Philippine Copyright Laws: On the Verge of Untimely Call for Right to Remix

 

“We live in an age of remix. Creativity and culture have always drawn from previous works, but with the Internet and digital technologies, the creative re-use of works has been taken to a whole new level. More people are able to edit and share a greater range of works than ever before.”

                   –Digitale Gesellschaft e. V., Right2Remix.org.

The above is the nucleus of the copyright reform advocacy waged in the 2013 Creative Commons Global Summit last August 21-24, 2013, which was held in Buenos Aires, Argentina. Creative Commons (CC) is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.[i]

The Summit brought together the affiliates of CC from different parts of the globe. The participants discussed strategies to strengthen Creative CC and its worldwide community; the latest developments in the commons movement worldwide; and showcase local and international projects that use CC licenses. Topics covered were the implementation of open policies in areas such as government, education, culture, business, science, data and more, as well as related topics such as free software, license development, collecting societies and copyright advocacy.[ii]

Lessig’s “Right to Remix” Copyright Reform

Harvard Law Professor and founder of CC, Lawrence Lessig discussed the laws that limit creativity. In his presentation, he highlighted the Culture of “Remix” and how this is deregulated or threatened by existence of copyright laws. He defined Remix as the time-honored tradition of Call and Response. He explained that copyright is the call, an invitation to creativity; and Remix is the response of re-creating and sharing.

He postulated that the right to expression is harnessed by the advent of digital technologies such as YouTube, Facebook, including PC, among others. With these advances, the culture to respond increases, thereby demanding laws to adapt to the way culture is changing. He proposed copyright reforms granting the right to remix to enable people to share more legally.He stated that although different countries have different copyright laws, creativity is a globally shared culture. If reforms happen, the world will be under one right to remix.

He acknowledged the initiatives undertaken by Right2Remix.org in Europe. Said organization calls for reforms in the European Copyright Directive that would contribute to a more lively and dynamic remix culture.[iii] The organization in its Manifesto stated that “We live in an age of remix. Creativity and culture have always drawn from previous works, but with the Internet and digital technologies, the creative re-use of works has been taken to a whole new level. More people are able to edit and share a greater range of works than ever before. More than ever, it has become clear that “everything is a remix!”

The organization believes that “the right to remix has become a fundamental requirement for freedom of expression and free speech in a digital society.” With this, Right2Remix.Org proposes modifications to the EU Copyright Directivewhich grants three (3) creative rights namely: a) the transformative usage rights; b) remix rights with lump-sum compensation; and c) remix commercialize rights. The first right pertains to the right to change the works during usage and to publish the results. The second right is the right to create remixes of existing works. Lastly, the right to commercialize remixes, in exchange for appropriate compensation.[iv]

Lessig averred that CC licenses are not the solutionsto uphold the right to remixbut real legal reforms.As stated in the CC’s Policy Statement in Copyright Reform[v], “CC licenses are a patch, not a fix, for the problems of the copyright system. They apply only to works whose creators make a conscious decision to affirmatively license the right for the public to exercise exclusive rights that the law automatically grants to them. The success of open licensing demonstrates the benefits that sharing and remixing can bring to individuals and society as a whole. However, CC operates within the frame of copyright law, and as a practical matter, only a small fraction of copyrighted works will ever be covered by our licenses.”

Furthermore, Lessig stressed that neither the doctrine of fair useis a remedy. Fair use, according to him, puts copyright on a defensive position and obligates the person using the copyright to “justify his control”.

He called the attention of the law practitioners to advocate the right to remix. He also challenged them to practice and defend the said right; exercise the same for the love of sharing rather than for the love of money.

Copyright Laws in the Philippines

 Copyright emanated from the right to freedom of expression which is encrypted in Article III, Section 4 of the 1987 Constitution which states that “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances”.In the same vein, Article XIV  Section  13 thereof 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. With thesemandates,Republic Act 7293 otherwise known as the Intellectual Property Code (IPC) was enacted.

The IPC recognizes that the effective intellectual and industrial property system are vital to the development of domestic and creative activity, facilitate transfer of technology, attract foreign investment, and ensure market access for our products.[vi] The provisions of the IPC protecting copyright are partly based on the United States copyright law and the principles of the Berne Convention for the Protection of Literary and Artistic Works.

Under the IPC, works subject of copyright are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.[vii]These works may be classified as original and derivative. Original works include those enumerated in Section 172 of the IPC [viii] while derivative works are those works enumerated in Section 173.1 [ix] of said Act.

IPC also grants copyright owners economic and moral rights. Economic rights include the exclusive right to carry out, authorize, or prevent reproduction of the work or substantial portion of the work; dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; the first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; public display of the original or a copy of the work; public performance of the work; and other communication to the public of the work.[x] Moral rights on the other hand, include right to attribution–to require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work; to make any alterations of his work prior to, or to withhold it from publication; to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation;and to restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work.[xi]

The term of the economic rights shall be during the lifetime of the author and for fifty (50) years after his death. The moral rights of an author shall alsobe coterminous with the economic rights except that of the right to attribution, which shall beduring the lifetime of the author and in perpetuity after his death.[xii]

IPC and amended by RA 10372 also provides remedies and penalties in case of copyright infringement.[xiii] It also provides for limitations on copyright. Limitations include the widely-recognized doctrine of fair use, which states that use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Said doctrine applies to decompilation, which is the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs.[xiv] Section 184 of the IPC, as amended by RA 10372 also provides for other limitations to wit:

a)      The reproduction or distribution of published articles or materials in a specialized format exclusively for the use of the blind, visually- and reading-impaired persons: Provided, That such copies and distribution shall be made on a nonprofit basis and shall indicate the copyright owner and the date of the original publication.

 

b)      The recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society;

 

c)      The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned;

 

d)      The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated

 

e)      The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose;

 

f)        The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned;

 

g)      The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work;

 

h)      The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;

 

i)        The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use;

 

j)        The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations; (n)

 

k)      Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that the original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and

 

l)        Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.

In conjunction with the IPC, the Optical Media Act (RA 9239) and Anti-Camcording Law (RA 10088) were also enacted. RA 9239 protects the copyright of music, movies, computer programs, and video games. It created the Optical Media Board which regulates the mastering, manufacturing, importation and exportation of optical media products and manufacturing materials as part of ensuring the protection and promotion of intellectual property rights.[xv]

RA 10088 on the other hand prohibits and penalizes unauthorized use, possession, and control, with the intent or attempt to use audiovisual recording devices to transmit or make a copy of any performance in an exhibition facility of cinematographic film or other audiovisual work. Likewise, cam-cording activities declared for private or domestic purposes is now also punishable by law as are aiding, abetting, or conniving in such acts.

The Friction between Right to Freedom of Expression and Right to Copyright

The tug-of-war between the right to freedom of expression and the right to property derived from copyright was intensified by the rapid technological developments especially the internet. Said development makes possible the deployment of free expression and culture of sharing beyond borders and light-years fast.

The freedom of expression is fundamental to the diversity of cultural expression and creativity. However, it has beenviewed by copyright owners as a disturbance to their exclusive proprietary interests. A presumption of harm is particularly troublesome in cases involving transformative uses of existing works, such as parodies, remixes, and mash-ups. This is for the reason that free expression and free speech interests of creative users are at stake and transformative use cases often raise plausible non-infringement defenses.[xvi]

In foreign jurisdiction, the tension between copyright laws and the right to freedom of expression however was eased in the 2013 case of Ashby Donald et. al. v France.[xvii]  In this case, the European Court of Human Rights held that copyright does not automatically defy freedom of expression. Said Court had clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention.[xviii] However, such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention.[xix] This means that a conviction or any other judicial decision based on copyright law, restricting a person’s or an organization’s freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim.[xx]

In this case, Applicants Ashby Donald et. al. are fashion photographers. They were convicted in France for copyright infringement following the publication of pictures on the Internet site Viewfinder. The photos were taken at fashion shows in Paris in 2003 and published without the permission of the fashion houses. The three fashion photographers were ordered by the Court of Appeal of Paris to pay fines and an award of damages to the French design clothing Federation and five fashion houses. In its judgment of 5 February 2008 the Supreme Court (Court de Cassation) dismissed the applicants’ argumentation based on Article 10 of the Convention and on Article 122-9 of the French Copyright Act. The Supreme Court was of the opinion that the Court of Appeal had sufficiently justified its decision, as the applicants could not rely on an exception in French copyright law, allowing the reproduction, representation or public communication of works exclusively for news reporting and information purposes.[xxi]

Conversely, in our jurisdiction, it seems that property right, especially copyright is not regarded as an exception to the exercise of right to freedom of expression. The Supreme Court consistently held in various cases that while the Constitution commands that freedom of expression shall not be abridged, it ruled to carved out to the said tenet and defined exceptions thereto out of necessity. SC held that expression may be subject to prior restraint, only to four categories of expression, namely: pornography, advocacy of imminent lawless action, danger to national security, and false or misleading advertisement.[xxii]

The Right to Remix in the context of Copyright Laws in the Philippines

Remixes take the form of derivative works under the IPC. Derivative works are new and original products that include aspects of already copyrighted works. Thus, the enumerations provided in Section 173.1.

Amendments of the IPC, specifically the provisions on copyright show that the Philippines is not ready to the “right to remix” reform of copyright laws.Contrariwise, the very recent amendments introduced by RA 10372 further provided additional remedies in cases where copyright is infringed. While the amendments added few limitations on copyright, protection of the same was however expanded. The highest law, explicitly provided protection against exclusive  rights  to  artists  and  other  gifted  citizens  to  their intellectual  property  and  creations. The author opines that after such period as may be provided by law for copyright protection, the right to remix arises as the works are already considered property of public domain or when the copyright owner waives his right to the same.

The mechanisms of releasing copyright have developed. Some of those mostly noted include the above mentioned Creat$ive Commons and the GNU.“GNU” is a recursive acronym for “GNU’s Not Unix!” It is a free software launched as early as 1984, which allows its users freedom to run, copy, distribute, study, change and improve the software.[xxiii] These mechanisms enable one to modify and provide certain limits on their copyright. Modifying copyright in the instance of the owner is valid under the law since copyright, like any other right, may be waived save for the exceptions on moral rights under the IPC.

It is the considered view of the author that these mechanisms, especially in the Philippine milieu, are sufficient to sustain the right to remix. The Philippines needs  fully-functioning copyright laws, which balance the interests of the public and their right to freedom of expression amidst  advancement of knowledge and technology with the interests of copyright owners in being compensated for uses of their works and deterring infringers from the harm of commercializing and appropriations of their works. The call of Lessig’s “Right to Remix” copyright reform, in this jurisdiction, may be untimely.

To end this piece, enforcement of copyright is not just about money. This is why the IPC grants the copyright owner not just economic rights but also moral rights. More importantly, enforcement of this right is not an interference of the right to exercise freedom of expression. It is but a conduit in exercising the same.


[i]  About Creative Commons, Retrieved last 15 October 2103 from http://creativecommons.org/about

[ii] Creative Commons Global Summit 2013 , Retrieved last 15 October 2013 from https://creativecommons.net/civicrm/event/info?reset=1&id=9

[iii]  Right2Remix.Org Retrieved  last 16 October 2013 from http://right2remix.org/#05-recht

[iv]  Ibid.

[v]  Creative Commons and Copyright Reform Retrieved last 15 October 2013 from http://creativecommons.org/about/reform

[vi]  Sec. 2, RA 8293

[vii]  Sec. 172.2, IPC

[viii] Sec. 172. Books, pamphlets, articles and other writings;

a)  Periodicals and newspapers;

b) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;

c)  Letters;

d) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;

e)  Musical compositions, with or without words;

f)  Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art;

g)  Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art;

h) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science;

i)   Drawings or plastic works of a scientific or technical character;

j)   Photographic works including works produced by a process analogous to photography; lantern slides;

k) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;

l)   Pictorial illustrations and advertisements;

m)   Computer programs; and

n) Other literary, scholarly, scientific and artistic works.

[ix] Sec. 173.1 Derivative Works. – 173.1. The following derivative works shall also be protected by copyright:

a)  Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and

b) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.

[x] Sec. 177, IPC)

[xi]Sec. 193, IPC)

[xii]Sec. 198, IPC, as amended by RA 10372

[xiii]“216.1. Remedies for Infringement. – Any person infringing a right protected under this law shall be liable:

“x xx

“(b)  To pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to infringement as well as the profits the infringer may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall appear to be just and shall not be regarded as penalty:  Provided, That the amount of damages to be awarded shall be doubled against any person who:

“(i) Circumvents effective technological measures; or

“(ii) Having reasonable grounds to know that it will include, enable, facilitate or conceal the infringement, remove or alter any electronic rights management information from a copy of a work, sound recording, or fixation of a performance, or distribute, import for distribution, broadcast, or communicate to the public works or copies of works without authority, knowing that electronic rights management information has been removed or altered without authority.

“x xx

“The copyright owner may elect, at any time before final judgment is rendered, to recover instead of actual damages and profits, an award of statutory damages for all infringements involved in an action in a sum equivalent to the filing fee of the infringement action but not less than Fifty thousand pesos (Php50,000.00).  In awarding statutory damages, the court may consider the following factors:

“(1) The nature and purpose of the infringing act;

“(2) The flagrancy of the infringement;

“(3) Whether the defendant acted in bad faith;

“(4) The need for deterrence;

“(5) Any loss that the plaintiff has suffered or is likely to suffer by reason of the infringement; and

“(6) Any benefit shown to have accrued to the defendant by reason of the infringement.

“In case the infringer was not aware and had no reason to believe that his acts constitute an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not more than Ten thousand pesos (Php10,000.00): Provided, that the amount of damages to be awarded shall be doubled against any person who:

“(i) Circumvents effective technological measures;

or

“(ii) Having reasonable grounds to know that it will induce, enable, facilitate or conceal the infringement, remove or alter any electronic rights management information from a copy of a work, sound recording, or fixation of a performance, or distribute, import for distribution, broadcast, or communicate to the public works or copies of works without authority, knowing that electronic rights management information has been removed or altered without authority.

“x xx

“216.2. In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings, in accordance with the rules on search and seizure involving violations of intellectual property rights issued by the Supreme Court. (Sec. 28, P.D. No. 49a)

“The foregoing shall not preclude an independent suit for relief by the injured party by way of damages, injunction, accounts or otherwise.”

[xiv] Sec. 185, IPC

[xv]  Optical Media Board, Retrieved  last 16 October 2013 from http://www.dbm.gov.ph/wp-content/OPCCB/OPIF2011/OEO/OMB.pdf

[xvi] Balancing the Right to Freedom of Expression and Intellectual Property  Protection in the Digital Age, Retrieved last 15 October 2013 from www.article19.org/data/files/medialibrary/3716/13-04-25-share-BACKGROUND-PAPER.pdf

[xvii]  10 January 2013, case of Ashby Donald and others v. France, Appl. nr. 36769/08

[xviii] European Convention of Human Rights , Retrieved  last 16 October 2013 from http://www.echr.coe.int/Documents/Convention_ENG.pdf

[xix] Article 2.Par 2, European convention on Human Rights.

The exercise of these freedoms, since it carries with it  duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing  the disclosure of information received in confidence, or for  maintaining the authority and impartiality of the judiciary.

[xx]  ECtHR (5th section), 10 January 2013, case of Ashby Donald and others v. France, Appl. nr. 36769/08

[xxi]  Copyright vs Freedom of Expression Judgment (2013) Retrieved  last 16 October 2013 from http://echrblog.blogspot.com/2013/01 /copyright-vs-freedom-of-expression.html

[xxii]  Chavez vs. Gonzales, G.R No. 168338, February 15, 2008

[xxiii]  GNU Operating System Retrieved  last 12 October 2013 from http://www.gnu.org/

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Ambush Marketing: Its Offsides in the Philippine Pitch


I. The act of a trademark owner or a company that associates itself with the event, without paying the sponsorship fee constitutes “Ambush Marketing”

 Big and prominent sporting and cultural events  like  the  Olympic  Games,  FIFA  Soccer  World  Cup, FIBA Basketball World Cup,  etc. with their popularity on the rise, generate  huge earnings  and  attract  the  attention  of  not  only  billions  of spectators,  but  also  of  businesses.[1] The association with the events which are telecasted live worldwide can create publicity, revenue, valuable goodwill, prestige and reputation for the sponsor’s business.[2]

In the given scenario, a company or a trademark owner pays to become an official sponsor of an event and another competing mark associate itself with the event, without paying the sponsorship fee. The latter gives tickets to said event for its promotions, provides shirts and other paraphernalia bearing its mark, among others. This act of the non-sponsor competing mark is referred to by marketing specialists as “Ambush Marketing”.

The  term ambush  marketing  was  first  coined  by  Jerry  Welsh, former  Marketing  Director  at  American  Express.  His original understanding  of  ambush  marketing  had  nothing  to  do  with  the nowadays negative connotation given to the term, which is now frequently  associated  with commercial  theft.[3] His original perception was the idea of healthy competition in a climate of expensive and often ill-conceived sponsorships.[4]

As it is define now, Ambush marketing refers to a company’s attempt to capitalize on the popularity of a well-known property or event without consent or authorization of the necessary parties.  It is a marketing strategy in which a competing brand associates itself with the major events without paying the sponsorship fees. It is an attempt by a third party to create a direct or indirect association with an event or its participants without their approval, hence denying the official sponsors , suppliers, and partners, part of the commercial value due to their “official designation”. Ambush marketers do not use trademark of third parties but rather creatively allude to an event and use their own trademark to suggest a connection or affiliation with that event.[5]

II. Ambush marketing may be committed in various forms, directly or indirectly

 Ambush marketing may be described in a wide range of marketing activities by which a business seeks to capture or leverage-off, the goodwill surrounding the event for which it is not a sponsor.[6] It may be committed even by the famous and internationally-known marks.

Most notable incidents of ambush marketing first occurred during the 1984 Olympic Games in Los Angeles, when Fuji film was the worldwide sponsor of said event. Its rival, Kodak sponsored the ABC’s television broadcast of the event and became the ‘official film’ of the US track team. In the same event, Converse was one of the official sponsors. However, Nike created murals near Los Angeles Coliseum featuring their sponsored track athletes. Thereafter, in the1988 Olympic Games in Seoul Korea, Fuji film exacted its revenge. This time Kodak secured worldwide category sponsorship while Fuji concentrated on an aggressive sponsorship of the US swimming team.[7]

Nike again ambushed the 1992 and 1996 Olympics. During the Barcelona Olympics in 1992, Nike held a sponsor’s press conferences with the US basketball team despite Reebok being the official sponsor. One of the most audacious ambush marketing feats occurred when both Michael Jordan and Charles Barkley, accepted the gold medal for basketball and covered up the Reebok logos on their kit. Both athletes were individually sponsored by Nike.[8]Further, in the 1996 Atlanta Olympics, Nike bought an old building in the city centre of Atlanta and turned it into a Nike museum, which they called “Nike Village”. The official sponsor in the event was Reebok.[9]

In the 2000 Sydney Olympic Games where Ansett was the official airline partner, Qantas ran a marketing campaign in the lead-up to the Games that included advertisements featuring Olympic athletes such as Cathy Freeman and using expressions such as ‘we welcome the spirit of competition’ and ‘Australia wide Olympic sale’. Qantas was also said to have associated itself with the Games through individual sponsorship deals with athletes, and sponsorship of pre-Olympic meets and selection trials. Later polling  indicated many more Australians believed Qantas was a sponsor of the 2000 Olympics, rather than Ansett.[10]

In the World Cup 2010, Budweiser was the official beer sponsor. However, Bavaria Brewery went for a cheeky ambush marketing tactic to get media and fans attention at a game between Denmark & Holland, by sending 36 models to the match all wearing orange clothing which World Cup officials claimed was promoting Bavaria beer. The ‘fans’ certainly got the crowd going and put the spotlight on them.[11]

Recently, in the 2012 Super Bowl, where Pepsi was its official drink sponsor.Coca-Cola put up an online site where it made it appear that animated polar bears were reacting in real time to the event while chatting with the site’s subscribers.[12]

Kshitij Parashar (2013) enumerates the impacts of ambush marketing. These include, threat to corporate sponsorship, transgression on the intellectual property rights, confusion as who is the real sponsor, back door entry and unethical but not illegal, riding upon the competitors back, nurturing  unfair trade practices and  spoils traditional marketing[13].

The first case in the world to deal with marketing is the case of National Hockey League vs. Pepsi–Cola Ltd[14] in 1990. National Hockey League (NHL), an affiliated service company with 21 ice-hockey teams, entered into an agreement with Coca-Cola (Coke) where the latter shall be the official drink for the tournament in consideration of USD 2.6 Million. However, the advertising rights were given to a certain company, which tied up with Pepsi-Cola (Pepsi), the rival of Coke. Consequently, Pepsi advertised a show with a famous celebrity implying that the same is the official drink of the tournament. NHL contended that Pepsi is liable for passing-off for making it appear that the latter was the official drink of the tournament. Pepsi countered that it was just exercising its right to do advertising and promotional campaign. The Canadian Court ruled that Pepsi, in misrepresenting the public that one or more of the plaintiffs approved, authorized, or endorsed the contest, and by implying that their products or that there was some business connection between them and the tournament, has committed ambush marketing. However, the Court continued that, there was nothing that could be done to protect NHL and Coke.

However, there are some cases where injunction was granted against acts of ambush marketing as in the case of MasterCard International Incorporated v. Sprint Communications Co. v. ISL Football.[15] In this case, Mastercard in sponsoring the World Cup in 1994, received an exclusive right for the use of said event’s logo on and in association with “all card based payment and account access devices’.  Sprint was also one of the sponsors but  was allowed only to advertise on long distance communications.  However, the Sprint started advertising in pre-paid telephone calling cards with World Cup logos despite objections of Mastercard. The latter sued the former under Section 43(a) of the Lanham Act, which prohibits false and misleading description or misrepresentation of the fact in commercial advertising and campaign; and under the Federal Trademark Dilution Act. The Federal Court ruled in favor of Mastercard and granted the injunction it prayed for. The Court held that, the consumer would, in seeing Sprint bearing the World Cup logo, will mistakenly assume that the same has rights to that category, which belonged exclusively to Mastercard.

It can be noted that the two marks in this case were official sponsors. The decision implies that ambush marketing can also be committed by a co-sponsor who does not have a right to advertise to a certain category made by the event organizers.

The aforementioned foreign jurisprudence are just some of the prominent cases as regards ambush marketing. However, in the Philippine milieu, no case of ambush marketing is ever presented.

III.  Philippine laws and jurisprudence do not explicitly address ambush marketing, parallel laws however provide remedies

In the issue of whether or not Ambush Marketing is a violation of the Intellectual Property Laws, this paper argues on the standpoint of the organizers and official sponsors of the event, who consider that ambush marketing is in contravention with statutory laws and the law of equity.

Article XIV  Section  13 of the  1987  Constitution mandates the State to “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.”

With this directive, the State, in enacting the Intellectual Property Code, recognizes the effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investment, and ensures market access for our products.[16]

With the lacking of cases and unknown incidences of ambush marketing in our jurisdiction, the legislature might seem to have not deal with this phenomenon. The Philippines has no specific law or statute that explicitly addresses the issue of ambush marketing[17]. With the meagerness of laws sanctioning the same, an event organizer or an official sponsor in the event is left with no remedy. Provisions are embedded in the Intellectual Property Code, Civil Code, and Consumer Act to be sufficient bases for a claim against ambush marketing.

It can be inferred from the given instances that ambush marketing has the goal of creating the impression that the enterprise is associated with the event without paying any sponsorship fee. It thereby creates an uncertainty among consumers in that, they identify the goods or services in the advertisement with the event.  Accordingly, there is a confusion or likelihood of confusion as to affiliation, connection, or association of the goods or services of a person to another as to its origin, sponsorship, or approval, which constitutes a violation of Section 169.1 of the Intellectual Property Code of the Philippines, which provides:

Section 169. False Designations of Origin; False Description or Representation.–

169.1. Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which:

(a)    Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person; or

(b) In commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable to a civil action for damages and injunction provided in Sections 156 and 157 of this Act by any person who believes that he or she is or is likely to be damaged by such act.

In the same vein, in posing to be as if it is one of the official sponsors through its advertisements, an ambush marketer misleads its customers  and make them believe that it was in fact one of the sponsors. Ambush marketing constitutes false, deceptive or misleading advertisement which is sanctioned by the provisions of the Republic Act No. 7349, otherwise known as The Consumer Act of the Philippines. Article 110 thereof states that:

Article 110. False, Deceptive or Misleading Advertisement. – It shall be unlawful for any person to disseminate or to cause the dissemination of any false, deceptive or misleading advertisement by Philippine mail or in commerce by print, radio, television, outdoor advertisement or other medium for the purpose of inducing or which is likely to induce directly or indirectly the purchase of consumer products or services.

An advertisement shall be false, deceptive or misleading if it is not in conformity with the provisions of this Act or if it is misleading in a material respect. In determining whether any advertisement is false, deceptive or misleading, there shall be taken into account, among other things, not only representations made or any combination thereof, but also the extent to which the advertisement fails to reveal material facts in the light of such representations, or materials with respect to consequences which may result from the use or application of consumer products or services to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.

Additionally, the catch-all provisions of Articles 19, 20, and 21 of the Civil Code on human relations may be bases for prosecuting ambush marketing civilly. The provisions state:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

Collectively called the “Abuse of Rights Doctrine”, they were intended to expand the concept of torts in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically provide in the statutes.[18]

Ambush marketing may be regarded as an unethical business practice. Its main objective is to advance the enterprise’s goods or services and simultaneously to undermine the impact of the advertisements of the official sponsors. [19] Further, this practice affects the economic interests of the organizers in that it jeopardizes its ability to retain their sponsors.[20] It ultimately cuts into profitability– the property rights not only of the organizers but of the official sponsors. While it may be argued that an enterprise, in the exercise of its rights, may advertise in an event, it should be mindful that in exercising the same, it should observe fairness, honesty and good faith in dealing with other enterprises i.e. the official sponsors.

For non-sponsors, ambush marketing is a cost-effective way of associating its brand with the event. While the official sponsor shelled a huge amount of money for the entire event, non-sponsor competing marks only rides to the event without or with less expense. With this, ambush marketers are unjustly enriched. Thus, Article 2142 of the Civil Code which provides that “certain lawful, voluntary and unilateral acts give rise to the juridical relation of quasi-contract to the end that no one shall be unjustly enriched or benefited at the expense of another” is applicable. Unjust enrichment is a principle which provides that every person who, through an act or performance by another, or any other means comes into possession of something at the expense of the latter without just or legal ground shall return the same to him.[21]

Finally, an ambush marketer cannot interpose the defense of freedom of expression. As held in the cadena of cases decided by the Supreme Court, while the Constitution commands that freedom of expression shall not be abridged[22]. Over time, however, the Courthave carved out narrow and well-defined exceptions to this rule out of necessity. Expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely: pornography, advocacy of imminent lawless action, danger to national security, and finally, false or misleading advertisement.[23] Ambush marketing is a form of false and misleading advertisement.


[1] Lundgren, F.D. (2010), Event Marks: A Necessary Form of Protection against Ambush Marketing? Retrieved last 25 August 2013 from http://oami.europa.eu/ows/rw/resource/documents/QPLUS/ network/universities/felipe_danneman_lundgren_miplc.pdf

[2]Khon, T. L. and Chan R.,  (2008), Asian Patents Attorney Association , Hong Kong – Anti-Counterfeiting Committee Report 56th Council Meeting, Retrieved last 25 August 2013 from http://www.apaaonline.org/pdf/APAA_55th _council_meeting/anticounterfeitingcommittee/Special_Topics_Report_of_Hong_Kong_Anti-Counterfeiting_ Group.pdf

 [3]Lundgren, F.D. (2010), Event Marks: A Necessary Form of Protection against Ambush

Marketing? Retrieved last 25 August 2013 from http://oami.europa.eu/ows/rw/resource/documents/QPLUS/ network/universities/felipe_danneman_lundgren_miplc.pdf

[4] Amsterdam Printing (2010), 5 Companies Launch Ambush Marketing Attacks, Retrieved last 27 August 2013 from http://blog.amsterdamprinting.com/2010/07/27/5-companies-launch-ambush-marketing-attacks/

 [5]Seth, R. (2010) , Ambush Marketing –Need for Legislation in India. National Law University. Retrieved last 25 August 2013 from http://nopr.niscair.res.in/bitstream/123456789/10688/1/JIPR%2015(6)%20455-463.pdf

 [6] Chan, T. et. al., Ambush Marketing Legislation Review (2007),Retrieved last 25 August 2013 from http://www.ipaustralia.gov.au/uploaded-files/publications/ Ambush_Marketing_Legislation_Review.pdf

 [7]Kaur, B. et. al. (2010), Apprehending an ambush – how to defend against ambush marketing Retrieved last 25 August 2013 from http://www.iam-magazine.com/issues/Article.ashx?g=a96dceed-1e54-456c-bd75-6a38f819d228

 [8]Supra Note 4

 [9]Blackshaw, I. (2011),  Combatting ‘Ambush Marketing’: The 2010 South Africa FIFA World Cup experience, Retrieved last 25 August 2013 from http://www.mcfaddenslaw.co.uk/images/GSLTR_1_March_2011.pdf

 [10]Supra Note 6

 [11] Our 5 Favourite Ambush Marketing Campaigns, Retrieved last 25 August 2013 from http://creatrixmarketing.com/ category/guerrilla-marketing/

 [12] Ferrer, J.W. (2012) IP Views: A Threat To Goals and Glory: Ambush Marketing in the Philippines, Retrieved  last 25 August 2013 from  http://www.iplaw.ph/ip-views/A-Threat-to-Goals-and-Glory-Ambush-Marketing-in-the-Philippines.html

 [13]Ambush Marketing: An Insight, Retrieved last 25 August 2013 from http://www.lawinfowire.com/articleinfo/ambush-marketing-insight

 [14] 92 DLR 4th 349

 [15]A. G., 30 U.S.P.Q. 2d 1963 (S.D.N.Y. 1994); aff’d per curiam 23 F3d 397 (2d Cir. 1994)

 [16] Sec. 2, RA 8293

 [17] Supra Note 12

 [18]Philippine National Bank vs. The Court of Appeals, et al., 83 SCRA 237, citing Commissioner’s Note, Capistrano, 1 Civil Code of the Philippines, 1950 Ed., p. 29

 [19] Supra Note 6

 [20]Seth, R. (2010) , Ambush Marketing –Need for Legislation in India. National Law University. Retrieved last 25 August 2013 from http://nopr.niscair.res.in/bitstream/123456789/10688/1/JIPR%2015(6)%20455-463.pdf

 [21]Marsman& Co. v.First  Coconut Central Co ., G.R. 42151-R, September 16, 1974.

 [22] Section 4, Article III of the 1987 Constitution

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

[23] Chavez vs. Gonzales, G.R No. 168338, February 15, 2008

Liable or Not Liable: In the Light of the Data Privacy Act

“The right to be let alone is indeed the beginning of all freedom. As a matter of fact, this right is the most comprehensive of rights and the right most valued by civilized men”

This principle might have been guided the policymakers who crafted and enacted the Data Privacy Act of 2012 (“The Act”). It is also worth-mentioning that since the landmark case of Morfe vs. Mutuc[i] in 1968, the Judiciary have long been aware that “all the forces of a technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it”.

With the rapid technological developments and globalization, the scale of data sharing and collecting has increased spectacularly. Technology allows both private companies and even public authorities to make use of personal information an unprecedented scale in order to pursue their activities. Technology has transformed both the economy and social life.  This poses a challenge to further facilitate the free flow of data within the country and the transfer to third countries, while ensuring a high level of the protection of personal data. [ii]

It is also beyond question that one of the raison d’être of the Act is boosting the competitiveness of the country’s information technology and business process outsourcing (IT-BPO) industry as it enhances trust and confidence in electronic commerce and transactions.  Corollary to this, as Senator Edgardo Angara, one of the sponsors of the Senate Bill No. 2965 (now RA 10173), have said, “not constraining the rapid growth of the IT-BPO sector, our sunshine industry”.[iii]

Republic Act No. 10173, otherwise known as the Data Privacy Act of 2012, came into law when it was signed by President Benigno Aquino, III on August 15, 2012 and took effect on September 8, 2012, 15 days after its publication. The intention of the law is explicitly provided in its Declaration of Policy under its Section 2.[iv]

Zones of privacy are recognized and protected by the Constitution[v] and statutes of the Philippines. The Civil Code provides that “every 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[vi]. Although the protection of a person’s right to privacy has been embedded in these laws, The Act is said to be the first data privacy law as the same specifically deals with the protection of a person’s personal information.[vii]

To resolve the question of whether or not a person (A) who gave the mobile number of another person (B) without the latter’s consent to a third person (C) violated the Data Privacy Act of 2012 (“The Issue”), an incisive analysis of the Act shall be required .

The Issue may be dissected on the following:

  1. Whether or not a person’s mobile number is within the definition of personal, sensitive, or privileged information.
  1. Whether or not the person (A), giving the mobile number is considered as information processor, controller or mere processor or user of personal information for personal, family or household purposes.
  1. Whether or not processing of information includes disclosure of information.
  1. Whether or not the mere giving of the mobile number of a person (A) without his consent is a violation of The Act.

I.     A person’s mobile number is considered personal information. However, it is neither sensitive nor privileged.

Personal information as defined by Section 3(g) of The Act is “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”. This includes residential address, place of birth, amount of salary, among others.[viii]  The Act further describes under its Section 3(l) sensitive information as personal information on a person’s marital status, age, religious affiliation, health, education, and tax returns. It also includes information issued by government agencies peculiar to an individual such as tax identification and social security numbers, and licenses or their denial, suspension or revocation. Information  established  by  an  executive  order  or  an  act  of  Congress  to  be  kept classified are also covered. Privileged information under its Section 3(k) on the other hand refers to any and all forms of data which under the Rides of Court and other pertinent laws constitute privileged communication.

In the case of US vs. Bustos[ix], a privileged communication is a communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which has a duty, is privileged, if made to a person having a corresponding interest or duty. The test whether or not a communication is privileged is provided in the case of People vs. Hogan[x]  said communication must be by, and to, one who has the right, duty, or interest in the subject. Moreover, the Rules of Evidence enumerates the privileged communications. These include marital communications, communications arising from attorney-client, physician-patient, and priest-penitent relationships as well as state secrets[xi].

It is significant to note the information which are not classified as personal information. These are information that relates to the positions or functions of an incumbent or former government officer or employee, and information on government contractors or service providers on the performance of such services. The Act likewise does not apply to information used for journalistic, artistic, literary or research purposes and those necessary to carry out the official functions of monetary authorities and law enforcement and regulatory agencies in pursuit of their legal mandate[xii].

The Act stratifies personal information into ordinary, sensitive and privileged. The acts penalized and the gravity of the penalty imposed by The Act depend upon what kind of information is involved. Given the above definitions and enumerations, the author is of the humble view that a person’s mobile number is considered personal information. The Act defined personal information open-endedly, without limiting it to the specifics. Personal information can be recorded or not, as in this instance, a mobile number may be registered in the service provider’s database, if it is a postpaid number or may not be recorded as in the case where it is a prepaid number. It can be inferred from the language of the Act that for an information to fall within the definition, it is sufficient that said information can be linked or associated to the owner of the same by the entity holding the information.

Apparently, a person’s mobile number is not sensitive information as defined by the Act as the same specifically enumerates which information falls within the term. Likewise, it is not privileged personal information as defined by the laws and jurisprudence.

 II. A person may be an information controller, information processor or mere collector, holder, processor or user of personal information for personal, family or household purposes.

Section 4 of The Act defines the scope where the same may be applicable. Clearly, it 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.

Section 3(h) of the Act defines personal  information  controller as  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 a person or organization that performs such functions as instructed by another person or organization[xiii]. On the same vein, a mere collector, holder, or processor of personal information in connection with the individual’s personal, family or household affairs[xiv] is also excluded by the term. Personal information processor, on the other hand, refers to any natural or juridical person whom a personal information controller may outsource the processing of personal data pertaining to a data subject[xv].

The scope of the Act thus being settled, it can be concluded that only the personal information controller and personal information processor who performs all the functions of collecting, holding, processing or using personal information on behalf of another can be held liable for violation of the Act and not the subcontractor or the personal information processor that performs these functions independently on instructions given by the former, or a mere collector, holder, or processor of said information in connection with the individual’s personal, family or household affairs.

Hence, A may be held liable for violation of this Act if he or such entity is a personal information controller or a personal information processor who performs all the functions of collecting, holding, processing or using personal information on behalf of another. Conversely, if A is a mere person or organization who was  instructed  to do such functions by a personal information controller or processor or a mere user, holder, or processor in connection with the individual’s personal, family or household affairs, A will be exculpated.

 III. Processing of information includes disclosure thereof.

Under the Act, when personal information is processed, the personal information was being collected, recorded, organized, stored, updated, modified, retrieved, consulted, used, consolidated, blocked, erased, destroyed, or other operations or set operations to that effect.[xvi]

The Act enumerates instances when there is processing of personal information. Like the definition of personal information, “processing” is defined therein in wide terms. This is clearly deduced from its phrases “ANY operation or ANY set of operations performed upon personal information” and “but not limited to”.

According to Sen. Angara, the Act was based heavily from Directive 95/46/EC of the European Parliament and Council and is at par with the Asia Pacific Economic Cooperation (APEC) Information Privacy Framework standards.[xvii] It is well-settled that in order to ascertain the meaning or intention of a piece of legislation; resort may be had to a similar legislation in a foreign country, which was used as reference in passing the law in question.  Under Section 2(a) of the Data Protection Directive of the European Parliament (Officially Directive 95/46/EC), processing means “any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. It is noticeable that disclosure of information is necessarily included in the term “processing”.

Given these, it can be reasonably gathered that disclosure of personal information is a means of processing the same.

IV. Mere disclosing of personal information is not violative of this Act.

The Act penalizes Unauthorized Processing  of  Personal  Information  and  Sensitive  Personal Information[xviii], Accessing  Personal  Information  and  Sensitive  Personal  Information  Due  to Negligence[xix], Improper Disposal of Personal Information and Sensitive Personal Information[xx], Processing  of  Personal  Information  and  Sensitive  Personal  Information  for Unauthorized  Purposes[xxi]. Unauthorized  Access  or  Intentional  Breach[xxii], Concealment  of  Security  Breaches  Involving  Sensitive  Personal  Information[xxiii], Malicious  Disclosure[xxiv], Unauthorized  Disclosure[xxv] and any combination of the aforementioned acts[xxvi].

The Act castigates two kinds of disclosure—Malicious Disclosure and Unauthorized Disclosure. Section 31 thereof punishes malicious disclosure. This is when 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 is liable under the Act.

In the issue at hand, A, a controller or processor, who had obtained the mobile number of B maliciously and with bad faith, unwarrantedly, without B’s consent, discloses the same to C may be liable under Section 31 of the Act to wit:[xxvii]

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.

A reading from Section 32 of the Act reveals that mere disclosure of a personal information controller or processor or any of its officials, employees or agents, without the consent of the data subject is a violation of the same.

However, this is without exceptions. Personal information may be disclosed or processed even without the consent of the data subject. Section 12 provides processing of said information is permitted, if not otherwise prohibited by law, on the following instances:

  1. When it is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract;
  1. When it is necessary for compliance with a legal obligation to which the personal information controller is subject;
  1. When it is necessary to protect vitally important interests of the data subject, including life and health;
  2. When it is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or
  1. When it is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution

Applying to the issue, if A discloses the mobile number of B to C on the instances mentioned, even without B’s consent, A may not be liable under the Act.

V. Conclusion

The main thrust of the Data Privacy Act of 2012 is to promote confidence in the country’s sunshine industry, the Information Technology and Business Process Outsourcing (IT-BPO) industry, without compromising the right to the citizen’s right to privacy and communication. It provides mandate to public and private institutions to safeguard the integrity, security and confidentiality of personal information collected and processed in the course of their operations. It draws demarcation lines on the different personal information as well as classifies the persons who may or may not be held liable. The Act also provides different gravity of penalty for each violation.

It is an elementary principle that to be held liable by every penal law, the act or acts committed by a person must squarely fall within the ambit of such law.  In order for a person to be held liable under the Act, the information must not be just any information but is personal information, sensitive personal information or privileged personal information. The person who committed by the acts prohibited must be personal information controller or a personal information processor, as defined by the Act, in order for him or such entity may be prosecuted. The prohibited acts and the elements constituting such prohibition are also detailed in Sections 25 to 33 thereof. The elements must all be present in order for a person to be held liable.

In the issue herein presented, on whether or not a person who gave the mobile number of another person without the latter’s consent to a third person violated the Data Privacy Act of 2012, the answer will not be in the absolute positive or negative. The same necessitates qualification and examination on the facts attending the circumstances, such as the person involved, the manner and situation in which the said personal information was given, among others.

To end this perspective, the author shares the view of Sen. Angara when he said, “We want to strike the right balance by ensuring that the proposed measure does not overreach its intentions to improve data privacy in the country. The policies that protect our information should not be the same policies that stop us from putting this information to good use.”


[i] 130 Phil. 415 ;22 SCRA 424

[ii] Proposal for a Regulation of the European Parliament and of the Council (2012). Retrieved last 04 July 2013 from  http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf

[iii] Senate Press Release (2011). Senate Committee Weighs-up Implications of Data Privacy Act. Retrieved last 04 July 2013 from  http://www.senate.gov.ph/press_release/2011/0720_angara1.asp

[iv] Sec. 2. It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth.  The  State  recognizes  the  vital  role  of  information  and communications  technology  in  nation building  and  its  inherent  obligation  to  ensure  that personal information in information and communications systems in the government and in the private sector are secured and protected.

[v] Sec. 1. 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.

Sec. 2. 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.

Sec. 3. (1) 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.

x x x           x x x          x x x

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health as may be provided by law.

x x x           x x x          x x x

Sec. 8. 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.

Sec. 17. No person shall be compelled to be a witness against himself.

[vi] Gamboa vs. Chan. G.R. No. 193636 .24 July 2012

[vii] Rosell, L. and Tomarong-Cañabano, S. (2012), ANALYSIS: The Philippines’ Data Privacy Act Of 2012, World Data Protection Report. Retrieved last 30 June 2013 from http://www.globallawwatch.com/2012/09/analysis-the-philippines-data-privacy-act-of-2012/ .

[viii] Visto, C.S. (2012). The protection of personal information, Business World Online.  Retrieved last 1 July 2013 from http://www.bworldonline.com/app_content.php?section=Economy&title=The-protection-ofpersonal information &id=64572

[ix] G.R. No. L-12592 ,March 8, 1918

[x] 20067-R, September 30, 1958

[xi] Silahis Marketing Corporation vs. Navarro, 11163-SP, February 26, 1981

[xii] Sec. 4

[xiii] Sec. 3 (h.1)

[xiv] Sec. 3(h.2)

[xv] Sec. 3(i)

[xvi] Sec. 3(j)

[xvii] Buenaventura (2012): Senate approves Data Privacy Act on Third Reading. Retrieved last 3 July 2013 from http://www.senate.gov.ph/press_release/2012/0320_prib1.asp.

[xviii] Sec. 25

[xix] Sec. 26

[xx] Sec. 27

[xxi] Sec. 28

[xxii] Sec. 29

[xxiii] Sec. 30

[xxiv] Sec. 31

[xxv] Sec. 32

[xxvi] Sec. 33