February 16, 2013 · Posted in: Access to Information, Cross Border, Free Expression - Asia, Freedom of Information, The Internet
Cyberscouts, restrictive laws
choking cyberspace in Asia – CPJ
THE PHILIPPINES is well on her way to joining a roll of dishonor of nations in Southeast Asia that are restricting online freedom. That is, if President Aquino should insist on enforcing the much-criticized Cybercrime Prevention Act.
It is not a charming company at all of countries in the region that are now infringing on freedom of expression in cyberspace through national security-hinged laws, judicial crackdown, surveillance and censorship.
These are the findings of a fresh report, “In Asia, Three Nations Clip Once-Budding Online Freedom,” by Shawn W. Crispin, senior representative for Southeast Asia of the Committee to Protect Journalists (CPJ).
In particular, Thailand, Malaysia and Vietnam — “countries that once had some of the region’s most promising online openings and vibrant blogospheres — stand out as the most egregious backsliders due to official crackdowns,” he said.
And yet, it was “through critical postings and commentaries, online journalists in the three countries had challenged officialdom’s traditional control over the mainstream media,” Crispin noted. “Their independent reporting opened once untouchable institutions and largely unaccountable politicians to more public scrutiny and criticism.”
Seeing online commentaries as “a threat to their authority,” the governments in these nations “are fighting back with a vengeance, employing increasingly harsh tactics including the imposition of intermediary liability and local data hosting requirements, and the use of underlying anti-state and national security laws to crack down on Internet freedoms,” he said.
In China, Crispin said journalists believe “Beijing’s repressive model” now seems to be serving other governments a reference. Thus, the deployment of “Internet agents,” known respectively in Malaysia, Thailand, and Vietnam as “cybertroopers,” “cyberscouts,” and “red guards,” are now “flooding online political forums with pro-government propaganda or undermine critical bloggers through ad hominem attacks.”
Nonetheless, the Philippines, Cambodia, and Singapore are charting parallel restrictive tracks. The three nations, Crispin averred, “are moving more tentatively, mostly through legal measures governing the Internet, in the same restrictive direction.”
For the here and now, “they have only partially succeeded,”because “tech-savvy reporters have made effective use of proxy servers and other technological roundabouts to circumvent state-administered blocks and maintain their online anonymity and security.
Indeed, across Southeast Asia, Crispin wrote, “governments have curtailed Internet freedoms through increasingly restrictive practices, including prohibitive laws, heightened surveillance and censorship, and threats of imprisonment on various national security-related offenses.”
“In Thailand, a court recently ruled that website editor Chiranuch Premchaiporn criminally liable for a criticism of the monarchy that an anonymous visitor had posted on her news website Prachatai. The landmark verdict, Crispin wrote, “effectively shifted the onus of Internet censorship in Thailand from government authorities to Internet intermediaries.”
Because she failed to remove the comment quickly enough — it lingered for over 20 days on Prachatai — the court ruled that Chiranuch had “mutually consented” to the critical comment.
She was acquitted of nine other charges but in this intance, Chiranuch was dealt an eight-month suspended prison term under the 2007 Computer Crime Act. This law passed in May 2012 in the wake of a military coup applies Thailand’s strict lese majeste law to online content, among other restrictions.
“While the ruling sent a stark warning to all online journalists in Thailand,” Crispin said, “it also implied that Web managers of user-generated platforms like political chat rooms, social media applications, and e-commerce hubs could also be held accountable for content posted to their sites deemed offensive to the royal family, a criminal offense punishable by 15 years in prison under Thai law.”
“The verdict,” Chiranuch was quoted as saying, “confirmed that the [Computer Crime Act] could be implemented to restrict Internet freedom by requiring intermediaries to police Internet content.” The law, she lamented, “has had direct effects on freedom of expression and free flow of information because Internet intermediaries now must practice self-censorship.”
Meanwhile in Vietnam, “pseudonymous bloggers have gravitated from domestic to foreign-hosted platforms to conceal their identities.”
Thirteen of the 14 journalists imprisoned in late 2012 were jailed “primarily for their online writings.” They include prominent bloggers Nguyen Van Hai, Ta Phong Tan, and Phan Thanh Hai, who were sentenced respectively to 12, 10, and four years in prison for online postings, Crispin reported. The judge assigned to the case ruled that the bloggers had “abused the popularity of the Internet” and “destroyed people’s trust in the state.”
Bloggers Dinh Dang Dinh and Le Thanh Tung had also been slapped jail terms to six and five years for supposedly mounting “propaganda against the state” online.
In Malaysia, “where the government tries to maintain the illusion of an uncensored Internet,” Crispin said, “curbs against online freedom have been less overt but similarly disruptive for journalists.”
“In 1996, in an effort to lure foreign investment to the Multimedia Super Corridor, a state-led information technology development project, then-Prime Minister Mahathir Mohamad and other senior officials vowed not to censor the Internet,” he recalled. “The no-censorship promise was also included in the corridor’s 10-point ‘bill of guarantees’ and the 1998 Communication and Multimedia Act.”
“Despite the Internet freedoms guaranteed under the Communication and Multimedia Act, bloggers have been detained and charged under provisions of the Official Secrets Act, the Sedition Act, and the Security Offenses Act for postings on such sensitive topics as race, religion, and official corruption. The vague national security-related laws have recently been extended to stifle online criticism of Malaysia’s royal sultans.”
In July 2012, Crispin said, blogger Syed Abdullah Syed Hussein al-Attas was briefly detained by the police under the Official Secrets Act over a series of investigative articles he posted about the sultan of the state of Johor.
In 2010, Khairul Nizam Abd Ghani, who blogs under the name Aduka Taruna, was detained under the Sedition Act for postings considered insulting to Johor state’s royal family, Crispin wrote. The blogger was acquitted in June 2012 “after state prosecutors failed to present evidence to justify the charges.”
Additionally, “Malaysiakini, the country’s leading online news portal, has been persistently singled out for harassment, both from official and anonymous sources,” Crispin said. “Days before a pivotal state election in 2011, Malaysiakini and two other news websites were hit by debilitating denial-of-service attacks of unknown origin that forced them to publish through alternative domain names and platforms.”
The CPJ’s research showed that the news portal “has also been hit by unexplained cyber attacks at least 35 times since the site was founded in 1999.”
In April 2012, Malaysia’s parliament passed an amendment to the 1950 Evidence Act “that made intermediaries liable for any seditious postings made by anonymous visitors to their online platforms or over their Wi-Fi networks.”
Crispin wrote: “The amendment threatened to ‘open the door to selective, politically motivated prosecutions,’ the U.S. government-funded Freedom House said in a September report on global Internet conditions.”
“The amendment has sent a chill down the spine of Internet users,” Crispin quoted Anil Netto, a prominent Malaysian political blogger, as saying. “It makes me more careful about moderating comments that are posted on my blog… just to be on the safe side against seditious or potentially libelous remarks.”
Crispin is a reporter and editor for Asia Times Online, and author of the 2012 CPJ report, “As Vietnam’s economy opens, press freedom shrinks.”
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choking cyberspace in Asia – CPJ
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http://sc.judiciary.gov.ph/ the oral argument may be downloaded to the Supreme court home page
In between 20 to 35 minutes of the first oral argument there is an interesting interpolation between one of the presiding Judges and Atty. Roque on the issue about overbroadness and vagueness of provision under chapter 4 of the act…
I believe the Judge was able to made Atty Roque to concede that actually there are fundamental basis to prove that there are libelous materials that exist on the internet. Even detailing the specific where author can be alluded to bloggers and publisher as well to those who abet in the proliferation of the malicious content. and that the law was indeed needed…notwithstanding the punishment as detailed on the act to be discussed on the latter part of the oral argument
now it is interesting to note that on overbroadness one important topic discussed was on the context of LIABILITY…ATTY. ROQUE brought out that on the plenary sessions aside from actual author of libelous materials part of the virtual network of the internet including the Telecom Company, web sites, and the like including internet cafe’s may be even held liable of abetting cybercrime…
and indeed the IRR of the Act could actually point to LIABILITIES INCURRED BY ALL OF THESE PLAYER OF THE INTERNET… vaguely Atty. Roque presume this stringing of liability as against the provision of the Act as overbroadness or overbreadth…but actually it is not…in terms of an IT practitioners viewpoint there is actually shared responsibilities between all of these internet players..
all of these players are actually can be implicated on the notion of TRACEABILITY.. that indeed all information shared using the infrastructure of internet can be traced back to the original source…and each of the player between the original computer source and all networking devices that the materials was passed including gateways between nations keep an audit trail that can be retrieved by capable individuals….
The liability arises on the fact that these trails could be tampered with or even destroyed…on the lowest level a cybercafé must be held liable for not keeping record including but not limited to basic personal and computer rental information… in the event that we can no longer held the author of the libelous material accountable because the internet café failed to, or do not actually keep record…on the same note Internet Service Provider (access provider) and web sites (content provider) can be held liable against the law…including the negligence to keep network traffic trail free from external hackers who can tampered with audit trail.
It is important to note the difference between access, presence and content provider of the libelous material because the Act alliude to the Penal Code which detailed the rudiments about Libel..
Between 40 to 60 minutes of the of the first oral argument the discussion goes legal than cyber and the broad reference of the Act to the Penal Code became a good discussion not against the Cybercrime Law but the Penal Code itself…it was actually detailed by Judge Carpio that the Penal code was originally adapted from the French since 1810 and current international statutes in effect in particular the ICPR have rendered part of the Penal Code inconsistent with its provision….
Now is it correct that on the basis of a single indirect provision of the Penal Code which penalized imprisonment for libel the cyberlaw could be shelved for more than a year by the Supreme Court????
Cyberlaw is badly needed…Supreme Court Please….
hour one of the audio highlights.. that because of social media account on cyberspace individuals who have multitutes of followers had the potential to destroy others…even worsen by the fact that unlike print journalism they will have no editors nor proofreader…”and therefore is there not a right of the government, a state interest, in coming in, in order to remove the megaphone to some individuals who are careless – Supreme Court Associate Justice Marvic Mario Victor F. Leonen
After hearing at least 1 hour and thirty minutes of the first transcribed audio from the oral arguments on the Cybercrime Law within which the conclusive rhetoric by Atty. Harry Roque was brought forth the following points I believe was being raised by the respondent as a facial attack against the Law.
Over-breath
1.1 misuse of terminology (ie.. lascivious and favor under definition of cybersex)
1.2 extent of coverage on over-all IT infrastructure
Chilling effect
2.1 Chilling effect against freedom of expression
2.2 chilling effect – social behavior
and as a counter arguments against any cybercrime law for that matter; according to the respondent that currently cyberspace are set-up towards
Self policing / Self regulation
Now I believe on both 1 and 2 Supreme Court Associate Justice Marvic Mario Victor F. Leonen counter-argument properly address these concerns
on misuse of terminology:
“but with this provision which is a case of first impression this court can therefore laydown the proper interpretation of prima facie…at it deed on the laydown on reasonable searches…”
on chilling effect against freedom of expression:
“We should also be protecting the ordinary people who are silenced, who are afraid to speak out because their opinions run in opposition to the influential cyber celebrities.
On chilling effect on social behavior
Not only regulation or law affects social behavior much worst will be the behavioral chaos resulting from the current unregulated cyber scenarios.
And based on previous post as well where Justice Leonen elucidated that the internet contained libelous content directed against private individuals or even groups.
On the same manner what Atty. Roque alleged as an infringement of freedom of expression and grave abuse of discretion probably because netizens would be thwarted by the law on speaking out against public officers was according to Justice Leonen is not going to happen because our jurisprudence was clear on the difference of libel as directed towards public officer/figure and private individuals. That all laws for that matter have chilling effect and was in effect would result to responsible individuals and acceptable social norms.
It might sound awful but it seems to me that the respondent was undermining the netizens of this country that on the contrary as is demonstrated on the last activity against Pork barrel the Filipino netizens are the new intelligensia . it is a reform class that not only geared toward combating corruption and injustices and promoting positive social reforms but also are professionals on their own right. The Filipino Netizens are collection of professionals and enthusiast who is brave enough not only to demand what is right but also understand such right was provided for them under the law.
And contrary to what is being brought out on news-feed against the law still the proper court under its very provision actually will determines guilt as well as issue warrants, seizures and other mandates.
Now on the notion that cyberspace in general is self-regulating or specifically a social networking site is self-policing let me dwell on the impossibility of this on two counts Administrative and Cultural
3.1.r Administrative
“there is so many dangerous things that happens on the internet…” Supreme Court Associate Justice Marvic Mario Victor F. Leonen
Based on statistic that can be found on the link http://en.wikipedia.org/wiki/Facebook_statistics as of May 2, 2013 there are about 1.11 billion user of Facebook. And on Philippines alone the same page declares 103, 775, 002 facebook users. Imagine the explosive number of exchanges of users using facebook services between Philippines alone. Now let us look for the sake of the argument consider that all of the 5,794 facebook employees http://newsroom.fb.com/Key-Facts needs to evaluate at least 5% of users complaining against offending content will mean that on an eight hour work day each employee needs to handle at least 23,947 complaint per hour or per minute of 399. Gee…the numbers don’t lie mga Sir!!!
3.2.r Cultural
Even only within the Philippine what is offending may vary among culture and individual imagined the cultural havoc it will cause when someone from half the world away would determine between acceptable or not…
The way I see it the real problem is not about the law itself but more akin to the IT industry in general… specifically traceable to confusion brought forth by loose understanding or definition of ICT terms.
actually the same problem haunts the professionalization of computer science and information technology professionals…although an umbrella organization can be achieved to comply with the PRC requirement of an APO there is yet the ever daunting tasks to define generally and specifically the BODY OF KNOWLEDGE under the profession…
Unfortunately, the paradigm extends across the entire world… globally the IT industry still was in its early stages where by its complex nature industry leaders either separately or jointly define standards with all the resulting inconsistencies and even conflicts.
The actual scenarios are made worst by the facts that these player with their own professional ranking and accreditation races between discoveries that makes standardizations almost impossible. As an on-going trend obsolism was a rule and there is no stopping them in the near future. And to make the matter worst aside from these more than in any other industry the line between public and private domain was most obscure in IT.
…premise on these grounds does it follows that the conclusion we would have be that we could have a perfect cybercrime law.
and as earlier pointed by Justice Abad on the imperfection of our penal code and of Justice Leonen about the capacity of jurisprudence by our court to mitigate such imperfection . And that on these grounds Justice Leonen even saw opportunities on the question raised against the law. Why is it then may we asked that still the decision was to INDEFINITELY SUSPEND THE LAW?
It seems that the decision to indefinitely suspend the law was a decision made to prolong the Feudalism prevalent on cyberspace where the strong tramples the weak… and where anyone can create an account using another private person name and post sweeping malicious statement directed to an already ailing group as is the case of Mhaine Herrera without even the slightest notion of accountability under the law nor traceability under the current unregulated use of the internet.
My God! Are we to let all the good intention under the cybercrime law to be indefinitely shelved and leave the like of Mhaine Herrera without any redress nor infrastructure that if could not prevent the proliferation of malicious content was at least capable of reaching every single one of those who was brought to anger against not of one’s own doing.
Congress had done their part…if it seems that what Associate Justice Leonen gallant defend is not enough…what else we can as a common people can plea in this regards..