Intellectual Property. Shall we share?

To fully grasp the meaning of Intellectual property (IP) rights, we should not only consider it as some artistic and literary creation, a fabrication of the mind or an intangible asset. We should look at it as money, because an Intellectual property right is a business asset. An enterprise’s assets may be broadly divided into two categories: physical assets – including buildings, machinery, financial assets and infrastructure – and intangible assets – ranging from human capital and know-how to ideas, brands, designs and other intangible fruits of a company’s creative and innovative capacity. Traditionally, physical assets have been responsible for the bulk of the value of a company, and were considered to be largely responsible for determining the competitiveness of an enterprise in the market place. In recent years, the situation has changed significantly. Increasingly, and largely as a result of the information technologies revolution and the growth of the service economy, companies are realizing that intangible assets are often becoming more valuable than their physical assets.[1]

Large warehouses and factories are increasingly being replaced by powerful software and innovative ideas as the main source of income for a large and growing proportion of enterprises worldwide. And even in sectors where traditional production techniques remain dominant, continuous innovation and endless creativity are becoming the keys to greater competitiveness in fiercely competitive markets, be it domestic or international.

Commerce has put special emphasis on assisting small and medium sized enterprises (SMEs) in protecting their intellectual property both in the here and abroad.  We should have entities in conjunction with other agencies, to undertake activities to assist SMEs.  Intangible assets are therefore taking center stage and SMEs should seek how to make best use of their intangible assets. This is because SME’s are job engines. Today, a big chunk of net new jobs in the private sector are created by SMEs. Thus, there should be a development of concrete actions to promote a better economic environment for the hundreds of thousands SMEs and support their efforts for creating new jobs.[2]

Protecting IP rights should be given high consideration. Innovation and creativity are vital to this nation’s prosperity and job growth.  Our inventors and artists need suitable, adaptable and sufficient protection of their creations on a worldwide basis so they can enjoy the fruits of their labors and so their creations can fuel the enterprises that generate good-paying jobs and continue to enhance productivity.  In the global economy, innovation and creativity are clear competitive advantages. We must learn to safeguard these national assets.

There is no more important time to focus on these issues.  One of the keys for our economic growth is driven by innovation and creativity.  Looking out over the long term, inventors need global protection for their creations if we are to address some of the grand challenges society faces.  We have long known that research into and development of new medicines is a costly, high-risk undertaking.[3]

If we are to have any hope of providing ever-improving levels of service while containing costs, it will be with new innovations.  Overcoming economic and welfare challenges will be impossible without widespread dissemination of new technology and the people of posterity – children and students will have to be educated in the ways of innovation and creation if they and their children are to enjoy prosperity.  Protecting present-day innovation and creation is essential to assuring our economic success in the global marketplace.[4]

There is a continuation and acceleration of a trend on tightening and passing of laws that began years ago, due primarily to copyright infringement using the Internet. We should expect to see this trend continue, with that we should continue to work with I.P rights owner/holder to make them aware of the seriousness of intellectual property issues.

There should be an establishment of an entity to develop policies and procedures to not only protect their own intellectual property, but to avoid infringing on others’ intellectual property rights. As well as provide intellectual property owners with knowledge and legal tools to fight piracy and counterfeiting both at home and abroad, and assist them in their enforcement efforts overseas. There should also be assistance coming from foreign countries with technical and specialized support on effective enforcement of intellectual property rights.

The end goal is the objective to help the I.P rights owner/holder focus on due diligence processes to ensure they are not violating others’ intellectual property rights and well as Informing and educating the I.P rights owner/holder to make them even more vigilant when it comes to protecting their intellectual property and avoiding infringement of others’ intellectual property. And in case any of the legislation is passed into law in the areas of Intellectual property or there is any change in the international setting, the entity should keep abreast of the changes those involved in I.P or has interest and make sure we are advising them appropriately.

The Philippines remains on the Watch List in 2013.[5] The Philippines continues to make gradual progress on efforts to improve its legislative, administrative, and enforcement infrastructure for IPR. The Philippines has made incremental improvements on enforcement, and its IP offices continued to pursue promising modernization efforts. The United States and other organizations encourage the continuation of efforts to reduce patent application backlogs and streamline patent opposition proceedings. Piracy and counterfeiting, including the counterfeiting of medicines, goods and other materials remains widespread, and the enforcement remains ineffective at addressing this problem. Amendments and sheer effective implementation are needed to bring Philippines’ copyright law in line with international standards, including by implementing the provisions of the WIPO Internet Treaties. The Department of Trade and Industry (DTI) has asked the US to remove the Philippines from Washington’s list of piracy hotspots, citing Manila’s inroads in protecting intellectual property rights (IPR) over the past two years.[6]

The United States claims that the Philippines is not engaged in “good faith negotiations” or making significant progress in negotiations to address the problems.[7]

The US looks forward to the Philippines to take important steps to address piracy over the Internet, in particular with respect to notorious online markets. The USTR said it remains concerned about the need to strengthen criminal enforcement of IPR and to improve predictability with respect to search and seizure orders. The US also remains concerned about amendments to the Patent Law that limit the patentability of certain chemical forms unless the applicant demonstrates increased efficacy. Washington, however, lauded the Philippines for passing long-awaited legislation to implement the World Intellectual Property Organization Internet Treaties.[8]

To make IP work for countries and business organizations, the governments of respective countries must take strong positive action and impose stringent punishment on the infringers

Some of the measures that could be taken to protect IP would include the provision of a transparent and enforceable IP rights ownership, irrespective of nationality. The accessibility of national and global IP systems has to be enhanced by ensuring that the costs of applying, maintaining and enforcing IP rights are minimal; by simplifying the procedures; and by harmonizing the IP systems globally and reducing the costs of obtaining IP rights in multi-countries. The government has to patronize and implement effective IP policies with proper financial management and infrastructure of IP institutions. It has to take up the task of educating local communities, business enterprises, and general public on the potential benefits of an efficient IP system. The government should offer assistance to innovators, producers, creators on the use, protection and commercialization of IP. It has to take rigorous steps against counterfeiting and piracy and strengthen the legal framework to ensure effective implementation and enforcement against IP theft.[9]

The Philippine Intellectual property authorities have taken great strides towards the increased protection and enforcement of IP rights. The protection of Intellectual Properties is a very critical element. The government should give incentives like tax rebates, besides taking steps to protect copyright laws, in order to boost the country’s industry. The Philippines with regard to Intellectual property has come a long way from its inception, IP rights in the Philippines has never looked more positive. With the government showing enthusiasm for and commitment to the protection of IP rights, IP owners have become more proactive in enforcing their rights by all means, and are exploring unchartered waters to obtain unique remedies from the courts.

Although the benefits of specialized IP courts are would definitely be of big lift in the enforcement of IP rights, much still remains to be done regarding the criminal justice system, the Philippine system for the protection of IP rights is improving, as seen in the numerous number of jurisprudence tailoring to the cases, and the actions undertaken by the government.

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[1] WIPO – intellectual property for business

[2] ROBERT L. STOLL, Protecting Intellectual Property Rights in a Global Economy: Current Trends and Future Challenges, December 9, 2009

[3] Supra

[4] Supra

[5] USTR Watch List 2013

[6] Ben Arnold O. De Vera, DTI presses Philippines’ removal from US piracy watch list, August 23, 2013.  http://www.interaksyon.com/business/69216/dti-presses-philippines-removal-from-us-piracy-watchlist

[7] U.S Trade Representatives IPP Watchlist

[8] Jennifer A. Ng. In Philippine retention on US piracy watch list baffles government. Retrieved Oct 18 2013 , from http://www.businessmirror.com.ph/index.php/en/news/top-news/12950-philippine-retention-on-us-piracy-watch-list-baffles-government

[9] P. Mohan Chandran. White Paper – Intellectual Property. http://www.boloji.com/index.cfm?md=Content&sd=Articles&ArticleID=6721

 

Disclaimer

All data and information provided on this site is for informational purposes only. The author makes no representations as to accuracy, completeness,  suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis, has no warranties, and confers no rights.

Prohibition of Ambush Marketing: curtailment of free-enterprise?

Prohibition of Ambush Marketing: curtailment of free-enterprise?

 

Sponsored Events

Sponsorship is a highly flexible medium providing access to various audiences such as internal staff, business decision makers, government regulators, and consumers, most corporate sponsors seek to communicate with the latter. Companies use sponsorship to fulfill the primary marketing communications objectives of creating brand awareness and enhancing image, although they sometimes explicitly seek and achieve bottom-line sales results. Sponsoring an event simultaneously attracts and provides access to an audience. It differs from conventional advertising in that both message and medium are inextricably linked. The event generates the audience while concurrently sending a message to that audience about the event’s values.Each sponsorship property or vehicle has certain associated images in the consumer’s mind that transfer to the sponsor.[1]

 

Question:

In a case where a company or a group thereof organized/sponsored an event, can non-sponsors promote their product thru usage and/or carrying of a trademark, resulting to the use of competing marks in a corporate-sponsored event?

The answer would be in the negative. Such act would be tantamount to ambush marketing.

 

It has been said that the growth of commercial sponsorship has been perhaps the most striking development in marketing communications over the last two decades[2] As sponsorship’s popularity has increased, so too has competition to secure and protect sponsorship rights.[3]

 

Ambush Marketing, also known as “guerilla marketing or “parasitic marketing” describes any kind of behavior of a party that strives to associate with an event in order to profit from it without making any of its own contribution or sponsorship fees.[4] The act of “ambushing” often involves competitors of the official sponsors and the intention is to increase their own level of public awareness and to link their company image with the attributes ascribes to the sporting event.

In the process, there shall be an active attempt to confuse people as to who is the official sponsor or who are sponsors of an event and who is not.[5]Corporate sponsors see ambush marketing as a threat to the expected value of the sponsorship contract that they have purchased. It also allows the ambusher to ingratiate itself with the consumer beneficially.[6]

An ambush marketer can associate with a major event without large-scale investment in securing rights and thereby fulfill brand awareness and image objectives at low cost which are benefits usually available only to the official sponsor. It also generates goodwill in favor of the ambusher, which is a consumer’s natural reaction to support for an activity of which he or she approves.

As a result, the recollection of sponsors might be reduced,Thus diminishing the goal of awareness development.[7] The Consumer’s failure to develop a correct interpretation of various facets of stimuli during the information processing procedure is described as consumer confusion. In the confusion, there is interfered information processing which impedes the consumer’s ability to select and interpret stimuli.[8]Such confusion is completely undesirable for the sponsors because it puts a huge dent to theirinvestment denying the legitimate sponsor clear recognition for its sponsorship role. The net effect is that the official sponsor may derive considerably less benefit from its involvement.

Ambush marketing measures can be multifaceted and range from the unauthorized use of protected signs or terms of the organizer to creative advertising strategies without any use of protected rights. One of the most common methods in an events ambushing is the use of advertising strategies either directly or indirectly. Direct ambush marketing includes measures whereby the unauthorized company suggests to the public that it is an official sponsor of an event, either by intrusion and/or by association. Indirect ambush measures are more subtle measures undertaken by a company through different forms of association.[9]

The effectiveness of market ambushing is not disputed. Studies of the 1992 Olympic Games[10] showed that many non-sponsors that aired commercials during Olympic broadcasts in the U.S. market created the impression of Olympic involvement.[11] Using association with the event as a success indicator, it was determined that many non-sponsors outperformed the official sponsors in the relevant categories.[12]

 

Legal and Ethical Framework

In many countries, Ambush marketing is labeled as a prohibited marketing activity and is taken seriously. In the U.K., ambush marketing constitutes the crime of unlawful passing off wherein the insignia and identifying features of an event can be protected under the common law if they are well known and enjoy repute to the extent that persons seeing such insignia call the event to mind.  Countries like the USA, France and Germany deem ambush marketing as tantamount to unfair competition.

 

The Philippines does not have a special law to address the dangers of ambush marketing but there are various general laws which may to an extent, provide for a workable solution to the threat or to serve as a basis for sponsors who are prejudiced by ambush marketing.

Examples are the following:

In the Civil Code of the Philippines, there are several pertinent provisions:

The Doctrine of Abuse of Rights found in Articles 19, 20 and 21,Unjust Enrichment of Article 22 and Article 28 which creates a right of action to one who suffers by reason ofUnfair Competition

Articles 19, 20 and 21 of the New Civil Code of the Philippines are “catch-all” provisions, meaning, in case of the absence or insufficiency of laws to apply to a certain situation, the catch-all provisions may be utilized to cater to the exigencies present. Jurisprudence [13]explains: “There is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience”. And lastly, The “true test” of unfair competition as jurisprudence laid in a case[14]: whether the acts of defendant are such as are calculated to deceive the ordinary buyer making his purchases under the ordinary conditions which prevail in the particular trade to which the controversy relates

Article 110 of Republic Act 7394(Consumer Act of the Philippines)Philippines imposes penalties on “False, Deceptive or Misleading Advertisement” as well as to “unconscionable sales practices in both goods and credit transactions”

Sections 168 and 169.1 of R.A 8293(Intellectual Property Code of the Philippines) refers to Unfair Competition, Rights, Regulation and Remedies as well as False Designations of Origin; False Description or Representation of which pertinent provision provides as prohibition to one that:

xxx 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; xxx

 

When an ambusher that has not bought specific rights gives the impression that it is involved in an event, the ethics question arises. In such instances, the ambusher deliberately associates with and exploits an event’s spirit without breaching the letter of the law. At that juncture, Ambushers may find solace to the fact that there are schools of thought that are actually in its favor, those which are in pursuance of universal principles regarding fair business practices and its responsibility to further the best interest of its stockholder to justify its acts.

According to Kantian moral theory,[15] which believed that a perfectly rational being must also be perfectly moral because a perfectly rational being subjectively finds it necessary to do what is rationally necessary. Because humans are not absolutely rational considering men partly act by instinct, Kant believed that humans must conform their subjective will with objective rational laws, which relies on universal standards of goodness and the motivation to fulfill one’s duties and obligations. It “maintained that moral action must be motivated by obligation alone” and “that all persons must act not only in accordance with obligation, but for the sake of obligation.”

Contrasting theories, such as the Utilitarian theories, come down in favor of the greatest goodfor the greatest number. Good is usually defined as net benefits that accrue to the parties affected by choice.” Laczniak and Murphy state, “In an organizational context, utilitarianism basically states that a decision concerning corporate conduct is proper if and only if that decision produces the greatest good for the greatest number of individuals.” In a nutshell, such theory creates an impression that an ambusher, in his pursuit of self-interest without contribution is actually engaging in an activity which sabotages the greater good.[16]

Ambushers such as Jerry C. Welsh, former head of worldwide marketing at American Express and a proponent of ambushing, argue that their actions are perfectly legal and ethical within the framework of normal business. He suggests that “there is a weak-minded view that competitors have a moral obligation to step back and allow an official sponsor to reap all the benefits from a special event.”[17]

Despite the hint of ambush marketing being unethical, it is often given a certain sympathy bonus in public for creative marketing measures.[18] For the ambusher, ambush marketing is an important commercial tool and a natural result of free competition. But from a general perspective, ambush marketing is wrong because it threatens the ability to retain top-paying sponsors. Such underpins the fact that the existence of a risk creates a major threat to the viability of sponsorship of events and thus for the holding of events since, many sporting and entertainment events are not economically viable and cannot be staged without the sponsorship. [19]

 

One may even argue that Jurisprudence[20] itself has held that the ordinary purchaser must be thought of as having, and credited with, at least a modicum of intelligence. Meaning, the existence of competitors in a sponsored event should not be considered as a negative element being that man will eventually support a brand which it likes, regardless of its status of sponsor or non-sporsor.

Meenaghan[21] asked whether ambush marketing was an “immoral or illegal” practice, few researchers have actually debated this question. Predictably, event owners and official sponsors have regarded it as immoral, because it threatens their ability to sell events or recoup investments made in these[22]. However, this view offers little practical guidance to prospective sponsors, who cannot assume competitors share their ethical perspective. Instead, sponsors and event owners must seek legal redress if they believe a competitor has encroached on their rights in some way[23]. Given that the courts provide the only remedies available to aggrieved sponsors, it is logical to return to Meenaghan’s question and consider whether, and in what circumstances, ambush marketing is illegal. More detailed analysis of the activities that constitute ambushing could help sponsors reduce the opportunities available to ambushers, and provide greater protection of their investment in an event.

 

Conclusion

Fundamental is the right of expression, which may be applied in marketing methods, but such right is not absolute especially if it shall transgress upon rights which are protected by virtue of laws or contract.

In fair business practice perspective, it is suggested that the sale of one’s property should result in the economic benefit going to the owner or seller. It is logical that one should reap what he sowed. In a similar fashion, the sponsor as buyer should reap the rewards of its investment and be protected in doing so.

Though there are arguments and points that may be raised in attempt to justify Ambush marketing, it such should never prosper. Ambush marketing is basically stealing, and stealing requires no validation because the evil it poses speaks for itself. No matter how wonderfully crafted semantics or brilliantly executed contraventions of existing laws, ethical matters shall still exist.

In closing, It is shown  that confused consumers have less memory of sponsors and are more likely to perceive ambushers and sponsors of other events as official sponsors. The most influential antecedent of consumer confusion is perceived stimuli ambiguity, which in turn is influenced by perceived stimuli overload. Thus, it is the combination of multiple sponsorships and ambusher activities that confuses consumers. Furthermore, it is evidenced in several tests[24] that high levels of confusion negatively impact on the attitude toward the sponsorship and evoke reactant intentions. Ironically, this effect particularly impacts both sponsors and ambushers which were successful in linking their companies or brands to the event. [25]

 

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[1]M. Hiestand, “Ambush Marketing Becomes an Olympic Event,” Adweek, 17 November 1987, pp. 2–4.

 

[2] Crimmins J & Horn M (1996). Sponsorship: From management ego trip to marketing success.

Journal of Advertising Research, 36, 11-21

 

[3] Hoek J & Gendall P (2002a). When do ex-sponsors become ambush marketers? International

Journal of Sports Marketing & Sponsorship, 3 (4), 383-402.

 

[4]McKelvey/Grady, Ambush Marketing: The Legal Battleground for SportMarketers, 21 WTR Ent. & Sports Law. 2004, pages 8, 9;

[5]Dalakas, Vassilis, Robert Madrigal, and Rick Burton (2004), “Understanding Ambush Marketing: Implications of Information Processing,” in Sports Marketing and the Psychology of Marketing Communication, eds. Lynn R.Kahle and Chris Riley, Mahwah, NJ: Lawrence Erlbaum Associates, 293–304.

[6] B. Ettorre, “Ambush Marketing: Heading Them Off at the Pass,” Management Review, volume 82, March 1993, p. 5

[7] Cornwell, T. Bettina, Michael S. Humphreys, Angela M. Maguire, Clinton S. Weeks, and Cassandra L. Tellegen

(2006), “Sponsorship-Linked Marketing: The Role of Articulation in Memory,” Journal of Consumer Research, 33

(December), 312–21.

[8] Turnbull, Peter W., Sheena Leek, and Grace Ying (2000), “Customer Confusion: The Mobile Phone Market,” Journal

of Marketing Management, 16 (1–3), 143–63

[9]Curthoys/Kenndall, Ambush Marketing and the Sydney 2000 Games

(Indicia and Images) Protection Act: A retrospective, no.13

[10] Performance Research Inc., Olympic Sponsorship Study (Newport, Rhode Island: Performance Research Inc., 1992)

[11] M. Turner, “Circle the Rings, Ambush Ads Hit,” The Atlanta Journal/ The Atlanta Constitution, 3 March 1992, p. A6

[12] R.L. Flanagan, “A Study of Corporate Sponsors and the Feasibility of an Ambush-Free Olympic Games in Atlanta” (Columbia, South Carolina: University of South Carolina, unpublished dissertation, 1993)

[13] See Ong Yong v. Tiu, G.R. No. 144476, 1 February 2002, 375 SCRA 614

[14]Alhambra Cigar & Cigarette Manufacturing Co v. Mojica, 27  Phil. 266 (1914)

[15] T.L Beauchamp and N.E Bowie, eds., Ethical Theory and Business (Englewood Cliffs, New Jersey: Prentice Hall, 1993), p. 30

[16] G.R. Laczniak and P.E. Murphy, Ethical Marketing Decisions —The Higher Road (Boston: Allyn& Bacon, 1993), p. 30

[17]Bayless (1988), p. B1; and G. Brewer, “Be Like Nike?,” Sales and Marketing Management, volume 145, 11 September 1993, p. 68.

[18] Netzle, Ambush Marketing, Die neue unfaire Marketing-Maßnahme

im Sport, SpuRt 1996, pages 86, 87.

[19]Leone, Luisa,  Academic journal article from The International Sports Law Journal, October 2008 No. 3-4

 

[20] McDonald’s Corp. v. MacJoyFastfood Corp., G.R. No. 1166115, February 2, 2007

 

[21] Meenaghan T (1994). Point of view: Ambush marketing – Immoral or imaginative practice?

Journal of Advertising Research, 34 (3), 77-88.

 

[22] Payne M (1998). Ambush marketing: The undeserved advantage. Psychology and Marketing.

15 (4), 323-331.

 

[23] Hoek J & Gendall P (2002b). Ambush marketing: More than just a commercial irritant?

Entertainment Law, 1 (2), 72-91.

 

[24] Hong, Sung-mook and Sandra Page (1989), “A Psychological

Reactance Scale: Development, Factor Structure and

Reliability,” Psychological Reports, 64 (2), 1323–26.

[25] Mitchell, Vincent-Wayne and Vassilios Papavassiliou (1999), “Marketing Causes and Implications of Consumer Confusion,” Journal of Product & Brand Management, 8 (4), 319–39.

Tech and the law RA 10173

A legal-techie luminary posited a question: Would the act of a person, disclosing the mobile number of another to a third person, without the latter’s consent be considered a violation of Republic Act 10173?

If the all parties concerned in the instant case are merely private persons not involved in personal information processing, the disclosure of A to C (the third person) of B’s number would not qualify as a violation of R.A 10173.

Why?

The Law seeks to protect privacy of information not against private persons. To create a blanket that the law envelops even private persons acting in mere regularity of giving someone’s number, intention regardless, would create havoc, incriminating an act so mundane. Such is not the intention of the law.

Please allow me to briefly discuss the law, its intention and some basic concepts.

Republic Act 10173 is the Data Privacy Act of 2012, a Philippine Privacy law.

Black’s Law Dictionary defines that privacy law is the right that determines the nonintervention of secret surveillance and the protection of an individual’s information. It is split into 4 categories

(1) Physical: An imposition whereby another individual is restricted from experiencing an individual or a situation.

(2) Decisional: The imposition of a restriction that is exclusive to an entity.

(3) Informational: The prevention of searching for unknown information and

(4) Dispositional: The prevention of attempts made to get to know the state of mind of an individual.

The State, realizing that Privacy is one aspect of human rights which is rapidly being vulnerable due to advancements in technology, and acting in pursuance to no less than the Constitution, which guarantees an individual’s privacy as found in the Bill of rights, enacted Republic Act 10173 that primary seeks to curtail Informational Privacy prying.

The State declared that the purpose of the law is to “protect the fundamental human right of privacy and of communication” as well as “to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected”.[i]

What does the law encompass?

Found in the scope, the law is applicable to 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 subject to the immediately succeeding paragraph. As defined by the law, processing refers to any operation or any set of operations performed upon personal information including, but not limited to, the collection, recording, organization, storage, updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data.[ii]

The significant features of R.A 10173 include:

1. The protection of processing of personal information and sensitive personal information

2. Creation of the National Privacy Commission

3. Established limitations on data processing of personal information

4. The Data Subject (individual whose personal information is processed) has the right to know whether their personal information is processed

5. Imposition upon personal information controllers the obligation to ensure security measures to protect the personal information they process and to be compliant with the requirements of this law

6. Imposing of penalties on certain acts.

Now going back to the hypothetical question, whether the act of a person, disclosing the mobile number of another to a third person, without the latter’s consent be considered a violation of Republic Act 10173

We have 3 parties: A, the one who disclosed B’s mobile number. B, number owner, and C, person who received the mobile number from A.

Some hazy matters deserve to be given clarification as to what exactly is protected, and against whom?

RA 10173 focal substance is the protection of personal information

The law clearly safeguards personal information against possible negligence, abuses and imprudence of Personal information processors (PIP) and Personal information controller (PIC).

Personal information controller refers to a person or organization that 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.[iii]

Personal information processor refers to any natural or juridical person qualified to act as such under this Act to whom a personal information controller may outsource the processing of personal data pertaining to a data subject.[iv]

Data subject refers to an individual whose personal information is processed.[v]

The law defines personal information as “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”.[vi]

It is debatable whether a mobile number could be classified as personal information, considering that changing personal mobile numbers is commonplace, and that a person’s number today may actually be in another’s possession or ownership tomorrow. But, as an argument, one could assail that a mobile number could also function as personally identifiable information (PII), which could be linked to an individual’s medical, educational, financial and employment information, hence, personal information.

Taking into consideration advancements in technology and the standards of the times, I submit that a mobile number is indeed personal information. It is not extraordinary for an individual of today to put in a physical or digital medium his or her name, as well as mobile number together, which in causality would enable the relating of two data either by inference or direct sourcing.

 

If A and/or C is a personal information controller or personal information processor, the law mandates that the information was or should be:

1. Collected for specified and legitimate purposes;

2. Processed fairly and lawfully;

3. Accurate, relevant, kept up to date;

4. Adequate and not excessive in relation to the purposes for which they are collected and processed;

5. Retained only for as long as necessary for the fulfillment of the purposes for which the data was obtained;

6. Kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected and processed.[vii]

As a rule, information to be collected must be with the consent of the owner, but there are circumstances that need not have consent to still be equivalent to lawful processing. Note that the processing is still considered lawful even if one of the criteria below exists, but of course, is still subject to the fundamental rights and freedoms which require protection under the Philippine Constitution.

1. The processing of personal information is necessary and is related to the fulfillment of a contract;

2. The processing is necessary for compliance with a legal obligation to which the personal information controller is subject;

3. The processing is necessary to protect vitally important interests of the data subject, including life and health;

4. The processing 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

5. The processing 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.[viii]

Thus, If either A or C is a PIP or PIC, there are obligations imposed upon them, but also exceptions. In utilizing the mobile number of B, we presume in the first instance B as a private person. Ultimately, the above provisions of the law would apply. But, there are also examples when the information collection does not carry the stringent protection of the law, such as when the:

1. Information about any individual who is or was an officer or employee of a government institution in relation to the position or functions of the individual;

2. Information about an individual who is or was performing service under contract for a government institution that relates to the services performed;

3. Information relating to any discretionary benefit of a financial nature;

4. Personal information processed for journalistic, artistic, literary or research purposes;

5. Information necessary in order to carry out the functions of public;

6. Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and

7. Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions;[ix]

Conclusion:

Whether or not the disclosure of A to C of B’s mobile number would be tantamount to a violation of RA 10173 would depend of the status of each of the parties in the case, the underlying circumstances and the end result of which the mobile number is to be utilized.

I submit that the Data Privacy Act is a complete law that further strengthens the constitutional softness with regard to the digital world, providing a deterrent and a medium through the establishment of the National Privacy Commission.

Privacy should never be put into hinges of uncertainty. The right to privacy must always be upheld despite ever-changing moral and ethical standards of society.  Society must always be sympathetic to the steadfast need of man to be sheltered from prying, over inquisitive and to an extent, overly meddling nature of exposure that could be destructive.

One person’s freedom end when another person’s rights begin

Disclaimer

All data and information provided on this site is for informational purposes only. The author makes no representations as to accuracy, completeness,  suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis, has no warranties, and confers no rights.

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[i] Republic Act 10173, Section 2

[ii] Republic Act 10173, Section 4

[iii] Republic Act 10173, Section 3 (h)

[iv] Republic Act 10173, Section 3 (i)

[v] Republic Act 10173, Section 3 (c )

[vi] Republic Act 10173, Section 3 (g)

[vii] Republic Act 10173, Section 11

[viii] Republic Act 10173, Section 12

[ix] Republic Act 10173, Section 4