magna carta for philippine internet freedom essay

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Why Support the Magna Carta for Philippine Internet Freedom

I still remember a time hearing the chime of bells as one gets connected to the Internet. I still remember a time you could cook four strips of bacon and still wait a bit more for a file to download. I could still remember Netscape. Where in the time did Carmen Sandiego go?

Today you could surf the Web using the mobile. Contact and talk to family and friends via Facebook. Get the news, gossip and false news via Twitter. Speaking of news and opinion, today you could probably read something crafted in Washington, Tokyo, Paris and Mexico. Reading a newspaper is no longer just reading. In the past reader wanting to react a piece of news or opinion by sitting down writing letter to the editor and mailing it. Perhaps you could even call the newspaper. And still your opinion will only be seen if at the end of the day someone deems it worth publishing. Today, a reader can almost automatically write a reaction on the article/post comment track – something from blogs ( or weB logs) that can often be seen in online newspapers. And it does not stop there – and it does not stop at that a reaction can be transformed into several things online.

The Digital world has became fused to our lives. And even though there is still the great digital divide: only about 35% of the Philippine is on-line (We still have to work on closing this divide): the Internet and the Web has become an important part of Philippine Society. First , because the Internet has become the information highway of economic growth. Second , because Internet Communication Technology and Computers have became a critical part of our daily lives. And Third , for all its imperfection cyberspace is a forum for ideas and a bastion of freedom … a fortress of Democracy.

And this is why we, people from all walks of life, contributed this set of ideas, formed through words and built up to this document. A Magna Carta that extends all the rights, obligations, protection and duties between the People and its State to the Internet.

Last Monday, Senator Miriam Defensor-Santiago filed the MCPIF as Senate Bill 3327. This Quest does not end there. This is just the beginning. This will take a hundred … a thousand … a million … a billion times longer than cooking four strips of bacon … But we will get there -because it is not only our present at stake but the future of our sons and daughters.

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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:

Free Expression

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;

Child pornography.

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.”

Universal access

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.

Intellectual property

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.

Other Areas

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!

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The Online Regulation Series | The Philippines

Adam Southey Oct 7, 2020 4:16:43 PM

You can access the ORS Handbook here

The Philippines is one of the countries worst affected by terrorism in the world, ranking as the ninth most affected country in the 2019 Global Terrorist Index. The country has long been investing in its counterterrorism apparatus and there have been some signs that the Philippines might introduce legislation that targets online terrorist content. This is to be understood in the context of a growing internet penetration rate and increased use of social media (+8.6% in 2019-2020 ), coupled with growing concerns for how terrorists use the internet in the country.

Philippines’ regulatory framework:

• Anti-Terrorism Act (ATA), July 2020, providing the legal framework for the country’s counterterrorism response.
• Cybercrime Prevention Act (CPA), September 2012, the country’s regulatory framework for the use of information and communication technologies.

Key takeaways for tech platforms:  

• To date, tech companies have been exempted from liability for user-generated content posted on their platforms.
• However, recent suggestions to expand the Anti-terrorism Act of 2020 to allow for the regulation of social media indicate that making tech platforms liable for online terrorist content is not absent from the public debate in the Philippines.

Counterterrorism legislation and incitement to terrorism

Whilst the South-East Asian country does not directly regulate online content, the recent Anti-Terrorism Act provides a basis for the criminalisation of terrorist content online via its penalisation of terrorist incitement. The ATA was signed into law in July 2020, replacing Philippines’ previous counterterrorism legislation ( Human Security Act of 2007 ). The ATA distinguishes between various types of terrorism, such as threats (any person threatening to commit a terrorist act), recruitment, incitement, and material support. Violations are tried in specific courts designated by the Supreme Court. The ATA also establishes an Anti-Terrorism Council, to be appointed directly by the President, overseeing terrorist investigations and with the power to “designate who is a “terrorist’” and authorise warrantless arrests.

Under the ATA, incitement of terrorism, “by mean of speeches, proclamations, writings, emblems, banners or other representations tending to the same end” is punished by life imprisonment without parole. The broad language used in the legislation allows for the penalisation of online material deemed to be inciting terrorism.

The legislation has been criticised by civil society and human rights groups – including Amnesty International and the Committee to Project Journalists – with critics warning that the ATA could be used to target government critics and that it threatens certain rights protected by the constitution. The main criticism concerns the criminalisation of incitement to terrorism, with critics concerned by the lack of clear definition of incitement which may provide “open-ended basis for prosecuting speech” as the Anti-Terrorism Council would be the unique arbiter of what constitutes a serious risk. The potential unconstitutionality of the law led to numerous petitions being signed to declare it unconstitutional. [1]

Opening an avenue for the criminalisation of terrorist use of the internet?

Even though the ATA does not explicitly address the issue of terrorist use of the internet, members of the Philippines’ armed forces have raised the possibility of extending the bill to cover regulation of social media. Such actors argue that this expansion could help counter “preparatory acts” of terrorism, for example by facilitating the traceability of content that can be used for radicalisation or financing purposes. For now, the extension of the ATA to social media remains a suggestion. Former justice secretary Franklin Drillon has said that such an expansion would be in violation of the country’s Bill of Rights, which enshrines freedom of information, whereas this law would impose regulation on service providers and social media platforms which might limit this.

Misuse of ICT

The legislation on Cybercrime Prevention acts as a framework for the use of information and communications technology (ICT) and lays out what are considered to be misuses and illegal access to ICT in the country, with individuals using online platforms being legally liable for content posted rather than tech companies. The legislation prohibits the use of ICT for any crimes penalised by the Philippines penal code and prohibits online defamatory content (known as “libel” content).

The prohibition of libel content online has led civil society groups to raise concerns about the law’s potential impact on freedom of information and freedom of expression, in particular due to the lack of a precise definition of what constitutes online defamation. Furthermore, as highlighted by the Electronic Frontier Foundation , libel in the Philippines is not adjudicated on what the author meant, but rather adjudication is based on the meaning the words used could have. This leaves substantial room for interpretation, and therefore presents some risk for freedom of expression, as users might be tempted to self-censor to avoid potential judicial consequences.

A Magna Carta for Internet Freedom

One of the most noteworthy aspects of online regulation in the Philippines might not be the actual legislations, but rather the civic initiatives that surrounded them. Indeed, the drafting of the CPA led a group of citizens (or netizens, as they called themselves) to propose a Magna Carta for Philippine Internet Freedom (MCPIF). The Magna Carta was the product of a crowdsourcing effort from citizens concerned with digital rights. The MCPIF was drafted with participation from individuals with different backgrounds – including IT specialists, bloggers, human rights advocates, lawyers, and academics – using online platforms to share their ideas and proposition for the enshrinement of digital rights in the Philippines.

Supported by Senator Miriam Defensor Santiago , the Magna Carta was created as a legislative response to the CPA that would ensure the protection of “the rights and freedoms of Filipinos in cyberspace”, as well as provide definitions for certain cybercrimes. In particular, the MCPIF was drafted so as to protect netizens from illegal searches and prevent the blocking or restriction of a website with appropriate legal due process. Whilst the MCPIF did not succeed in replacing the CPA, the crowdsourcing effort behind it led to the creation of Democracy.net.ph , an “Internet and ICT Rights Advocacy Organization” that is still active today.

[1] 25  petitions as of 6 August 2020. At the time of writing, the signatories are waiting to be heard in an open argument by the Supreme Court in September 2020.

Al-Jazeera (2020), “Philippine court asked to annul Duterte-backed anti-terror law”

Amnesty International (2020), “Philippines: Dangerous anti-terror law yet another setback for human rights”

Aspinwall Nick (2020), “After Signing Anti-Terrorism Law, Duterte Names His Targets” , Foreign Policy

Human Rights Watch (2020), “Philippines: New Anti-Terrorism Act Endangers Rights”

Institute for Economics & Peace (2019), Global Terrorism Index 2019: Measuring the Impact of Terrorism

Kemp Simon (2020), “Digital 2020: The Philippines” , DataReportal

Khaliq Riyaz (2020), “Philippines: Anti-terror act faces top court challenges”, Anadalou Agency

National Union of the Journalist of Philippines (2020), “No to criminalization of free speech” .

Pazzibugan Dona Z. (2020), “ SC sets hearings on anti-terrorism law in September” , Inquirer.net

The Propinoy Project (2014), “Why there should be a Magna Carta For Philippine Internet Freedom”

Ramos Christia M. (2020), “Parlade defends social media regulation proposal” , Inquirer.net

Ramos Marlon (2020), “AFP Dials down Facebook ‘regulation’”, Inquirer.net

Reporters Without Borders (2012, updated in 2016), “Cybercrime law's threat to freedom of information”

Sen. Santiago Miriam D. (2012), “Magna Carta For Internet Freedom To Replace Anti-Cybercrime Law” Senate of the Philippines

Yap Ben Dominic R., Protacio Jesus Paolo U., Lopez Jess Raymund M., and Lazaro Vladi Miguel S., (2020), “Anti-Terrorism Act signed into law” , Lexology.com

York Jillian (2012), “Philippines' New Cybercrime Prevention Act Troubling for Free Expression” , Electronic Frontier Foundation

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