ICT FInal Paper v1

7/25/2019 ICT FInal Paper v1

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Is Advertising a Cybercrime?

An Analysis of theDisini Decision and its Impact onOnline Advertising through Spam Messages

In Partial Fulfilment of the

e!uirements for

Information and Communications Technology Law

Submitted by"

Angeline B. Buenaventura

Submitted to"

Atty. Robert Real, Jr.

Submitted on"

#anuary $%& '($)

*ord Count" +$,% -ords

0


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Information and communications technology is a relatively ne- concept in the

Philippines -ith our nation .ust catching up to the standards of globali/ation -hen it comes to

information dissemination0 In the global sphere& the Philippines is one of the heaviest users of

social media -hich -ould ma1e one thin1 -hy -e are one of the lo-est ran1ed -hen it comes to

IC2 development0 As of '($+& the Philippines ran1s $(+ out of $)) countries as ran1ed by the

International 2elecommunications 3nion 4I235 -ith Denmar1 topping the said list follo-ed by

South 6orea and S-eden0 2he factors that -ould affect such -ea1ness include inade!uacy in

IC2 infrastructures and the high costs in relation to IC2 services in the country0$

Despite the poor performance of IC2 services in the Philippines& many Filipinos still use social

media -hich has become an avenue for communication bet-een people0 In fact& Filipinos are the

most active users of social net-or1ing sites such as Faceboo1 and 2-itter0 7ecause of such& the

country has been tagged as 82he Social 9et-or1ing Capital of the *orld&: -ith ;+ percent of

Filipinos as members of at least one social net-or1ing site0 '

7ecause of the importance of social net-or1ing in the Philippines& la-ma1ers found the

necessity to regulate its use in such a -ay that it -ill not be used as an avenue to commit crimes0

& identity theft& illegal data access& and

internet libel0

1 What do ICT stats say about the Philippines?

available at

http://www.rappler.com/thoughtleaders/!0"#$ictstatisticsphilippines %last

accessed: &anuary 1'( )01*+

) Power To The People: ,ocial -edia Tracer( Wae' available at

http://web.archie.org/web/)00#0!)100)0$$/http:/www.uniersalmccann.com/sset

s/wae')00#0$0'0!'2"0.pd3 %last accessed: &anuary 1'( )01*+

1


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2he constitutionality of the said la- -as challenged in the Supreme Court by members of

the legal community& netizens& students& technology la- e>perts& members of the press& and other

la-ma1ers for certain provisions of the la- -ould adversely affect and infringe freedom of

e>press& freedom of speech and of the press& and data security0

2he Supreme Court ruled that the said la- -as unconstitutional as to some of its

provisions citing in its February '($ ruling+ that the follo-ing are @OID for being

39CO9S2I232IO9A or the lascivious

e>hibition of se>ual organs or se>ual activity for favor or consideration

f0 Section 4c54'5 that penali/es the production of child

pornography

' 4isini . The ,ecretary o3 &ustice( 5.6. 7o. )0'''"( 8ebruary 11( )01$

)


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g0 Section ) that imposes penalties one degree higher -hen

crimes defined under the evised Penal Code are committed -ith the use

of information and communications technologies

h0 Section ; that prescribes the penalties for cybercrimes

i0 Section $+ that permits la- enforcement authorities to re!uire

service providers to preserve traffic data and subscriber information as

-ell as specified content data for si> months

.0 Section $ that authori/es the disclosure of computer data

under a court=issued -arrant

10 Section $, that authori/es the search& sei/ure& and e>amination

of computer data under a court=issued -arrant

l0 Section $% that authori/es the destruction of previously

preserved computer data after the e>piration of the prescribed holding

periods

m0 Section '( that penali/es obstruction of .ustice in relation to

cybercrime investigations

n0 Section ' that establishes a Cybercrime Investigation and

Coordinating Center 4CICC5

o0 Section ')4a5 that defines the CICCs Po-ers and Functions

and

p0 Articles +,+& +,& +)$& and +)' of the evised Penal Code that

penali/es libel0

Furthermore& the Supreme Court has declared that online libel under section 4c545 of the

la- is @A


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4'5 on Illegal Interception& Section 4a54+5 on Data Interference& Section 4a545 on

System Interference& Section 4a54,5 on Misuse of Devices& Section 4a54)5 on Cyber=

s!uatting& Section 4b54$5 on Computer=related Forgery& Section 4b54'5 on Computer=

related Fraud& Section 4b54+5 on Computer=related Identity 2heft& and Section 4c54$5 on

Cyberse> are concerned but @OID and 39CO9S2I232IO9A< -ith respect to Sections

4c54'5 on Child Pornography& 4c54+5 on 3nsolicited Commercial Communications& and

4c545 on online t ads& etc05 In connection to this& a discussion on ho-

allo-ing unsolicited commercial communications could be used as an avenue for deceptive

advertising -hich consumers could easily fall for0

Advertising dates bac1 from pre=history -here the ancient civili/ations made use of either

spo1en or -ritten forms of communication0 In ancient ome& the e>pression caveat emptor, 8let

the buyer be-are: -arned buyers of products sold by unscrupulous merchants0 In the $Bth

century& the art of advertising -as born through the efforts of 2homas #0 7arratt -ho has been

called 8the father of modern advertising:0 e -as one of the first to create an effective

advertising campaign -hich made use of slogans& images and phrases0 7arratt constantly stressed

the importance of a strong and e>clusive branding and he understood the changing demands and

tastes of the mar1et0 9o-adays& modern advertising has both old and ne- forms of media such

as print& television& radio& online blogs& -eb pages& and other online platforms under its disposal

for the faster and easier promotion of products and services0 Commercial advertisements& being

the most common form& often have as its goal the generation of increased consumption of their

products or services through 8branding: by associating a product name or a certain image -ith

certain !ualities in the mind of consumers0 9on=commercial advertising& on the other hand

" Disini, 5.6. 7o. )0'''"

$


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include those done by political parties& non=profit organi/ations& interest groups& religious

organi/ations& and governmental agencies0

At the outset& advertising is purposely made to promote a companys products or services

to the consumers0 o-ever& in reality& it is used to reassure sta1eholders of the viability andsuccess of a companys business0 A thin line delineates -hat constitutes acceptable e>aggerations

in trade to false or deceptive advertising0 In general& false advertising ma1es use of misleading or

false statements -hich leads to the misrepresentation of the product0 2his form of advertising is

illegal in most nations for it adversely affects many sta1eholders0 2he rationale for ma1ing this

form of advertising illegal is the potential of advertisements to persuade people into entering

commercial transactions& -hich they could have avoided had they 1no-n the truth0 Due to the

proliferation of this form of advertisement& many nations have come up -ith regulations to

control false& deceptive or misleading advertising0 Deceptive advertising in its simple form is the

claim that a product can do something that it cannot0)

One of the first very concrete instances of deceptive advertising as declared by the 3nited

States Federal 2rade Commission 4F2C5 is that of Colgate=Palmolive Company and its

advertising company& 2ed 7ates and Co0 of 9e- Eor1 -here they produced during the early

$B)(s a 2@ commercial that sho-ed a ra/or shaving the sand off a piece of sandpaper0 2he

commercial claimed that apid Shave -et the beard thoroughly and held it in place for close

shaving0 2he demonstration attempted to sho- that even rough te>tured beards -ere softened

-ith apid Shave0%

2he problem& ho-ever& -as that the so=called sandpaper -as actually a piece of Ple>iglas

on -hich sand had been sprin1led& ma1ing it easy to remove the sand0 *hen e>perts tried to

repeat the demonstration -ith real sandpaper and a ra/or& it failed0 2his case found its -ay to the

federal courts -here they declared such advertisement as deceptive under F2C Act Sec0 , and

issued a cease=and=desist order against Colgate and Palmolive Company0 One of the more recent

controversies in the -orld of advertising -as in '(('& -hen a class action la-suit -as filed

*William 9;arr(


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against the McDonalds Corporation claiming that the companys approach to advertising highly

processes food caused obesity and other health problems& including hypertension and diabetes0

2he courts decided that consumers cannot blame McDonalds if they choose to it at its

restaurants0 30S0 District Court #udge obert S-eet provided furthermore that 8it is not the place

of the la- to protect them from their o-n e>cesses0: 2hough the courts held in favour of

McDonalds& it is undeniable that this resulted in a huge amount of bad publicity for

McDonalds0;2his case raised the issue on the responsibility of full disclosure by a food seller0

2he !uestion here is -hether it is the responsibility of the seller to disclose all the health ris1s

associated -ith consumption of their advertised products0 2he practical !uestion is& ho- much

information can a seller give in a span of thirty 4+(5 seconds or a in a full=page advertisement?

McDonalds responded by offering nutritional information in its restaurants and in their -ebsite0

Apart from that& they have started to offer healthier options such as fruits and salads in their

menus0B

*ith this bac1ground on the effect of advertising to consumers and their spending habits&

-e no- 1no- the importance and the role that it plays in our daily lives and the added dangers

that consumers might face due to the proliferation of deceptive advertisements0 2o add to this

sudden proliferation are the advancements in information and communications technology and

the rapidly changing -orld0 2he advancements in technology made the -orld smaller and -ithin

our reach0 o-ever& it also made people prone to information that has no means of getting its

veracity and everything that one reads in the internet& some people tend to easily believe0

*hen the Philippine la-ma1ers passed the Cybercrime Prevention Act of '($'& they had

in mind the protection of internet users& as -ell as those consumers -ho ma1e commercial

transactions using the internet0 One of the main problems that face internet users are the sudden

influ> of spam messages that -ould tend to bul1 ones inbo>& the -orst of -hich may contain

security ha/ards such as phishing applications or mal-ares0 Spam is defined as 8irrelevant or

unsolicited messages sent using the Internet& typically to large number of users for the purposes

of advertising& phishing& spreading mal-are& etc0:$( Phishing& on the other hand& is the

8fraudulent practice of sending emails purporting to be from reputable companies in order to

# Pelman . -c4onalds Corp.( 7o. 0)2#)1 >.,. 4ist. Ct.( ,.4.7.. %)010+.

! Id.

*


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induce individuals to reveal personal information& such as pass-ords and credit card numbers: $$

7y their definition alone& one can surmise that these acts connote fraud& bad faith and deception0

2he challenged la- defines unsolicited commercial communications as 8tGhe

transmission of commercial electronic communication -ith the use of computer system -hichsee1s to advertise& sell& or offer for sale products and services prohibited unless" 4i5 2here is prior

affirmative consent from the recipient or 4ii5 2he primary intent of the communication is for

service andHor administrative announcements from the sender to its e>isting users& subscribers or

customers or 4iii5 2he follo-ing conditions are present" 4aa5 2he commercial electronic

communication contains a simple& valid& and reliable -ay for the recipient to re.ect receipt of

further commercial electronic messages 4optout5 from the same source 4bb5 2he commercial

electronic communication does not purposely disguise the source of the electronic message and

4cc5 2he commercial electronic communication does not purposely include misleading

information in any part of the message in order to induce the recipients to read the message0:$'

In plain& this particular provision is intended to protect users from electronic spam

messages sent by .uridical or natural persons see1ing to sell or promote products and services

that they purportedly offer0 o-ever& this particular provision does not absolutely prohibit

spamming as provided in the e>ceptions -here first& prior affirmative consent from the recipient

-ould not ma1e the act of sending spam messages punishable0 Second& message sent is used for

services andHor administrative announcements to the e>isting users or subscribers of the said

product or service such as service maintenance0 2hird& the electronic message allo-s the

recipient to 8opt=out: of receiving such messages& the source is not disguised as someone else&

and there is no misleading information to induce the recipient to read the message0 7ut despite

these e>ceptions& the Supreme Court still struc1 do-n the provision for it violates commercial

free speech& a form of free speech guaranteed by the $B;% Philippine Constitution$+-hich states

that"

10 @spamA 9B3ord 9nline 4ictionaries. )01"

http://www.oB3orddictionaries.com/denition/english/spam %&anuary 1*( )01*+

11 @phishingA 9B3ord 9nline 4ictionaries. )01"

http://www.oB3orddictionaries.com/denition/english/phishing %&anuary 1*( )01*+

1) Cybercrime Preention ct o3 )01)( 6.. 1012" %)01)+

2


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!ection ".9o la- shall be passed abridging the freedom of speech& of

e>pression& or of the press& or the right of the people peaceably to assemble and

petition the government for redress of grievances0:

2he ratio given by the court in invalidating the penalty for unsolicited commercial

communication is that spam messages are also considered as commercial speech -hich en.oys

protection under the constitution0 2o the high court& spam messages are legitimate forms of

e>pression0 2he Solicitor Jeneral on the other hand& arguing for the validity of the said provision

said that spam messages are considered as a nuisance& ta1ing up and -asting storage space in

electronic mail inbo>es0 2he Solicitor Jeneral also argued that due to the large volume of spam

messages sent by business and individual& these interfere -ith the band-idth capacity of internet

service providers0 2he highlight of the argument for the legality of the provision is that spam

messages interfere -ith the o-ner of the e=mail& in peacefully en.oying his property0 In effect&

the sender of the spam messages are trespassing on the recipients right to privacy due to

intrusion by the messages to a recipients domain -ithout consent0 2he legality of the provision

hinges on the limitation of commercial speech that the la- provides0

2he Supreme Court stated that even before there -here computers& people have already

been receiving unsolicited commercial communications by snail mail0 2hey have noted that there

is no e>isting la- that penali/es unsolicited advertisements of any 1ind and there has been no

record as -ell of these being declared as nuisance0 2he Court posited that it is still up to the

recipients .udgement on -hether such messages should be deleted or ignored0 Other-ise& the

people -ould then be denied of their right to read e=mails they may -ant to receive if sending

spam messages -ere to be prohibited0


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Act of the Philippines is silent -hen it comes to unsolicited commercial communications0 2he

Consumer Act ho-ever posits as one of its basic policies that 8the State shall protect the

consumers from advertisements and fraudulent sales promotion practices0:$,

2he regulations in the advertising industry through the Association of AccreditedAdvertising Agencies of the Philippines Code of Kthics $) provide that advertisements are a

social responsibility of advertising agencies and that they are produced for public consumption0

In ma1ing these possible& they are guided by the principles of truthfulness and honesty& decency&

legality& and fair competition as generally accepted in business0 Above all those principles& the

fostering of sound personal and social values shall be the main consideration in the creation of

advertisements0 2he same Code of Kthics under truthful presentation provide that

8advertisements should not contain any statement or visual presentation -hich& directly or by

implication& omission or ambiguity& can li1ely mislead the consumer0: It also provides that

e>aggerated claims purporting to be statements of facts should be avoided if they are li1ely to

mislead0 3nder the principle of honesty& 8advertisements should be so framed as not to abuse the

confidence of the consumer or e>ploit his lac1 of e>perience or 1no-ledge0 Advertisements

should not& -ithout .ustifiable reason& play on fear0: Although these govern mainstream and

traditional advertising& they too should be used in regulating spam messages0 Kven though the

Supreme Court struc1 do-n the legality of -hat -ould have been the protection afforded to the

consumers in receiving e=mails that contain spam messages& businesses should not be !uic1 to

start sending e=mail after e=mail promoting their goods and services0 o-ever& the curtailment of

spam messages as provided for in the la- -ould affect those small businesses that are .ust

starting up0 2hey -ould rely on the cheapest and easiest -ay to mar1et or advertise their goods

or services through e=mail0 If the legality of the provision -as upheld& it -ould affect many

businesses& most especially the small and medium enterprises due to their reliance to the

cheapest form of advertising that they could get0

2o conclude& the specific provision on penali/ing unsolicited commercial

communications could have been the solution that many e=mail users have been praying for

because it -ould finally outla- the sending of spam messages -hich are very intrusive in nature0

1" The Consumer ct o3 the Philippines. 6epublic ct 7o. 2'!$ %1!!)+

1* ssociation o3 ccredited dertising gencies o3 the Philippines Code o3


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o-ever& the Court struc1 do-n that provision because of its ability to curtail the right to

commercial speech& -hich is guaranteed and protected under the Constitution0 Considering that

spam messages are in effect forms of advertisements& the la-s that govern traditional forms of

advertising should also be made applicable to spam messages0 2he advertisement through the use

of online platforms and advertisement through the use of mainstream media are both guided by

the principles of truthfulness and honesty& decency& legality& and fair competition0 As such& the

same code of ethics& though not binding& should guide every business and those -ho are

members of the advertising industry0

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ICT FInal Paper v1