You
received a misdirected mail and there is a notation that such mail must be
confidential, or else be destroyed. The
content of the mail is something contrary to law. How will it be valid for you to provide info
to public without violating the laws we’ve discussed in the class? How can you be not liable for such disclosure
to the public?
Email as Electronic Evidence
Section 5(f) of the Electronic
Commerce Act of 2000 (R.A. 8792) and Section 6(h) of the Implementing Rules and
Regulations of the Electronic Commerce Act defines an “Electronic Document as information
or the representation of information, data, figures, symbols or other modes of
written expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored, processed, retrieved
or produced electronically.” In Section
6(h) of the Implementing Rules and Regulations of the Electronic Commerce Act,
it further added that the term “electronic document” shall be equivalent to and
be used interchangeably with “electronic data message.”
Most
of the provisions of Electronic Commerce Act of 2000 (R.A. 8792) is taken from
the United Nations Commission on International Trade Law (UNCITRAL) Model Law. The UNCITRAL defines a “data message” as an
“information generated, sent, received or stored by electronic, optical or
similar means including, but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy.
Moreover, in Section 6(e) of the Implementing Rules and Regulations of
the Electronic Commerce Act, it redefined “Electronic Data Message” as “information
generated, sent, received or stored by electronic, optical or similar means,
but not limited to, electronic data interchange (EDI), electronic mail,
telegram, telex or telecopy.” Thus,
electronic mail or e-mails are regarded as an electronic document.
According
to Rule 4 Section 1 of A.M. No. 01-7-01-SC Rules on Electronic Evidence, the
email can be regarded as an original electronic document provided that a
printout or output readable by sight or other means, shown to reflect the data
accurately shall be presented in court. According
to Rule 33, Section 2, to be admissible as an equivalent as a functional
equivalent of a written document for evidentiary purposes, the person seeking
to introduce an email correspondence or electronic document in any legal
proceeding has the burden of proving its authenticity to be under the manner provided
in Rule 5 Section 2.
Email Disclaimers
There is currently no legislation
covering email disclaimers in the Philippines.
In the United States where our Cyber Laws are patterned, email
disclaimers are not legally binding. In
the recent misdirected email issue of Goldman Sachs, its email service
provider, Google refused to delete the email without any court order.[1]
If we regard email disclaimers as
part of an electronic document, there is no way it can be legally binding because
it is not contract without the affirmation of the recipient. According to Art. 1305 of the Civil Code, “A contract is a meeting of minds
between two persons whereby one binds himself, with respect to the other, to
give something or to render some service.”
Thus, a unilateral dictation by email disclaimers on its unintended
recipient does not result in a legal and binding contract.
Privacy
Art. 26 of
the Civil Code stating that “Every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons”
poses a limitation to the Constitutional Right of freedom of speech granted by
Sec. 4 Article III Bill of Rights of the 1987 Constitution.
Extent of Protection of Privacy
As stated in the case of Pollo v. Constantino-david, “Protection of this private sector —
protection, in other words, of the dignity and integrity of the individual —
has become increasingly important as modern society has developed. All the
forces of a technological age — industrialization, urbanization, and
organization — operate to narrow the area of privacy and facilitate intrusion
into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian
society xxx The notion of informational privacy is still developing in
Philippine law and jurisprudence.”[2]
Data Privacy Legislation in the Philippines
Nature of the Data Privacy Act of 2012
The Data Privacy Act of 2012 is the
Philippines' first and only consolidated data privacy legislation. It imposition is part of the Philippines’
compliance with the Directive 95/46/EC of the European Union and the Asia
Pacific Economic Cooperation (APEC) Information Privacy Framework.
Aims of the Data Privacy Act of 2012
The
Data Privacy Act of 2012 aims to substantially raise the profile of the Philippines
in the data privacy and business in the data processing sphere. It deals with the assurance of the security
of personal information handled by employees of BPO companies based in the
Philippines as a means of attracting more investors in the information
technology and BPO industry in the Philippine.
The
Philippines Business Processing Association believes that the Act will
facilitate the Information technology of the BPO industry expanding from call
centers to areas that involve handling sensitive personal data such as in the
health care and human resources areas with projections of revenue in the
industry increasing from $ 9 billion in 2011 to $ 25 billion by 2016.
Coverage of the Data Privacy Act of
2012
All
“Personal Information Controllers”, being persons who control the collection,
holding, processing or use of the personal information of others defined in the
Act as “Data Subjects” are mandated to comply with its requirements before any
such collecting, holding, processing or use may take place. Through the concept of “sensitive personal
information, it introduces a class of personal information which due to its
particular sensitivity is subject to more stringent requirements for processing.[3]
The Personal Information Controllers
are responsible and accountable for decisions on the data usage that pass by
the Personal Information Processors.
Thus, they are the ones who can be criminally liable for unauthorized
data usage.[4]
Thus, ordinary email recipients are
outside the coverage of the Data Privacy Act of 2012.
Libel as a Cyber Crime Offense Under
Sec. 4 of the Cybercrime Prevention Act of 2012 (R.A. 10175)
A
libel is defined as "a public and malicious imputation of a crime or of a
vice or defect, real or imaginary or any act, omission, condition, status or
circumstance tending to cause the dishonor, discredit or contempt of a natural
or juridicial person or to blacken the memory of one who is dead."13 "For an imputation to be libelous, the
following requisites must concur: a) it must be defamatory; b) it must be malicious;
c) it must be given publicity and d) the victim must be identifiable. [Lopez v.
People (2011)]
Absence of Element/s as Defense in
Libel
Absence of the Element of Maliciousness
Since
the email content is already contrary to law, it is already a crime. Imputation of criminal intention is not
libelous because intent to commit a crime is not a violation of the law. (People v. Baja) Thus, if it is to be exposed, it is an
imputation of a crime.
But,
imputation of a crime is only one element.
In order to constitute libel, there should be malice which is a more
substantial element.
There
are two kinds of malice: malice in law and malice in fact. Malice in law is a presumption of law which
is raised by the mere utterance. While,
malice in fact is a positive desire and intention to annoy or injure out of ill
will or personal spite.
So
if the ill will is engendered by one’s sense of justice or other legitimate or
plausible motive, such feeling negatives actual malice. [People v. de los Reyes, Jr.]
Error or Mistatements
If
it was published by mistake as when the publisher though it was sent to him for
him to publish. If given an advise by
the sender, a prompt correction or retraction is sufficient to establish
absence of malice. As held in Borjal vs. CA
(1999), “Errors or misstatements are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable care,
the press should not be held to account, to a point of suppression, for honest
mistakes or imperfections in the choice of language. There must be some
room for misstatement of fact as well as for misjudgment. Only by giving
them much leeway and tolerance can they courageously and effectively function
as critical agencies in our democracy.”
Absence
of the Element of Identifiability of the Victim
The
email content contrary to law can be published to any third person without revealing
the sender or making the sender as a blind item which no one can pinpoint with
certainty. This
Distinction Between Absolute
Communication and Conditional Or Qualified Privilege
In absolutely privileged
communications, the occasion is an absolute bar to the action regardless of the
existence of express malice. Whereas, in
cases of conditionally or qualifiedly privileged communications, the law raises
only a prima facie presumption in favor of the occasion and it is conditioned
on the want or absence of express malice.
Otherwise, there can be a remedy for the damages in a civil action for
slander or libel. Conditionally or
qualifiedly privileged communications relates more particularly to private
interests, and comprehends communications made in good faith, without actual
malice, with reasonable or probable grounds for believing them to be true, on a
subject matter in which the author of the communication has an interest, or in
respect to which he has a duty, public, personal, or private, either legal,
judicial, political, moral, or social, made to a person having a corresponding
interest or duty. There must be both an
occasion of privilege and the use of that occasion in good faith [Sison v.
David (1961)] Truth is not a defense,
unless it is shown that the matter charged as libelous was made with good
motives and for justifiable ends.
Absolute Privilege Communication as
Defense in Libel
I can also file a civil or criminal
case against the sender and incorporate the email content as part of the
pleading so that it will constitute as an absolute privilege communication.
Conditionally or Qualifiedly Privilege
Communication as Defense in Libel: Private Communication Made By Any Person To
Another In The Performance Of Any Legal, Moral Or Social Duty
In
order that a private communication, libelous in character, shall be privileged,
certain conditions must exist:
1.
It
must be made in good faith
2.
It
must be made in the performance of a duty, which duty must be legal, moral, or
social; and
3.
It
must be made solely with the fair and reasonable purpose of protecting
a.
The
interests of the person making the communication; or
b.
The
interests of the person to whom the communication is made. [US v. Bustos ( 1909)]
To
reveal the email content to a public officer or police officer moved by a sense
of justice against something contrary to law negates malice in fact. Absence of any utterance but merely showing
it to the appropriate officer, negates malice in law. As such email content is left to the public
officer to investigate as to the source and criminal implication. No such statement, opinion or imputation was
made by me by the mere act of reporting.
In order to prove lack of malice in fact, evidence must be presented
that it was opted to report it silently to the authorized public official for
its proper arrest and redress rather than to have it published in other means
and damaging the reputation of the sender.
Conditionally or Qualifiedly Privilege
Communication as Defense in Libel: Fair And True Report, Made In Good Faith
A
fair and true report, made in good faith, without any comments or remarks, of
any judicial, legislative or other official proceedings which are not of
confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions.
If
the email content which is contrary to law is about a fair and true report of a
judicial, legislative or other official proceedings which are not of
confidential nature or a recopy of a pleading already filed in court, the
charge of libel should be dismissed.
When
the offended party is a public official and the defamatory imputation is
related to the discharge of his official duties, proof of truth is sufficient
for acquittal. This is true even if there
is no imputation of a crime. Proof of
good motives and justifiable ends is also not a requirement. However, the imputation must only be with
regards to his official duties and functions and not of his person.
Conditionally or Qualifiedly Privilege
Communication as Defense in Libel: Fair Comment or Opinion
If
the comment is an expression of an opinion which may be right or wrong, based
upon proven facts and upon reasonable degree of care and on reasonable grounds,
it negates maliciousness.[5] It is merely a viewpoint and not tended to be
injurious. Moreover, since it is based
on facts, third persons can verify and judge it for themselves.
[2] http://www.lawphil.net/judjuris/juri2012/jul2012/gr_193636_2012.html
[4] http://www.gmanetwork.com/news/story/330365/scitech/technology/how-the-data-privacy-act-impacts-phl-businesses
[5] BAGUIO MIDLAND COURIER, et. al. vs. COURT OF APPEALS, et. al., G. R.
NO. 107566, November 25, 2004
