Liability vs Suability

RESOLVE: Whether or not foreign citizens could be held liable in defacing websites coming from the Philippines.

!! DISCLAIMER: THIS BLOG IS NOT INTENDED BY THE AUTHOR TO GIVE LEGAL ADVICE WHATSOEVER.  IT IS JUST A PRODUCT OF HIS OWN OPINION IN HIS APPRECIATION OF THE ISSUE.

Disputes are supposed to be settled, conformably to one of the basic principles of United Nations, “by peaceful means in such manner that international peace and security, and justice are not endangered”(UN Charter, Art 2, par 3).

The on going tension between the Philippines and China has become the “trending” topic nowadays. Until when will this discussion be controversial? Or should I say until when will this debate be attuned to our interest?

The issue on whether a country can be held liable by hacking and defacing the websites of both the government through the Department of Budget and Management and the University of the Philippines website is quite problematic. The first thing that has to be considered is the issue on jurisdiction.  Among the recognized principles of criminal jurisdiction as what was defined  under the book of Justice Isagani Cruz on International law , the Philippines observes the territorial principle of jurisdiction which vests jurisdiction in the state where the offense was committed. In the issue at hand, hackers, as they are described in the article, who allegedly are responsible for such an act, are outside the territorial jurisdiction of the Philippines in the exercise of its judicial function. Ergo, these people, in my opinion, cannot be held liable in the perpetuation of their act.

There is also what we call the protective jurisdiction which vests jurisdiction in the state whose national interest is injured which is directly related  to the objective territorial jurisdiction by which a state takes jurisdiction  to require, enforce, or adjudicate conduct for acts committed  its territory having effects within it. But to distinguish it from the other, the latter permits a state  to protect primarily private interests against actual injury.  On the other hand, protective jurisdiction recognizes a state’s interest against the threat of harm(Buergenthal and Maier, Public International Law, 2^nd edition 1990, p 172)[taken from the book of Justice Isagani Cruz, International Law].  In the two given definitions of jurisdiction, neither will they enforce jurisdiction on the above contemplated issue. In the issue of protective jurisdiction, it does not include hacking in contemplating the provisions of RA 8792 or the E-Commerce Act because in the first place there is no national security issue that is at stake in this sense. Besides, RA 8792 in prevailing jurisprudence is not applicable to criminal cases. Hence, in no way shall we acquire jurisdiction to hold them liable for such acts.

This problematic situation as regards the exercise of jurisdiction, I think, should be dealt with in order to settle this gap in the interpretation and implementation of the law.

Ryan Danzen O. Diaz

Technology and The Law

Summer, 2012