In
the medieval era, the communication of people is limited to papers and scrolls,
delivered manually either by couriers or animals. In this period, information
and communication travelled across nations in a snail's pace. As the centuries
go by, the advent of industrialization has allowed civilization to progress
dramatically. With what started out as steam powered devices, quickly got
enhanced to harvest the power of the atom. The boom of industrialization paved
the way for globalization and communication as to make the world that much
smaller.
The
birth of the Internet gave man the ability to communicate with one another
half-way across the world in a blink of an eye. It also spawned a new reality;
one of virtual reality, existing simultaneously with the real-world and often
times, gets tangled and intertwined with issues so perplexing, a fine line must
be drawn to separate the two.
This
"virtual Reality" has opened a lot of doors for people. An endless
array of opportunity has been unlocked, so much so, that even unscrupulous
personalities have entered the system and used it as their new play ground for
criminal activities, prompting the Government to regulate the activities in
cyberspace to combat cybercrime. With the limited intrusion of the Government of
the internet, users have expressed their opinion in a single unified voice,
calling for the establishment of "Internet Rights" as inimical to
their freedom of speech, as well as privacy of communications.
Like
all rights, none is ever absolute. The Government, in the exercise of
police-power, has enacted several laws intended to regulate the activities
conducted over the internet, e.g. E-commerce Act and Cybercrime Law. In
response to these government regulations, Senator Miriam Defensor-Santiago has
drafted a Bill, touted as the Magna Carta for Philippine Internet Freedom. This
bill seeks to establish Rights of internet users, as well as provide for a
frame-work for the proper regulation of the internet.
CYBERCRIME
COURTS AND ITS JURISDICTION
The
author of this paper is of the opinion that the house bill can still be improved
by amending the provisions pertaining to designation and jurisdiction of the
Cybercrime Courts. Section 66 of the Bill proposed the creation of a
specialized courts, dubbed as "Cybercrime courts" to be designated by
the Supreme Court, as well as provide for its rules of procedure[i].
Section
66. Cybercrime courts. –
(a)
Designation of Cybercrime Courts and Promulgation of Procedural Rules. – The
Supreme Court shall designate the court or courts, manned by judges of
competence, integrity, probity and independence in the practice of law, and
competent in matters related to the Internet and information and communications
technology, that will hear and resolve cases brought under this Act and shall
promulgate the rules of pleading, practice and procedure to govern the
proceedings brought under this Act.
(b)
xxxxx
(c) Suit filed at the cybercrime court agreed upon
by the parties for civil violations of the Magna Carta for Philippine Internet
Freedom. – Except in cases that are extraterritorial, foreign, international,
and transnational in nature, all suits related to civil violations of this Act
shall be filed at the cybercrime court agreed upon by the parties. Should the
parties be unable to reach an agreement, the Court of Appeals shall determine
the cybercrime court that shall have jurisdiction over the case.
The author submits that the designation of the cybercrime courts can be
dispensed with and the jurisdiction of such court as found in Sec 67 should be
transferred to the Regional Trial Court. The creation of a specialized
cybercrime courts would take a long time because the Supreme Court must
designate such courts. Absent such designation, the passage of such bill would
not automatically create a specialized courts. Second, putting practicality at
the forefront, the Regional Trial Court will be the default court in situations
where there exist no specialized courts in special circumstances.[ii] It is
apparent that there are certain provinces with only a single-sala court or only
one (1) Regional Trial Court[iii], as
such there will exist a situation where a province or even a city, will not
have a Cybercrime court. The Regional Trial Court becomes the default court as
its aptly described as a Court of General Jurisdiction.[iv]
Section 19. Jurisdiction
in civil cases. –
Regional Trial Courts shall exercise exclusive original jurisdiction:
(1) In all civil actions in which the subject of the
litigation is incapable of pecuniary estimation;
(2) xxxx;
(3) xxxx;
(4) xxxx;
(5) xxxx;
(6) In all cases not within the exclusive jurisdiction
of any court, tribunal, person or body exercising jurisdiction or any court,
tribunal, person or body exercising judicial or quasi-judicial functions;
(7) xxxx
(8) xxxx
Section
20. Jurisdiction in criminal cases. – Regional Trial Courts shall
exercise exclusive original jurisdiction in all criminal cases not within the
exclusive jurisdiction of any court, tribunal or body, except those now falling
under the exclusive and concurrent jurisdiction of the Sandiganbayan which
shall hereafter be exclusively taken cognizance of by the latter
Thus, considering practicality and the present reality, the Regional
Trial Court also has jurisdiction over the matter in issue.
To further strengthen the argument, the qualifications of a judge that
would be appointed to the Cybercrime courts as found in Sec. 66(b) courts has
similar if not the same qualifications that of a regional trial court judge[v].
Section
66. Cybercrime courts. –
(a)
xxxxxx.
(b) Qualifications of
the Presiding Judges of cybercrime courts. – No person shall be appointed a
Presiding Judge of the Cybercrime Court unless he:
(i)
is a natural-born citizen of the Philippines;
(ii) is at least
thirty-five (35) years of age;
(iii) has been engaged
in the practice of law in the Philippines for at least ten (10) years, or has
held a public office in the Philippines requiring admission to the practice of
law as an indispensable requisite; and,
(iv) has an academic or
professional background in information and communications technology, computer
science, or engineering; or has proven a high degree of competence in the use
of the Internet and information and communications technology.
B.P.
129 prescribes the qualification for a Regional Trial Court Judge, as found in
Sec. 15.[vi]
Section 15. Qualifications. – No
persons shall be appointed Regional Trial Judge unless he is a natural-born
citizen of the Philippines, at least thirty-five years of age, and for at least
ten years, has been engaged in the practice of law in the Philippines or has
held a public office in the Philippines requiring admission to the practice of
law as an indispensable requisite
The proposed bill only added a
qualification to the already existing requirement for a Regional Trial Court
Judge. However, the author is of the position that the additional requirement
found in Sec. 66(iv) of the proposed bill can be dispensed with given the fact
that in today's judicial system, judges of trial court are already applying
laws regarding Information technology.[vii] At
the very least, judges are required to have rudimentary knowledge of communication
systems, as well as electronic information. That being the case, Judges are
presumed equipped to know the basic know-how of communications technology.
A last argument on the matter is one
of public necessity. Almost all of the populace has access or has used the
internet in one way or another. The implementation of the proposed bill carries
with it both civil and penal provisions. The designation of a Regional Trial
Court instead of a
specialized cybercrime courts will eliminate any confusion to both the common
people and legal practitioners.
GROUP BUYING WEBSITES
Perusing
through the proposed bill, it does not address the current on-line development
of "group buying websites." Group Buying Websites are described as"
sites offering products and services at significantly reduced prices on the
condition that a minimum number of buyers would make the purchase."[viii]
The main feature of these websites are the lower prices for either products or
services. However, taking a close scrutiny of the principal actions of these
websites would reveal that they are neither the sellers or agents of such
merchants and that the sites are just conduits between the parties who collect
a certain a commission on the deal.[ix]
In
this current set up, the consumers or on-line buyers are susceptible to fraudulent
transactions and false advertising. Taking the position of the Group Buying
sites that they are just the channels for the actual merchants and on-line buyers,
then they avoid liability in the event that a deal turns sour or that the
merchant fails to perform its obligation once the buyer has already deposited
the payment.
Currently,
there are no legislative bills that will protect an on-line buyer from
unscrupulous merchant, who, more often than not, can no longer be located once
the deal has been done. Buyers look to these Group Buying websites for
recourse. However, the closest statute on the matter is RA 7394 of the Consumer
Act of the Philippines,[x]
particularly Article 50 stated as:
ARTICLE 50. Prohibition Against Deceptive Sales Acts or
Practices - A deceptive act or practice by a seller or supplier in connection
with a consumer transaction violates this Act whether it occurs before, during
or after the transaction. An act or practice shall be deemed deceptive whenever
the producer, manufacturer, supplier or seller, through concealment, false
representation of fraudulent manipulation, induces a consumer to enter into a sales
or lease transaction of any consumer product or service. Without limiting the
scope of the above paragraph, the act or practice of a seller or supplier is
deceptive when it represents that:
a) a
consumer product or service has the sponsorship, approval, performance,
characteristics, ingredients, accessories, uses, or benefits it does not have;
b) a
consumer product or service is of a particular standard, quality, grade, style,
or model when in fact it is not;
c) a
consumer product is new, original or unused, when in fact, it is in a
deteriorated, altered, reconditioned, reclaimed or second-hand state;
d) a
consumer product or service is available to the consumer for a reason that is
different from the fact;
e) a
consumer product or service has been supplied in accordance with the previous
representation when in fact it is not;
f)
a consumer product or service can be
supplied in a quantity greater than the supplier intends;
g) a
service, or repair of a consumer product is needed when in fact it is not;
h) a
specific price advantage of a consumer product exists when in fact it is not;
i)
the sales act or practice involves or
does not involve a warranty, a disclaimer of warranties, particular warranty
terms or other rights, remedies or obligations if the indication is false; and the
seller or supplier has a sponsorship, approval, or affiliation he does not
have.
However,
such law only punishes the producer, manufacturer and the seller. The Group
Buying sites are not among the mentioned categories because they are simply
conduits of them (Producer, manufacturer and seller) and the on-line buyers. The
Group Buying websites can avoid any liability because they have no part in the
transaction, putting them in the grey-area of the law.
The author
is of the submission that on-line buyers must also be protected and afforded
rights against such situation where they, on-line buyers, are at the mercy of
unscrupulous on-line sellers and Group Buying sites. On-line sellers could
simply vanish into thin air after the deal has been done leaving duped on-line
sellers hanging out to dry. At the same time, the platform in which the deal
has been consummated took place in the domain of these Group Buying sites who
have no direct and explicit responsibility to any party. Once an on-line buyer
has been cheated, they cannot hold the Group Buying Sites responsible because
of their respective defense, despite the fact that the Group Buying sites are
the first thing that the on-line sellers would see and more often than not,
interact with via the internet.
The
author submits that affording on-line buyers certain rights for their
protection and possible recourse against both the on-line sellers and Group
Buying Sites. The author proposes that Article 50 of the Consumer Act be
amended in the Bill to be stated as:
ARTICLE 50. Prohibition Against Deceptive Sales Acts or
Practices - A deceptive act or practice by a seller or supplier or Group Buying Website in connection with
a consumer transaction violates this Act whether it occurs before, during or
after the transaction. An act or practice shall be deemed deceptive whenever
the producer, manufacturer, supplier or seller, through concealment, false
representation of fraudulent manipulation, induces a consumer to enter into a sales
or lease transaction of any consumer product or service. Without limiting the
scope of the above paragraph, the act or practice of a seller or supplier is
deceptive when it represents that:
The
author also suggests that there be enacted a mechanism to enable on-line buyer
a realistic recourse to recover whatever they have paid to a seller via the domain
provided by these Group Buying websites. Also, the highest degree of diligence
must be exercised by these Group Buying Websites, similar to the degree of
diligence that a common carrier must
show exhibit[xi]
due to the fact that on-line buyers are in a precarious situation where they
are [1] not negotiating on equal footing because availing of discounted prices
are contracts of adhesion, and [2] The increased probability that such seller
will abscond with the money of the buyer while the Group Buying sites will
still get their commission in whatever way the deal will go.
While the
Bill focuses on the rights of On-line users against criminality, the same
mantle of protection must also be given to on-line buyers for they are a much
smaller demographic of on-line users with pecuniary interest on the matter.
[i]
Senate Bill No. 53. Magna Carta For Philippine Internet Freedom. November 30,
2012
[ii]
Transfer To The Regional Trial Courts Of Cases Falling Within The Jurisdiction Of
The Family Courts From The Metropolitan Trial Courts, Municipal Trial Court In Cities,
Municipal Trial Courts And Municipal Circuit Trial Court. A.M. No 11-09. February 23, 1999
[iii]
Batas Pambansa No. 129. An Act reorganizing the judiciary, appropriating funds
therefor and for the other purposes. August
14, 1981
[iv]
Id. Sec. 19-20
[v]
Supra. Note i. Sec. 66(b)
[vi]
Supra Note iii. Sec. 15
[vii]
Rules on Electronic Evidence. A.M. No. 01-7-01-SC
[viii]
Diana Lutgarda P. Bonilla et al., Group Buying Sites: Deal or No Deal,
available at http://lawandict.blogspot.com/2012/03/group-buying-sites-deal-or-no-deal.html
(last accessed May 6, 2014)
[ix]
Metrodeal.com., Terms and Agreement. Available at
http://www.metrodeal.com/terms (last Accessed May 6, 2014)
[x]
CONSUMER ACT OF THE PHILIPPINES. Republic Act No 7394. April 13, 1992
[xi]
An Act to Ordain and Institute the Civil Code of the Philippines [Civil Code], Act No. 3815. Article 1733.
(1950).