Unregulated Internet faces challenges

The Republic of the Philippines is an archipelago of more than 7,100 islands spread over 300,000 square km. It is the 12th most populous nation in the world and is home to over 100 million people.1 It has an urban population of 48 percent.2

The Philippines is the only predominantly Christian nation in Asia, with more than 80% Filipinos identifying as Roman Catholics.3 English is widely spoken and is one of two official languages. These are the legacies of the country’s long history of colonization.

The economy continues to grow but poverty rate is still at 26 percent.4 Armed challenges from communist rebels and Muslim separatists persist, and a restive military continues to exert influence in the country’s political life. At the same time, Philippine civil society is one of the most vibrant in the world, and continues to be at the forefront in advocating for good governance, sustainable development, socio-economic and political reforms, and human rights. The country is a signatory to many international treaties, including the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its Optional Protocol.

Access to the Internet was introduced in the Philippines in 1994 and from then on the number of users has grown exponentially. The Philippines is in the top 20 Internet user countries in the world, in terms of population penetration.5 Increase in Internet penetration is partly due to the mobile revolution.6 In recent years, at various times, the country has been known as the ‘texting capital’,7 the ‘selfie capital’8 and ‘social media capital’9 of the world.

The Philippine government recognizes the important role of information and communications technology (ICTs) in the lives of its people. ICTs are embraced in national plans for their socio-economic potential. For instance, the Philippine Digital Strategy of 2011-2016 looks at how ICT can make a difference in key areas such as government and governance, education, economy, employment and in industries, and for national development, as well as empowerment of citizens.10

Despite the continuing growth of Internet penetration in the country, Internet connectivity remains a challenge. Compared to its neighboring countries in the region, broadband access is much lower, at only seven million for both fixed and mobile subscription as of end-2014.11 The quality of service is likewise poor and connectivity is slow.12 Cost of service is also one of the most expensive in the world.13 This is often attributed to the duopoly in the country’s telecommunications industry, which is controlled mainly by the PLDT Group (Smart Communications and Digitel Philippines) and Globe Telecom (Globe and Bayantel). These two companies also own and operate telecoms infrastructure from the submarine cables, landing stations, backhaul, middle mile, and the last mile—the same retail market where they sell to smaller players who lease infrastructure and buy capacity from them.14

This paper presents an overview of the general trends in the country’s ICT policy and Internet governance arena, including some key issues and concerns.

ICT Policy

The government recognizes the vital role of communication and information in nation-building, and declares that science and technology are essential for national development and progress.15 Further, the Constitution tasks the State to “regulate the transfer and promote the adaptation of technology for the national benefit”,16 thereby placing policy development and governance of ICTs, particularly telecommunications and more recently the Internet, well within the State’s ambit of interest. But how the Philippine government has actually implemented this mandate has been uneven, given shifting realities that impact on ICT policy and Internet governance, and issues of internal capacities and local political realities.

Key legislative instruments that continue to impact the current Internet governance landscape include the following:

Republic Act (RA) 7925: Public Telecommunications Policy Act of 1995. It liberalizes the telecommunication industry but this pre-Internet legislation needs serious updating as new technologies have superseded the institutional mechanisms designed to make the telecoms sector efficient.

RA 8792: E-Commerce Act of 2000. It gives legal recognition of electronic data messages, electronic documents and electronic signatures. It also mandated to connect all government offices to the Internet and provide universal access to the general public.

RA 9775: Anti-Child Pornography Act of 2009. This law makes child pornography illegal and penalizes any person who produces, distributes or assists in the transmission or promotion of child pornography, including via the Internet. It holds Internet providers and hosts liable for the content provided by their services.

RA 9995: Anti-Photo and Video Voyeurism Act of 2009. It prohibits the recording of videos or taking of videos of a sexual act, the male or female genitalia, and of the female breast, among others, without consent of the persons featured in the material. It also seeks to prevent the reproduction, distribution and publication of said materials regardless of whether or not the persons featured consented to the recording. This piece of legislation was passed partly as a result of the much-publicized case that involved an actress whose sex video with her ex-boyfriend went viral on the Internet, to the extent that it was even uploaded in pornography sites. The actress filed a case against her boyfriend for the emotional distress she suffered as a result of the uploading of the video, citing a provision in the anti-violence against women and children act (RA 9262). She lost the case because the court said that it was the uploading of the video that caused the emotional distress and it was not established who uploaded the video, pointing to legal and policy gaps that existed then.

RA 10173: Data Privacy Act of 2012. This is the first comprehensive national data protection law, but remains unimplemented as of end-2015. One of the provisions of this law pertains to the establishment of the National Privacy Commission, and it was only very recently that individuals were appointed to the commission.17

RA 10175: Cybercrime Prevention Act of 2012. It was passed to address crimes committed against and by means of a computer system, amidst broad debates as to its scope and effect on human rights. It was challenged in the Supreme Court by several groups, but has since passed in 2014, with some amendments. Declared unconstitutional provisions included Sec 4(c), which pertains to unsolicited commercial communications; Section 12, which pertains to real time collection of traffic data; and, Section 19, which pertains to restricting or blocking access to computer data.

RA 10667: Philippine Competition Act of 2015. It is important to address anti-competitive/anti-trust conduct in the Philippines. This is an emerging battleground because of the duopoly structure in Philippine telecoms, and the rise of possible new technologies in this field.

National Policy Institutions

At the forefront of ICT policy and Internet governance are the Information and Communications Technology Office (ICTO) under the Department of Science and Technology, and the National Telecommunications Commission (NTC).

ICTO was created in 2011 to merge the functions National Computer Center, the Telecommunications Office of the DOTC, and the previous Commission on ICT under one agency.18 Placed under the DOST, it assumed the role of main ICT policy development agency of government and lead implementor of key e-government initiatives.

On the other hand, the NTC was the legacy regulatory agency for telecoms in the country, and continues to exist as a separate quasi-judicial body under the Office of the President. As regulator, it was mandated to perform crucial policy-related functions inherent to its formal role.

Freedom of expression in the digital age

Media in the Philippines has generally been free since the Martial Law era, and continues to be free (and free-wheeling). The media scene is now more vibrant with the flowering of citizen journalists and bloggers. Ironically, the Philippines is also one of the most dangerous places for journalists. Media killings are left unsolved and justice is not served. For example, the highest number of media people killed in a single event was tallied in the so-called “Ampatuan massacre” in 2013, which has put the country in a negative way on the radar of many media freedom groups and free expression indices.

New media and the Internet are generally unregulated, but new laws have been enacted that impinge on freedom of expression, such as the Cybercrime Prevention Act. This law tried to introduce measures like real-time surveillance and website takedown provisions, but these have been stricken down, thanks to the efforts of activists and other experts who rallied and lobbied the Philippine Supreme Court to declare these provisions as unconstitutional. However, many problematic provisions remain in the new law which internet freedom and gender activists decry as inimical to free expression and privacy rights, such as the criminalization of “cybersex”, and “cyberlibel”. The Philippines is one of a few countries that still considers libel a criminal offense.

The cybersex provision of the Cybercrime Prevention Act is problematic because of its vagueness and overbreadthness. The law defines cybersex as “the willful engagement, maintenance, control or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.”19 Among others, the law “focuses solely on criminalization, unmindful of its possible effects and without clear understanding of the inherent nature and characteristics of ICTs relating to violence committed against women.”20 Philippine women’s groups argue that rather than recognize a person’s agency to express sexuality online, sexual behavior would be effectively criminalized.

Violations of online privacy have also markedly increased especially in relation to social media. A recent landmark Supreme Court ruling on Facebook privacy brought this to the fore. This stemmed from the case of female students, who had posted bikini and smoking/drinking photos to their Facebook friends, being banned by their Catholic school from marching in their high school graduation. Basically ruling in favour of the school, the High Court essentially declared that nothing is ever private on Facebook, thus putting the burden of safeguarding one’s privacy online with the users. The doctrine of “reasonable expectation of privacy” on Facebook now seems to be eroded.21

Surveillance is also an issue that should be considered. The Philippines has a long history of communications surveillance since the Martial Law period and this has continued to this day. Even the last three Presidents of the Philippines have not been spared. Then President Corazon Aquino has been the subject of analog wiretapping of telephone lines. Ex-President Joseph Estrada’s e-mail’s messages have been intercepted. President Gloria Arroyo’s telephone conversation with an official of the Commission on Elections has been wiretapped using digitally sophisticated equipment.

Though there is no evidence of mass surveillance, the recent Snowden revelation in one of his testimonies revealed that resources have been channeled to Mindanao via the MYSTIC program of the US NSA. Some social activists and opposition politicians have reported that they have been or are being surveilled.

Laws / Policy Direction

It cannot be denied that the policy landscape for ICTs, telecoms and the Internet has evolved rapidly, where technological developments and their economic impact have spawned challenges in the sphere of public policy. From its obscure beginnings in the technical community, the Internet now encompasses all aspects of human life.

On many levels, technology outpaced policy, leading to sometimes confusing and even conflicting policy responses from government. For example, with the explosion of social media, different government agencies in the country had different takes on how government should (or should not) regulate, and use, social media tools, which had become the primary gateway for many Filipinos to cyberspace.

There are pending bills in Congress, which are supposed to impact and influence the country’s legal and policy direction on issues relating to ICTs, but these may not pass into law before the current Congress adjourns. Among these bills are the following:

Act Amending the Public Telecommunications Policy Act (RA 7925). RA 7925 was enacted at a time when the Internet was not yet commercially available in the country and then considered a vital technology. The Philippines needs to amend the law to promote innovation in communications and connectivity, as well as to insure that such connectivity is not tied to any particular technology, service or practice.

National Telecommunications Commission (NTC) Reorganization bill. There is a need to update the overall regulatory framework of the NTC to address the demands and challenges of the digital age. The proposed bill aims to strengthen the regulator’s independence in order to avoid regulatory capture. It also includes the use of NTC’s revenues from fees and licenses for its own capacity building.

Act Creating the Department of Information and Communications Technology.22 The argument for the creation of a department is to integrate and coordinate all ICT-related functions and services of government, to promote ICT-based and related industries, and prescribe the appropriate policy framework for the improvement of access, quality and affordability of ICTs, including Internet service. The proposed agency is seen to set a national vision and steer the direction of ICT development in the country.

Act Establishing a Magna Carta for Philippine Internet Freedom (MCPIF). This bill envisions to ensure that the Philippines and its citizens are able to meet the challenges posed by ICT and cyberspace. It was proposed as an alternative to the Cybercrime Prevention Act (RA 10175) whose enactment met with several oppositions. It contains provisions promoting civil and political rights and Constitutional guarantees for users, such as freedom of expression, provisions on information and communications technology policy, ICT for development, Internet governance, e-governance, cybersecurity, cyberwarfare, cyber-terrorism and cybercrime. Inspired by Brazil’s Marco Civil, the MCPIF is the first crowd-sourced bill in the Philippines.

Freedom of Information Bill. Making information immediately accessible to the public is crucial to transparency. The FOI bill provides, among others, that “all information pertaining to official acts, transactions or decisions, as well as government research data used as basis for policy development, regardless of their physical form or format in which they are contained and by whom they were made” should be made accessible to the public. The FOI could have institutionalize access to government data and information online in open, machine-readable formats. Unfortunately, 24 years since the first FOI bill was filed,23 its passage has remained an uphill battle.

On May 9, 2016, the Philippines will hold its national and local elections. A number of candidates running for national posts have expressed their intention to solve the nation’s poor and slow Internet connection. However, it remains to be seen if the new set of legislators and leaders will pursue the passage of laws and policies that would positively affect the quality and efficacy of national ICT development.

Meanwhile, civil society, including media, continues its initiatives to ensure that even with the lack of policies and laws relating to Internet governance, there are actions that would propel the country towards development in this Internet age. Such initiatives include, among others, engagement with government agencies to push for multi-stakeholder processes in crafting ICT policies and creating local discussion spaces for human rights and Internet governance.24

In an era of “ubiquitous computing”, “big data and analytics”, “internet-of-things” and “smart technologies” are stretching the boundaries of surveillance and personal privacy, freedoms of information and expression, information security, commercial transactions and even the nature of wealth itself. Indeed, the Philippine Internet governance ecosystem faces many more challenges in the future. #

1 See http://data.worldbank.org/data-catalog/Population-ranking-table

2 Based on the 2000 Philippine census. See https://psa.gov.ph/content/philippines-urban-population-was-registered-480-percent

3 As of the last census of the National Statistics Office (NSO) in 2010, there are 74,211,896 followers of the Roman Catholic Church, or 80.6% of the Philippine population. See Bueza, M. (2015). MAP: Catholicism in the Philippines. Rappler. www.rappler.com/newsbreak/iq/81162-map-catholicism-philippines

4 “Poverty Statistics,” in http://www.nscb.gov.ph/poverty/

5 Internet penetration in the Philippines is estimated at 43.5%. See http://www.internetlivestats.com/internet-users/philippines/

6 Mobile penetration is 113%. See we are social

7 Cited in 2009 researches conducted by Reuters, Portio research, NY Times, CTIA.org

8 See Time magazine’s “Cities ranked by selfies: Where are the most selfies taken,” available in http://time.com/selfies-cities-world-rankings/

9 See “Research confirms: The Philippines is still the social media capital of the world,” posted on July 3, 2014. Available in https://sg.news.yahoo.com/research-confirms-philippines-still-social-033045566.html

10 In “The Philippine Digital Strategy. Transformation 2.0: Digitally Empowered Nation.” Available in http://icto.dost.gov.ph/wp-content/uploads/2014/06/philippine-digital-strategy-2011-2015.pdf

11 Based on the latest SEC filings of PLDT and Globe.

12 In Akamai’s State of the Internet Report Q4 2015, the Philippines recorded the second slowest download speed in the Asia-Pacific region next to India.

13 According to Ookla’s Net Index report in Q4 2014, the Philippines is the second most expensive retail Internet service out of the 62 countries it ranked.

14 Mirandilla-Santos, Grace (2015). “Philippine Internet Policy Landscape.” A paper commissioned by FMA (unpublished).

15 1987 Philippine Constitution, Sec. 10, Art. XIV

16 1987 Philippine Constitution, Sec. 12, Art. XIV

17 “DOST exec named first commissioner of the National Privacy Commission, ” posted on March 7, 2016 at newsbytes.com. See http://newsbytes.ph/2016/03/07/dost-exec-named-first-commissioner-of-national-privacy-commission/

18 Executive Order 47, series of 2011.

19 Section 4(1)(c) of Republic Act 10175

20 In “Delete, Undo, Retrieve,” Statement on the Cybercrime Prevention Act of 2012 which was signed by several women’s rights groups and advocates

21 Supreme Court decision: Vivares and Suzara vs. St. Theresa’s College, GR No. 202666. The merits cannot be discussed extensively here. A case study on this was written by FMA in 2015.

22 As of this writing bill proposing the creation of a Department of Information and Communications Technology (DICT) has hurdled Congress last December 15, 2015, but legal technicalities and lack of Presidential support may prevent it from finally passing into law

23 In 1992, then Pangasinan Representative Oscar Orbos filed the first FOI bill.

24 For instance, the Foundation for Media Alternatives, in partnership with the Internet Society Philippines Chapter and the Philippine Alliance of Human Rights Advocates, launched in March 2015 the first-ever Philippine Multi-stakeholder Forum on Internet Governance. In 2015, FMA also spearheaded the crafting of the Philippine Declaration on Internet Rights and Principles, a crowdsourced document outlining the aspirations for the Internet that the Filipinos want