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Amidst a Blossoming Startup Scene, The Philippine Government Slips into the Dark Ages

This is a guest piece by Oliver Segovia. Oliver (@oliversegovia) is the CEO of AVA.ph, an e-commerce platform for premium lifestyle brands in the Philippines, and the co-author of Passion & Purpose from Harvard Business Review Press.

Sharing or retweeting something defamatory could land you in jail in the Philippines. Yes, you heard that right.

Last month, President Benigno Aquino III signed into law the Cybercrime Prevention Act of 2012. The Act criminalizes libel over the internet, and according to a horrendously vague provision, also justifies the punishment of any person who “willfully abets or aids in the commission” of libel. It also gives the government broadly defined takedown powers to block any website. It’s quite the bitter irony – President Aquino’s father Ninoy fought for civil rights during the Marcos dictatorship of the 1970s.

The Cybercrime Act was designed to give the Philippine government more teeth in battling child pornography, identity theft, online fraud, and cyber-squatting. It allows a greater level of protection for the growing business process outsourcing industry, by allowing the Philippines to harmonize local cybercrime laws with the Budapest Convention. The Act, which aims to fight the legitimate cybercrimes listed above, did not contain libel as a punishable crime when it was first proposed in Congress.

As the bill was making its way through the lower house and the Senate (like the United States, the Philippines has a bicameral legislature), its provisions were inevitably high-jacked by malevolent interests. In the bicameral conference committee hearings, Senator Tito Sotto admitted to inserting the libel clause. To those following Philippine politics, Sotto is the controversial actor-turned-senator accused of plagiarizing American blogger Sarah Pope in a speech that sought to stop the passage of the country’s reproductive health bill, legislature deemed necessary to help manage population growth and the subsequent income inequality it brings.

Anyway, back to the Cybercrime Act. The libel provision has become a battleground between the government and Filipino internet users. What exactly constitutes as libel over the internet is never defined. The Act delegates the definition of libel to Article 355 of the Revised Penal Code, which also doesn’t define libel, and merely outlines the kinds of media that can be used to commit the offense. (It was actually Article 353 that defined libel, but like any law crafted before computers were invented, what constitutes as online libel is similarly vague.) The Act also allows for an accused to be punished under both the Cybercrime Act and the Penal Code, a clear violation of the principle of double jeopardy.

But that’s actually not the scary part. Two other provisions have turned the world’s attention to the Philippines, which was ironically ranked in a Freedom House report as the 6th freest internet country in the world.

First, the vagueness of certain sections – in this case Section 19 of the Act – can be misused to give government uncontrolled power to block access to the internet.

Here’s exactly what that section says: “When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ [the Department of Justice] shall issue an order to restrict or block access to such computer data.”

Without the need for a court order to block a website, an executive branch of government has become judge, jury and executioner. It doesn’t take a lot of imagination to see how far the government can go with these powers – from blocking a dissident’s blog to asking Mark Zuckerberg to take down a Facebook page with ‘libelous’ content. Zuck will probably laugh at that request. But with a critical mass and a powerful lobby of content deemed libelous, what stops the state from blocking and Facebook and Twitter altogether? Officials have reassured the public that the government will not abuse its newfound powers. This was also said with straight face.

Second, the Act also gives the government powers to prosecute individuals who “abet and aid” the commission of online libel. That’s a euphemistic way of saying that anyone who likes, comments on, shares, retweets, and reblogs content deemed to be defamatory is also liable for libel.

The response of Filipinos has been swift and merciless. So far, 10 petitions have been filed in the Supreme Court to declare the Act unconstitutional, and thus unenforceable. Last week, Filipino Facebook users blacked out their profile photos in protest of the law. Anonymous launched a series of attacks that brought down the Central Bank website and other government portals. A Change.org petition was launched. Despite all this, President Aquino is standing by his decision to sign the Act, and has downplayed its impact on the constitutionally-guaranteed right to free speech.

It’s still uncertain how the government will respond in the coming weeks, but if the new Act comes fully into force, it will have an impact on two broad areas. First, many fear the chilling effect of the state possessing extraordinary powers to punish acts that have not been clearly defined as punishable. Like many developing markets, the Philippines is home to an increasingly large and powerful base of internet users. The country boasts 34 million people using the internet, and according to the Kleiner Perkins 2012 State of the Internet Report, is one of the fastest growing internet markets in the world. The Philippines also ranks as the #8 Facebook market in the world.

What local politicians do not understand is that by regulating online speech, they are effectively destroying the very mechanisms that allow the truth to surface. This is why Wikipedia is more accurate than any printed encyclopedia. It’s the internet’s ability to facilitate free and open exchange that allows the community to self-police itself, challenge claims, and access the information needed for individuals to decide on the soundness of arguments. The net also supplies me with a steady stash of cat photos that remind me of Mr Sotto. In a country with a sordid history of politicians using the law to quell dissent, the Cybercrime Act certainly brings back memories of when Ferdinand Marcos used a sleeper provision in the old constitution to declare martial law in 1972.

Second, the Act casts a dark shadow over the blossoming startup scene. This is especially true for media and content-driven tech startups, such as Rappler.com, a social news network that has pioneered an innovative emotion-driven data layer on top of editorial content. If the site’s readers vote that the President’s decision to sign the Act and his accompanying outdated hairstyle make them feel ‘disgusted’ and ‘ashamed’, will everyone – including Rappler’s amazing founder Maria Ressa – also get sued?

Manila has also hosted three Startup Weekends since 2011 and boasts a new generation of seed funds and incubators hoping to jumpstart a local startup eco-system. The Filipino diaspora in Silicon Valley has also started establishing closer links to Filipino tech entrepreneurs, recognizing the growing domestic market and accessible local talent to help fill the engineering void in the US. The country has also recently attracted big name investments from Naspers and Rocket Internet. There’s a lot of good news coming out of the Philippine startup scene, so this Act brings another huge chunk of uncertainty in the rules of the game.

Remember SOPA? Well, Forbes.com contributor Paul Tassi called SOPA reasonable compared to the Philippine Cybercrime Act. Help make a difference in the Philippines by signing this Change.org petition.


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