Fundamental Freedoms & the Internet

FUNDAMENTAL FREEDOMS AND THE INTERNET

Davao Internet Freedom ForumAtty. Marlon Anthony R. Tonson

Topic Outline

Cyberspace & the Law

1. Internet as Enabler of Human Rights

2. Internet Freedom vs. Surveillance

3. Internet Freedom vs. Censorship

Topic Outline


1. Internet as Enabler of Human Rights

a. Freedom of Expression Online

b. Freedom of Association Online

c. Right to Privacy Online

Topic Outline


2. Internet Freedom vs. Surveillance

a. State spying on citizens

b. State spying on other states

c. Meta-data

Topic Outline


3. Internet Freedom vs. Censorship

a. Obscenity, Pornography, & Cybersex

b. Defamation, Libel & Insult

c. Take-down & Internet intermediary liability

Internet: Human Rights Enabler

Freedom of Expression Online

Freedom of Association Online

Right to Privacy Online

Other human rights

Right to Information

Right to Education


Does the Law protect Freedom of Expression Online?

Is Freedom of Expression Online guaranteed under the 1987 Philippine Constitution?

Is Freedom of Expression Online guaranteed by international human rights instruments?


The Internet seen under the Constitution?

The State shall provide the policy environmentfor the full development of Filipino capability &

the emergence of communication structuressuitable to the needs & aspirations of the nation

& the balanced flow of information…, in

accordance with a policy that respects the

freedom of speech & of the press.(Article XV, Section 10)


Bill of Rights, 1987 Constitution

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances. (Article III, Section 4)


State Policies, 1987 Constitution

Adopt generally accepted principles of international law as part of the law of the land (Article II, Section 2)

Guarantee full respect for human rights (Article II, Section 11)

Recognize the vital role of communication & information in nation-building (Article II, Section 24)


“Rights online, same offline”, A/HRC/20/L.13

Resolution on the promotion, protection & enjoyment of human rights on the Internet.

Cosponsored by the Philippines (+84 other countries)

Adopted by the Human Rights Council on July 5, 2012.


“Rights online, same offline”, A/HRC/20/L.13

Affirms that the same rights people have offline must also be protected online, in particular freedom of expression,… regardless of frontiers & through any media of one’s choice, in accordance with articles 19 of the UDHR & the ICCPR


Human Right to Freedom of Expression

Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive & impart information & ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice. (Article 19, UDHR & ICCPR)



The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. (Article III, Section 8)


State Policy, 1987 Constitution

The State shall encourage non-governmental,

community-based, or sectoral organizations that promote the welfare of the nation. (Article II, Section 23)


Social Justice & Human Rights, 1987 Constitution

The right of the people & their organizations to effective & reasonable participation at all levels of social, political, & economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms. (Article XIII, Section 16)



The right…to be secure in their persons, houses, papers, & effects against unreasonable searches & seizures of whatever nature & for any purpose shall be inviolable, & no search warrant… shall issue except upon probable cause to be determined personally by the judge… (Article III, Section 2)



The privacy of communication & correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (Article III, Section 3)


Human Right to Privacy

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor & reputation. Everyone has the right to the protection of the law against such interference or attacks. (Article 17, ICCPR)

Internet Freedom v Surveillance

La Rue report A/HRC/23/40 (17 April 2013)

[R]ight to privacy is an essential requirement for the realization of the right to freedom of expression & to hold opinions without interference, & one of the foundations of a democratic society.



Illegal surveillance of private communications & the indiscriminate interception of personal data of citizens constitutes a highly intrusive act that violates the rights to freedom of expression& privacy & threatens the foundations of a democratic society



Deeply concerned at human rights violations & abuses that may result from the conduct of extra-territorial surveillance or interception of communications in foreign jurisdictions



To uphold the right to privacy & ensure the full & effective implementation of all international human rights law obligations, all procedures, practices & legislation on the extra-territorial surveillance of private communications & interception of personal data of citizens in foreign jurisdictions must be reviewed

Internet Freedom v Censorship

Why censor at all?

Freedom of expression may “be subject to certain restrictions, but these shall only be such as are provided by law & are necessary:

“For respect of the rights or reputations of others;

“For the protection of national security or of public order, or of public health or morals.”

(Article 19, UDHR & ICCPR)


Defamation, Libel & Insult

Cyberdefamation provision was removed from the Lower House draft of RA10175

Bicameral Conference Cmte. put in instead Cyberlibel in RA10175

Adonis view of the ICCPR Human Rights Cmte. discussed in oral arguments before the Supreme Court


Defamation, Libel & Insult

Libel has been in the Revised Penal Code for almost 90 years.

The draft Code of Crimes will decriminalizelibel but retain civil liability for libel.


Obscenity, Pornography, Cybersex

Another free speech issue in RA10175: making cybersex a crime.

Solicitor General claimed RA10175 actually penalizes cyber-prostitution but SC Justice Abad pointed out RA10175 did not say so.


Obscenity, Pornography, Cybersex

Cyber-prostitution in cybersex dens already dealt with by several existing laws:

Anti Human Trafficking Act of 2003 (RA 9208)

Anti Child Pornography Act of 2009 (9775)

Anti Photo & Video Voyeurism Act of 2009 (RA9995)


Liability of Internet Intermediary

Intermediaries, as “third-parties”, provide communication services.

Generally, intermediaries must not be made liable for the content posted or uploaded by the netizens who avail of their services.

“Take-down” procedures must be clear so as not to spur intermediaries to “err on the side of caution.”


Liability of Internet Intermediary

“States must refrain from forcing the private sector to implement measures compromising the privacy, security & anonymity of communications services, including requiring the construction of interception capabilities for State surveillance purposes or prohibiting the use of encryption.” (La Rue, A/HRC/23/40)

Internet Freedom is for you

Use your freedom & rights wisely online. “Think before you click.”

Defend your cyber rights & freedom.

The Law is there to guarantee, protect & promote your fundamental freedoms & human rights, online & offline.

THANK YOU

Documents

Fundamental Freedoms & the Internet