@COMELEC #ComeLeak #ComeLeaks Data Privacy Act #Eleksyon2016 #juanvote pertinent provs

In view of the “ComeLeak” or “ComeLeaks” (the data security breach in the Comelec, the most massive in history, where the personal information and data of about 70 million registered voters were stolen and published by hackers)  the following are the pertinent provisions of the Data Privacy Act:

Section 16. xxx
e) Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected. In this case, the personal information controller may notify third parties who have previously received such processed personal information; and

(f) Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.
Xxx
SEC. 26. Accessing Personal Information and Sensitive Personal Information Due to Negligence. – (a) Accessing personal information due to negligence shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

(b) Accessing sensitive personal information due to negligence shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

SEC. 27. Improper Disposal of Personal Information and Sensitive Personal Information. – (a) The improper disposal of personal information shall be penalized by imprisonment ranging from six (6) months to two (2) years and a fine of not less than One hundred thousand pesos (Php100,000.00) but not more than Five hundred thousand pesos (Php500,000.00) shall be imposed on persons who knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection.

b) The improper disposal of sensitive personal information shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than One hundred thousand pesos (Php100,000.00) but not more than One million pesos (Php1,000,000.00) shall be imposed on persons who knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection.
SEC. 29. Unauthorized Access or Intentional Breach. – The penalty of imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored.

SEC. 30. Concealment of Security Breaches Involving Sensitive Personal Information. – The penalty of imprisonment of one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00) shall be imposed on persons who, after having knowledge of a security breach and of the obligation to notify the Commission pursuant to Section 20(f), intentionally or by omission conceals the fact of such security breach.

SEC. 31. Malicious Disclosure. – Any personal information controller or personal information processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her, shall be subject to imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).

SEC. 32. Unauthorized Disclosure. – (a) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject, shall he subject to imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).

(b) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party sensitive personal information not covered by the immediately preceding section without the consent of the data subject, shall be subject to imprisonment ranging from three (3) years to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00).

SEC. 33. Combination or Series of Acts. – Any combination or series of acts as defined in Sections 25 to 32 shall make the person subject to imprisonment ranging from three (3) years to six (6) years and a fine of not less than One million pesos (Php1,000,000.00) but not more than Five million pesos (Php5,000,000.00).

For @CNNPhilippines @SerbisyoAccess Suggested Readings here

For CNN Philippines Serbisyo All Access show, episode on “Paninirang-Puri” or defamation, April 19, 2016, 10am-11am: May we suggest that the hosts read up on jurisprudence on the following: 1) Privileged Communication; 2) the Public Figure Doctrine; 3) the Fair Comment rule – (these are also compiled in any media law book); para po maiwasan ang pagpapalaganap ng maling legal principles ukol sa media law (in order to avoid disseminating erroneous legal principles on media law). Sana po ay maiwasto nyo ang mga maling legal principles na pinalaganap ng inyong show (it is hoped that the hosts will correct the erroneous legal principles disseminated by the show) Salamat po.

#KidapawanShooting @inquirerdotnet @ABSCBNNews Paraffin Test Unreliable accdg to Supreme Court, see cases here #JeSuisKidapawan #NousSommesKidapawan

    #KidapawanShooting @inquirerdotnet @ABSCBNNews Paraffin Test Unreliable accdg to Supreme Court, see cases here #JeSuisKidapawan #NousSommesKidapawan  

      The Supreme Court has ruled in a line of cases that a paraffin test is unreliable in proving that a person had fired a gun. In fact, the Supreme Court has held that the handling of fertilizers, cosmetics, cigarettes, urine, and other nitrogenous compounds, or the handling of leaves or sprouts with nitrites or nitrates such as leguminous plants like peas, beans, and alfalfa, or the use of tobacco, will each result in a positive paraffin test. In People vs. Julian Mendoza, G.R. No. 67858, June 29, 1989, the Supreme Court held: (Justice Sarmiento): “xxx With respect to the paraffin test undergone by the appellant which yielded positive results for nitrates, we hold that this fact alone, uncorroborated by any other evidence, is not sufficient to establish the guilt beyond reasonable doubt of the appellant. The prosecution insists that the finding was due to the firing of the firearm which was employed to kill the victim. The defense on the other hand attributes the positive finding to the appellant’s having applied fertilizer to his plantings and manufactured fireworks thereafter. It is submitted that both these activities could produce the same positive finding: Authorities on this subject seem to support the submission of the defense.
      “The (Diphenylamine or Parrafin) test is not conclusive as to the presence of gunpowder because fertilizers, cosmetics, cigarettes, urine, and other nitrogenous compounds with nitrates and nitrates will give a positive reaction. (citing medico-legal expert Pedro Solis, Legal Medicine, 380) (Underscoring supplied)
      “This (Diphenylamine or Parrafin) test has proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrates on the hand. It cannot be definitely established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals and leguminous plants such as peas beans and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco. As a result, the usefulness of this test as evidence is very small, although it does have some investigative value. (citing “American Jurisprudence, Proof of Facts Annotated”, Volume 5, 119-120).(Underscoring supplied).
       “In case of doubt, we have to rule in favor of the appellant and adopt the interpretation consistent with his innocence. A vital finding of fact which negates the prosecution’s insistence on the guilt of the accused is that no firearm was presented by the prosecution to corroborate its claim that Mendoza was the person who had fired the gun xxx
xxx “The trial court held that the contention of the appellant that the positive finding of the parrafin test was the result of the application of fertilizers to his corn crop and in making firecrackers hardly deserves any modicum of consideration. If it is true, the trial court said, that the powder burns found in the hands of the victim were the result of the application of fertilizers, how come the appellant’s brother-in-law, Mauricio Ilao, who also applied fertilizers on that same day, was found negative for nitrates?
     “From the records we find that this expressed doubt of the trial court had been sufficiently explained. The appellant testified as follows:
    “Q: What were you doing in that land of yours in the mountain while you were there?
    “A: I was applying fertilizer, sir.
    “Q:How about your brother-in-law, was he also applying fertilizer in his landholding?
    “A:He was plowing the field, sir.
           “Thus it is not surprising that only the appellant was found positive for nitrates because his brother-in-law did not apply fertilizer, but only plowed the field.”

       In the reverse, in People vs. Cajumocan, G.R. No. 155023, May 28, 2004, the Supreme Court also held that a person who had fired a gun and had washed his/her hand thoroughly would have a negative paraffin test: “Paraffin tests, in general, have been rendered inconclusive by this Court. Scientific experts concur in the view that the paraffin test has proved extremely unreliable in use. It can only establish the presence or absence of nitrates or nitrites on the hand; still, the test alone cannot determine whether the source of the nitrates or nitrites was the discharge of a firearm. The presence of nitrates should be taken only as an indication of a possibility or even of a probability but not of infallibility that a person has fired a gun, since nitrates are also admittedly found in substances other than gunpowder.
       “Appellant’s argument that the negative result of gunpowder nitrates from the paraffin test conducted on him the day after the crime was committed, thereby showing an absence of physical evidence that he fired a gun, is untenable. In the case of People v. Manalo,16 we stressed: x x x even if he were subjected to a paraffin test and the same yields a negative finding, it cannot be definitely concluded that he had not fired a gun as it is possible for one to fire a gun and yet be negative for the presence of nitrates as when the hands are washed before the test. The Court has even recognized the great possibility that there will be no paraffin traces on the hand if, as in the instant case, the bullet was fired from a .45 Caliber pistol.”
       In People vs. Ilisan, G.R. No. 179487 November 15, 2010, the Supreme Court held: “(P)araffin tests, in general, have been rendered inconclusive by this Court. Scientific experts concur in the view that the paraffin test has proved extremely unreliable. It can only establish the presence or absence of nitrates or nitrites on the hand; still, the test alone cannot determine whether the source of the nitrates or nitrites was the discharge of a firearm. The presence of nitrates should be taken only as an indication of a possibility or even of a probability but not of infallibility that a person has fired a gun. Conversely, the absence of gunpowder nitrates on petitioners hands, the day after the incident, does not conclusively establish that he did not fire a gun; neither are the negative results yielded by the paraffin test an insurmountable proof of his innocence.”