(the following is an article written by Nestor Gadrinab, to be published in parts)
Introduction:
The growth of technology, particularly computers, has altered the very face of and conception of reality. It is a wave of change that goes well beyond technological innovation. Computers, in particular, have made information the veritable new medium of exchange. Such phenomenon encompasses the social, economic, political and cultural spheres. Its pervasiveness and impact upon everyday life inevitably makes its encounter with the law a difficult one. For one, technological change is characterized by extraordinary speed. In less than two decades, it has managed to reduce the world into a “global village”, emphasizing connectivity. On the other hand, legal development has always been, to put matters lightly, slow. This has often been justified on the ground of stability and the relatively slow pace of the agricultural and industrial eras has made it a virtue on the part of the law. In the information age, however, this stability has made the law lag behind. The growing disparity between the law and technological development makes the former unresponsive. This disparity shall be explored in this paper in the area of penal legislation vis-à-vis cyberspace, an area which for the nonce shall be designated as cybercrime.
Criminal Law, Realspace and Cyberspace
Philippine criminal law has three main characteristics: general, territorial and prospective. Of the three attributes, two are pertinent viz cybercrime. One is generality and the other, territoriality. Generality is defined in relation to the Civil Law in that Philippine Criminal Law is binding on all persons who live or sojourn in Philippine territory. Territoriality is expressed in the Revised Penal Code, where the provisions of the said code shall be enforced within the Philippine Archipelago, including its atmosphere, its interior waters and its maritime zone.
The traditional scope of criminal law occurs in realspace as opposed to the criminal acts perpetrated in cyberspace typically designated as cyberspace. The designation, however, appears to be arbitrary inasmuch as the operative acts constituting cybercrime can occur in either category. In the context of this paper, locating the offender is both conceptual and real. In the former sense, the offender must be formally defined under the law. This will entail the identification of conceptual blurs and its clarification. In the latter sense, the effectivity of criminal legislation would depend upon whether the offender could be actually apprehended: essentially a matter of criminal procedure.
No comments:
Post a Comment