economic-growth.html

 

Katharina Pistor and Chenggang Xu. “How Countries Deal with Incomplete Law.” 2003.

https://clg.portalxm.com/library/keytext.cfm?keytext_id=26

Caroline Corro. R.A. No. 10173 or the Data Privacy Act of 2012. July 5, 2013.

https://carolinecorro.wordpress.com/2013/07/05/r-a-no-10173-or-the-data-privacy-act-of-2012/

 

Ruben E. Agpalo. Administrative law, law on public officers and election law. p.12, 2005

 

Data Privacy Act of 2012 and Its Implementing Rules

Ople vs. Torres, gr 127685, (1998).

Whalen vs. Roe, 429 U.S. 589 (1977).

Cu-Unjieng v. CA, 479 SCRA 594, 601.

Angara v. Electoral Commission, 63 Phil. 139, 1936).

Canton v. City of Cebu, 515 SCRA 441, 448)

 

 

The Insufficiency of the Fair Use Doctrine in the 21st Century

Introduction:

Recent events and developments in the digital age caused the writer to begin questioning assumptions about the role of and need for fair use in the electronic environment. Developments we live by, technology we follow, and computers that evolves too fast made our laws antiquated. With So much of our normal and everyday behaviour puts us at risk of violating copy right laws, especially today.

The parameters of copyright cannot be considered fit for the digital age when millions of citizen are in daily breach of copyright. Having said, people are becoming more confused about what is allowed and what is not, with the risk of defeating the purpose of the law. In other words, since the law has already passed its prime, it becomes so broad that everyone is a potential infringer and thus people stop abiding such.

So, this paper is first, an exploration of the meaning of fair use so that we may focus attention on those parts of its function that are most affected by the electronic environment. It also provides an examination of that effect, to individuals and to society; and third, an evaluation of the supposed benefits of fair use and alternative ways to achieve those benefits given the impact of the electronic environment on fair use.

Still, the writer concludes that electronic creation, communication, and distribution, which I will refer to for convenience as the electronic environment is necessary in keeping up with digital evolution, to justify efforts to differentiate the components of fair use. It is indeed inevitable that under some circumstances we are likely to need fair use despite the original source; under other situation the medium may substantially undercut the need for fair use, making it possible to begin to shift the focus away from the fair use debate and towards a more cooperative exploration of the many ways that creators, publisher’s and users of information may mutually exploit and benefit from the electronic environment.

Fair use as a Balancing factor

Fair use has come to be widely understood as a balancing point between the rights of authors to exclusive control over their works and the rights of users to have free access to the ideas contained in those works. It became obvious that restrictions imposed by author’s exclusive rights could stifle creativity by withholding from the public the raw materials of new creations. In effect, we began to identify activities that furthered the goals of copyright even though they may have treaded upon the copyright owner’s exclusive domain.

Fair use indeed becomes both as a means and as a restriction to one right in relation to the other. Since the human mind is limitless in its creativity there is no boundaries as to what one can create based in one’s perception of things, experiences,, needs wants, obligations and the like. Hence there could be times that one cannot indeed control himself when looking at another’s work and combine them with what he already knows, or what he learned or simply by wanting to learn the material. But there comes a point that one can be too infringing on the work of another that either he innocently or intentionally  copies them or attribute such works as his own, provide minimal modifications and appropriate them for himself. Complexities then arise when there comes the need to strike the balance between them, when opposing rights and interests are to be weighed and which tool to use to determine what is legally, and morally  permissible.

Interplay of Copyright coverage and Fair use

At its inception, copyright only concerned itself with the protection of printing, reprinting, publishing, and vending only. It was only as copyright expanded to cover substantially longer periods of time currently, life of the author plus 50 years after his death. It embraces the exclusive rights to make and distribute copies; to display and perform works; to protect not only literature, but music, sculpture, architecture, photographs, and computer programs.

Fair use thus became the last bulwark as a result of technological changes and the law’s continual need to accommodate those changes. Balances between the rights of copyright holders and users of copyright material achieved under one set of circumstances only hold up for awhile and invariably need revision as the facts of our lives change. It is quite remarkable that the law has accommodated as much growth and change as it has.

Copyright law is a protection for tangible expression of an idea. It intends to give the owner the ability to use and make money of it without others to use it themselves. But copyright is not a blanket ban. There are a number of limitations that do allow for a widespread use.

Copyright laws failed to keep up with technology. These regulatory gaps exist because laws enacted before were crafted so specifically as to cover circumstances of the times then. Hence, the law in order to legitimize reasonable infringement of the works, created the Doctrine of “Fair Use.” The Philippine legislature created Republic Act (RA) 8293 or the Intellectual Property Code of the Philippines which defined what is fair use.

Sec. 185. Fair Use of a Copyrighted Work. –

The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use.

In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education purposes;
(b)The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work.

As  defined by Atty. Rich Stim, a legal editor and blogger in Stanford University, and I quote  “In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defence against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.” It is the writer’s opinion that this principle is based on the assumption that the general public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For instance, if you desire to criticize a movie, your are given the freedom to quote a portion of the movie work without asking approval from the producers. Take this freedom away and the movie industry may not have to level up their game and may very well decrease the quality of the film.

Fair use interpretation is held by the courts to be subjective. In case of dispute, it may have to be resolved by a lawsuit or arbitration. The courts have the sole authority to decide whether it falls under protected use. If it’s not, then you are infringing upon the rights of the copyright owner and may be liable for damages. The judgement of the courts must not be rigidly construed as to the context of the law. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition.

From the writers standpoint, the trouble with works of the intellect is that they are “public goods.”  Unlike most goods and services, they can be used and enjoyed by unlimited numbers of persons without being “used up.” It is thus difficult to deny access to such works to persons who have not paid for the right to enjoy them.  These conditions create a risk that inventions and works of art that would be worth more to consumers than the costs of creating them will not be created because the monetary incentives for doing so are inadequate. Laws forbidding members of the public from copying or making other use of intellectual products without the permission of their creators are designed in part to eliminate this source of economic inefficiency. By granting inventors and artists a type of property right in their products, the law induces creative persons to develop and exercise their talents and thereby avoids the underproduction of useful ideas and original forms of expression

As opined by Atty. Persida Acosta in her daily column in the Manila Times, “Fair use of copyrighted work.” January 13, 2016. As to the inquiry of a college professor in University of Manila who obtained an original DVD copy of the film Heneral Luna, on whether or not conducting a film viewing class to his students would violate intellectual property law.

 Atty. Acosta quoted “As applied to your case, you wish to show the movie only for educational purposes and have no desire to profit from it. Hence, your activity may be considered as fair use of a copyrighted work. You need not seek the permission of the producers or directors of the movie, as long as you give credit to the makers of the movie, do not declare it as your own work and show the movie within the limitations provided under fair use.” She also gave a caveat that her opinion is solely based on the facts he have narrated and her appreciation of the same. Her opinion may vary when the facts are changed or elaborated.

The only guidance for fair use is provided by a set of factors outlined in copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map can be tricky to navigate. However, while liberal construction is given by courts in favour of fair use, it became too broad as to be subject to abuse.

A serious deficiency in the concept of “fair use” in copyright law and said to be so flexible as to virtually defy law. Jurisprudential leniency given to fair use has dragged the movie industry to hit bottom. Virtually all of the internet users now have experienced or at least are expected to use the YouTube engine. It is where online video is growing exponentially, with over 4 billion videos viewed daily. Using it for your business, can easily reach your audience, both by creating videos and advertising on other people’s videos. It is the 2nd largest search engine and the 3rd most visited website worldwide, behind only Google and Face book respectively. And here the problem lies.

Promoting self-interest even at the risk of copyright infringement.

In order to promote your business and products, advertisements commercials are deliberately inserted on various videos posted on YouTube. And obviously kind videos that would immediately catch the attention of viewers watching pirated movies. These pirated movies come to the aid of the people who thinks of convenience and keeping their savings intact. Beneath the title of the movie are the caveat “for entertainment purposes only covered by fair use doctrine” In order to circumvent the law, what the usurpers usually do is to blur or to reduce the screen itself and insert a totally foreign picture at the background. For them these are not infringement and protected.

The writer opines this caption as absurd, as it conveniently allows them to infringe the law indirectly. Viewers tend to no longer watch it again in the original form, thus, reducing the economic benefit of the copyright owners. In an article released by the Washington state University they said that although the doctrine is an equitable rule of reason, and no general definition is possible, fair use is still basically limited to journalism, education, and research. Making copies for the purpose of personal entertainment generally doesn’t qualify as fair use. Remember the forth factor to consider whether there is infringement is the effect of the use upon the potential market for or value of the copyrighted work. Therefore, diminishing their economic benefit automatically brings them under pain of damages.

The fair use exception is the most troublesome in the whole law of copyright. The term fair use is not particularly defined in the copyright act and courts have a lot of leeway to decide whether something is reasonable. Fair use is an affirmative defense which means that the defendant must show that it is reasonable and not infringing. And the only way to definitively find out whether something is fair use is by having the judge tell you it is. It becomes a problem now to the copyright owner to claim its ownership that would entail expensive fees in court litigation.

Conclusion

The fair use Doctrine is insufficient. Not everybody are lawyers, and certainly, one need not be a lawyer to create or be the holder of a copyright. By mere reading the law, for a restriction and limitation of a subject matter so vast and limitless which comes to the very core of every human person, it is insufficient, or at the very least, clearer guidelines and rules, without having the need to resort to jurisprudence  or filing a case in court every time should be provided. This is to the end that one’s work be protected even before infringement happens.

After all has been said and done, still owners of copyright and Congress should wake up and realize that technology now offers a powerful way for someone’s content to be discovered. So rather than immediately pursuing court litigation, why not embrace and find a way to fully leverage it. Not as an exercise of one’s ownership but as a civil duty for the greater interest of posterity and public.

The persuasive effect of fair use becomes more promising in the future. There are many reasons that suggest the progressive trend in higher education is to learn and utilize fair use far more than it has in the past. The nature of education is changing due to technology and the digital age, which are now instrumental in how education is delivered.  It is urgent, timely, and in the best interests of higher education that our universities raise a coordinated voice to address the topic that is known as the “fair use” of copyrighted works. Legal debates may probably arise because of the changing dynamic between the broad sweep of “intellectual properties” and the deployment of powerful and rapidly growing evolving communications techniques and infrastructures. These developments already have demonstrated their significant consequences for higher education and will have more pervasive effects in the future.

Sources:

Republic Act (RA) 8293 or the Intellectual Property Code of the Philippines

Atty. Rich Stim. What is Fair Use? 2016.Stanford University Libraries. Copyright & Fair Use.

http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

Atty. Persida Acost. Fair use of copyrighted work, the Manila Times. 2016

http://www.manilatimes.net/fair-use-of-copyrighted-work/239274/

 

Article by the Washingto n State University. Fair Use Doctrine.

Fair Use Doctrine

 

First blog post

This is your very first post. Click the Edit link to modify or delete it, or start a new post. If you like, use this post to tell readers why you started this blog and what you plan to do with it.