“ASEAN Integration on how it affects Philippine Intellectual Property Law”

“ASEAN Integration on how it affects Philippine Intellectual Property Law”

Since the Philippines was granted independence almost all citizens therein aspired and longed for development. This independence would mean a free society bound of course by law and that development would entail a holistic view on social, economic, political aspect. At present and here in the Philippines, Filipinos still want that kind of aspiration that would somehow help him as an individual, the public for being interconnected-with-others and also to the country where he resides. These aspirations he aims to improve or if not to come up with something new so as to create a better society. To put it simple, he aims for this holistic development that is why he thinks of ways and means so as to come up with new things, both tangible and intangible. To expand it further, it is inevitable that other countries or persons would somehow recognized and appreciate the ingenuity of other’s works. These will lead either in two ways, recognition of one works as this will further award the person’s efforts for its usefulness to the public. On the other hand, it will create an injurious effect to the inventor or author of the work as to make his invention or work imitated or copied without his consent. This is the reason why in the Philippines, the congress or law-making body created a law that would somehow protect the rights of an author or an inventor. This is called ‘The Intellectual Property code of the Philippines, as amended’. Under section 2 of the said code it gives its state policy to wit:

“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….shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good….and to enhance the enforcement of intellectual property rights in the Philippines.”[i]

This extensive state policy covers not only the rights of each individual towards their inventions but also geared towards the enforcement of these rights so much so that there are certain consequences when one violates these rights. It also takes into consideration the sincerity in making this law a possibility with the assumption that it will have a big effect towards national growth and progress within the Philippines and to this end it will be able to compete with other countries internationally or if not our neighbouring countries. This is the reason why from the state policy of the code it also entices foreign investments so that the Philippines can be able to grow economically and be at par to those highly developed countries like United States. In connection with this, because the Filipino citizens want progression and holistic development, the Philippines, through the direction of Philippine government, have integrated to other countries specifically, with neighbouring countries to further enhance development of the country and be abreast with their Intellectual property laws and incorporate it with the Intellectual Property laws in the Philippines if such law is not yet existing. This integration comes the emergence of the so called Association of South East Asian Nations (ASEAN) where its members are: Philippines, Indonesia, Myanmar, Thailand, Singapore, Brunei, Cambodia, Laos, Malaysia, and Vietnam. It also expands to other countries as well. The existence of ASEAN has its purpose for the reason that “The ASEAN was set up to advance mutual interests in the region, including the acceleration of economic growth, social and cultural progress, and regional peace and stability.”[ii] Indeed, if this purpose is put into action then there will be progressed and development to what the Philippines longs to aim for. Considering its effects to each and every country, there will be growth in economy and progress as far as Intellectual Property is concern. However, still, these aims and agreements, poses a big question as to its advantages and disadvantages.

Under Section 3 of Intellectual Property, it speaks of International Conventions and Reciprocity wherein it considers and takes into account the laws of the Philippines in any other country who is a party to any convention, treaty or agreement in so far as intellectual property is concerned. This is also exemplified in Section 131.1 of the priority right which states that “An application for the registration of a mark filed in the Philippines by a person referred to in Section 3, and who previously duly filed an application for registration of the same mark in one of those countries, shall be considered as filed as of the day the application was first filed in the foreign country.”[iii] Since there is this reciprocity, Filipino citizens will have his rights enforceable if he wishes to file his inventions or works to other countries which is of course a party to an agreement, convention and treaty. The provisions in the Intellectual Property code of the Philippines are not only intended for domestic purposes but also internationally. One should take note that:

 “Intellectual property (IP) is an asset that a person can own, sell, license, or even give away at pleasure.... However, the lack of physical parameters by which most of these assets can be defined or identified does not preclude the recognition of their innate value and the need to protect them from theft or unauthorized use, just like tangible assets…. Protection of intellectual property rights (IPRs) stimulates further creativity and innovation, which in turn spur progress in industries and ultimately leads to national development.”[iv]

Indeed, emergence of Intellectual Property could flourish a country’s economy. In the Philippines, intellectual property has an enormous effect to an inventor, scientist, and even artist such that they are being recognized from the work they made, how complicated the invention is, the greater the recognition and in the end when it will be available to the public, the greater the market value. Also, the greater its usefulness in a country will develop the country better. This is one of the reasons why ASEAN included Intellectual property rights as one of its aims because somehow it would induce a rippling effect of development not only in intellectual property of the Philippines but also to the ASEAN members. But ASEAN members cannot set aside their cultural differences; differences on how each country will view things; their perspective on issues regarding their own country’s development even though they aimed for such in the general aspect. ASEAN members cannot set aside the fact that they want their country to prosper more than any member of the ASEAN. They are guilty of that notion for the argument that, how can one country in the ASEAN be satisfied if one country belonging to the ASEAN is prospering while the other country is not. Somehow, it is a sort of political interest, whims and caprices, rather than genuine political will and vision.

            Furthermore, “ASEAN also recognizes that to encourage foreign direct investments in the region, it needs to ensure the protection and enforcement of IPRs of trading partners”[v] In the Philippines the acknowledgement of foreign investors and its enticement of their investments is being clearly stated not only under Intellectual Property Code but also under Article 12, section 10 of the Constitution as well. Since it is in the Constitution, it must be respected both by Filipino citizens and by foreign country who wish to invest in the Philippines. Moreover, foreign direct investments are investments which are being put to the industries or corporations by way of investments being directly distributed from the country where he sought to invest. This usually happens in the Philippines where some businesses or businessmen enters into a joint venture agreement with other big businesses, usually in the foreign countries, or wealthy businessmen wherein they merge their companies and become partners. Other Philippine industries would let foreigners deposit or lend their monies so much so that they become stakeholders or given a substantial amount that they become stockholders. Whatever may be the reasons, foreign investments is needed in the Philippines because:

            “Given the present state of the economy and the inadequacy of domestic savings, and with the government faced with so many competing demands on its meager financial resources, foreign capital is needed to fill the gap in the country’s investment requirements, and to be able to acquire the technology and managerial expertise needed to survive in the globalized economy we are now in. Since financial aids are not easy to come by, aside from being associated with mendicancy and our country is already heavily burdened with a huge foreign indebtedness, the only option left is foreign direct investment especially in enterprises that significantly expand employment opportunities for Filipinos, promote exports, transfer relevant technologies.”[vi]

            From this it may be inferred that foreign direct investment can be of big help in the economy of the Philippines considering the aspect that it may become a source of income in the country, and an opportunity for employment to some people. Of course, with the coming of foreign direct investments, it is inescapable that domestic corporation will be competing with them and as expected bankruptcy will have its way or if not they will merge to other foreign investors so that their company will survive. In the end, it can be a threat in the Philippine industry that soon not even one business or industry are owned solely by a Filipino because almost all, if not all industries are now with partnership with foreign investors. Another is the practice of unfair competition. Since “many of the patent applications at developing country patent offices are filed by foreign multinational corporations and thus represent foreign ownership of IP.”[vii] This is because a lot of Filipino citizens do not know their intellectual property rights, worse is for those who have less in life. They are being made to believe that their privilege has been taken away from them and only those who are wealthy are given the chance to apply where in fact and in truth their privilege have been removed because of the mandate or procedures of the law which a Filipino citizen does not know for he is not well informed about his intellectual property rights. One concrete example would be a Filipino citizen who has an invention. For the past years, he did not file for an application for the patent of such invention. Now, here comes another individual, Filipino or a foreigner for that matter applying and filing at the Intellectual Property Office an application for a patent over the same invention of the former inventor. The Filipino who applied for such patent has the right to such patent because of the first-to-file rule and to a foreigner under Section 3 of the Intellectual Property Code. Legally, the former Filipino inventor’s rights are not injured. He has no cause of action for he is not complying with the intellectual property code. He is not complying with the requirements and processes of the law. He cannot justify himself that he did not know that there is such application for a patent for under the law ‘ignorance of the law excuses no one for compliance therewith’. It can also be that a foreign corporation will be the one who will file for any application (trademarks or patent) in the Intellectual Property Office in the Philippines and becomes now the owner of such patent or trademark because a Filipino inventor cannot afford to file for an application due to poverty. There are many scenarios that would entail on this matter, this is the reason why through ASEAN, it will provide for the protection of the rights of each member state towards their inventions or work and this rights are hopefully, be enforceable. In the Philippines it is clearly in connection with Section 11.3 and 11.4 of the intellectual property code where it states:

 “Section 11. The Documentation, Information and Technology transfer Bureau shall have the following functions:

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11.3 Educate the public and build awareness on intellectual property through the conduct of seminars and lectures, and other similar activities;

11.4 Establish working relations with research and development institutions as well as with local and international intellectual property professional groups and the like;

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11.6 promote the use of patent information as an effective tool to facilitate the development of technology in the country;”[viii]

            Through ASEAN Integration, Filipinos would be able to know his rights as far as intellectual property is concerned and will be able to fully equip him with the information concerning his rights towards Intellectual Property. Somehow this will cause a reduction against unfair competition, trademark infringement, and any other forms of unfair business practice. Through the visions of the ASEAN member states, not only the Philippines will somehow protect their intellectual property rights, it will also benefit and give an exclusive right to an inventor or creator of a thing so that he will be able to make use of the thing he invented or created privately. It will also benefit the public since the public can be able use it on a certain period or when the public so demand. Through ASEAN integration, it will also take into “considerations for the preservation and protection of indigenous products and services and the works of their creative peoples in the region.”[ix] This is a noble plan for ASEAN because inventions by creative thinkers no matter how simple as long it serves to be useful will have its recognition and appreciation in the region where it belongs. In the Philippines, consider it a challenge to a Filipino individual to come up with a complicated invention because if the invention is just simple and not attractive in the eyes of the public, surely the invention will turn to naught. Filipino citizens are oftentimes attracted to things which are not the product of their own country just like buying i-phones and other materials which is creative inventions of other countries. Because of ASEAN integration Filipino citizens can now present their invention no matter how simple, as long as it is useful hoping that in their inventions they will be able to get a higher market value of their work. The reason behind this is that one of the aims of ASEAN integration is the free flowing of goods within the 10 ASEAN members which is called ‘Single Regional Market’. “A single regional market means that member states promote trade competition within the region and that restrictions preventing free movement of goods must be eliminated.”[x] Thus, for example, before, if a Filipino citizen wants to file for an application of patent he should file it in the Intellectual Property Office in the Philippines, follow certain requirements for the validity of its application and pay a certain amount of fees. If he decides to file an application for patent to other member states, he may do so and he will still go through the process of filing an application of patent and will still pay another amount of fees. On the other hand under single regional market of ASEAN, if a Filipino citizen wants to file for an application for a patent, he may do so and will still go through the process of filing and will still pay a certain amount of fees but the wonderful thing here is that his application for a patent is now being recognized by ASEAN members so that he will not anymore worry for another filing of an application for a patent and will go through another process and will pay another filing fees. This will saved time and effort in filing for such an application and will also reduce the amount of filing fees. Another is the form of ASEAN to allure inventors over their invention and allow them to have it patented. “ASEAN needs to continuously attract the inflow of cutting-edge technology through patent filings by assuring inventors and innovators that patents granted in any of the AMSs have a high presumption of validity and enforceability. With more patent filings in the region, there will be better opportunity for technological information to eventually be diffused to local businesses, which, in turn, will spur the growth of the technological and innovative capacity of the region.”[xi] Here, it encourages individuals of every ASEAN member states to have their inventions patented so that in the end, every region will have technological growth and their innovative ways developed. However, due to cultural differences, who will decide whether such inventions or innovations are patentable or not. It may be patentable to the Philippines but to other countries not. If a national of the Philippines wants his invention to be patented under this ASEAN concept and this invention is patentable to other ASEAN members but under the Philippines it is not, then other countries will benefit from that invention because for them it is patentable while the Philippines is not simply because it is not patentable which is why “ASEAN needs to continue to participate in discussions in international fora, such as standing committees in the WIPO, and in bodies such as the World Trade Organization, in order to maintain not only national, but more importantly, regional presence and to help ASEAN find its voice in the international IP community.”[xii] This would strengthen more the foundation of IP laws and rights as far as the Philippines is concerned as this would imply a greater knowledge to what is lacking on Philippine IP laws and to further improve the IP laws if there is already an existing law. This will also make the Philippines aware of others intellectual property rights. Considering that knowledge is power, to be able to participate with international forums, the Philippines will be able to widen its horizon towards Intellectual Properties of other countries internationally. The Philippines should not confine only to its own intellectual property codes and rights nor in the ASEAN too. It must also participate in an internationally progressive country. Though ASEAN should participate internationally, there is still the need for ASEAN members to rely on each other in order to strengthen their relationship on each other and promote mutual respect. This is the reason why ASEAN becomes a possibility. Furthermore, because of such dream to have a holistic development “ASEAN continues to acknowledge the important role played by IP in social, technological, and economic progress…. the AWGIPC has designed a unique approach toward regional cooperation which takes into account different levels of capacity of the Member States in development and integration, balances access to IP and protection of IPRs, and responds to the current needs and anticipates future demands of the global IP system.”[xiii] In this ideology, the question arises of what are the means or methods to identify each capacity of the members? If for example, the Philippines and Singapore have some similarities on their intellectual property laws and if basing on economy the Singapore is more progressive than the Philippines then which country will decide or which law will be adopted? Does it mean that one country is inferior to the other or their laws are far richer as that of the other? On the positive side, it will affect the intellectual property laws of the Philippines because the plans of ASEAN through ASEAN working group of IP committee is of great importance, considering that some of innovations being brought about by technology is always changing. Thus, there is the need to foresee what will happen in the near future causing each region to address the matter ahead of time. Just like the IPR Action Plan of 2011-2015 which fortify the matter on IP laws and rights not just in the present moment but also in the future issues that they will be dealing with, both internationally and to each region of ASEAN member states. This affects each members of the ASEAN to attain their goals towards development as far as intellectual property rights and laws are concerned.

            Another is on the matters regarding offices of each ASEAN members. It states that: “Each national office in ASEAN will provide higher quality, efficient, and cost-effective systems to protect IPRs.”[xiv] Through this notion it will protect the rights of each individual towards their invention, to presume that the inventor, owner or author of such creation or invention will be supported by Intellectual Property Office (IPO), after its careful examination of such invention done by the IPO. The quality of such invention is also one of the aspects that ASEAN will have to face. Considering the fact in the Philippines, people are being sceptics after the invention is now being brought to the public for use because of the notion that its reproduction and distribution will be on a low standard. Another is the efficiency and effectiveness so much so that in the Philippines, persons are towards utilitarian views on how this invention might be useful after such is being made known to the public, it can also consider the durability of such invention. By ASEAN views on each national office in ASEAN it would somehow bring forth and strengthen more the trust and confidence of the inventor and the public to the IPO. One comment on the Intellectual Property rights is that “….formal IP rights are often not the most effective way to protect proprietary knowledge. Patents for example, require a long application process and public disclosure of the technological content of the innovation. It is also costly to enforce patents after they are granted.”[xv] In the formal process of IP, it would take a lot time and effort to register your innovation to the extent that if discovered by others, they have the tendency to copy it and reproduce it for the general public, like in the case of pirating in the Philippines which proliferates even though it is subjected to criminal and civil actions. The point here is that others tend to imitate the works of others by a non-IP way of registering it because it gains more of profit for the reason that it is new. On the other hand, those that are in good faith complying from the formal IP registration are left empty handed for their works are already imitated and brought to the public for use thus affecting the potential market value of his work which will be injurious to him. Therefore innovators will become more sceptical of formally registering their innovations.

            With regard to the issues affecting Intellectual Property rights “Espousing a common position on IP issues is increasingly becoming important in the light of the trend for regional cooperation programmes…. Having a single negotiating position is also important to preserve the needed flexibilities of Member States and to ensure that ASEAN does not commit to obligations that would pose difficulties for some Members.”[xvi] Common position would be difficult because region would collate such issues given by AMS knowing fully that the members in the ASEAN are of different laws regarding their different notions in their IP laws and rights. What would be the best interest of one country would be different to the other. IP laws and rights is not only the reason why there is difference, there are also variations regarding other countries’ Intellectual Property law and enforceability or applicability to other countries. There is also a difference in economic development with the 10 ASEAN members. Thus, even though the ASEAN members have one common goal and that is economic development, there will still be a country in the ASEAN that will be far more progressive than other ASEAN members. With this it is difficult to merge what is not capable of merging. Another is that “The ASEAN IP Offices will be stakeholder-centric and will espouse a culture of openness to the publics they serve. Through a culture of openness, the AWGIPC will contribute towards building respect for the IP system in the region, which will encourage more IP owners to bring their businesses to ASEAN.”[xvii] The problem here is the function of ASEAN of the so called non-interference wherein ASEAN members will not criticize publicly other ASEAN members on what it does on its own country. What if one country commented or made a critique on an individual’s invention (as to the Philippines when it says that it is not patentable) and where the individual belongs to other ASEAN member (Cambodia for example). Thus, criticism is a relative word to use in situations where there are different countries involved for it will be possible that such opinion, critique or comments of one country will be a criticism to the other.

            On the matters of disputes, the most common means or method that helps in resolving such issue in Intellectual Property is that of a court trial where courts hear, try and decide a case. Of course, this is also subject to extrajudicial resolutions. In connection with this “the national IP Offices will work with the judiciary and other government institutions to improve the disposition of IP cases that have served as disincentives to IP owners not only in protecting their IP, but also in continuing their trade activities in the region.” Thus, this will help prevent and reduce the clogging of docket fees in the Philippines which is the problem of the said country because there are actually several cases that would involve Intellectual Property disputes like infringement of patent, trademark, copyright and there are also cases which would involve unfair competition or undesirable business practices which are all injurious to the Intellectual property rights of a true owner of such patent, trademark and copyright.  

            From all the foregoing discussion, the ASEAN integration wants to imprint in the minds of the public on the assurance and benefits that they can obtain specifically on the concept of Intellectual Property laws and rights of every member of the ASEAN. It because of its philosophy “Underlying the move towards unity and integration is its new motto: one vision, one identity, one community.”[xviii] However, due to different countries involve in this ASEAN integration it is noticeable that they indeed have different Intellectual Property Laws and rights, have different levels in economic development and have different political views so that one may wonder how this ASEAN integration could be possible. On the concept of Intellectual Property rights, how can they have one common understanding on the matter if from the very beginning ASEAN member states have different law regarding Intellectual property law? Will they be introducing new law, if this is so, what if it contradicts the laws of other ASEAN members, what will inventors or creators of such invention follow if they will file for their application with regard to their invention? Is it their law or the new law of the ASEAN? Lack of public awareness in the information of Intellectual property and poverty of some inventors or creators have also brought hindrances towards economic, political and social development which is the very aim of ASEAN member states. This is why “ASEAN needs to keep track of international developments in IP and determine what best practices can be adopted at the regional level.”[xix] By this remarkable intention ASEAN member may open its doors towards development as far as Intellectual Property is concerned. It can also strengthen what already exists under their Intellectual Property laws or rights and if international law on Intellectual Property is not yet known by the ASEAN members, they may incorporate it with their laws subject to its suitability. In the Philippines, it can have a great impact towards fighting disputes on intellectual property matters and let the inventors and the public know their rights.

           

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[i] Republic Act No. 8293, Sec. 2 (2009).

[ii] WiseGeek, What Is ASEAN, available at http://www.wisegeek.org/what-is-asean.htm (last accessed May 17, 2014).

[iii] Republic Act No. 8293, Sec. 131.1 (2009).

[iv] Ecap-project, ASEAN Intellectual Property Rights Action Plan 2011-2015, available at http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf (last accessed May 19,2014).

[v] Ibid.

[vi] HECTOR S. DE LEON, Textbook on the PHILIPPINE CONSTITUTION, p541, 2008 ed., 2008.

[vii] WIPO-ASEAN STUDY The Strategic Use of Intellectual Property to Enhance Competitiveness in Select Industries in ASEAN, available at http://www.wipo.int/export/sites/www/freepublications/en/intproperty/953/wipo_pub_953.pdf (last accessed May 19, 2014).

[viii] Republic Act No. 8293, Sec. 11 (2009).

[ix] Ecap-project, ASEAN Intellectual Property Rights Action Plan 2011-2015, available at http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf (last accessed May 19,2014).

[x] ALEX FERDINAND S. FIDER, Regional Agreement Affecting Intellectual Property Protection in ASEAN, available at https://www.aippi.org/download/reports/forum/forum09/12/ForumSession12_Presentation_Fider.pdf (last accessed May 19, 2014).

[xi] Ecap-project, ASEAN Intellectual Property Rights Action Plan 2011-2015, available at http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf (last accessed May 19,2014).

[xii] Ibid.

[xiii] Ibid.

[xiv] Ibid.

[xv] WIPO-ASEAN STUDY The Strategic Use of Intellectual Property to Enhance Competitiveness in Select Industries in ASEAN, available at http://www.wipo.int/export/sites/www/freepublications/en/intproperty/953/wipo_pub_953.pdf (last accessed May 19, 2014).

[xvi] Ecap-project, ASEAN Intellectual Property Rights Action Plan 2011-2015, available at http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf (last accessed May 19,2014).

[xvii] Ibid.

[xviii] Han Feng, Cheng Ji, Yuan Bo, Zhang Xuegang , Shen Shishun , Liu Lin, Li Huimin, Xiong Wei, ASEAN Integration and Its Effects, available at http://carnegieendowment.org/2008/11/28/asean-integration-and-its-effects/1t6j (last accessed May 19,2014).

[xix] Ecap-project, ASEAN Intellectual Property Rights Action Plan 2011-2015, available at http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf (last accessed May 19,2014).

situational gray areas of R.A. 10173

Introduction:

            In the world of today we are mindful of the fact that there is a fast pace of growth of technology. It is in technology that we somehow realized that it can be a handmade, a tool for the economic and social growth of a country and to every individual as well. But we cannot set aside the fact that there are also some disadvantages in such modern realization. But this disadvantages or gray areas can be glance from those who, in the technical sense, have made technology applied from the very core of human activity. Furthermore, it can also be viewed from a situation where congress would pass a law and technology would be involved to secure one’s personal information of every natural or judicial person. However, the thing here is how sure that our personal information are protected if there are some loopholes or gray areas of law from which the congress passed? In other words, it can be said that it is from the making of the law vis-a-vi the application of technology that would somehow tear down the rights of every individual because of the gray areas of the law itself resulting in the misuse of technology.

Situational gray areas on data privacy act: 

One that has some situational gray areas would be the R.A. 10173 or the Data Privacy Act. In the very words of Mr. Justice Brandeis citing the case of Blas Ople vs. Ruben D. Torres et al, right to privacy is considered as "the most comprehensive of rights and the right most valued by civilized men."[i] Though it is already a cliché to define the right to privacy as a right to be let alone it is still the simplest way to define one of the rights of a person because it is already enshrined in the constitution specifically the bill of rights.

R.A. 10173 or otherwise known as the ‘Data Privacy act of 2012’ is “an act protecting individual information in Information and Communications Systems in the Government and the Private Sector, creating for this purpose a National Privacy Commission, and for other purposes.”[ii] The creation of commission known as the National Privacy Commission is the one administering or the one that is responsible for the implementation of the Data Privacy Act. Furthermore, the National Privacy Commission is the one accountable of or the one in charge in seeing to it that they comply with the international standards set for data protection and with it “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….”[iii] Indeed, congress passed a law that would somehow secure the personal information of every natural and juridical person. The said law would somehow put to an end the dilemma of invading or intruding the personal information of others such that there are penal consequences that would entail.

One cannot really ignore the effort of government in passing this act for this is truly the best evidence to see that politically and economically we are growing and developing as a country. Evidently, R.A. 10173 or the “Data Privacy Act” is one proof of the effort of the government. However, the passage of the said act or law has some loopholes or gray areas that will consequently prejudice the rights of the people to privacy. One such situational gray area would be section 3 (b) which states, “SEC. 3. Definition of Terms. – Whenever used in this Act, the following terms shall have the respective meanings hereafter set forth:

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(b) Consent of the 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. Consent shall be evidenced by written, electronic or recorded means. It may also be given on behalf of the data subject by an agent specifically authorized by the data subject to do so.

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(h) Personal information controller refers to a person or organization who controls the collection, holding, processing or use of personal information, including a person or organization who instructs another person or organization to collect, hold, process, use, transfer or disclose personal information on his or her behalf. The term excludes:

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(2) An individual who collects, holds, processes or uses personal information in connection with the individual’s personal, family or household affairs.”[iv]

Thus, the statement talks about the consent of the data subject on the ground that the data subject freely agrees for the processing of his personal information. But, it must be noticed that this consent should be written and if given by an agent, the written consent should be authorized by the data subject. Here lies the problem of forgery because in forgery “to forge an instrument is to make false instrument intended to be passed for the genuine one.”[v] Supposing that A forged the personal information of B who is already deceased, A now becomes an agent, because of the fact that he forged such written authorization of B. Another situation is that A can forged such written consent making it appear that he is B because the consent evidence by written means was forged making it appear to be genuine where in fact it is not. Whatever would be the situation, still, the written authority is left hanging because of forgery. The Personal Information Controller who collects and process the personal information and Personal Information Processor who outsourced personal data of an individual would be confused if the written consent or the written authorization is forged or not. In this effect, it is logical to conclude that the consent freely given is not at all absolute and thus presumed that the one victimized by the act of forging does not want this to happen for his consent is not at all taken. Furthermore, it is against his will for the one who is in control of his personal information is not him but other person who is a forger. Also, under number (2) of the excluded portion of personal information controller, what if the personal information controller just so happen to text the person using SMS because he has now the individual’s personal information. Is the personal information controller liable under Data Privacy Act? Definitely the answer would be ‘no’ because text message is included in number (2) which happens to be one of the exclusions of Personal Information Controller. But still, it violates the right to privacy of an individual for he /she did not gave her personal number nor did she consented that she will be receiving any text message. Worst, if that text message is just an informal one or a threat to the individual.        

            Again on the same section which is section 3 subparagraph (g) and (l) which respectively states, “(g) 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 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.

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(l) Sensitive personal information refers to personal information:

(1) About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations;

(2) About an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings;

(3) Issued by government agencies 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, and tax returns; and

(4) Specifically established by an executive order or an act of Congress to be kept classified.”[vi]

            Comparing the two subsections, subsection (g) defines what personal information is and subsection (l) is named to be sensitive personal information which is also personal information itself. The question that would be ask in here is that, why did the act separate the personal information from sensitive personal information if the personal information is a sensitive personal information itself and vice versa? Can it be possible to just put it in one subsection? Because the problem will arise: if an individual not highly technical in such terms or if not, the person is not that highly educated, he will have a difficulty on what to put on his personal information because of the misleading phrase of subsection (g) ….when put together with other information.... This phrase will lead individual into a difficult situation on what would be this personal information that he could give because he thinks that the personal information and the sensitive personal information are entirely different in the manner of giving his personal information for they are separated in the act. Assuming arguendo, that the personal information and sensitive information are in a different manner of giving such information, then the individual giving his personal information will be having troubles on what would be that personal information or other information for such personal information has a broad and a wide concept under subsection (g).

            Another is the scope of the said act which is in section 4 which states, “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....”[vii] Reading further the said section, there are exclusions that the said act provides. The problem lies to the question of those who process the personal information of an individual. What if they processed such personal information of an individual but they are not found in the Philippines and they use equipment but are not located in the Philippines? Also what if they do not have any office, branch or agency in the Philippines? With this, it cannot be said that it can be possible for the act did not include this kind of situation in its exclusion. But it cannot also be possible because section 4 clearly defines the scope and going beyond what is not distinguished will change the meaning or the concept of the said section. Expressio unius est exclusio alterius, the expression of one thing is the exclusion of another. Thus, there are two sides of possibilities and therefore, there are inconsistencies or gray areas in the said section 4 of the act.

            Another situational gray area of R.A. 10173 would be section 8 (Confidentiality) in connection with section 11 (General Data Privacy Principles) to which it respectively states, “SEC. 8. Confidentiality. – The Commission shall ensure at all times the confidentiality of any personal information that comes to its knowledge and possession.

xxx

SEC. 11. General Data Privacy Principles. – The processing of personal information shall be allowed, subject to compliance with the requirements of this Act and other laws allowing disclosure of information to the public and adherence to the principles of transparency, legitimate purpose and proportionality.

Personal information must, be:

(a) Collected for specified and legitimate purposes determined and declared before, or as soon as reasonably practicable after collection, and later processed in a way compatible with such declared, specified and legitimate purposes only;

(b) Processed fairly and lawfully;”[viii]

            Section 8 merely leads us to think that this personal information has its confidentiality and the Commission has the obligation to see to it that it is kept confidential the moment the Commission acquires this personal information. Now the problem that should be taken care of is that of section 11, wherein such processing of personal information is subjected to certain requirements of the said act and to other laws as well. With the end in mind that this processing of personal information is for a legitimate cause or purpose and should be processed in a lawful manner, it may be asked: who then should determine if such personal information is legitimate or not? It is because section 11 did not clearly specify who is capable of determining such legitimacy of said information. If the Commission would determine the matter, then they are the ones who are in control of disclosing such information to the public for they believed that it is for legitimate purpose. It can be against the will of the one who gave personal information and thus, violating the right to privacy of the individual who gave such personal information. If on the other hand, the person who gave his personal information will be the one determining its legitimate purpose, then how vast will be his knowledge in complying with the legitimate purpose without going away from the intention of the Act.

            In section 13, it talks about Sensitive Personal Information and Privilege Information. That its processing is prohibited but with certain exceptions just like in letter (a) of the said act wherein it speaks mainly of a specific purpose. But the question here is that: To what specific purpose would it be to the extent that this specific purpose will not violate the right of data subject in giving and processing of his sensitive and privileged information? For the data subject, how sure are they, that this information of theirs is not under peril so much so that this is secured and not done or be subjected to any wrong purposes? Also, what will be the demarcation line of the word specific purpose? What would be the means of the government to make sure that this sensitive and privileged information are done for specific purpose?

            Furthermore, from the last paragraph of letter (d) of section 13 it talks about the non-transferability of this sensitive personal information to third person but what if for example, A, being the data subject and giving his consent gave his personal information to B who, in this situation is responsible for processing such information of A. however in the course of events, B gave a copy of the personal information of A to C who is a third party and not related to A. The dilemma would now be this: how will A know and if B gave the personal information of A to C? What will be the determining factor of A that B really and indeed gave it to a third party? Will A just be silent and have a leap of faith because anyway he (A) gave his personal information without bothering himself that this confidentiality will not be exposed to someone not related to him, without his consent or against his will? It leaves a doubt on whether or not the confidentiality of information that the individual gave will not be exposed to someone else because right from the very start, the individual, giving his information to the one responsible of processing this information creates a certain suspicion that the information might be disclose to someone else. Still under the same section with letter (f) as an exception to wit: “The processing concerns such personal information as is necessary for the protection of lawful rights and interests of natural or legal persons....”[ix] However the confidentiality still remains as an issue for the problem that, how can the lawful rights and interests of natural or legal persons be protected if they don’t know from the very start that such personal information might be given to someone else? How will they determine if their rights and interest are protected or not because of the hunch that the one processing those personal information might also be the one sending a copy to someone else?

Section 15 of the Data Privacy Act talks about the Extension of Privilege Communication wherein privilege communication over privilege information may be invoked by the personal information controllers in order to secure the personal information and that it will be kept in confidentiality. Any evidence gathered on privileged communication will be inadmissible as evidence. But it will be subjected to laws and regulations. The concept of privacy of communication in Constitution somehow has its connection to section 15. Under Article 3 of section 3(1) and 3(2) to which it respectively states: “The privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety or order requires otherwise as prescribed by law. xxx Any evidenced obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”[x] But what if it involves national interest such that our country will be in danger? How good is this section if right from the very start, the individual who is giving such personal information is the one who is in control whether to put that information or not, whether to change his personal information so that it will be more advantageous to him? It is because of the risk that the personal information might be subjected to existing laws and regulations so much so that the personal information that he will give are now change so that he will not prejudice himself. Another gray would section 17 which speak of transmissibility of rights of the data subject. From here, when the data subject is already dead or incapacitated, the lawful heirs or assigns may take over and be the one who can invoke the rights of the data subject. The question here is that how will they prove that the transfer to the lawful heirs and assigns was done with the consent of the data subject prior to his death? How will they verify at least some of the personal information is true or not if the data subject is already dead? Another is on section 20 where it talks about Security of Personal Information and subsection (e) of the said section speaks of those who are involved in the processing of the personal information, that this personal information should be kept confidential if they are not meant for public disclosure. This obligation will continue even after termination of employment, leaving public service or transfer to another office. Then the question here is that what will happen to the personal information of the data subject if the personal information controller leaves the public service? Supposing that every now and then employees, agents or representatives or even the personal information controller himself leave the public service because of contractual relations, will the person still give his personal information to the new personal information controller or the new personal information controller will just review the personal information that was being processed by the old personal information controller. Can this situation clearly defeats the very purpose of confidentiality because of the fact that every now and then, after contractual relations new persons will come and work for this said commission and it can be possible that they will know the individual’s personal information.

            Conclusion:

            At present, one cannot really escape the changes in reality in so far as technology is concerned so much so that the congress adapts technology in order to be equipped with the trend of reality in technology. It is in technology that the congress can incorporate it with the laws that they pass. However, it creates a danger if the application of technology is being done in a wrong concept just like not being knowledgeable enough on technology and mixed it in creating a law. Thus, the danger that the law will harm the very rights of individual, may it be natural or legal person. Law is there to guide people towards their right to privacy. For if this right to privacy is being abused then people should not think themselves as free men for they are not at liberty. In the words of Karl Marx on his critique to human rights, “Liberty, therefore, is the right to do everything that harms no one else. The limits within which anyone can act without harming someone else are defined by law….”[xi] and R.A. 10173 is there to exemplify that technology can be a handmade of law. However, because of some gray areas in the law, it can somehow harm the very rights each individual and somehow will not take full effect in implementing the said act.

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[i] Blas Ople v. Ruben D. Torres et al., G.R. No. 127685, July 3, 1998, available at http://www.lawphil.net/judjuris/juri1998/jul1998/gr_127685_1998.html, (last accessed May 7, 2014).

[ii] Republic Act No. 10173 (2012).

[iii] Id., Sec. 4

[iv] Id., Sec 3 (b)

[v] Book 2, LUIS B. REYES, Revised Penal Code: Criminal Law, p. 201, 17^th ed., 2008.

[vi] Id., Section 3 (g), (l)

[vii] Id., Section 4

[viii] Id., Section 8, 11

[ix] Id., Section 13 (f)

[x] ISAGANI A. CRUZ, Constitutional Law, p. 141, 2007 ed.

[xi] Jeremy Waldron, Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, Methuen & Co., 1987, at pp. 33–34.