Philippine Fashion: Legal, Social and Technological Concerns

Dr. Atty. Noel G. Ramiscal's designed leather black croc portfolio that houses 18" laptop

People in the fashion industry have faced considerable stereotypical prejudices that could quell the creative fire in many aspiring designers and creators. One leading US “fashion” lawyer, Susan Scafidi, said that these prejudices reflect on the lawyers who strive to espouse the rights and protect the interests of people and entities in the fashion industry. Many law schools and academics had scoffed at the idea of “fashion law” and deem it embarrassing, or not worth the trouble, except probably for women, gays and people of color. As a long time legal advocate of people in the creative and fashion industries, visual artist and designer himself, Dr. Atty. Noel G. Ramiscal

Dr. Atty. Noel G. Ramiscal modelling his two designed green and black leather portfolio and travelling bag

knows about these prejudices only too well. Much of these stem from the notions that fashion is “ephemeral”, “frivolous” or downright “unimportant”. Yet, the annual global income take of fashion industries have ranged (depending on what source one believes and the year) from a quarter of a billion to nearly a trillion US dollars.

Fashion has always been a barometer of peoples’ consciousness and subconsciousness. Witness the trends for apparel and leatherwear influenced by the biker culture, Hell’s Angels and the sadomasochism glorified by Marquis de Sade. Don’t forget the military inspired trench coats, pants, booties and other accessories that come from the deeply seated concerns for control and domination in a world afflicted with terrorism. Consider the fact that human hair was used by Christian Louboutin as a feature of his stilettoes. Some may remember that hair was harvested from the holocaust victims to be made as material for pillows so that the Reich officialdom can sleep better.

Dr. Atty. Noel G. Ramiscal's designed olive green and brown leather portfolio and travelling bags

Pillows, stilettoes, with the touch of macabre memories, fashion can humanize a demonized mnemonic culture. When the late Alexander Mcqueen’s work was presented as a retrospective after his death, the greatness of his haute couture can be ascertained from his sculptural and even architectural approach, as well as his genius in accessing infamous and hurtful historical events and turning them into sometimes, terrifying, but always exhilarating collections. His “Savage Beauty” retrospective at the Met Costume Institute installed in 2011 featured a tribute to the “Widows of Culloden”, a collection influenced by the massacre of the Scottish Jacobites by the English army in 1745. A gown represented in the retrospective was an architectural wonder of lace and tulle that evoked the vulnerability and nobility of character of the women victims.

Dr. Atty. Noel G. Ramiscal's designed three shades of blue leather portfolio

In the Philippines, many creative designers and artists struggle to find recognition and acceptance in the national and international scene. While there is no shortage of talent, there is a dearth of academic and historical appreciation, as well as legal protection for the rights and interests of those in the fashion industries. This is due to several reasons. First, the legal framework for even starting the discussion of the proprietary rights of fashion designers over their creations is not clearly delineated or is unsuitable. The Philippine Intellectual Property Code suffers from a lack of understanding of the demands of creative industries like fashion, where the rules can change from season to season and even in mid-season. Second, there is no Philippine jurisprudence that addresses squarely the concerns of fashion designers. Third, many fashion designers, particularly those starting out have no desire to be involved in any legal tussle that could derail their careers. They work for a pittance and endure work conditions that might be considered harsh and they are expected to take these easily in stride, because most of them are “gay” anyway. Abuse is justified by the macho and cavalier attitude that is still prevalent in Philippine society where being “gay” is considered a “weakness”. Fourth, there is no current academic degree or offering in the Philippine setting targeted to fashion students, and the disciples of “style” that actually introduces, links and reinforces the legal rights of fashion designers in the stages of their intellectual creations, from the drawing of the design to the franchising of their brand, in a practical manner. Fifth, there is a lack of a united advocacy for the rights of designers, stemming from the four previously cited factors.

Dr. Atty. Noel G. Ramiscal's designed green and black leather portfolio and travelling bag

Another important factor that should be considered in the Philippines is the ubiquitousness of technology. While computer aided designs (CADs) are quite useful in the realization of designs for apparel, and the scalability of patterns for these designs, the same technological devices and software make it easy to reproduce copies of the designs and mass-manufacture them, without the consent or control of the original designer. Added to that are big malls in the Philippines, as well as retail stores or “stockists” in Divisoria that sell knock-offs of original creations for a fraction of the price of the original designs. A cautionary tale is that of the American designer, Narciso Rodriguez, who designed the wedding gown of the late Carolyne Bessette Kennedy. His gown became the most copied “silhouette” of the nineties with its special seam construction. Retail companies reportedly sold seven to eight million copies of the gown, a single copyist sold eighty thousand copies, while Mr. Rodriguez was only able to sell less than fifty pieces of his original design.

As the push for recognition of the rightful place of fashion in the Philippine economy and consciousness snowballs, as borne by television shows like Project Runway Philippines, Dr. Atty. Ramiscal

Dr. Atty. Noel G. Ramiscal modeling one of his leather designed portfolios

trusts that those who work in the fashion industry, in whatever aspect, would work together with him for the protection of the rights of designers and small to medium sized businesses engaged in fashion. In a world of changing hemlines, palettes and faces, there are still constants like respect and recognition of one’s work and rights. There is no other industry in the Philippines that has been ignored for the longest time, which truly deserve this kind of attention now, as the Philippine fashion industry.

On YouTube, FaceBook, MySpace, Placenta, Drinking Blood, and the Medical and Nursing Profession

In the ongoing rush to overhaul the nursing education standards in the Philippines, most, if not all higher education nursing institutions in the country are in the thick of preparing to satisfy the Commission on Higher Education’s (CHED) requirements in order that their nursing programs would not be phased out. It is fortunate that the impetus and the political will to reform the nursing education industry in the Philippines have crystallized in the current administration of Dr. Patricia B. Licuanan and her supportive reform team.

While the standards are upgraded and enforced to make Philippine nurses the best in the world, there should be some attention paid to the social networking technologies that our nurses and those in the medical profession utilize on a daily basis.

Several years ago, Dr. Atty. Noel G. Ramiscal lectured on digital privacy in which he tackled the substantive legal issues concerning one story that made the headlines of many Philippine and international newspapers. It was the incident involving a perfume canister that was forcibly lodged in the rectum of a florist which was revealed via x-ray, and a video of the x-ray went viral on YouTube, courtesy of elements that acquired it from a Philippine hospital. The nurses’ and doctors’ sexually and personally demeaning remarks against the gay victim/patient were heard in that internet video. While the case was apparently resolved with some culprits being charged criminally and administratively, the question arose as to the kind of medical and nursing professionals being produced by Philippine education providers.

An institution’s right to regulate and enforce the standards for admission and continuing training of nursing students in its tutelage, became the subject of a legal controversy last year in the United States. The Johnson Community College’s administrators filed a disciplinary action against several nursing students who posted a picture of themselves examining a placenta in Facebook. These nursing students were expelled for allegedly violating an unwritten rule in the student disciplinary code. One of the students filed a preliminary injunction that questioned the propriety of the expulsion. The court in Byrnes v. Johnson County Community College [No. 10-2690 (D. Ks. 01/19/2011)] granted the injunction for two major reasons. One is that there was no patient privacy violation that occurred. It was found out that the students actually sought the permission of their instructor/supervisor in taking the picture. She agreed provided that no identifying details of the placenta will be included in the photograph. She asked the students in the locker room what they intended to do with the photograph. One quipped that the picture will be posted in Facebook, to which she merely replied “Oh, you girls”. The second is that neither the college’s Nursing Student Code of Conduct nor any other code of conduct relating to the college in general regulated student photography of classroom or clinical events or expressly prohibited the transmittal of photographs to others, including through social media such as Facebook. In fact, the taking of the picture entailed that the picture would be shown to others. The court observed that the alleged “violation” the students committed was against the sense of propriety of the college, in particular, the values of some of the administrators. Since this standard of propriety was unclear and unpublished, its application to the students was deemed unfair and violated their due process rights.

In an unlitigated US controversy, late in the fall of 2007 several first-year medical students prepared a video in which the entire class participated. This was submitted to a talent show in their school. The video parodied the anatomy lab experience, set to the tune of a popular rap song, with students dancing in the anatomy lab, lying inside of body bags, drinking of “blood” from plastic skulls and consuming beef jerky that appeared to come from the skeletal bodies on the hallways. The video which contained the name of the medical school and university emblem, was greeted enthusiastically and posted on YouTube and on the video director’s MySpace page. The video posted removed the beef jerky scene that one faculty objected to. The posting was consented to by an administrator and all the video participants. But after the video became viral, one senior medical student complained about the “insensitivity” the video displayed to those “who had donated their bodies to science”. The complaint resulted in the video being removed from YouTube and MySpace. While there was a huge protest over the removal of the video, instead of going to court, the students and administrators decided to cooperate in crafting an acceptable digital media policy. All references to the school were removed and this disclaimer was added: This video was created for entertainment purposes only and in no way reflects actual conduct in the lab. We maintain the utmost respect and gratitude for those who donate their bodies to science.

These cases illustrate the need for clear defined digital media policies and sanctions in medical and nursing institutions that should apply to all of their students and employees, including medical and nursing professionals. In the case of the Philippines, not only does it need competent nursing and medical professionals, but these professionals should be imbued with values and respect for the legal rights of their patients. These values should be translated to skills that these nurses and doctors must develop and practice in order that they can do their tasks honorably and responsibly anywhere in the world.

Cyber Animal Cruelty and Sex: Prohibiting “Crush” Videos

When the sons of billionaire Donald Trump, Donald Jr., and Eric tweeted pictures of themselves hunting wild life in Zimbabwe in their 2011 safari trip, over the internet last month (March 2012), many were quick to condemn the act of hunting as well as the online posting of the pictures. One photo even showed the severed snout of an elephant being held up like a trophy by one of the sons. The brothers justified their acts by insisting they violated no law. Mr. Trump made a public statement that he does not relish hunting and he could not understand why his sons are into it as a sport. He did not object to the sport and he also observed that his sons have gotten quite good at it. On the other hand, indigenous peoples came out with statements that such a sport is alien to their way of life because they hunt out of necessity, not for sport or amusement. News of this nature makes the cause of animal rights activists relevant in the digital world.

For those who are interested in these matters, the US Congress enacted 18 U.S.C. § 48 several years ago to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addressed only portrayals of harmful acts, not the underlying conduct. It applied to any visual or auditory depiction, including those uploaded on the internet “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place”. A clause exempted depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value”.

The legislative history of this law focused primarily on “crush videos,” which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish who are sexually excited about the killings. These videos often depict women slowly crushing animals to death “with their bare feet or while wearing high heeled shoes,” sometimes while “talking to the animals in a kind of dominatrix patter” over “[t]he cries and squeals of the animals, obviously in great pain”.

The statute came under fire for being unconstitutional because of the prosecution of Robert J. Stevens. He has a business, “Dogs of Velvet and Steel,” and an associated Web site, through which he sold videos of pit bulls engaging in dogfights and attacking other animals. Among the videos were Japan Pit Fights and Pick-A-Winna: A Pit Bull Documentary, which include contemporary footage of dogfights in Japan (where such conduct is allegedly legal) as well as footage of American dogfights from the 1960’s and 1970’s. A third video, Catch Dogs and Country Living, depicts the use of pit bulls to hunt wild boar, as well as a scene of a pit bull attacking a domestic farm pig. On the basis of these videos, Stevens was indicted on three counts of violating § 48. Mr. Steven moved to dismiss, by arguing that § 48 is invalid under the First Amendment. The District Court denied his motion, and he was convicted. However, upon appeal, the Third Circuit vacated the conviction and declared § 48 facially unconstitutional as a content-based regulation of protected speech.

The case reached the Supreme Court of the United States which sustained the finding of the Third Circuit. There were several reasons given in striking down the law as unconstitutional. The law was overbroad since it criminalized activities that may be considered lawful and ordinary but which would not fall within the exemptions of the statute. The Supreme Court was not prepared to say that depictions of animal cruelty are a form of unprotected speech that the government can regulate. It is not similar to depictions of child pornography which is devoid of constitutional protection because these depictions are in themselves part of the unlawful activities constituting child abuse. In the words of the Supreme Court, the market for child pornography was “intrinsically related” to the underlying abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the Nation”. In contrast, while hunting is illegal in some states, it is legal in several other states. The statute did not specifically criminalize the killings for crush videos. It was ambiguous to the extent that while it penalized the intentional killing of an animal, it did not draw any distinction based on the reason the intentional killing of an animal is made illegal. There are myriad federal and state laws concerning the proper treatment of animals, but many of them are not designed to guard against animal cruelty. “Livestock regulations are often designed to protect the health of human beings, and hunting and fishing rules (seasons, licensure, bag limits, weight requirements) can be designed to raise revenue, preserve animal populations, or prevent accidents”. But under the law, the depictions of the killings of animals for these purposes can be illegal.

This case teaches that statutes prohibiting certain depictions of animal killings should be limited in scope to the threat they seek to address. It is a valuable lesson that animal rights activists and sympathizers should take to heart in their online and offline advocacies.

Cyberlaw and Steroid Use in Sports

Drug and steroid use have, time and time again, reared their unsightly heads in the world of sports and entertainment. The pressure upon athletes and entertainers to be on top of their games is one major excuse given for resorting to these artificial sources of “highs” and strength. The loss of great personalities through the over usage of these chemical cocktails of death had always been a source of quandary and grief by the families and fans left behind. The Philippine sports world have had its share of controversies surrounding steroid use of its members. Some officials of the Philippine Sports Commission (PSC) have also been accused of using this issue as a political ploy to silence their critics from athletes’ groups. Anyway, there is a pending bill in the Philippines House of Representatives that directs the PSC to establish a program that will support research and training in the detection of performance enhancing drugs by athletes, in an effort to curb or stop the use of these drugs or steroids.

One area that the bill did not provide, but which the PSC might consider in implementing and enforcing its ban on steroid use, is the effective and legal usage of electronic evidence it can gather from drug testing companies that obtained these data from athletes. For several years, Dr. Atty. Noel G. Ramiscal had engaged in lecture tours and seminars where he imparted results of his research on electronic evidence for different types of audiences. In one particular forum, he was asked about the relevance of electronic data to sports, and he shared the findings of one US court in the effective handling of warrants of searches and seizures on electronic data that may evidence steroid use of athletes.

The US v. Comprehensive Drug Testing Inc. cases arose from the federal investigation of the Bay Area Lab Cooperative (Balco) and its alleged distribution of illegal steroids to professional baseball athletes. The investigation which lasted for several years resulted in evidence unearthed that established the probable cause that at least ten major league baseball players received illegal steroids from Balco. The US Government applied and was granted warrants for the seizure of drug test records and specimens covering these baseball players from Comprehensive Drug Testing (CDT), as well as “[a]ll manuals, pamphlets, booklets, contracts, agreements and any other materials detailing or explaining” CDT’s “administration of Major League Baseball’s drug testing program.” The warrants also authorized the search of computer equipment, computer storage devices, and—where an on-site search would be impracticable—seizure of either a copy of all data or the computer equipment itself. “[L]aw enforcement personnel trained in searching and seizing computer data” (designated “computer personnel”) were responsible for choosing the appropriate course of action to capture the electronic data sought. If seizure of all data or equipment was necessary, “appropriately trained personnel” would review the data, retaining the evidence authorized by the warrant and designating the remainder for return.

In the course of executing the warrant, the documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named Balco players, intermingled with positive results for twenty-six other players. The government agents made copies of the documents and did not confiscate the computer hardware to allow CDT to continue its operations. The government agents promptly reviewed the drug testing records for hundreds of players in Major League Baseball. CDT, as can be expected, moved for the return of the seized electronic data and embarked on litigation that lasted for over seven years.

What is useful in this case is that the court enunciated principles governing the search, seizure and review of electronic evidence that have important ramifications for violations of sports laws and other cases.

The court recognized “the reality that over-seizing is an inherent part of the electronic search process and proceed on the assumption that, when it comes to the seizure of electronic records, this will be far more common than in the days of paper records. This calls for greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures. The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect”. Thus, it frowned upon the government’s investigation of and refusal to return electronic evidence that pertained to the twenty six baseball players who tested positive for steroid use but were not the subject of the investigation. These pieces of information are beyond the purview of the warrants and cannot be considered in plain view just because they were intermingled with the information relating to the original ten baseball players.

The court stated that seized electronic data that is not pertinent to the warrant must be segregated from the pertinent electronic data. Segregation and redaction of unrelated electronic data can be done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, the government must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing judge informed about when it has done so and what it has kept.

In the Philippines, there is no jurisprudence or rule that specifically tackles the issues and consequences of electronic evidence seized that are not part of the search or seizure warrants. The principles cited above can be of great use to enlighten Philippine courts in appropriate cases as to what can be lawfully done in order to safeguard the privacy rights of individuals whose electronic data were intermingled with the data of suspects and seized in the implementation of the warrants for digital information.