Tuesday, May 27, 2014

significance of integration


ASEAN INTEGRATION and how it affects the INTELLECTUAL PROPERTY LAW OF THE PHILIPPINES.

One Vision, One Identity, One Community” [i]this is the Motto of the Association of Southeast Asian Nation (ASEAN) that was founded on August 8, 1967 in Bangkok, Thailand by Indonesia, Malaysia, Philippines, Singapore and Thailand. Brunei, Burma, Cambodia, Laos and Vietnam also joined the political and economic organization. Upon signing the ASEAN declaration known as the Bangkok declaration, the purpose of the association is focused:
1.     To accelerate the economic growth, social progress and cultural development in the region through joint endeavours in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of Southeast Asian Nations;
2.     To promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter;
3.     To promote active collaboration and mutual assistance on matters of common interest in the economic, social, cultural, technical, scientific and administrative fields;
4.     To provide assistance to each other in the form of training and research facilities in the educational, professional, technical and administrative spheres;
5.     To collaborate more effectively for the greater utilisation of their agriculture and industries, the expansion of their trade, including the study of the problems of international commodity trade, the improvement of their transportation and communications facilities and the raising of the living standards of their peoples;
6.     To promote Southeast Asian studies; and
7.     To maintain close and beneficial cooperation with existing international and regional organisations with similar aims and purposes, and explore all avenues for even closer cooperation among themselves.[ii]
The Fundamental principles they follow as stated in the Treaty of Amity and Cooperation in Southeast Asia (TAC) of 1976:
1.     Mutual respect for the independence, sovereignty, equality, territorial integrity, and national identity of all nations;
2.     The right of every State to lead its national existence free from external interference, subversion or coercion;
3.     Non-interference in the internal affairs of one another;
4.     Settlement of differences or disputes by peaceful manner;
5.     Renunciation of the threat or use of force; and
6.     Effective cooperation among themselves.[iii]
In line with the principles and purpose of the association they form various approach on issues affecting the various countries it is composed of. One of the issues is Intellectual Creations, which the ASEAN addresses through the ASEAN Working Group on Intellectual Property Cooperation (AWGIPC). The AWGIPC is mandated to develop, coordinate, and implement all Intellectual Property-related regional programmes and activities in ASEAN.[iv] The countries composing the ASEAN consented on the integration through ASEAN Framework Agreement on Intellectual Property Cooperation last December 1995. As provided in the framework ASEAN is Desiring to foster closer cooperation in the field of intellectual property and related fields in order to provide a firm basis for economic progress, the expeditious realization of the ASEAN Free Trade Area and prosperity among the Member States of ASEAN[v]
Through the years ASEAN is providing goals to improve the intellectual property system. The AWGIPC created a Work Plan known as ASEAN Intellectual Property Right Action Plan 2011-2015. The plan is composed of 5 strategic goals such as:
Strategic Goal 1:
A balanced IP system that takes into account the varying levels of development of Member States and differences in institutional capacity of national IP Offices to enable them to deliver timely, quality, and accessible IP services to promote the region as being conducive to the needs of users and generators of IP.
Strategic Goal 2:
Developed national or regional legal and policy infrastructures that address evolving demands of the IP landscape and AMSs participate in global IP systems at the appropriate time.
Strategic Goal 3:
The interests of the region are advanced through systematic promotion for IP creation, awareness, and utilization to ensure that IP becomes a tool for innovation and development; support for the transfer of technology to promote access to knowledge; and with considerations for the preservation and protection of indigenous products and services and the works of their creative peoples in the region.
Strategic Goal 4:
Active regional participation in the international IP community and with closer relationships with dialogue partners and institutions to develop the capacity of Member States and to address the needs of stakeholders in the region.
Strategic Goal 5:
Intensified cooperation among AMSs and increased level of collaboration among them to enhance human and institutional capacity of IP Offices in the region.
This Plan is designed to meet the goals of the ASEAN Economic Community by transforming ASEAN into an innovative and competitive region through the use of Intellectual Property for their nationals and ensuring that the region remains an active player in the international Intellectual Property community.[vi]
Intellectual creations are recognized as the source of success in an economy. Ones creation of the mind may be regarded as a new hit in its form or industry. All successful personalities started from scratch, they thought of an idea and thus embody themselves of these ideas and took action to reach more than what they thought of. Intellectual property has a broad coverage which is need of protection, it may be a technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable[vii], an original work, an adaptation of a previous design, a literary or artistic work, a distinguishable sign of ownership and many more.
In the Philippines intellectual property rights consist of Copyrights and Related Rights, Trademarks and Service Marks, Geographical Indications, Industrial Designs, Patents, Lay-out designs (Topographies) of Integrated Circuits and Protection of Undisclosed Information. The promulgation of RA 8293 otherwise known as Intellectual Property Code of the Philippines shows the importance of intellectual creations, “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.”[viii]  
The Intellectual Property Office administers the Intellectual Property Rights. To secure efficiency the office is being composed of this bureaus: Bureau of Patents, Bureau of Trademarks, Bureau of Copyright and other related rights, Bureau of Legal Affairs, Documentation, Information and Technology Transfer Bureau, Management Information System and EDP Bureau and Administrative, Financial and Personnel Services Bureau.
 According to the statistics of the Intellectual Property Office[ix] last 2013, the Philippines has a total of 22,108 trademark filings, 10,963 trademark registrations, 3,074 invention patent filings, 1,913 invention patent grants, 673 utility model filings, 489 utility model registrations, 1,337 industrial design filings, 1,343 industrial design registrations, 714 copyright filings and 648 copyright registration. The statistics also show that there is a gradual increase on persons filing be it a resident of the Philippines or not. This expresses that the competitiveness of persons on creating innovative ideas for profit or not is increasing.
The Philippines Intellectual Property law is encouraging its scope not to be afraid in doing more for it provides protection on their behalf. Protection of intellectual property is also provided in the Philippine Constitution Section 13, Article XIV provides that “The State 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 period as may be provided by law.”[x]
As success in commercializing intellectual property increases, the infringers, pirates and violators will be tempted to act. The Intellectual Property Office formed a partnership to other institutions to mandate the intellectual property enforcement. The institutional partnership with the National Bureau of Investigation- Intellectual Property Rights Division from the period of 01 January 2013 to 31 December 2013 produced 675 search warrants in violation of the intellectual property law, which has an estimated value of 3,793,742,096.00 pesos. The sum is composed of 2,168 Victoria Secret products about 2,000,000 pesos worth, 5,576 Louis Vuitton products about 664,721,000 pesos worth, and 2,406,000 Snow Bear Menthol Candy about 2,400,000 pesos worth. Talk about the sum of money that can be gathered from imitating an idea of another more over see the effect and the value of an idea of someone. More ideas, innovations and creations the more successful the economy is and when this success is intercepted with false representation or imitation the underground economy rises. There will be a lesser income for the country and lesser idealistic persons. The importance of intellectual property is need for further improvement therefore RA 10372 was approved last February 28, 2013. This amendment focuses more on the copyright laws.
Discussing further the Philippines intellectual property law in connection with international related provisions. It is provided under section 3 of the Intellectual Property Code the principle of reciprocity “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 which any owner of an intellectual property right is otherwise entitled by this Act.”[xi] It is also provided that  “Any condition, restriction, limitation, diminution, requirement, penalty or any similar burden imposed by the law of a foreign country on a Philippine national seeking protection of intellectual property rights in that country, shall reciprocally be enforceable upon nationals of said country, within Philippine jurisdiction.”[xii]
The Philippines also provided a right of priority in patent application as stated in section 31, “ An application for patent filed by any person who has previously applied for the same invention in another country which by treaty, convention, or laws affords similar privileges to Filipino citizens, shall be considered as filed as of the date of filing the foreign application: Provided, That: (a) the local application expressly claims priority; (b) it is filed within twelve (12) months from the date the earliest foreign application was filed; and (c) a certified copy of the foreign application together with an English translation is filed within six (6) months from the date of filing in the Philippines.”[xiii]The right of priority is also granted on the law on trademark under Section 131:
131.1. An application for 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.
131.2. No registration of a mark in the Philippines by a person described in this section shall be granted until such mark has been registered in the country of origin of the applicant.
131.3. Nothing in this section shall entitle the owner of a registration granted under this section to sue for acts committed prior to the date on which his mark was registered in this country. Provided, That, notwithstanding the foregoing, the owner of a well-known mark is defined in Section 123.1 (e) of this Act, that is not registered in the Philippines, may, against an identical or confusingly similar mark, oppose its registration, or petition the cancellation of its registration or sue for unfair competition, without prejudice to availing himself of other remedies provided for under the law.
131.4. In like manner and subject to the same conditions and requirements, the right provided in this section may be based upon a subsequent regularly filed application in the same foreign country: Provided, That any foreign application filed prior to such subsequent application has been withdrawn, abandoned, or otherwise disposed of, without having been laid open to public inspection and without leaving any rights outstanding, and has not served, nor thereafter shall serve, as a basis for claiming a right of priority. [xiv]
In addition there is also an agreement affected the Philippine intellectual property, the World Trade Organization, which the Philippines is a member through the Trade-Related Aspects of Intellectual Property Rights (TRIPS) provided that “Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property”[xv] and “With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members”[xvi] this provisions of course are subject to exemptions. The members may, but not obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.[xvii] Hence this coverage extends the rights of a person’s intellectual creation.
Technically, ASEAN integration helps the Philippines intellectual property to be more competitive and more significant in other countries. The ASEAN provides strategic planning to utilize a persons right and the public rights towards intellectual creation in line with our Intellectual Property Code, after the lapse of the period granted for the enjoyment of his creation to the creator it the product becomes part of public domain. The ASEAN also encourages the people to participate in the field of business for their protection is given locally and internationally.
In connection with the strategic goals, the Philippines is put into pressure to do well in the improvement of the Intellectual Property Code and of course its system. The public has online access to the statistics relating to the enforcement of intellectual property laws and other related data, clearly a deliverable delivered by the ASEAN. The awareness of the people on the crimes that they might commit concerning intellectual property is transparently known through the mass media and the internet and the amendment made on Copyright exceptions and limitations for the visually impaired and persons with disabilities are some of the deliverables delivered under the strategic goals.
ASEAN, at the same time, recognizes the need to continue its partnerships with other institutions and organizations to improve regional and national capacity and for ASEAN to fulfill its commitments aimed further improving relationships with trading partners and building new relationships with future partners.[xviii]. Some established partnerships established are with Europe-ASEAN (EU-ASEAN), Japan Patent Office (JPO), State Intellectual Property Office (SIPO), European Patent Office (EPO), ASEAN-Australia-NewZealand Free Trade Agreement (AANZFTA), World Intellectual Property Office (WIPO), This concept in the business aspect might give rise to a global competitiveness of the Philippines own.
Though it has been reported that it is unlikely to achieve all the targets by 2015 but we can still see the significant change in our Intellectual Property through the amendments made and efforts done by the IPO and our Legislature.

Other sources[xix]


[i] “ASEAN-MOTTO”, ASEAN, http://www.asean.org/asean/about-asean/asean-motto RETRIVED: 24 MAY 2014
[ii] “ASEAN-overview”, ASEAN, http://www.asean.org/asean/about-asean/overview RETRIVED: 24 MAY 2014
[iii]“Treaty of Amity and Cooperation in Southeast Asia Indonesia, 24 February 1976”, ASEAN, http://www.asean.org/news/item/treaty-of-amity-and-cooperation-in-southeast-asia-indonesia-24-february-1976-3 RETRIVED: 24, MAY 2014
[iv] ASEAN IPR Action Plan 2011-2015
[v]ASEAN Framework Agreement on Intellectual Property Cooperation, Bangkok, 15 December 1995
[vi] ASEAN IPR Action Plan 2011-2015
[vii] Section 21, RA 8293 “Intellectual Property Code of the Philippines, as amended”
[viii] Section 2, Ibid
[ix] “IP Statistics”, Intellectual Property Office, http://www.ipophil.gov.ph/images/IPOffice/IPStatistics2005-2014March2014.pdf RETRIEVED 26 MAY 2014
[x] 1987 Philippine Constitutuion
[xi] RA 8293 “Intellectual Property Code of the Philippines, as amended”
[xii] Section 232, Ibid
[xiii] Section 31, Ibid
[xiv] Section 131, Ibid
[xv] Article 3, Agreement on Trade-Related Aspects of Intellectual Property Rights
[xvi] Article 4, Ibid
[xvii] Article 1, Ibid
[xviii] ASEAN IPR Action Plan 2011-2015

Wednesday, May 7, 2014

deɪtə ~ notitia actus intimitatem......

Change is constant, the words of Heraclitus strongly applies to technology. The “change” is so fast that we cant afford to update our technology due to practicality. As technology advances people are getting more and more involved in the adaptation of such, almost all have their own gadgets and access to Internet but some are not aware of the risks they are taking. The more advanced the information technology is the more exposure to threat there is to the people. There are things yet to be discovered which may be a tool to commit a crime if none is punishable under the applicable laws. It is easy to generate or make up information from a person with bits of genuine information and images, let's face it people barely reads the terms and conditions provided under a sign up sheet.  
Now talking about privacy, the right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional right[i]. The Philippine 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.[ii]
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.[iii] 
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.[iv]
Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual Property Code. The Rules of Court on privileged communication likewise recognize the privacy of certain information.[v]
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 communications systems in the government and in the private sector are secured and protected[vi], this is the view of our government that blossomed into the enactment of the “Data Privacy Act of 2012”. It applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing [vii] but the act also expressly excluded the application to some situations, thus it is not absolute. The act created an administer which is known as the National Privacy Commission which will be in charge to implement the provisions, monitor and ensure compliance of each with the international standards set for data provisions. The Commission shall act as a collegial buddy, which may be given access to personal information that is subject of any complaint and to collect the information necessary to perform its functions under the Act.
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.[viii] It may include sensitive personal information that is about an individual’s race, ethnic origin, marital status, age, color and religious, philosophical or political affiliations, etc. The act provided the approval of data processing under section 11, “The processing of personal information shall be allowed, subject to compliance with the requirements of the act and other laws allowing disclosure of information to the public and adherence to the principles of transparency, legitimate purpose and proportionality.

According to Raul J. Palabrica, The most significant aspects of the law are: the procedures to be followed in the collection, processing and handling of personal information; the rights of data subjects; and the creation of a National Privacy Commission.
The law requires information collectors, holders and processors to follow strict rules on transparency, legitimacy and proportionality in the conduct of their activities.
Among others, the collection should be conducted for “specific 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.”
Accuracy, relevance and essentiality of purpose must likewise be observed during the collection stage.
Inaccurate or incomplete data should be corrected, supplemented, destroyed or their further processing restricted.
The information can be stored only as long as needed for the purpose for which it was obtained, or “for the establishment, exercise or defense of legal claims, or for legitimate business purposes, or as provided by law.”
Once collected, the information can be processed or used only if it is not prohibited by law and the person who provided the information (or data subject) has given his consent; if no such consent is given, the processing can still go on provided it meets the “necessity” test.[ix]
            It is well established that the act pertains to the protection of the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth[x] but the law is still new as it was approved August 15, 2012; making it open for an attack on its applicability.
            One example would be on Personal information controller which 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 which excludes (1) A person or organization who performs such functions as instructed by another person or organization; and (2) an individual who collects, holds, process or uses personal information in connection with the individual’s personal family or household affairs.[xi] In relation to Section 14, A personal information controller may subcontract the processing of personal information: Provided, that the contractor will be responsible for ensuring that the proper safeguards are in place to ensure the confidentiality of the personal information processed, prevent its use for unauthorized purposes, and generally comply with the requirements of the act and other laws for processing of personal information.
Now the question is what if the subcontracted party used the data collected for unauthorized purpose, continued to gather data from the subject but the contract to collect had already lapsed and the one who contracted exhausted all efforts to ensure confidentiality and is not aware that the subcontracted party misused the data, Will the contractor or personal information controller be liable for the acts of the subcontracted party evidently that the former is in good faith, would vicarious liability apply? Lastly, what penalty will the sub contractor face? Is it under section 25- unauthorized processing of personal information and sensitive personal information or under section 28- processing of personal information and sensitive personal information for unauthorized purposes. The subcontractor has an authority to get data from the subject but upon expiration of the contract he exceeded his authority but will that hold the contractor also liable?
            Now, if a person is punishable under this act would he still be liable for other laws? Like if a person is liable of Unauthorized Processing of Personal Information and Sensitive Personal Information, will that person be liable to also to the violation on ones privacy? 
            One situation in relation to anti-wiretapping law, it is clear from above that this is made to protect the privacy of a person. If a company is an authorized Personal information controller, is wiretapped by someone (B) while in the process of collecting data what are the offenses committed?
            It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.[xii]
            Clearly B, is in violation of wiretapping, which is punishable of 6 months to 6 years imprisonment and he is also in violation of data privacy act under Unauthorized Processing of Personal Information and Sensitive Personal Information. – 
(a) The unauthorized processing of personal information shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.
(b) The unauthorized processing of personal sensitive information shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.[xiii]
                  The question is will the company be also liable? According to Section 20 of the act, (a) The personal information controller must implement reasonable and appropriate organizational, physical and technical measures intended for the protection of personal information against any accidental or unlawful destruction, alteration and disclosure, as well as against any other unlawful processing.
(b) The personal information controller shall implement reasonable and appropriate measures to protect personal information against natural dangers such as accidental loss or destruction, and human dangers such as unlawful access, fraudulent misuse, unlawful destruction, alteration and contamination.
(c) The determination of the appropriate level of security under this section must take into account the nature of the personal information to be protected, the risks represented by the processing, the size of the organization and complexity of its operations, current data privacy best practices and the cost of security implementation. Subject to guidelines as the Commission may issue from time to time, the measures implemented must include:
(1) Safeguards to protect its computer network against accidental, unlawful or unauthorized usage or interference with or hindering of their functioning or availability;
(2) A security policy with respect to the processing of personal information;
(3) A process for identifying and accessing reasonably foreseeable vulnerabilities in its computer networks, and for taking preventive, corrective and mitigating action against security incidents that can lead to a security breach; and
(4) Regular monitoring for security breaches and a process for taking preventive, corrective and mitigating action against security incidents that can lead to a security breach.
(d) The personal information controller must further ensure that third parties processing personal information on its behalf shall implement the security measures required by this provision.
(e) The employees, agents or representatives of a personal information controller who are involved in the processing of personal information shall operate and hold personal information under strict confidentiality if the personal information are not intended for public disclosure. This obligation shall continue even after leaving the public service, transfer to another position or upon termination of employment or contractual relations.
(f) The personal information controller shall promptly notify the Commission and affected data subjects when sensitive personal information or other information that may, under the circumstances, be used to enable identity fraud are reasonably believed to have been acquired by an unauthorized person, and the personal information controller or the Commission believes (bat such unauthorized acquisition is likely to give rise to a real risk of serious harm to any affected data subject. The notification shall at least describe the nature of the breach, the sensitive personal information possibly involved, and the measures taken by the entity to address the breach. Notification may be delayed only to the extent necessary to determine the scope of the breach, to prevent further disclosures, or to restore reasonable integrity to the information and communications system.
(1) In evaluating if notification is unwarranted, the Commission may take into account compliance by the personal information controller with this section and existence of good faith in the acquisition of personal information.
(2) The Commission may exempt a personal information controller from notification where, in its reasonable judgment, such notification would not be in the public interest or in the interests of the affected data subjects.
(3) The Commission may authorize postponement of notification where it may hinder the progress of a criminal investigation related to a serious breach.[xiv]
What if the company implemented reasonable appropriate measures to protect personal information and if the company satisfies all of this still B consummated the crime. Will the company be liable? What if the company is subcontracted? Will the original personal information processor be liable even if the latter ensured that all security measures are complied with?
Another situation, If a government official within the scope of his duties discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her considering that the official is a personal information controller or personal information processor.
According to the revised penal code, Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 50 pesos shall be imposed.[xv] And in relation to RA 10173, Any personal information controller or personal information processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her, shall be subject to imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00). [xvi] In addition to that, When the offender or the person responsible for the offense is a public officer as defined in the Administrative Code of the Philippines in the exercise of his or her duties, an accessory penalty consisting in the disqualification to occupy public office for a term double the term of criminal penalty imposed shall he applied.[xvii]
What law should we apply? Or should we apply both? There is nothing in the act that repeals or amends this kind of provision, will he be liable under RA 10173 or be liable to Revelation of secrets by an officer?
It is in the same scenario when instead of malicious disclosure the government official committed unauthorized disclosure.
Lastly, If an officer (A) is interested in an another person (B), knowing that they are in the same organization or company, asked the HR officer for B’s data is it within the context of the Data Privacy Act? B’s data includes all the information disclosed upon B’s application to the said organization or company, personal and sensitive information included; the HR gave the data to A because A is an officer. Will A be liable to Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes. – The processing of personal information for unauthorized purposes shall be penalized by imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00) shall be imposed on persons processing personal information for purposes not authorized by the data subject, or otherwise authorized under this Act or under existing laws.
The processing of sensitive personal information for unauthorized purposes shall be penalized by imprisonment ranging from two (2) years to seven (7) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons processing sensitive personal information for purposes not authorized by the data subject, or otherwise authorized under this Act or under existing laws.[xviii]
Yes. But will the HR also be liable though the act was done with confidence?
The Data Privacy Act is still new and there are a lot of gray areas, but this does not give the public the right to abuse one’s privacy. Remember, it is as an inherent concept of liberty, has long been recognized as a constitutional right. A right which we all enjoy and should respect.
           




[i] Gamboa vs. Chan, G.R. No. 193636, 24/July/2012, p. 9
[ii] 1987 Philippine Constitution, section 1
[iii] Ibid, section 2
[iv] Ibid, section 3
[v] Gamboa vs. Chan, G.R. No. 193636, 24/July/2012, p. 11
[vi]  RA 10173, Section 2
[vii] Ibid, Section 4
[viii] Ibid, Section 3(g)
[ix] http://business.inquirer.net/79534/data-privacy-act-of-2012
[x] RA 10173, Section 2
[xi]RA 10173, Section 3(h)
[xii] RA 4200, An ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER       RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES, sec 1
[xiii] RA 10173, Section 25
[xiv] Ibid, Section 20
[xv] The Revised Penal Code of the Philippines, Article 229
[xvi] RA 10173, Section 31
[xvii]Ibid, Section 36
[xviii] Ibid, Section 28



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