Understanding the Basic Concepts of Intellectual Property Law in the Philippines and its Importance

“Understanding the Basic Concepts of Intellectual Property Law in the Philippines and its Importance”

            What is Intellectual Property Law? How does it work? Who and What IP Law Protects? I personally believe that people gave a little value on protecting their intellectual property not because they are not willing to protect their properties but because of lack of knowledge on how to protect their rights and how to enforce their rights with the help and aid of the Intellectual Property Law.  However, it is very important to know and understand the basic concepts of Intellectual Property Law in the Philippines.

            Republic Act No. 8293 otherwise known as the Intellectual Property Code of the Philippines took effect on June 6, 1997.  Section 2 of said Act provides that “The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act.”

It bears stressing that to obtain protection of one’s intellectual property it is necessary that it should be registered. It is also possible to register them internationally to obtain a wider protection. Once Intellectual Property is registered, the owner of such Intellectual Property is likewise protected in many countries in cases where a particular county and the Philippines are both signatories of International Conventions or Treaties because of reciprocity. The law provides that “  Any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is a party to any convention, treaty or agreement relating to intellectual property rights or the repression of unfair competition, to which the Philippines is also a party, or extends reciprocal rights to nationals of the Philippines by law, shall be entitled to benefits to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of an intellectual property right is otherwise entitled by this Act.”¹

Intellectual property rights consist of one or more of the following terms:

1. Copyright and Related Rights;
2. Trademarks and Service Marks;
3. Geographic Indications;
4. Industrial Designs;
5. Patents;
6. Lay-out Designs (Topographies) of Integrated Circuits; and
7. Protection of Undisclosed Information

What are patentable inventions? Under Sec. 21 of R.A. No. 8293, this term refers to any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable shall be patentable. It may be, or may relate to, a product, or process, or an improvement of any of the foregoing. Furthermore, Sec. 22 of same Law provides for the Non-Patentable Inventions, to wit;

1. Discoveries, scientific theories and mathematical methods;

2. Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers;

3. Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body. This provision shall not apply to products and composition for use in any of these methods; 

4. Plant varieties or animal breeds or essentially biological process for the production of plants or animals. This provision shall not apply to micro-organisms and non-biological and microbiological processes.

5. Aesthetic creations; and

6. Anything which is contrary to public order or morality. 

The key characteristics or the key features of Patent are:

v  Novelty –  an invention shall not be considered new if it forms parts of a prior art.²

v  Inventive step – an invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date of the application claiming the invention.³

v  Industrial applicability – an invention that can be produced and used in any industry shall be industrially applicable.⁴

v  The right to patent belongs to the inventor, his heirs, or assigns to the inventor, his heirs, or assigns. However, when two (2) or more persons have jointly made an invention, the right to a patent shall belong to them jointly.⁵ However, First to file rule also applies.

v  The term of a patent is 20 years from the date of filing the application.

Moreover, Section 24 of R.A. No. 8293 provides that Prior art shall consist of:

 

1. Everything which has been made available to the public anywhere in the world, before the filing date or the priority date of the application claiming the invention; and

 

1. The whole contents of an application for a patent, utility model, or industrial design registration, published in accordance with this Act, filed or effective in the Philippines, with a filing or priority date that is earlier than the filing or priority date of the application

 

 

In addition, Sec. 71 of R.A. No. 8293 provides the exclusive rights conferred up by patent upon its owner. These are:

 

1. Where the subject matter of a patent is a product, to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product;

2. Where the subject matter of a patent is a process, to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process.

            In addition, patent owners shall also have the right to assign, or transfer by succession the patent, and to conclude licensing contracts for the same.⁶ In the absence of any provision to the contrary in the technology transfer arrangement, the grant of a license shall not prevent the licensor from granting further licenses to third person nor from exploiting the subject matter of the technology transfer arrangement himself.⁷ On the other hand, the licensee has the right to exploit the patent during the whole term.

            How about Utility Models? With regards to the registration of the same, it shall expire on the end of the seventh (7^th) year after the date of filing of the application and non-renewable. Some of the provisions under Patent shall also apply to Utility Models. However, when the right to patent conflicts with the right to a utility model registration in the case referred to in Section 29 (first to file rule), the said provision shall apply as if the word “patent” were replaced by the words “patent or utility model registration.”⁸

            Another important category of Intellectual Property is Industrial Design. This term means any composition of lines or colors or any three dimensional form, whether or not associated with lines or colors, provided, that such composition or form gives a special appearance to and can serve as pattern for an industrial product or handicraft. Only industrial design that are new or original shall benefit shall benefit from this Act.⁹ The term of industrial design registration is five (5) years and renewable for not more than two (2) consecutive periods.

            On the other hand, Section 121 of Republic Act No. 8293, the following terms are being defined.

 

1.  “Mark” means any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods;

 

2.  “Collective mark” means any visible sign designated as such in the application for registration and capable of distinguishing the origin or any other common characteristic; including the quality of goods or services of different enterprises which use the sign under the control of the registered owner of the collective mark; 

 

3. “Trade name” means the name or designation identifying or distinguishing an enterprise; 

 

            The rights in a mark shall be acquired through registration made validly in accordance with the provisions of law. However, there are marks that cannot be registered. Among those marks are:

 

1. Immoral, deceptive or scandalous;

 

2. The flag or coat or arms or other insignia of the Philippines or any of its political subdivisions, or of any foreign nation;

 

3. Name, portrait or signature identifying a particular living individual except by his written consent, or the name of a deceased President of the Philippines, during the life of his widow, if any, except by written consent of his widow;

 

4. Identical to those mark that are already registered belonging to a different proprietor; and

 

5. Contrary to public order or morality

           

The registered mark may be renewed for periods of ten (10) years at its expiration upon payment of the prescribed fee and upon filing of a request.¹⁰ What constitutes infringement of registered mark? Any person who use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature that would likely cause confusion, or to cause mistake, or to deceive is liable for infringement of a registered mark.

Another important term under Intellectual Property Law is the Copyright Law. Under the copyright law we need to know the two important terms, namely:  the Original Works and Derivative works.

Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include literary, scholarly, scientific, and artistic works like musical compositions and audio visual works. Derivative works on the other hand consist of dramatizations, adaptations, collections of literary, scholarly or artistic works, and compilations of data. Under Section 213 of R.A. No. 8293, the copyright in works shall be protected during the life of the author and for fifty (50) years after his death. This rule also applies to posthumous works.

            It is important to note that the recitation or performance of a work once it has made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society, and the recording made in schools and universities or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions provided that such recording must be deleted within a reasonable period after they were first broadcast.

Likewise, “the fair use of a work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Recompilation, 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: The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and The effect of the use upon the potential market for or value of the copyrighted work.”¹¹

However,  the afore-cited provision was amended by Section 12 of R.A. No. 10372, and read as follows “the fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of 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 a computer program to achieve the interoperability of an independently created computer program with other programs may also constitute fair use under the criteria established by this section, to the extent that such decompilation is done for the purpose of obtaining the information necessary to achieve such interoperability.

            Upon understanding the International Law of the Philippines, I came up thinking if I am also guilty of infringing the Intellectual Property Law? Maybe almost all of us will say yes. However, almost all of us will also reason out that we are not that familiar of the law. However, as we all know that ignorance of the law excuses no one.

The advent of information technology today, almost all people are very much active in social media. Almost all of us have a facebook account, we access also you tube, yahoo mails, twitter, internet games and the like. Admittedly, we spent too much on social media and we keep on sharing files without thinking of any responsibility or infringement of Intellectual Property Law. As what Professor Lawrence Lessig said that “being obsessed with you tube or game called mine craft like his kids, this go together as an expression of culture and how culture is changing to understand what expression and creativity to be. He this as remix, a time honored tradition of call and response.”

I agree with what Professor Lessig when he said  that we have to find a way to make sure that culture is not so entwined  with the regulation of law and to regulate culture where it make sense and not where it does no good. He also made mention of the doctrine in American Law called the “fair use” where it put the copyright on the defensive. Under that doctrine is that when a particular lawyer who is asserting a right to control a particular use, the defense will say what’s the reason why the respondent should stop remixing the work of the plaintiff. His view is that the capacity to make remix should be a general right, a human right, to take remix and to share but this should be done legally. He further said that Creative Commons is not a solution of that problem but it prepares us for the solution by building and encouraging a certain practice that shows the world exactly what creators actually choose not there lawyers.

Honestly, before I studied the Intellectual Property Law, I am not aware what really constitutes an infringement of Intellectual Property Law. Of course I knew that there exist Intellectual Property like Trademarks, Copyright, Patents and other Intellectual Properties, however, I am not that familiar of how it works. I was amazed upon knowing that when I let other people take a picture of me even using my camera and I uploaded such picture to my facebook account without the consent of the person who took the picture, it already made me a violator of the law. In addition, I thought that when someone is importing a copyright material like a book, you can do so anytime and even you have two (2) copies of such book, however, such allowance of importation was already deleted by the amendments of R.A. No. 8293.

The most important I learned in studying Intellectual Property Code of the Philippines, our own law, and the upon watching the video of Professor Lawrence Lessig is that, people not only students like me but as well as others, like businessmen or entrepreneurs, composers, authors, writers and the like, should learn to assert our own right to protect our Intellectual Property and we should also be responsible enough in using social media as well. We need to share legally, and we need to attribute or respect the original creator of the work. It’s not the question of do we really violate or infringe Intellectual Property law? If so, why nobody is arresting us or calling our attention? But we should always remember that even if you were not called, doesn’t mean that you are not a violator of the Intellectual Property Law.

 

 

 

 

 

 

 

Footnotes

1. Sec. 3, R.A. No. 8293

2. Sec. 23, ibid.

3. Sec. 26, ibid.

4. Sec. 27, ibid.

5. Sec. 28, ibid.

6. Sec. 71.2, ibid.

7. Sec. 89, ibid.

8. Sec. 108.2, ibid.

9. Sec. 113, ibid.

10. Sec. 146, ibid.

11. Sec. 185, ibid.

 

 

THE USE OF COMPETING MARKS IN AN ECLUSIVELY SPONSORED EVENT

If the event is sponsored by Brand A and a non-sponsor brand e.g. Brand B which is a competing brand gives out tickets to such event wherein the recipient of such tickets are expected to wear or use something with a trademark or trade name of Brand B for brand exposure, would there be any violation or are there any liabilities attached against Brand B?

A good and effective marketing strategy is a very important factor for a business to become successful because it is essential that people or the purchasing public will know the brand as well as the products and services offered by a particular business enterprise.

Marketing strategy is the activity or process set by a business enterprise to make their product and services known to public at large. It aims to have a competitive advantage and dominant position in the market.

To help us answer intelligently the abovementioned scenario, we need first to understand some concepts of the law on trademarks, service marks and trade names relative to the abovementioned scenario. Likewise, we also need to analyze if the actuation of Brand B would be punishable under the said law, is Brand B liable for any damages, what are the rights of the trademarks holders, and is the marketing strategy/s made by Brand B allowed under our law. We also need to know and understand the concept of guerilla and ambush marketing.

In order to protect one’s trademark or trade name or a business trademark or trade name, there must be registration and of course market surveillance if the registered mark was used by a third person without the consent of the owner of such registered mark. Therefore, registration confers protection. The owner needs to be protected to the misuse of his designs. Many similar or related products in the market which will lead to an inevitable confusion to the minds of the purchasing public to the extent that some customers had purchased the product of their choice without noticing that such product is a different one until they get to consume it.  

Section 121.1 to Section 121.3 of Republic Act No. 8293 otherwise known as the Intellectual Property Code of the Philippines or the Law on trademarks, service marks, and trade names defines the following terms:

1.      “Mark” is any visible design capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods;

 

2.      “Collective mark” means any visible sign designated as such in the application for registration and capable of distinguishing the origin or any other common characteristic, including the quality of goods or services of different enterprises which use the sign under the control of the registered owner of the collective mark;

 

3.      “Trade name” means the name or designation identifying or distinguishing an enterprise;

The rights in a mark shall be acquired through registration made validly in accordance with the provisions of R. A. 8293. ¹

A certificate of registration shall remain in force for ten (10) years: Provided, That the registrant shall file a declaration of actual use and evidence to that effect, or shall show valid reasons based on the existence of obstacles to such use, as prescribed by the Regulations, within one (1) year from the fifth anniversary of the date of the registration of the mark. Otherwise, the mark shall be removed from the Register by the Office. ²  

The certificate of such registration will be renewable for period/s of ten (10) years of its expiration, provided, that the owner of the trademark shall file a request and shall pay the prescribed fee thereof.

            The owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs or containers for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use, of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.³

The exclusive right of the owner of a well-known mark defined in Subsection 123.1(e) which is registered in the Philippines, shall extend to goods and services which are not similar to those in respect of which the mark is registered: Provided, That use of that mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered mark: Provided, further, That the interests of the owner of the registered mark are likely to be damaged by such use.⁴

Section 155.1 and Section 155.2 of R.A. No. 8293 provides for cases of infringement of a registered mark, to wit;

1. Any person who shall, without the consent of the owner of the register mark use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or

2. any person who shall, without the consent of the registered mark, reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.

The abovementioned violators shall be liable in a civil action for infringement by the registrant and infringement is committed regardless of whether there is actual sale of goods or services using the infringing material.

The owner of a registered mark may recover damages from any person who infringes his rights, and the measure of the damages suffered shall be either the reasonable profit which the complaining party would have made, had the defendant not infringed his rights, or the profit which the defendant actually made out of the infringement, or in the event such measure of damages cannot be readily ascertained with reasonable certainty, then the court may award as damages a reasonable percentage based upon the amount of gross sales of the defendant or the value of the services in connection with which the mark or trade name was used in the infringement of the rights of the complaining party.⁵

The said Act further provides that in cases where actual intent to mislead the public or to defraud the complainant is shown, the court on its discretion of the court may order that the damages to be doubled and an injunction may also granted.

In any suit for infringement, the owner of the registered mark shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is likely to cause confusion, or to cause mistake, or to deceive. Such knowledge is presumed if the registrant gives notice that his mark is registered by displaying with the mark the words “Registered Mark” or the letter R within a circle or if the defendant had otherwise actual notice of the registration.⁶

A person who has identified in the mind of the public the goods he manufactures or deals in, his business or services from those of others, whether or not a registered mark is employed, has a property right in the goodwill of the said goods, business or services so identified, which will be protected in the same manner as other property rights. ⁷

Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor. ⁸

Section 168.3 of R.A. No. 8293 provides that, “In particular, and without in any way limiting the scope of protection against unfair competition, the following shall be deemed guilty of unfair competition:

(a) Any person, who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose;

(b) Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; or

(c) Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another.

            In addition, R.A. 8293 also provides for a criminal penalty of imprisonment from two (2) years to five (5) years and a fine from P50, 000.00 to P200, 000.00 to be imposed on any person who is found guilty of committing of those prohibited acts mentioned under the said law.

            What is the concept or guerrilla marketing and ambush marketing?

                It was said that the original term was coined by Jay Conrad Levinson in his 1984 book “Guerrilla Advertising” which means advertising strategy that focuses on low-cost unconventional marketing tactics that yield maximum results. In addition, said Guerilla marketing has three (3) elements, to wit;

1.      Promotion of the brand at least possible cost

2.      “Strike-anywhere” mentality; and

3.      Maximum impact in favor of the brand

On the other hand, ambush marketing is being defined as a marketing technique or strategy to connect or introduce their product with a particular event in the minds of a purchasing public without the need to pay sponsorship of said event.

Whether or not, the actuations of Brand B will fall within the concept of either guerrilla or ambush marketing, such actuations or actions cannot be considered as prohibited acts or those acts that are considered trademark infringement as being provided under Republic Act No. 8293 otherwise known as the Intellectual Property Code of the Philippines.

            On the liberal side, as an spectator of that sporting event, I believe that the giving out of free tickets to such event which the recipient of such tickets are expected to wear or use something with a trademark or trade name of Brand B for brand exposure has no violation under the Philippine Law on Trademarks, service marks, and trade names  because what is considered as trademark infringement under the said law is when a person without the consent of the owner used in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or same container or a dominant feature thereof which would likely cause confusion, mistake, or deception upon the purchasing public.

            Therefore, Brand B did not commit any Trademark infringement. We knew for a fact that sponsorship in a sporting event involves a large amount of money and it is one of the marketing strategies employed by large and successful firms to maintain a dominant position or status in the market. However, small business enterprises, which do not have enough capital or money cannot afford to sponsor such similar event, must be given equal business opportunities to introduce their product in the market to help their business grow and achieve a dominant position in the market. In addition, almost all large firms have started from being small ones, and so it would be just that they should also give the small business enterprise the opportunity to at least promote their product or brand.

            Futhermore, there is no liability attached upon Brand B who gave those tickets to the spectators even if by giving those tickets the latter is expected to wear or use something with a trademark or trade name of Brand B. No liability on the part of Brand B regardless of the fact that its brand is a competing brand of Brand A for the reason that Brand B has no contract with the event organizer nor with Brand A. Of course it would be a different scenario if before hand it was announced to the public or to those who purchases the ticket or clearly indicated on the ticket a prohibition to that effect.

            Article 22 of the Civil Code provides that, “ Every person who through an act or performance by another, or any other means, acquires or comes into possession of something  at the expense of the latter without just cause or legal ground shall return the same to him.” This provision speaks of unjust enrichment. However, I think this provision on unjust enrichment will not be applicable in the scenario given because Brand B had purchased the tickets with the intention to give to others and in return those who were given tickets will wear or use something containing his brand. Therefore, Brand B did not unjustly enrich himself at the expense of Brand A, and besides there is no law punishing the acts of Brand B. As we all know that when there is no law prohibiting such acts, then a person cannot be held civilly or criminally liable.

            Likewise, being a spectator or a recipient of that ticket/s given by Brand B to watch the sporting event sponsored by Brand A with a condition that he should wear or use something with a trade name or trade mark of Brand B has also no liability with Brand A nor with the event organizer because the ticket did not show any prohibition to that effect. As along as a person has the ticket, he has then the right to enter in the venue and watch the sporting event.  

            However, I believe that Brand A has recourse on the sporting event organizer. Though it will not fall under the infringement of registered trademarks, service names, or trade names under Republic Act No. 8239, otherwise known as the Intellectual Property Code of the Philippines, Brand A will be entitled to recover damages or any other recourse would be available in favor of Brand A as against such sporting event organizer. Brand A has paid a large amount of money to sponsor the event with the understanding that his product or services will be promoted. Even if there is no express stipulation in the contract as between Brand A and the sporting event organizer as to the exclusivity of the event, it is implied that Brand A will be the only brand on a particular line of product that would be promoted, otherwise, he would not have invested large amount of money just to sponsor such event. Unless the contract itself has an express stipulation with regards to non-exclusivity wherein competing brands will be allowed also to promote on such event.

            The organizer of the sporting event will then be liable for damages for breach of contract because it is implied in the scenario that there was a contract between Brand A and the organizer of the sporting event for the exclusivity of Brand A to promote to the exclusion of all other brands on the same line of product. As what is being stated in Article 1305 of the Civil Code that, “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.” It is very clear from that provision that there is already a contract even just by meeting of the minds between two persons and there is no need to execute a document in writing to have a contract.

            As a result of the breach of contract, Brand A will be entitled to damages as against the organizer of the sporting event. Article 1170 of the Civil Code provides that, “those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages.”

            I personally believe that the amount paid by Brand A to sponsor the sporting event is a property right, therefore, it needs to be protected. As a property right, it therefore has the right against the organizer of the sporting event.

            Section 1, Article III of the 1987 Constitution provides that, “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”

            The Human Relations provision specifically Art. 19 of the Civil Code were likewise violated by the organizer of the sporting event. This Article provides that, “Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.”

           

           

 

 

 

_______________________________________________________________________________

FOOTNOTES

^1. Sec. 122, Republic Act 8293, otherwise known as the Intellectual Property Code of the Philippines

^2. Sec. 124, ibid.

^3. Sec. 147.1, ibid.

^4. Sec. 147.2, ibid.

^5. Sec. 156.1, ibid.

^6. Sec. 158, ibid.

^7. Sec. 168.1, ibid.

^8. Sec. 168.2, ibid.

“People: The Key of a Country’s Economic Prosperity”

What is “Economic Prosperity”? In a Country or State that is enjoying economic prosperity, to whom merit is attributed or who is the source of economic prosperity of one’s country?

Some people said that in order for a Country or State to be economically prosperous, the government must do its obligations by providing work and a source of livelihood upon their inhabitants, providing free and affordable education with a good educational system, and of course, providing the excellent service to its countrymen. They believe that a country will only be economically prosperous because of the government.  The government is the one providing and protecting the needs of the people. The one making projects for the people like bridges and other infrastructures. The one encouraging investors to come in our county to invest here so that there will be employment for its people. The government  is the one responsible for developing the country’s economic resources. They believe that if a country will become economically prosperous, it is because of the good leadership of those public officials in the government. Therefore, the government deserves the merit for the economic prosperity of one’s country.

However, other people is of the opinion that merit of a country’s economic prosperity should be attributed upon its inhabitants because they are the primary reason why the State became economically prosperous. People’s awareness in the society coupled with hard work and love for the country is the key for the country’s economic development and prosperity.

To resolve or to reconcile the issues and the different views or perspectives, we need first to understand certain matters relative to the issue. This includes knowing and understanding the following terms and matters:

1. What is State;
2. What are the essential elements of a State;
3. What is economic prosperity;
4. When should a country be considered as economically prosperous; and
5. Other circumstances and factors that will help us answer and resolve the issues intelligently.

What is a State? “State is a community of persons, more or less numerous, permanently occupying a fixed territory, and possessed of an independent government organized for political ends to which the great body of inhabitants render habitual obedience.”¹

There are four (4) essential elements in order to be considered as State. These are:

 

1.      People;

 

2.      Territory;

 

3.      Government; and

 

4.      Sovereignty

 

Is State and government the same? The State is different from government because the government is only an element of the State. “The State is the principal, the government its agent. The State itself is an abstraction; it is the government that externalizes the State and articulates its will.” ² People on the other hand, simply means the inhabitants of the State.

What is economic prosperity? Economic prosperity is said to be a relative term. It refers to the country’s prosperity as a whole where every people have sufficient income that could satisfy their needs and even have an extra money or income to have a savings. A situation where there is an improved standard of living of the people of a particular country.  It is also a situation when the employment rate is high or people have jobs that suit their skills, experience and other qualifications, but it doesn’t mean that all people must have jobs. A situation where a good educational system and those who wanted to study can afford to educate themselves or has an access to a free education but the quality of education will not be compromised.

Is it possible that one (1) day we can finally say that at last our country, the Philippines, is now enjoying economic prosperity or is economically prosperous?

 With the major problems that the Philippines are facing today, even the young generations are very much aware that our country has a hard time to gain or obtain economic prosperity. Some of the major problems of our country are:

1. Corruption in the government;
2. Heavy traffic especially in Metro Manila;
3. Floods every time rains even there is no typhoon;
4. Poor educational system and many people cannot afford to go to school and educate themselves;
5.  Many places in the country still have no access to electricity
6. High crime rates;
7. Poverty;
8. Drugs;
9. High unemployment rate;
10. Foreign investors are reluctant to invest or put up business in our country for many reasons and circumstances.

Just a few a days ago, the most important issue that struck us was about the pork barrel scam or also known as a Priority Development Assistance Fund or PDAF, in short. Though, we know for a fact that the corruption rate in the government is too high, it is still very alarming and disgusting that the persons whom we entrust the country’s future and economic prosperity are the ones liable for destroying or ruining our country’s future. The lawmakers of country are being accused of corruption and allegedly misusing the government’s fund or public funds. The funds that are to be used for infrastructure and services badly needed by the people especially the poor ones were just being used by the politicians for their own use. It just ends up in their own pockets. Politicians were just using those poor people like farmers to justify the allocation of funds. 

Those events have gain public outraged that even lead to the so called the Million People March in Luneta. The people who attended and occupied that event in the main ground of the historic park were unaffiliated groups and individuals, families and friends who where there to show their opposition to the decades-old corruption through the misuse and abuse of pork barrel or the PDAF that were allocated to our lawmakers.

Reports said that such amount is just a small part or small amount compared to other items in the budget and even executive department or the President itself has it own discretionary funds. I, personally as a working student and as a taxpayer have the same thoughts and sentiments with those people who attended that event. It’s hurting that we pay taxes religiously to support our government and yet those people whom we entrust to lead our country were using it rampantly and without fear of any accountability on their part. For that reasons therefore it is only equitable and fair that the Priority Development Assistance Fund (PDAF) of lawmakers as well as the executive branch have to be abolished and the other government funds should also be scrutinized.  

In addition, our country is also facing the problem about territory disputes especially the claim on West Philippine Sea. Article 1 of the 1987 Constitution provides, “The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimension, form part of the internal waters of the Philippines.”

Under paragraph 1 of Sec. 1, Article 2 of the United Nations Convention on the Law of the Sea (UNCLOS), “The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, it archipelagic waters, to an adjacent belt of sea, described as the territorial sea. Article 3 of UNCLOS provides, “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”

In Addition, Article 57 of the UNCLOS provides that the exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. It appears from above provisions that it is the Philippines that owned the West Philippine Sea, however, we should also admit the fact that our county cannot fully defend our own territory.

“Supreme Court Senior Associate Justice Antonio Carpio called on the government yesterday to use next year’s pork barrel to buy warships to help deter China’s intrusion into Philippine claimed territories in the West Philippine Sea. Speaking to reporters after a speech before the Philippine Bar Association in Makati, Carpio said the Philippines enough funds to buy weapons for self defense but lacks the political will to do so. We have to admit that as a nation we have neglected to maintain a credible defense force, particularly our naval assets, despite us being an archipelagic country with an extensive coastline and a vast exclusive economic zone” he said. ³ He further said that he believes that our claim over the West Philippine Sea will be favored by the International Tribunal on the Law of the Sea (ITLOS).

Massive flooding is also a major problem of our country.  Just a week ago, heavy monsoon rains brought by typhoon “Maring,” battered the Philippines for four (4) successive days, caused massive flooding in Metro Manila and surrounding provinces like Laguna, Cavite, Bulacan, Marikina and Pampanga, killing at least 15 people and forcing thousands of families to flee their homes. Hundred thousands of Filipino people have sought shelter in evacuation centers.

Unemployment rate is also a major problem of our country. We can see a lot of Filipino people who are jobless and the increasing number of street children. It was said that the Philippine employment rate has increased from 7.50 percent in the first quarter of 2013 from 7.10 percent in the fourth quarter of 2012.

There are many reasons of the increasing job rate in our country. Among of those reasons are:

1. Oversupply of labor force on popular careers;
2. Lack of quality graduates;
3. Inability to take on available jobs because lack of the required skills and experience needed for the job offered;
4. Lack of education;
5. Lack of opportunities, and
6. Lack of investors who are willing to invest in our country

However, despite these major problems, Philippines continues to stand us a nation for the people and the people in return never stops to doing their obligations and supporting their government like paying taxes for the sustenance of the government, being a responsible citizens, and in the case of Overseas Contract Workers (OFW) by regular dollar remittances.

As a matter of fact, the Secretary General of the NSCB stated that “the Philippines sprinted to a fourth consecutive quarter of above seven (7) percent expansion in the April-June period to match China as the fastest-growing economy in Asia. The National Statistical Coordination Board (NSCB) reported that the 7.5 percent gross domestic product (GDP) growth in the second quarter topped the 7.2 percent median forecast by analyst as well as the 6.3 percent pace recorded a year ago. The growth came mainly from consumer and public spending, buttressed by increased investments in fixed capital.” ⁴

It is said that the countries in the world that have become prosperous fall into two (2) categories, namely:

 

1. First: nations that has valuable natural resource

 

2. Second: nations that have educated citizens lead into prosperity.

 

Under the first category are those countries that are fortunate enough to have large reserves of natural resources like gold, oil, rich in farmland and so on. The second category includes those countries that have educated citizens.

 

To what category our country belongs? I think Philippines belong to both categories. Philippines as a country has rich natural resources. Though it is not a petroleum-rich country, but its land is still full of many valuable minerals. There are metal deposits and nonmetal minerals in the ground. Nickel is the most abundant deposit while iron and copper are also present in significant amounts.

 

Philippines has many beautiful places that are internationally competitive as tourist destinations. It was said that among the top tourist destinations of the Philippines are:

 

1. Banaue Rice Terraces carved from the mountain ranges about 2,000 years ago by the Ifugao tribes;

 

2. Boracay located in Aklan;

 

3. Chocolate Hills that are consist of at least 1,268 individual mounds scattered throughout the interior island of Bohol;

 

4. Puerto Princesa’s Underground River that is considered as the nature lover’s paradise;

 

5. Puerto Galera’s beaches; and

 

6. Mayon Volcano

 

Worthy is to note that the most valuable resource of the Philippines is its people. Aside from those natural resources, the Filipinos are the most important or valuable resource of the Philippines. Our country is composed of numerous educated people.  Natural resources are being utilized and developed based on the creativity, intelligence, etc. of the people. People serve as the driver to fully utilize those resources because no matter how abundant and rich the natural resources of one’s country all will be nothing without the human resource. People are the basis of economic development of one’s country that is why the Filipino overseas workers were even regarded by the government as our new heroes.

 

We should not forget the role of education to a nation’s prosperity, the role of education in creating the nation’s citizens to fully understand on how they could help the nation to prosper and how democracy works in our country.  In addition, we should not forget the role of education in creating responsible citizens on one’s country. Education improves our economy because educated citizens of the State will become more productive workers.

It is said that countries that want to become great, developed, and economically prosperous is predicated upon the creation of a system of high-quality education upon its citizens. Among the countries that have an impressive economic growth because of their excellent education system are Japan, China, and Taiwan.

 

            In addition, majority of the citizens of the Philippines strive hard not only to become educated people but we also strive to become financially stable. As a matter of fact, many Filipinos have opted to work abroad to earn more than what our country can provide them. Though it is true that our government protects its citizens, however, it efforts are not sufficient enough to help its own citizens to prosper. Majority of the government leaders are more interested in enhancing and advancing their own interest than prioritizing the needs of the people especially the poor ones.

 

            I, personally believe that it is the people that really plays a very important role in economic prosperity of the Philippines and of course people also need the help of the government. However, the citizens will be the primary participants for its economic development and prosperity.  Therefore, if the time comes when our country will be enjoying economic prosperity; it would be fair that accomplishment or merit should be attributed to us, its inhabitants.

 

 

 

 

 

 

 

 

 

Footnotes:

^1. Philippine Political Law, Cruz, p. 14, 2002 ed.

^2. Philippine Political Law, Cruz, p. 15, 2002 ed.

^3. The Philippine Star News, written by Mike Frialde, p. 2, August 30, 2013

^4. The Philippine Star News, written by Ted P. Torres, p. B-1, August 30, 2013

The Act of Giving a Third person’s Contact Number  without his consent is not a violation of Republic Act No. 10173  or Otherwise Known as the Data Privacy Act of 2012

Today, innovations in information  technology has a wide-ranging effect especially with regards to the private or privileged information that was being disclosed to third persons without the consent of the person who owned or who was the subject of such disclosure. Private, privileged, or sensitive information in confidence to third person or to government agencies or private companies were being disclosed or made available to interested third persons without the consent of the person who own such information or who can be identified by such information. This is the problem that is to be sought minimized, if not eliminated, by the passing of R.A. No. 10173.

Republic Act No. 10173 is an Act protecting individual personal information in information and communications system in the government and the private sector, creating for this purpose a national privacy commission, and for other purposes. This law was signed by President Benigno S. Aquino III and took effect on August 15, 2012. 

To better understand this law, we need to know the purpose or purposes or intention of Congress for enacting this law. We also need to know the exact meaning of word or words as being used under this law to somehow enlighten us, the acts that would be considered or would constitute a violation of this law, who are task by the our government to implement this law, and of course, what are the penalties provided for the violations of this law.

In the declaration of policy of this law, it is stated that, “the policy of the State to protect the fundamental human right of privacy of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communication systems in the government and in the private sector are secured and protect.”¹

At present, we cannot deny the fact, that the existence of advanced information technology really plays a very important role as a nation. It may be used by other nation or persons as a gauge of how developed a nation is. However, although the State recognizes this vital role of information technology in the nation building, it may always use and implement its inherent police power to protect its people by ensuring that personal information in information and communications systems in the government and in the private sector are secured and protected.

In addition, we need to know the meaning of some words and how it is being used under this law to enable us to know if whether a particular act would constitute a violation of the said law or not. Among the terms are:

1. Commission shall refer to the National Privacy Commission created by virtue of this Act.² 

 

The National Privacy Commission or simply termed as Commission under this Act, is the one entrusted by our State or government to administer and implement the provisions of Republic Act No. 10173 or otherwise known as the Data Privacy Act of 2012. The Commission as an independent body is tasked to monitor and ensure compliance of the country with international standards set for data protection.

 

The Commission is composed of 3 persons, namely: the Privacy Commissioner and two (2) Deputy Privacy Commissioners. The Privacy Commissioner shall be the one to act as a Chairman of the Commission and he will be assisted by those two (2) Deputy Commissioners, one who will be responsible for Data Processing Systems and the other is responsible for Policies and Planning. They are appointed by the President of the Philippines for a term of three (3) years, and may be reappointed for another term of three (3) years.

2. Consent of data subject refers to any freely given specific, informed indication of will, whereby the data subject agrees to the collection and processing of personal information about and/or relating to him or her.³

 

The law likewise provides that consent of the data subject shall be evidenced by written, electronic or recorded means and may also be given on behalf of the data subject by an agent specifically authorized by the data subject to do so.

 

3. Data subject refers to an individual whose personal information is processed.⁴

 

4. Information and Communication System refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar device by or which data is recorded, transmitted or stored and any procedure related to the recording, transmission or storage of electronic data, electronic message, or electronic document.⁵

 

5. Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.⁶

 

6. Privileged information refers to any and all forms of data which under the Rides of Court and other pertinent laws constitute privileged communication.⁷

 

7. Sensitive personal information refers to personal information about an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations. It also refers to an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings. It is likewise refers to those issued by government agencies peculiar to an individual peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, tax returns, and those specifically established by an executive order or an act of Congress to be kept classified.⁸

 

            In addition, under Sec. 4 of the Data Privacy Act of 2012 provides that “this Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines or those who maintain an office, branch or agency in the Philippines.

 

            However, it is worthy to note, that this Act shall not apply to any individual who is or was an officer or employee of the government institution that relates to the position of functions of the individual, including the title, business address, and office telephone number of the individual.

 

            The processing of personal information shall be allowed, subject to compliance with the requirements of R. A. No. 10173 and other laws allowing disclosure of information to the public and adherence to the principles of transparency, legitimate purpose and proportionality. ⁹

 

            Under Sec. 5 of this Act, the Journalist are still afforded of the protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.

 

Under Sec. 12 of the said Act or the Criteria for lawful processing of personal information provides that “the processing of information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:

 

1. the data subject has given his or his consent;

 

2. the processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract;

 

3. the processing is necessary for compliance with a legal obligation to which the personal information controller is subject;

 

4. the processing is necessary to protect vitally important interest of the data subject, including life and health;

 

5. the processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or

 

6. the processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a 3^rd party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.

 

Section 16 of the same Act likewise provides the rights of the data subject. These are:

 

1. Be informed whether personal information pertaining to him or her shall be, are being or have been processed;

 

2. be furnished the information indicated hereunder before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity;

 

3. Reasonable access to, upon demand of the following: contents of his or her personal information that were processed, sources from which personal information were obtained, names and addresses of recipients of the personal information, manner by which such data were processed; reasons for the disclosure of the personal information to recipients, information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the data subject, the designation, or name or identity and address of the personal information controller;

 

4. Dispute the inaccuracy or error in the personal information and have the personal information controller correct it immediately and accordingly, unless vexations or otherwise unreasonable.

 

5. Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected; and

 

6. To be indemnified for any damages for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

 

The rights of the data subject as provided under the Data Privacy Act may also invoke by the lawful heirs and assigns of the data subject after the death of the data subject or when the data subject is incapacitated or incapable of exercising the rights as enumerated. However, those rights cannot be invoked if the processed personal information is used only for the needs of scientific and statistical research and, on the basis of such, no activities are carried out and no decisions are taken regarding the data subject. Provided, that the personal information shall be held under strict confidentiality and shall be used only for the declared purpose.

 

Some of the penalties provided for under this Act are:

 

1. For unauthorized processing of personal information and sensitive personal information – imprisonment from 1 year to 3 years and a fine of not less than Php500,000.00 but not more than Php2,000,000.00;

 

2. For unauthorized processing of personal sensitive information – imprisonment from 3 years to 6 years and a fine of not less than Php500,000.00 but not more than Php4,000,000.00;

 

3. for Accessing personal information due to negligence – imprisonment from 1 year to 3 years and a fine of not less than Php500,000.00 but not more than Php2,000,000.00;

 

4. Accessing sensitive personal information due to negligence – imprisonment ranging from 3 years to 6 years and a fine of not less than Php500, 000.00 but not more than Php4,000,000.00;

 

5. Malicious disclosure – imprisonment from 1 year and 6 months to 5 years and a fine of not less than Php500,000.00 but not more than Php1,000,000.00; and

 

6. Unauthorized disclosure – imprisonment from 1 year to 3 years and a fine of not less than Php500,000.00 but not more than Php1,000,000.00.

 

7. Combination or series of acts as defined in Sec. 25 to 32 of this Act – imprisonment from 3 years to 6 years and a fine of not less than Php1,000,000.00 but not more than Php5,000,000.00.

 

8. Large Scale or when the personal information is at least 100 persons is harmed, affected or involve as the result of the above mentioned actions – maximum penalty shall be imposed.

 

The extent of liability herein provided is that, “if the offender is a corporation, partnership or any juridical person, the penalty shall be imposed upon the responsible officers, as the case may be, who participated in, or by gross negligence, allowed the commission of the crime. If the offender is a juridical person, the court may suspend or revoke any of its rights under this Act. If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings after serving the penalties prescribed. If the offender is a public official or employee and lie or she is found guilty of acts penalized under Sections 27 and 28 of this Act, he or she shall, in addition to the penalties prescribed herein, suffer perpetual or temporary absolute disqualification from office, as the case may be.”¹⁰

 

            To this far, after knowing the important aspects and the acts that would make a person a violator of the Data Privacy Act, it is very clear that the issue of whether or not the giving of someone’s contact number without his consent does not make him liable nor a violator of the said Act.

 

            The reasons behind to support this conclusion are:

 

First: Personal information as being defined under the Data Privacy Act is broader than what we simply understood or what the layman’s term or normally used.

 

Under the Data Privacy Act, Personal information is being defined 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. However, the personal information as we have usually understood and what is being defined in dictionaries, refers to any information about a living person that is factual in nature about his or her personal life. This includes, but is not limited to names, birthdays, telephone numbers, and social security.

 

However, although we consider our own contact numbers whether it may be a cell phone number or land line number, as personal information, it doesn’t mean that your contact number will make your identity apparent or will certainly identify you as an individual. Because if it happens that a person gave to a third person the number of someone without the consent of the person who owns such number, the third person to whom the number was given will not know what really was the true identity of the owner of such  number. Unless, the third person who is in possession of the number will call or contact the owner and ask him or her other information that would reveal his true identity and the owner will also answer what is being asked by the caller, it is only then, that his or her identity will be identified. To sum up, it is  not really the giving or having someone’s number without the latter’s consent that will identify him as an individual but rather it will only be an initial step of knowing the identity of the person by asking him another personal information.

           

To illustrate this scenario: Jason asked John to give him the number of Ana, who happens to be John’s neighbor. John gave him Ana’s number without the consent of the latter.  Certainly, in this illustration they are not liable to be in violation of Data Privacy Act of 2012, because the giving of someone’s contact number is not one of the prohibited acts under the Data Privacy Act. If it happens that Jason called up Ana and asked some question which are personal in nature and so it is already up to Ana if he will answer those question. Therefore, the giving of Ana’s number without her consent is only a preliminary step to know more about her. Therefore, Jason and John will not be liable under this Act.

 

Second: The act of giving the third person’s number without the consent of the owner is not one of the prohibited acts under this Act. The Scope of the Data Privacy Act of 2012 as provided in Sec.4 only applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing those personal information controllers and processors.

 

We have learned in Statutory Construction, specifically in the interpretation of statutes the latin term Expressio unius est exclusio alterius. This Latin phrase means express mention of one thing excludes all others. The phrase indicates that items not on the list are assumed not to be covered by the statute or when something is mentioned expressly in a statute it leads to the presumption that the things not mentioned are excluded. This is an aid to construction of statutes. Moreover, since, the third person’s number is not classified as personal information as being defined under this Act, therefore, the act of giving a third person’s number is not a violation under the Data Privacy Act.

 

            Therefore, we must remember that although the giving of third persons’ number without his consent would not constitute a violation of the Data Privacy Act, we should still be mindful and responsible enough that the contact numbers entrusted to us will not be used by others in a way that will somehow harass or disturb the person who owns the number. Therefore, it is better to have the owner’s consent first before giving his number. Obtaining his consent, likewise, shows that you respect the latter. If it happens that you cannot obtain his consent first before giving his number, as a sign of courtesy and respect, you should inform him as soon as possible that somebody asked his number.

 

 

 

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­_____________________________________________________________________________________

Footnotes:

^1.Sec. 2 of Republic Act No. 10173

^2. Sec. 3 (a) of Republic Act No. 10173

^3. Sec. 3 (b) of Republic Act No. 10173

^4. Sec. 3 (c) of Republic Act No. 10173

^5. Sec. 3 (f) of Republic Act No. 10173

^6. Sec. 3 (g) of Republic Act No. 10173

^7. Sec. 3 (k) of Republic Act No. 10173

^8. Sec. 3 (l) of Republic Act No. 10173

^9. Sec. 11 of Republic Act No. 10173

The Act of Giving a Third person’s Contact Number  without his consent is not a violation of Republic Act No. 10173  or Otherwise Known as the Data Privacy Act of 2012

Today, innovations in information  technology has a wide-ranging effect especially with regards to the private or privileged information that was being disclosed to third persons without the consent of the person who owned or who was the subject of such disclosure. Private, privileged, or sensitive information in confidence to third person or to government agencies or private companies were being disclosed or made available to interested third persons without the consent of the person who own such information or who can be identified by such information. This is the problem that is to be sought minimized, if not eliminated, by the passing of R.A. No. 10173.

Republic Act No. 10173 is an Act protecting individual personal information in information and communications system in the government and the private sector, creating for this purpose a national privacy commission, and for other purposes. This law was signed by President Benigno S. Aquino III and took effect on August 15, 2012. 

To better understand this law, we need to know the purpose or purposes or intention of Congress for enacting this law. We also need to know the exact meaning of word or words as being used under this law to somehow enlighten us, the acts that would be considered or would constitute a violation of this law, who are task by the our government to implement this law, and of course, what are the penalties provided for the violations of this law.

In the declaration of policy of this law, it is stated that, “the policy of the State to protect the fundamental human right of privacy of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communication systems in the government and in the private sector are secured and protect.”¹

At present, we cannot deny the fact, that the existence of advanced information technology really plays a very important role as a nation. It may be used by other nation or persons as a gauge of how developed a nation is. However, although the State recognizes this vital role of information technology in the nation building, it may always use and implement its inherent police power to protect its people by ensuring that personal information in information and communications systems in the government and in the private sector are secured and protected.

In addition, we need to know the meaning of some words and how it is being used under this law to enable us to know if whether a particular act would constitute a violation of the said law or not. Among the terms are:

1. Commission shall refer to the National Privacy Commission created by virtue of this Act.² 

 

The National Privacy Commission or simply termed as Commission under this Act, is the one entrusted by our State or government to administer and implement the provisions of Republic Act No. 10173 or otherwise known as the Data Privacy Act of 2012. The Commission as an independent body is tasked to monitor and ensure compliance of the country with international standards set for data protection.

 

The Commission is composed of 3 persons, namely: the Privacy Commissioner and two (2) Deputy Privacy Commissioners. The Privacy Commissioner shall be the one to act as a Chairman of the Commission and he will be assisted by those two (2) Deputy Commissioners, one who will be responsible for Data Processing Systems and the other is responsible for Policies and Planning. They are appointed by the President of the Philippines for a term of three (3) years, and may be reappointed for another term of three (3) years.

2. Consent of data subject refers to any freely given specific, informed indication of will, whereby the data subject agrees to the collection and processing of personal information about and/or relating to him or her.³

 

The law likewise provides that consent of the data subject shall be evidenced by written, electronic or recorded means and may also be given on behalf of the data subject by an agent specifically authorized by the data subject to do so.

 

3. Data subject refers to an individual whose personal information is processed.⁴

 

4. Information and Communication System refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar device by or which data is recorded, transmitted or stored and any procedure related to the recording, transmission or storage of electronic data, electronic message, or electronic document.⁵

 

5. Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.⁶

 

6. Privileged information refers to any and all forms of data which under the Rides of Court and other pertinent laws constitute privileged communication.⁷

 

7. Sensitive personal information refers to personal information about an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations. It also refers to an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings. It is likewise refers to those issued by government agencies peculiar to an individual peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, tax returns, and those specifically established by an executive order or an act of Congress to be kept classified.⁸

 

            In addition, under Sec. 4 of the Data Privacy Act of 2012 provides that “this Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines or those who maintain an office, branch or agency in the Philippines.

 

            However, it is worthy to note, that this Act shall not apply to any individual who is or was an officer or employee of the government institution that relates to the position of functions of the individual, including the title, business address, and office telephone number of the individual.

 

            The processing of personal information shall be allowed, subject to compliance with the requirements of R. A. No. 10173 and other laws allowing disclosure of information to the public and adherence to the principles of transparency, legitimate purpose and proportionality. ⁹

 

            Under Sec. 5 of this Act, the Journalist are still afforded of the protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.

 

Under Sec. 12 of the said Act or the Criteria for lawful processing of personal information provides that “the processing of information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:

 

1. the data subject has given his or his consent;

 

2. the processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract;

 

3. the processing is necessary for compliance with a legal obligation to which the personal information controller is subject;

 

4. the processing is necessary to protect vitally important interest of the data subject, including life and health;

 

5. the processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or

 

6. the processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a 3^rd party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.

 

Section 16 of the same Act likewise provides the rights of the data subject. These are:

 

1. Be informed whether personal information pertaining to him or her shall be, are being or have been processed;

 

2. be furnished the information indicated hereunder before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity;

 

3. Reasonable access to, upon demand of the following: contents of his or her personal information that were processed, sources from which personal information were obtained, names and addresses of recipients of the personal information, manner by which such data were processed; reasons for the disclosure of the personal information to recipients, information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the data subject, the designation, or name or identity and address of the personal information controller;

 

4. Dispute the inaccuracy or error in the personal information and have the personal information controller correct it immediately and accordingly, unless vexations or otherwise unreasonable.

 

5. Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected; and

 

6. To be indemnified for any damages for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

 

The rights of the data subject as provided under the Data Privacy Act may also invoke by the lawful heirs and assigns of the data subject after the death of the data subject or when the data subject is incapacitated or incapable of exercising the rights as enumerated. However, those rights cannot be invoked if the processed personal information is used only for the needs of scientific and statistical research and, on the basis of such, no activities are carried out and no decisions are taken regarding the data subject. Provided, that the personal information shall be held under strict confidentiality and shall be used only for the declared purpose.

 

Some of the penalties provided for under this Act are:

 

1. For unauthorized processing of personal information and sensitive personal information – imprisonment from 1 year to 3 years and a fine of not less than Php500,000.00 but not more than Php2,000,000.00;

 

2. For unauthorized processing of personal sensitive information – imprisonment from 3 years to 6 years and a fine of not less than Php500,000.00 but not more than Php4,000,000.00;

 

3. for Accessing personal information due to negligence – imprisonment from 1 year to 3 years and a fine of not less than Php500,000.00 but not more than Php2,000,000.00;

 

4. Accessing sensitive personal information due to negligence – imprisonment ranging from 3 years to 6 years and a fine of not less than Php500, 000.00 but not more than Php4,000,000.00;

 

5. Malicious disclosure – imprisonment from 1 year and 6 months to 5 years and a fine of not less than Php500,000.00 but not more than Php1,000,000.00; and

 

6. Unauthorized disclosure – imprisonment from 1 year to 3 years and a fine of not less than Php500,000.00 but not more than Php1,000,000.00.

 

7. Combination or series of acts as defined in Sec. 25 to 32 of this Act – imprisonment from 3 years to 6 years and a fine of not less than Php1,000,000.00 but not more than Php5,000,000.00.

 

8. Large Scale or when the personal information is at least 100 persons is harmed, affected or involve as the result of the above mentioned actions – maximum penalty shall be imposed.

 

The extent of liability herein provided is that, “if the offender is a corporation, partnership or any juridical person, the penalty shall be imposed upon the responsible officers, as the case may be, who participated in, or by gross negligence, allowed the commission of the crime. If the offender is a juridical person, the court may suspend or revoke any of its rights under this Act. If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings after serving the penalties prescribed. If the offender is a public official or employee and lie or she is found guilty of acts penalized under Sections 27 and 28 of this Act, he or she shall, in addition to the penalties prescribed herein, suffer perpetual or temporary absolute disqualification from office, as the case may be.”¹⁰

 

            To this far, after knowing the important aspects and the acts that would make a person a violator of the Data Privacy Act, it is very clear that the issue of whether or not the giving of someone’s contact number without his consent does not make him liable nor a violator of the said Act.

 

            The reasons behind to support this conclusion are:

 

First: Personal information as being defined under the Data Privacy Act is broader than what we simply understood or what the layman’s term or normally used.

 

Under the Data Privacy Act, Personal information is being defined 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. However, the personal information as we have usually understood and what is being defined in dictionaries, refers to any information about a living person that is factual in nature about his or her personal life. This includes, but is not limited to names, birthdays, telephone numbers, and social security.

 

However, although we consider our own contact numbers whether it may be a cell phone number or land line number, as personal information, it doesn’t mean that your contact number will make your identity apparent or will certainly identify you as an individual. Because if it happens that a person gave to a third person the number of someone without the consent of the person who owns such number, the third person to whom the number was given will not know what really was the true identity of the owner of such  number. Unless, the third person who is in possession of the number will call or contact the owner and ask him or her other information that would reveal his true identity and the owner will also answer what is being asked by the caller, it is only then, that his or her identity will be identified. To sum up, it is  not really the giving or having someone’s number without the latter’s consent that will identify him as an individual but rather it will only be an initial step of knowing the identity of the person by asking him another personal information.

           

To illustrate this scenario: Jason asked John to give him the number of Ana, who happens to be John’s neighbor. John gave him Ana’s number without the consent of the latter.  Certainly, in this illustration they are not liable to be in violation of Data Privacy Act of 2012, because the giving of someone’s contact number is not one of the prohibited acts under the Data Privacy Act. If it happens that Jason called up Ana and asked some question which are personal in nature and so it is already up to Ana if he will answer those question. Therefore, the giving of Ana’s number without her consent is only a preliminary step to know more about her. Therefore, Jason and John will not be liable under this Act.

 

Second: The act of giving the third person’s number without the consent of the owner is not one of the prohibited acts under this Act. The Scope of the Data Privacy Act of 2012 as provided in Sec.4 only applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing those personal information controllers and processors.

 

We have learned in Statutory Construction, specifically in the interpretation of statutes the latin term Expressio unius est exclusio alterius. This Latin phrase means express mention of one thing excludes all others. The phrase indicates that items not on the list are assumed not to be covered by the statute or when something is mentioned expressly in a statute it leads to the presumption that the things not mentioned are excluded. This is an aid to construction of statutes. Moreover, since, the third person’s number is not classified as personal information as being defined under this Act, therefore, the act of giving a third person’s number is not a violation under the Data Privacy Act.

 

            Therefore, we must remember that although the giving of third persons’ number without his consent would not constitute a violation of the Data Privacy Act, we should still be mindful and responsible enough that the contact numbers entrusted to us will not be used by others in a way that will somehow harass or disturb the person who owns the number. Therefore, it is better to have the owner’s consent first before giving his number. Obtaining his consent, likewise, shows that you respect the latter. If it happens that you cannot obtain his consent first before giving his number, as a sign of courtesy and respect, you should inform him as soon as possible that somebody asked his number.

 

 

 

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­_____________________________________________________________________________________

Footnotes:

^1.Sec. 2 of Republic Act No. 10173

^2. Sec. 3 (a) of Republic Act No. 10173

^3. Sec. 3 (b) of Republic Act No. 10173

^4. Sec. 3 (c) of Republic Act No. 10173

^5. Sec. 3 (f) of Republic Act No. 10173

^6. Sec. 3 (g) of Republic Act No. 10173

^7. Sec. 3 (k) of Republic Act No. 10173

^8. Sec. 3 (l) of Republic Act No. 10173

^9. Sec. 11 of Republic Act No. 10173

The Act of Giving a Third person’s Contact Number  without his consent is not a violation of Republic Act No. 10173  or otherwise known as Otherwise Known as the Data Privacy Act of 2012

Today, innovations in information  technology has a wide-ranging effect especially with regards to the private or privileged information that was being disclosed to third persons without the consent of the person who owned or who was the subject of such disclosure. Private, privileged, or sensitive information in confidence to third person or to government agencies or private companies were being disclosed or made available to interested third persons without the consent of the person who own such information or who can be identified by such information. This is the problem that is to be sought minimized, if not eliminated, by the passing of R.A. No. 10173.

Republic Act No. 10173 is an Act protecting individual personal information in information and communications system in the government and the private sector, creating for this purpose a national privacy commission, and for other purposes. This law was signed by President Benigno S. Aquino III and took effect on August 15, 2012. 

To better understand this law, we need to know the purpose or purposes or intention of Congress for enacting this law. We also need to know the exact meaning of word or words as being used under this law to somehow enlighten us, the acts that would be considered or would constitute a violation of this law, who are task by the our government to implement this law, and of course, what are the penalties provided for the violations of this law.

In the declaration of policy of this law, it is stated that, “the policy of the State to protect the fundamental human right of privacy of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communication systems in the government and in the private sector are secured and protect.”¹

At present, we cannot deny the fact, that the existence of advanced information technology really plays a very important role as a nation. It may be used by other nation or persons as a gauge of how developed a nation is. However, although the State recognizes this vital role of information technology in the nation building, it may always use and implement its inherent police power to protect its people by ensuring that personal information in information and communications systems in the government and in the private sector are secured and protected.

In addition, we need to know the meaning of some words and how it is being used under this law to enable us to know if whether a particular act would constitute a violation of the said law or not. Among the terms are:

1. Commission shall refer to the National Privacy Commission created by virtue of this Act.² 

 

The National Privacy Commission or simply termed as Commission under this Act, is the one entrusted by our State or government to administer and implement the provisions of Republic Act No. 10173 or otherwise known as the Data Privacy Act of 2012. The Commission as an independent body is tasked to monitor and ensure compliance of the country with international standards set for data protection.

 

The Commission is composed of 3 persons, namely: the Privacy Commissioner and two (2) Deputy Privacy Commissioners. The Privacy Commissioner shall be the one to act as a Chairman of the Commission and he will be assisted by those two (2) Deputy Commissioners, one who will be responsible for Data Processing Systems and the other is responsible for Policies and Planning. They are appointed by the President of the Philippines for a term of three (3) years, and may be reappointed for another term of three (3) years.

2. Consent of data subject refers to any freely given specific, informed indication of will, whereby the data subject agrees to the collection and processing of personal information about and/or relating to him or her.³

 

The law likewise provides that consent of the data subject shall be evidenced by written, electronic or recorded means and may also be given on behalf of the data subject by an agent specifically authorized by the data subject to do so.

 

3. Data subject refers to an individual whose personal information is processed.⁴

 

4. Information and Communication System refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar device by or which data is recorded, transmitted or stored and any procedure related to the recording, transmission or storage of electronic data, electronic message, or electronic document.⁵

 

5. Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.⁶

 

6. Privileged information refers to any and all forms of data which under the Rides of Court and other pertinent laws constitute privileged communication.⁷

 

7. Sensitive personal information refers to personal information about an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations. It also refers to an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings. It is likewise refers to those issued by government agencies peculiar to an individual peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, tax returns, and those specifically established by an executive order or an act of Congress to be kept classified.⁸

 

            In addition, under Sec. 4 of the Data Privacy Act of 2012 provides that “this Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines or those who maintain an office, branch or agency in the Philippines.

 

            However, it is worthy to note, that this Act shall not apply to any individual who is or was an officer or employee of the government institution that relates to the position of functions of the individual, including the title, business address, and office telephone number of the individual.

 

            The processing of personal information shall be allowed, subject to compliance with the requirements of R. A. No. 10173 and other laws allowing disclosure of information to the public and adherence to the principles of transparency, legitimate purpose and proportionality. ⁹

 

            Under Sec. 5 of this Act, the Journalist are still afforded of the protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.

 

Under Sec. 12 of the said Act or the Criteria for lawful processing of personal information provides that “the processing of information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:

 

1. the data subject has given his or his consent;

 

2. the processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract;

 

3. the processing is necessary for compliance with a legal obligation to which the personal information controller is subject;

 

4. the processing is necessary to protect vitally important interest of the data subject, including life and health;

 

5. the processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or

 

6. the processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a 3^rd party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.

 

Section 16 of the same Act likewise provides the rights of the data subject. These are:

 

1. Be informed whether personal information pertaining to him or her shall be, are being or have been processed;

 

2. be furnished the information indicated hereunder before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity;

 

3. Reasonable access to, upon demand of the following: contents of his or her personal information that were processed, sources from which personal information were obtained, names and addresses of recipients of the personal information, manner by which such data were processed; reasons for the disclosure of the personal information to recipients, information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the data subject, the designation, or name or identity and address of the personal information controller;

 

4. Dispute the inaccuracy or error in the personal information and have the personal information controller correct it immediately and accordingly, unless vexations or otherwise unreasonable.

 

5. Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected; and

 

6. To be indemnified for any damages for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

 

The rights of the data subject as provided under the Data Privacy Act may also invoke by the lawful heirs and assigns of the data subject after the death of the data subject or when the data subject is incapacitated or incapable of exercising the rights as enumerated. However, those rights cannot be invoked if the processed personal information is used only for the needs of scientific and statistical research and, on the basis of such, no activities are carried out and no decisions are taken regarding the data subject. Provided, that the personal information shall be held under strict confidentiality and shall be used only for the declared purpose.

 

Some of the penalties provided for under this Act are:

 

1. For unauthorized processing of personal information and sensitive personal information – imprisonment from 1 year to 3 years and a fine of not less than Php500,000.00 but not more than Php2,000,000.00;

 

2. For unauthorized processing of personal sensitive information – imprisonment from 3 years to 6 years and a fine of not less than Php500,000.00 but not more than Php4,000,000.00;

 

3. for Accessing personal information due to negligence – imprisonment from 1 year to 3 years and a fine of not less than Php500,000.00 but not more than Php2,000,000.00;

 

4. Accessing sensitive personal information due to negligence – imprisonment ranging from 3 years to 6 years and a fine of not less than Php500, 000.00 but not more than Php4,000,000.00;

 

5. Malicious disclosure – imprisonment from 1 year and 6 months to 5 years and a fine of not less than Php500,000.00 but not more than Php1,000,000.00; and

 

6. Unauthorized disclosure – imprisonment from 1 year to 3 years and a fine of not less than Php500,000.00 but not more than Php1,000,000.00.

 

7. Combination or series of acts as defined in Sec. 25 to 32 of this Act – imprisonment from 3 years to 6 years and a fine of not less than Php1,000,000.00 but not more than Php5,000,000.00.

 

8. Large Scale or when the personal information is at least 100 persons is harmed, affected or involve as the result of the above mentioned actions – maximum penalty shall be imposed.

 

The extent of liability herein provided is that, “if the offender is a corporation, partnership or any juridical person, the penalty shall be imposed upon the responsible officers, as the case may be, who participated in, or by gross negligence, allowed the commission of the crime. If the offender is a juridical person, the court may suspend or revoke any of its rights under this Act. If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings after serving the penalties prescribed. If the offender is a public official or employee and lie or she is found guilty of acts penalized under Sections 27 and 28 of this Act, he or she shall, in addition to the penalties prescribed herein, suffer perpetual or temporary absolute disqualification from office, as the case may be.”¹⁰

 

            To this far, after knowing the important aspects and the acts that would make a person a violator of the Data Privacy Act, it is very clear that the issue of whether or not the giving of someone’s contact number without his consent does not make him liable nor a violator of the said Act.

 

            The reasons behind to support this conclusion are:

 

First: Personal information as being defined under the Data Privacy Act is broader than what we simply understood or what the layman’s term or normally used.

 

Under the Data Privacy Act, Personal information is being defined 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. However, the personal information as we have usually understood and what is being defined in dictionaries, refers to any information about a living person that is factual in nature about his or her personal life. This includes, but is not limited to names, birthdays, telephone numbers, and social security.

 

However, although we consider our own contact numbers whether it may be a cell phone number or land line number, as personal information, it doesn’t mean that your contact number will make your identity apparent or will certainly identify you as an individual. Because if it happens that a person gave to a third person the number of someone without the consent of the person who owns such number, the third person to whom the number was given will not know what really was the true identity of the owner of such  number. Unless, the third person who is in possession of the number will call or contact the owner and ask him or her other information that would reveal his true identity and the owner will also answer what is being asked by the caller, it is only then, that his or her identity will be identified. To sum up, it is  not really the giving or having someone’s number without the latter’s consent that will identify him as an individual but rather it will only be an initial step of knowing the identity of the person by asking him another personal information.

           

To illustrate this scenario: Jason asked John to give him the number of Ana, who happens to be John’s neighbor. John gave him Ana’s number without the consent of the latter.  Certainly, in this illustration they are not liable to be in violation of Data Privacy Act of 2012, because the giving of someone’s contact number is not one of the prohibited acts under the Data Privacy Act. If it happens that Jason called up Ana and asked some question which are personal in nature and so it is already up to Ana if he will answer those question. Therefore, the giving of Ana’s number without her consent is only a preliminary step to know more about her. Therefore, Jason and John will not be liable under this Act.

 

Second: The act of giving the third person’s number without the consent of the owner is not one of the prohibited acts under this Act. The Scope of the Data Privacy Act of 2012 as provided in Sec.4 only applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing those personal information controllers and processors.

 

We have learned in Statutory Construction, specifically in the interpretation of statutes the latin term Expressio unius est exclusio alterius. This Latin phrase means express mention of one thing excludes all others. The phrase indicates that items not on the list are assumed not to be covered by the statute or when something is mentioned expressly in a statute it leads to the presumption that the things not mentioned are excluded. This is an aid to construction of statutes. Moreover, since, the third person’s number is not classified as personal information as being defined under this Act, therefore, the act of giving a third person’s number is not a violation under the Data Privacy Act.

 

            Therefore, we must remember that although the giving of third persons’ number without his consent would not constitute a violation of the Data Privacy Act, we should still be mindful and responsible enough that the contact numbers entrusted to us will not be used by others in a way that will somehow harass or disturb the person who owns the number. Therefore, it is better to have the owner’s consent first before giving his number. Obtaining his consent, likewise, shows that you respect the latter. If it happens that you cannot obtain his consent first before giving his number, as a sign of courtesy and respect, you should inform him as soon as possible that somebody asked his number.

 

 

 

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­_____________________________________________________________________________________

Footnotes:

^1.Sec. 2 of Republic Act No. 10173

^2. Sec. 3 (a) of Republic Act No. 10173

^3. Sec. 3 (b) of Republic Act No. 10173

^4. Sec. 3 (c) of Republic Act No. 10173

^5. Sec. 3 (f) of Republic Act No. 10173

^6. Sec. 3 (g) of Republic Act No. 10173

^7. Sec. 3 (k) of Republic Act No. 10173

^8. Sec. 3 (l) of Republic Act No. 10173

^9. Sec. 11 of Republic Act No. 10173