Plagiarists are contraceptives (How a Senator arguing against contraceptives becomes one)

By Siesta-friendly

Okay, so far we’ve had 3 notorious incidents of plagiarism (the previous two we’ve  tackled in 2 posts: EATING YOUR OWN WORDS (Plagiarism) and By Your Own Hand or Not, who cares? (When Plagiarism isn’t Plagiarism according to the Supreme Court). These acts of plagiarism were attributed (pun intended) to society’s leaders no less: business leader and then Chairman of the Ateneo University Board of Trustees Manuel Pangilinan, Supreme Court Justice Mariano Del Castillo (also an Ateneo graduate), and now Senator Vicente “Tito” Sotto III (we have yet to find out who among his staff is from Ateneo from where his speech writer/s graduated).  

It doesn’t help anti-plagiarists (which we should all be) that the Supreme Court, in In The Matter Of The Charges Of Plagiarism, Etc., Against Associate Justice Mariano C. Del Castillo, cleared Justice Del Castillo of plagiarism.  The SC compounds the problem by including intent (not universally required but often used as a defense) as an element of plagiarism when it stated that “plagiarism is essentially a form of fraud where intent to deceive is inherent”[1] Neither is Congress helping by failing to as yet impeach Justice Del Castillo for plagiarism. It is not far-fetched to assume that these actions (or non-actions) have further left the impression on the public – used to buying pirated dvds - that it’s really not that big a deal to take from other people’s works without giving due credit.

Perhaps this is why we now have the 3^rd infamous case of plagiarism.

The Law on Copyright

The most recent allegations of plagiarism involve Sen. Tito Sotto, and to date, 5 blogs and 1 briefing paper. Details of the alleged liftings can be found in Raissa Robles’ blog posts “Did Sen. Sotto copy from 5 bloggers?”[2]  and “UPDATE: Senator Sotto lifted from 5 bloggers and 1 briefing paper[3]

Not only were the lines taken without due credit, but the office of Sen. Sotto, through his Chief of Staff, Atty. Hector A. Villacorta, defends their acts as follows:

“Blog site is public domain, you should be open to be quoted from all over the world. What law did we violate only her sensitivity was.  Because there is no crime, we used information from public domain they're making issue of the way it was quoted."

"The rule of copyright gives government a chance to use some of materials. There's principle in law if there's a crime there should be a law punishing it. Was she commercially injured? Wala naman eh. No crime, no law violated."

xxx

"Blogs are public domain. Anybody can use it [sic]. Government is exempted from the copyright rule. As a general principle, you cannot withhold information from government,"

xxx

"Bloggers, beware what you put out on the web. You should not cry if used by the web,".[4]

These are reckless statements. We daresay that the office of the Senator and his lawyer-Chief of Staff will fail the challenge of finding legal bases to back their claims that 1) "Blogs are public domain”, 2) “Government is exempted from the copyright rule”, 3) that they did not violate any law, 4) that only the author’s sensitivity was violated, and 5) that plagiarism requires commercial injury to the author.   

Surrounded by laws and law-making being part of their daily functions, one would think they would be the first to know what’s legal or not.  How can a legislator and his staff - of all people - forget that the Philippines is signatory to different international conventions on intellectual property including: the Berne Convention for the Protection of Literary and Artistic Works, (September 9, 1886), and the WIPO Copyright Treaty, (December 20, 1996)?

Blogs are protected by copyright laws

Even a high school student would know that blog articles are copyrighted work and should be duly credited when copied. Section 172.1, Chapter II (Copyright Original Works), Part IV (The Law on Copyright), of the Intellectual Property Code[5] states:

172.1.    Literary and artistic works, hereinafter referred to as "works", are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular

(a)    Books, pamphlets, articles and other writings;

xxx

(o)    Other literary, scholarly, scientific and artistic works. 

while Chapter III (Derivative Works)  Section 173.1 states that the following are protected by copyright: 

(a)                Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and 

(b)               Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents. (Sec. 2, [P] and [Q], P.D. No. 49) 

Thus, a blog is a literary work clearly covered by copyright.  The law makes no description where the writings/works are made – be they on tissue paper or stone or web log. 

Atty. Villacorta finally admits laziness in explaining why they chose to copy a blog post which quoted a book instead of reading the book itself and citing it -

“… Researchers tried clicking the book but ayaw mag download. Kaya ang pinakamaganda, refer to blog dahil baka accurate naman,” Villacorta said.”[6]

Public Domain has specific meaning when it comes to copyright

It seems that the Senator’s lawyer-Chief of Staff mistakes public domain with out-in-public.  Works in the public domain do not have private ownership while works out-in-public are not necessarily without private ownership.  For one to declare that a work is in public domain, one must have already researched that the work no longer has private ownership, like a work whose copyright has lapsed (like Shakespeare’s works).  For one to declare outright that just because an author’s work is contained in a blog it has become part of the public domain, is ignorance - excusable coming from a pre-schooler, but from a Senator and his lawyer-Chief of Staff?

Of course, Atty. Villacorta’s excuses still don’t explain the un-credited lifting from a briefing paper. Perhaps he has already decided that a briefing paper - because it can also be found on the internet like a blog - is also in the public domain?  

No copyright in any government work

Atty Villacorta shows his lack of knowledge of copyright law when he justifies their acts of appropriating other people’s works because he claims it is common practice in Congress to copy bills -

"Kopyahan po to talaga, eh.  Pag natapos ang isang Congress, lahat ng bill na hindi naipasa, kopyahan. Bakit mo iisipin ulit eh nandyan na? A bill not acted upon dies with a Congress. The new Congress senators will find out what can still be revived. Kopyahan po, pero hindi masamang kopyahan,” he said.”[7]

Works of the government are specifically listed as one of the Works Not Protected under  Chapter IV. Works Not Protected, Part IV of of the IP Code) -

CHAPTER IV

WORKS NOT PROTECTED

SEC. 175. Unprotected Subject Matter

       Notwithstanding the provisions of Section 172 and 173, no protection shall extend, under this law, to any idea, procedure, system method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts having the character of mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof. (n) 

Sec. 176. Works of the Government. –

176.1. No copyright shall subsist in any work of the Government of the Philippines.  However, prior approval of the government agency or office wherein the work is created shall be necessary for exploitation of such work for profit.  Such agency or office may, among other things, impose as a condition the payment of royalties. No prior approval or conditions shall be required for the use of any purpose of statutes, rules and regulations, and speeches, lectures, sermons, addresses, and dissertations, pronounced, read or rendered in courts of justice, before administrative agencies, in deliberative assemblies and in meetings of public character. (Sec. 9, First Par., P. D. No. 49)  [emphases supplied]

In any case, it is not convincing for the plagiarist to say that he acted in good faith in lifting a portion from someone else’s work because the plagiarist also makes it appear that the lifted portion is his creation (since he failed to give due credit).  In the cases of Justice Del Castillo and Senator Sotto - the 1^st case involving Manny Pangilinan was satisfactorily ended with his admission, apology and resignation as university board of trustee chairman - it’s very difficult to swallow each good faith excuse for each of the several portions they lifted from several sources. One stolen line may be excusable - although the academic and journalism worlds might find that already one too many - but lifting several lines from several sources and failing to give credit to any one? 

Atty. Villacorta’s excuses imply that their acts of plagiarism only affected the blog writer.  That is incorrect. In plagiarism, theft may have been committed against the author, but fraud is committed on the plagiarist’s reader/listener/viewer because the plagiarist misrepresents to his reader/listener/viewer that the work is his.

The Senator and his lawyer–Chief of Staff make light of their actions.  These actions constitute theft and fraud that’s why there are international conventions and local laws prohibiting and punishing intellectual property violations.

Since conception can also be defined as an idea or the act of forming an idea, Senator Sotto is not helping his cause against contraceptives (“contra conception”) by being a contraceptive or contra conception himself.      

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[1]   A.M. No. 10-7-17-SC, October 12, 2010.

[2]  Robles , R. (2012, August 16). Did sen. sotto copy from 5 bloggers?. Retrieved from http://raissarobles.com/2012/08/16/did-sen-sotto-copy-from-4-bloggers/

[3]   Robles, R. (2012, August 17). Update: Senator sotto lifted from 5 bloggers and 1 briefing paper . Retrieved from http://raissarobles.com/2012/08/17/update-senator-sotto-lifted-from-5-bloggers-and-1-briefing-paper/

[4]  Cruz, R. (2012, August 17). Sotto immune from plagiarism raps, top aide says. Retrieved from http://www.abs-cbnnews.com/-depth/08/17/12/sotto-immune-plagiarism-raps-top-aide-says

[5]  Republic Act No. 8293, An Act Prescribing The Intellectual Property Code And Establishing The Intellectual Property Office, Providing For Its Powers And Functions, And For Other Purposes, June 6, 1997.

[6]   Castaneda, J. (2012, August 22). Sotto, staff didn't read mcbride book. Retrieved from http://www.abs-cbnnews.com/-depth/08/22/12/sotto-staff-didnt-read-mcbride-book

[7]  Ibid.

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DYING TO BELONG (Learning from the hazing-death of Lenny Villa and the Anti-Hazing Law)

By Siesta-friendly

The Lenny Villa Case

As far as the law is concerned, our lawmakers learned a lot from the hazing-death of Aqula Legis neophyte Lenny Villa in 1991. The Anti-Hazing Law was enacted 4 years thereafter, in 1995, and criminalized certain activities done during hazing. ^[1] (Hazing, of course, is still perfectly legal.)

The Anti-Hazing Law is necessary as shown by the February 2012 Supreme Court decision on the consolidated cases related to Lenny Villa’s death. The case reminds us of how weak the applicable laws were in 1991.  Of the 35 accused and charged for Lenny’s death, only 5 Aquilans: Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson, have been found “guilty beyond reasonable doubt of reckless imprudence resulting in homicide defined and penalized under Article 365 in relation to Article 249 of the Revised Penal Code”.  Not only that, the 5 were only ordered to serve a maximum term of 4 years and 2 months of prision correccional.^[2]   

As for the other accused: Efren de Leon and Artemio Villareal are already dead; Reynaldo Concepcion, Manuel Escalona II, Crisanto Saruca, Jr., Anselmo Adriano and Marcus Joel Ramos were acquitted for the delay by the Department of Justice in prosecuting the case against them;  19 of the rest: Nelson Victorino, Eulogio Sabban, Joseph Lledo, Etienne Guerrero, Michael Musngi, Jonas Karl Perez, Ronan de Guzman, Paul Angelo Santos, Antonio General, Jaime Maria Flores II, Dalmacio Lim, Jr., Ernesto Jose Montecillo, Santiago Ranada III, Zosimo Mendoza, Vicente Verdadero, Amante Purisima II, Jude Fernandez, Adel Abas, and Percival Brigola were “acquitted, as their individual guilt was not established by proof beyond reasonable doubt.” The case does not detail what’s happened with Florentino Ampil, Enrico de Vera III, Stanley Fernandez and Noel Cabangon.^[3]

The difference between the laws then applicable to hazing and the Anti-Hazing Law shows in said Supreme Court decision -

“In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the Revised Penal Code [on physical injuries], the employment of physical injuries must be coupled with dolus malus [or evil intent]. As an act that is mala in se [or wrong in itself], the existence of malicious intent is fundamental, since injury arises from the mental state of the wrongdoer – iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be found guilty of an intentional felony. Thus, in case of physical injuries under the Revised Penal Code, there must be a specific animus iniuriandi or malicious intention to do wrong against the physical integrity or well-being of a person, so as to incapacitate and deprive the victim of certain bodily functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of inflicting physical injuries per se merely satisfies the elements of freedom and intelligence in an intentional felony. The commission of the act does not, in itself, make a man guilty unless his intentions are.

xxx

Lenny died during Aquila’s fraternity initiation rites. The night before the commencement of the rites, they were briefed on what to expect. They were told that there would be physical beatings, that the whole event would last for three days, and that they could quit anytime. On their first night, they were subjected to “traditional” initiation rites, including the “Indian Run,” “Bicol Express,” “Rounds,” and the “Auxies’ Privilege Round.” The beatings were predominantly directed at the neophytes’ arms and legs.

In the morning of their second day of initiation, they were made to present comic plays and to play rough basketball. They were also required to memorize and recite the Aquila Fraternity’s principles. Late in the afternoon, they were once again subjected to “traditional” initiation rituals. When the rituals were officially reopened on the insistence of Dizon and Villareal, the neophytes were subjected to another “traditional” ritual – paddling by the fraternity.

 During the whole initiation rites, auxiliaries were assigned to the neophytes. The auxiliaries protected the neophytes by functioning as human barriers and shielding them from those who were designated to inflict physical and psychological pain on the initiates. It was their regular duty to stop foul or excessive physical blows; to help the neophytes to “pump” their legs in order that their blood would circulate; to facilitate a rest interval after every physical activity or “round”; to serve food and water; to tell jokes; to coach the initiates; and to give them whatever they needed.

These rituals were performed with Lenny’s consent. A few days before the “rites,” he asked both his parents for permission to join the Aquila Fraternity. His father knew that Lenny would go through an initiation process and would be gone for three days … 

xxx

Even after going through Aquila’s grueling traditional rituals during the first day, Lenny continued his participation and finished the second day of initiation.

Based on the foregoing contextual background, and absent further proof showing clear malicious intent, we are constrained to rule that the specific animus iniuriandi was not present in this case. Even if the specific acts of punching, kicking, paddling, and other modes of inflicting physical pain were done voluntarily, freely, and with intelligence, thereby satisfying the elements of freedom and intelligence in the felony of physical injuries, the fundamental ingredient of criminal intent was not proven beyond reasonable doubt. On the contrary, all that was proven was that the acts were done pursuant to tradition. Although the additional “rounds” on the second night were held upon the insistence of Villareal and Dizon, the initiations were officially reopened with the consent of the head of the initiation rites; and the accused fraternity members still participated in the rituals, including the paddling, which were performed pursuant to tradition. Other than the paddle, no other “weapon” was used to inflict injuries on Lenny. The targeted body parts were predominantly the legs and the arms. The designation of roles, including the role of auxiliaries, which were assigned for the specific purpose of lending assistance to and taking care of the neophytes during the initiation rites, further belied the presence of malicious intent. All those who wished to join the fraternity went through the same process of “traditional” initiation; there is no proof that Lenny Villa was specifically targeted or given a different treatment. We stress that Congress itself recognized that hazing is uniquely different from common crimes. The totality of the circumstances must therefore be taken into consideration.”^[4]

The concerns on the then laws applicable to hazing were addressed by the Anti-Hazing Law which no longer requires malicious intent. The wrongful acts are already deemed criminal by said special law.

Unfortunately, we have not heard of any convictions yet under the Anti-Hazing Law even as there have been numerous hazing victims after the law was enacted in 1995.  The law seems comprehensive enough.  

The Anti-Hazing Law

Hazing, definition

Under the Anti-Hazing Law, hazing is defined as “an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury ... [although t]he physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the Philippines and the Philippine National Police as approved by the Secretary of National Defense and the National Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the Philippine National Police [are not] considered as hazing”. (Section 1)

Hazing, requirements

1.      No hazing or initiation rites in any form or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization 7 days before the conduct of such initiation. The written notice shall indicate: 1) the period of the initiation activities which shall not exceed 3 days, shall include 2) the names of those to be subjected to such activities, and shall further contain 3) an undertaking that no physical violence be employed by anybody during such initiation rites.  (Section 2)  

2.      The head of the school or organization or their representatives must assign at least 2 representatives of the school or organization, as the case may be, to be present during the initiation. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant.  (Section 3)  

Liability for Hazing

Section 4 of the Anti-Hazing Law defines those criminally liable as principals and accomplices.

Criminal Liability

1.      If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals. The person or persons who participated in the hazing shall suffer:  

1)      The penalty of reclusion perpetua (life imprisonment) if death, rape, sodomy or mutilation results there from.  

2)      The penalty of reclusion temporal in its maximum period (17 years, 4 months and 1 day to 20 years) if in consequence of the hazing the victim shall become insane, imbecile, impotent or blind.  

3)      The penalty of reclusion temporal in its medium period (14 years, 8 months and one day to 17 years and 4 months) if in consequence of the hazing the victim shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm or a leg or shall have lost the use of any such member shall have become incapacitated for the activity or work in which he was habitually engaged.  

4)      The penalty of reclusion temporal in its minimum period (12 years and one day to 14 years and 8 months) if in consequence of the hazing the victim shall become deformed or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for more than 90 days.  

5)      The penalty of prison mayor in its maximum period (10 years and one day to 12 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for more than 30 days.  

6)      The penalty of prison mayor in its medium period (8 years and one day to 10 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for 10 days or more, or that the injury sustained shall require medical assistance for the same period.  

7)      The penalty of prison mayor in its minimum period (6 years and one day to 8 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged from 1 to 9 days, or that the injury sustained shall require medical assistance for the same period.  

8)      The penalty of prison correccional in its maximum period (4 years, 2 months and one day to 6 years) if in consequence of the hazing the victim sustained physical injuries which do not prevent him from engaging in his habitual activity or work nor require medical attendance.  

2.      If the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.  

3.      The officers, former officers, or alumni of the organization, group, fraternity or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed shall be liable as principals. A fraternity or sorority's adviser who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring shall be liable as principal.  

The presence of any person during the hazing is prima facie evidence of participation therein as principal unless he prevented the commission of the acts punishable herein.  

Accomplices

The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring shall be punished as accomplices for the acts of hazing committed by the perpetrators.  

Liability of Owners of the Hazing venue

The owner of the place where hazing is conducted shall be liable as an accomplice, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

Administrative Liability

The responsible officials of the school or of the police, military or citizen's army training organization, may impose the appropriate administrative sanctions on the person or the persons charged under this provision even before their conviction. The maximum penalty herein provided shall be imposed in any of the following instances:  

1. when the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join;  
2. when the recruit, neophyte or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting;  
3. when the recruit, neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities, through force, violence, threat or intimidation;  
4. when the hazing is committed outside of the school or institution; or  
5. when the victim is below 12 years of age at the time of the hazing.

The law states that it applies to the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment in the manner above mentioned.  

Lastly, the law specifies that any person charged is not entitled to the mitigating circumstance that there was no intention to commit so grave a wrong.  

Had the Anti-Hazing been in place in 1991, those acquitted of causing Lenny Villa’s death may still be languishing in jail.  (Although, perhaps, had our prosecutors been more diligent in their prosecution of all accused in the death of Lenny Villa, there would at least have been more than 5 convictions - even without the Anti-Hazing Law.)

But why do hazing deaths continue to occur despite the law?  It is significant to note that the Supreme Court decision on the hazing-death of Lenny Villa, as quoted above, recognizes that:  the hazing “rituals were performed with Lenny’s consent” and “even after going through Aquila’s grueling traditional rituals during the first day, Lenny continued his participation and finished the second day of initiation.”

The law cannot prohibit some people from wanting to belong and willing to tolerate certain rituals to be accepted as a member of a group, nor can the law prevent some people’s inclination to violence or abuse.  So at all times, the willing neophyte’s welfare depends on being hazed by a group of non-violent handlers.  But that is never guaranteed.  Since the risk exists that the neophyte will be hazed by a group of people prone to violence by nature, by pressure or some substance, it may be all left to the individual (or the family rearing him/her) to eliminate that risk by declining the membership (or convincing said individual to decline) as early as possible. 

We must see hazing as much more than a legal issue, say, like drugs. It is not enough to stop drug production and trafficking.  People must learn to just say “No.”    Those inclined to join should be aware that certain activities benignly termed as rites of passage may very well lead to funeral rites, of their own.

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[1]  Republic Act No. 8049, “An Act Regulating Hazing And Other Forms Of Initiation Rites In Fraternities, Sororities, And Other Organizations And Providing Penalties Therefor”.

^[2]  Artemio Villareal vs People of the Philippines, G.R. No. 151258; People of the Philippines vs. Court of Appeals, et al., G.R. No. 154954; Fidelito Dizon vs. People of the Philippines, G.R. Nos. 178057 & 178080, Gerarda H. Villa vs. Manuel Lorenzo Escalona II, et al., February 1, 2012.                                                   

[3]  Ibid.

[4]  Ibid.

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SAFETY OR FITNESS FIRST: Liability of Fitness Clubs for Loss

By Obiter07

We invariably see this notice and hardly pay attention anymore.  You park your car and the ticket says that that the facility is not liable for any loss or damage to your vehicle. In this case, a client goes to his fitness club and leaves his belongings in a locker for safekeeping. He discovers that items have been stolen.  However, the club membership form, club rules as well as posted notices contain a disclaimer that the club has no liability for such loss.  The Court of Appeals has held that the fitness club can be held liable, notwithstanding this disclaimer. [1]

The complaint arose after a lawyer lost his office uniform, a cellphone, a wallet with cash, among other items, after depositing them at a club locker. The club had argued that it was not liable. In ruling for the plaintiff, the Court relied on Article 2003 of the New Civil Code:

“ARTICLE 2003. The hotel-keeper cannot free himself from responsibility by posting notices to the effect that he is not liable for the articles brought by the guest. Any stipulation between the hotel-keeper and the guest whereby the responsibility of the former as set forth in articles 1998 to 2001 is suppressed or diminished shall be void. (n)”

The court held “that a health and wellness center like Fitness First is akin to those engaged in hotel and common carrier businesses which are imbued with public interest.” It further stated that: “Fitness First, being a health club establishment is clearly bound to provide not only a comfortable working-out atmosphere for its members but also a security to their persons and belongings.”  It took into account the club’s “and lackadaisical attitude on the reported loss constitutes negligence and dereliction of its duties and responsibilities as operator of a health and wellness establishment.”[2]

Around 2004, based on a victim’s account, members of Fitness First in Alabang were robbed in broad daylight inside the club when armed men strolled inside the club and held up people one by one. There was no announcement. They just went to people one at a time showed their guns and asked for their victims’ belongings.  Some employees who noticed what was happening simply hid in the fire escape found through the locker room – without warning other people they passed by of what was going on - without even locking the locker room if only to protect everyone inside, including those taking their showers. To make matters worse, after the hold-up, the employees just went back to their stations and resumed operations like nothing happened. Fitness First, indeed.[3]

The Supreme Court was faced with a similar issue in YHT REALTY CORPORATION, et al. vs. COURT OF APPEALS, et al. [G.R. No. 126780.  February 17, 2005.].  It held that the hotel’s requirement for a guest to execute an “"undertaking" contravenes Article 2003 of the New Civil Code for they allow Tropicana to be released from liability arising from any loss in the contents and/or use of the safety deposit box for any cause whatsoever. Evidently, the undertaking was intended to bar any claim against Tropicana for any loss of the contents of the safety deposit box whether or not negligence was incurred by Tropicana or its employees. The New Civil Code is explicit that the responsibility of the hotel-keeper shall extend to loss of, or injury to, the personal property of the guests even if caused by servants or employees of the keepers of hotels or inns as well as by strangers, except as it may proceed from any force majeure. xxx”

As explained by the Court: “Article 2003 was incorporated in the New Civil Code as an expression of public policy precisely to apply to situations such as that presented in this case. The hotel business like the common carrier's business is imbued with public interest. Catering to the public, hotelkeepers are bound to provide not only lodging for hotel guests and security to their persons and belongings. The twin duty constitutes the essence of the business. The law in turn does not allow such duty to the public to be negated or diluted by any contrary stipulation in so-called "undertakings" that ordinarily appear in prepared forms imposed by hotel keepers on guests for their signature.”

In effect, the Court of Appeals in this case has imposed on fitness clubs the obligations the law imposes on hotel keepers.  Under Articles 1998 to 2001, hotel keepers, now including fitness clubs, have the following responsibilities:

“ARTICLE 1998. The deposit of effects made by travellers in hotels or inns shall also be regarded as necessary. The keepers of hotels or inns shall be responsible for them as depositaries, provided that notice was given to them, or to their employees, of the effects brought by the guests and that, on the part of the latter, they take the precautions which said hotel-keepers or their substitutes advised relative to the care and vigilance of their effects. (1783)

ARTICLE 1999. The hotel-keeper is liable for the vehicles, animals and articles which have been introduced or placed in the annexes of the hotel. (n)

ARTICLE 2000. The responsibility referred to in the two preceding articles shall include the loss of, or injury to the personal property of the guests caused by the servants or employees of the keepers of hotels or inns as well as strangers; but not that which may proceed from any force majeure. The fact that travellers are constrained to rely on the vigilance of the keeper of the hotels or inns shall be considered in determining the degree of care required of him. (1784a)

ARTICLE 2001. The act of a thief or robber, who has entered the hotel is not deemed force majeure, unless it is done with the use of arms or through an irresistible force. (n)

ARTICLE 2002. The hotel-keeper is not liable for compensation if the loss is due to the acts of the guest, his family, servants or visitors, or if the loss arises from the character of the things brought into the hotel. (n)

Fitness clubs would be well advised to implement measures to insure the safety and security of the belongings of clients under this ruling.  This decision may still be appealed, however, on the argument that the law does not clearly include fitness clubs as covered by Article 2003.  Legislators may be well advised to amend the law to include such clubs since its clients do have a legitimate interest to be protected from loss, considering the amounts they pay for their membership.  Safety and security should come first before fitness, regardless of the establishment’s notices or name.

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[1] Torres, “Fitness First Club liable for member’s stolen items—Court of Appeals.” INQUIRER.net  

11:37 am | Wednesday, July 11th, 2012.  http://business.inquirer.net/70393/fitness-first-club-liable-for-member%E2%80%99s-stolen-items%E2%80%94court-of-appeals.

[2] Ibid.

[3] Macairan, “Cops identify suspect in fitness center robbery.” PHILSTAR.com 12:00 AM |

June 21, 2004. http://www.philstar.com/Article.aspx?articleId=254772

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THROWING THE BOOK AT THEM: CAB Suspends Local Airlines’ Overbooking, No Refund and No Rebooking Practices

By Siesta-friendly

Sometimes the government does work to promote public interest.  Prime examples are Resolutions Nos. 28 and 29 (BM3-05-11-2012) adopted by the Civil Aeronautics Board (CAB) on May 11, 2012.

Suspension Overbooking Practice

In Resolution No. 28 (BM3-05-11-2012), the CAB suspended “the application of pertinent provisions of Economic Resolution No. 7, as amended (E.R. 7), relating to overbooking” thus “effectively banning the practice of overbooking in the domestic sector.” 

In justifying its move, the CAB stated in the Whereas clauses of Resolution No. 28 that -

“the Board takes cognizance of the prevailing public outrage against delayed and/or cancelled flights, as well as passengers denied boarding, presumably due to overbooking in domestic scheduled flights;” and

“there is thus a need to re-examine the propriety of overbooking as a revenue-management option practiced by airlines in the domestic sector vis-à-vis their obligation under their Certificate of Public Convenience and Necessity to provide services that are efficient and conducive to the convenience of passengers”.

Suspension of Restriction on No Refund and No Rebooking Practice

In Resolution No. 29 (BM3-05-11-2012), the CAB suspended “the non-refundable and non-rebookable conditions of low-cost fares for domestic flights.”

Naturally, Resolution 29 applies “only to low-cost and regular fares for domestic scheduled flights of domestic carriers.” (Section 1)

The period of refundability and rebookability are “subject to the airline’s conditions of carriage, but no more than one (1) year from the date of the original or first intended flight.” (Section 4)

On Rebooking  

“The passenger may rebook his/her flight in case of:

a.          Cancellation by the passenger of the reservation, subject to payment of reasonable rebooking fees that shall be limited to actual administrative costs, and/or the fare difference, if any. Provided, that late check-ins and actual “no-shows” shall be considered as mere cancellation of the reservation by the passenger …

b.         Flight cancellations for security and safety reasons, suspension of a route, or other circumstances beyond the control of the airline.

c.          Flight diversions or flight delays of at least one (1) hour.” (Section 2)

On Refunds

“Subject to the submission of required documents, the passenger may request for a refund of his/her fare in case there is/are:

a.       Cancellations by the airline and route suspensions for reasons other than safety and security, subject to payment of reasonable administrative or other applicable fees.

b.      Flight delays or postponements of more than three (3) hours.

c.       Disallowance of boarding or failure to board for reasons other than non-observance of airline or government policies or laws.  Provided, that on top of the refund, the airline shall pay the passenger denied  - boarding compensation, as provided for under E.R. 7, amended.

d.      Death or serious illness of the passenger before the flight.” (Section 3)

In response to criticism that the CAB’s restrictions may lead to the demise of low cost carriers (LCC), CAB executive director Carmelo Arcilla said -

"The operation of an airline, whether LCC or legacy, is a public utility and as such, an airline is obligated to provide public service and convenience more than its right to generate revenues and its business interests. While we are happy with the success of LCCs in the Philippines, it is instrumental in the growth of aviation and air traffic in the country, we have to draw the line. Low-cost airline doesn't mean that services can be shabby, services can be unreliable and inadequate".[1]

Denying refunds or rebookings to passengers who came on time, paid in full and have done everything to take their flights, is just unfair and tantamount to cheating.  While making flights affordable for every Juan is laudable, making some Juan suffer is not. 

Since the old rules have been merely suspended pending further review of the issues, perhaps overbooking may be allowed to ensure airlines fill as many empty seats as possible (in the event of last-minute passenger cancellations) to allow them to make the most of their costs. But, as practiced in other countries, airlines must be required to ask for volunteers before automatically bumping off a passenger and offer those bumped-off rewards like free upgrades, free flights, free meals, etc. 

It is unimaginable how refunds and rebookings would spell the demise of budget airlines as they offer the best marketing tools to ensure every Juan’s return. 

---

[1]  Garcia, C. R. A. (2012, June 5). Stricter cab rules may spell demise of budget airlines. Retrieved from http://www.abs-cbnnews.com/business/06/05/12/stricter-cab-rules-may-spell-demise-budget-airlines

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FILED AND FIRED: No Privacy for Office Computers

By Obiter07

Your public and private life gets to be intertwined in your workplace computer.  As you spend most of your time at the office, the tendency to intermingle personal and work files in your desktop or laptop becomes more difficult to avoid.  You get to download vacation pictures there from your camera, you surf the internet for personal purposes or even compose some communications which are not connected your work.  Be warned though.  The Supreme Court has upheld the dismissal of a government employee using evidence taken from his office computer in Pollo vs. Chairman David, G.R. No. 181881 dated October 18, 2011. This is a case concerning the search of an office computer which led to the dismissal of a government employee for “dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 xxx.” 

The respondent was a specialist and OIC of the Civil Service Commission.  The CSC Chair received an anonymous complaint that he was acting as a lawyer for government employees with pending cases before the CSC. A team was formed and directed to “to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions.”

The respondent got wind of this via text message from one Director. Petitioner replied that he was leaving the matter to the director and that he will just get a lawyer. 

It was discovered that from the files copied from respondent’s computer that “40 to 42 documents, were draft pleadings or letters in connection with administrative cases in the CSC and other tribunals.” On this basis, the chair issued a show-cause order for respondent to submit his explanation or counter-affidavit. The Chair made a finding that “most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases.  This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service.  The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity.  It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files xxx appears to insinuate the collection of fees.  That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.”

Respondent filed a comment, denying he was the subject of the anonymous complaint, that he was not a lawyer nor was he engaged in lawyering. Similar to the recently concluded impeachment trial, he charged the CSC of “conducting a “fishing expedition” when they unlawfully copied and printed personal files in his computer, and in subsequently asking him to submit his comment which violated his right against self-incrimination.” He argued that he had protested the taking of his computer, asserting that there were “personal files and those of his sister, relatives, friends and some associates” in it and that he did not authorize the access of the same. Temporary “use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes.”

The CSC thereafter charged him with “Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees).”   Respondent assailed the charges as without basis, being based on an illegal search, denied the charges and alleged that he had permitted other persons to use his computer.

After proceedings, he was found guilty and dismissed from the service. Respondent appealed to the Supreme Court raising as a ground, among others, that he should have been allowed to invoke his right to privacy, his right against unreasonable search and seizure and right against self-incrimination alleging that government ownership of the computer does not extend to personal files.

The Court viewed the issues as revolving around respondent’s reasonable expectation of privacy in his office and computer files and if the search made on his computer was “reasonable in its inception and scope.”      In looking at those issues, the Court held that the circumstances to consider are “(1) the employee’s relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item.” 

The Court found that respondent did not have “an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files.” He did not allege he had his own separate enclosed office that was not accessible to third parties. He did not allege that he used passwords or that his office was always locked. He even admitted that he normally had visitors in his office and even unknown people were allowed to use his computer.

Even if he had “at least a subjective expectation of privacy in his computer as he claims” this was negated by the CSC’s policy regulating the use of office computers.  An Office Memorandum clearly provided that “Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes.” It goes further to state that –

4.      No expectation of privacy.  Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system xxx

5.      Waiver of privacy rights.  Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network.  Users understand that the CSC may use human or automated means to monitor the use of its Computer Resources.

6.      Non-exclusivity of Computer Resources.  A computer resource is not a personal property or for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users. However, he is accountable therefor and must insure its care and maintenance.”

xxx

Passwords

12.  Responsibility for passwords.  Users shall be responsible for safeguarding their passwords for access to the computer system.  Individual passwords shall not be printed, stored online, or given to others.  Users shall be responsible for all transactions made using their passwords. No User may access the computer system with another User’s password or account.

13.  Passwords do not imply privacy.  Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that Users have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular User’s password. Only members of the Commission shall authorize the application of the said global passwords.”

                        [Emphasis supplied.]

The CSC had put its employees on notice that “they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means.”  This meant “on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes.” 

On the reasonableness of the search conducted, this was in “connection with investigation of work-related misconduct prompted by an anonymous letter-complaint xxx.” The Court held that a “search by a government employer of an employee’s office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.”

The Court cited the CSC’s ruling that the search was “undertaken in connection with an investigation involving a work-related misconduct xxx.”  xxx  That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents.  Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action.”

Hence, respondent cannot claim a violation of the right to privacy since “certain legitimate intrusions into the privacy of employees in the government workplace xxx.” The “search of petitioner’s computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint.  This situation clearly falls under the exception to the warrantless requirement in administrative searches xxx.” The Court found the evidence to be admissible and upheld the CSC’s findings dismissing him from the service.

The case is to be distinguished from the case of Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila where a branch clerk was accused of attending to personal cases.  The Court denied the use of evidence “obtained from his personal computer against him for it violated his constitutional right against unreasonable searches and seizures.”  [Emphasis supplied.]

Employers are hence forewarned to have clear policies in place, should they wish to limit the use of computers to official purposes only.  Employees are now put on notice that certain files can get them fired.

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