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by Arlan G. Reburon

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The ease of using the internet has a lot of faces, ease in searching for unknown ideas; ease of discovering new friends, ease of looking into others accounts and even ease in compromising cyber security among others. It has created a culture of interconnected and borderless sharing of positive and negative information that is so vast no one could ever imagine.

The society today see this ease as an evergrowing luxury, some sees it as an enterprise and some sees it as an oppurtunity to exploit the weakest cyber security, private information, vital data and anonimity and remoteness as tool.

Intoduction

So what is cybercrime?

Cybercrime or "cyber crime" is no different from any other crimes, the only difference is it has to be commited on a computer connected in a network over the cyberspace or the world-wide web.

Cybercrime goes beyond the technical, transnational dimension and it involves offenders who maliciously attacks or exploit potential weaknesses present in the infrastructure’s transnational nature. It threatens the  substantial  and growing  reliance  of commerce, security, governments, and  the public  upon  the information infrastructure to conduct business, carry messages, and process information.

Cybercrime is one of the fastest growing non-violent crimes in the Asian region. It takes a great deal of technical expertise and co-operation, both local and foreign, in order to address such problems. This crime affects different countries in varying degrees, depending on the extent of the legislative enactment of each country. In the Philippines, as technical and electronic landscapes change, there is a need to enact laws or amend existing laws to fully address illegal cyber activities.

In the Philippines, a law was created primarily to penalize these acts. For readers to undersatand, a copy of this landmark law was included in this article.

_______________________

Republic of the Philippines

Congress of the Philippines

Metro Manila

Fifteenth Congress

Second Regular Session

Begun and held in Metro Manila, on Monday the Twenty-fifth day of July two thousand eleven.

[ Republic Act No. 10175 ]

AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

CHAPTER I

PRELIMINARY PROVISIONS

SECTION 1. Title. — This Act shall be known as the “Cybercrime Prevention Act of 2012”.

SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and communications industries such as content production, telecommunications, broadcasting electronic commerce, and data processing, in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts. In this light, the State shall adopt sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.

SEC. 3. Definition of Terms. — For purposes of this Act, the following terms are hereby defined as follows:

(a) Access refers to the instruction, communication with, storing data in, retrieving data from, or otherwise making use of any resources of a computer system or communication network.

(b) Alteration refers to the modification or change, in form or substance, of an existing computer data or program.

(c) Communication refers to the transmission of information through ICT media, including voice, video and other forms of data.

(d) Computer refers to an electronic, magnetic, optical, electrochemical, or other data processing or communications device, or grouping of such devices, capable of performing logical, arithmetic, routing, or storage functions and which includes any storage facility or equipment or communications facility or equipment directly related to or operating in conjunction with such device. It covers any type of computer device including devices with data processing capabilities like mobile phones, smart phones, computer networks and other devices connected to the internet.

(e) Computer data refers to any representation of facts, information, or concepts in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online.

(f) Computer program refers to a set of instructions executed by the computer to achieve intended results.

(g) Computer system refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media.

(h) Without right refers to either: (i) conduct undertaken without or in excess of authority; or (ii) conduct not covered by established legal defenses, excuses, court orders, justifications, or relevant principles under the law.

(i) Cyber refers to a computer or a computer network, the electronic medium in which online communication takes place.

(j) Critical infrastructure refers to the computer systems, and/or networks, whether physical or virtual, and/or the computer programs, computer data and/or traffic data so vital to this country that the incapacity or destruction of or interference with such system and assets would have a debilitating impact on security, national or economic security, national public health and safety, or any combination of those matters.

(k) Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices, assurance and technologies that can be used to protect the cyber environment and organization and user’s assets.

(l) Database refers to a representation of information, knowledge, facts, concepts, or instructions which are being prepared, processed or stored or have been prepared, processed or stored in a formalized manner and which are intended for use in a computer system.

(m) Interception refers to listening to, recording, monitoring or surveillance of the content of communications, including procuring of the content of data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring.

(n) Service provider refers to:

(1) Any public or private entity that provides to users of its service the ability to communicate by means of a computer system; and

(2) Any other entity that processes or stores computer data on behalf of such communication service or users of such service.

(o) Subscriber’s information refers to any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which identity can be established:

(1) The type of communication service used, the technical provisions taken thereto and the period of service;

(2) The subscriber’s identity, postal or geographic address, telephone and other access numbers, any assigned network address, billing and payment information, available on the basis of the service agreement or arrangement; and

(3) Any other available information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement.

(p) Traffic data or non-content data refers to any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.

CHAPTER II

PUNISHABLE ACTS

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

(2) Illegal Interception. – The interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.

(3) Data Interference. — The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

(4) System Interference. — The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.

(5) Misuse of Devices.

(i) The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of:

(aa) A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under this Act; or

(bb) A computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any of the offenses under this Act.

(ii) The possession of an item referred to in paragraphs 5(i)(aa) or (bb) above with intent to use said devices for the purpose of committing any of the offenses under this section.

(6) Cyber-squatting. – The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration:

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

(b) Computer-related Offenses:

(1) Computer-related Forgery. —

(i) The input, alteration, or deletion of any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; or

(ii) The act of knowingly using computer data which is the product of computer-related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design.

(2) Computer-related Fraud. — The unauthorized input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent: Provided, That if no

damage has yet been caused, the penalty imposable shall be one (1) degree lower.

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

(c) Content-related Offenses:

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

(3) Unsolicited Commercial Communications. — The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject. receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

SEC. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

CHAPTER III

PENALTIES

SEC. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or the “Anti-Child Pornography Act of 2009”: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.

SEC. 9. Corporate Liability. — When any of the punishable acts herein defined are knowingly committed on behalf of or for the benefit of a juridical person, by a natural person acting either individually or as part of an organ of the juridical person, who has a leading position within, based on: (a) a power of representation of the juridical person provided the act committed falls within the scope of such authority; (b) an authority to take decisions on behalf of the juridical person: Provided, That the act committed falls within the scope of such authority; or (c) an authority to exercise control within the juridical person, the juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Section 7 up to a maximum of Ten million pesos (PhP10,000,000.00).

If the commission of any of the punishable acts herein defined was made possible due to the lack of supervision or control by a natural person referred to and described in the preceding paragraph, for the benefit of that juridical person by a natural person acting under its authority, the juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Section 7 up to a maximum of Five million pesos (PhP5,000,000.00).

The liability imposed on the juridical person shall be without prejudice to the criminal liability of the natural person who has committed the offense.

CHAPTER IV

ENFORCEMENT AND IMPLEMENTATION

SEC. 10. Law Enforcement Authorities. — The National Bureau of Investigation (NBI) and the Philippine National Police (PNP) shall be responsible for the efficient and effective law enforcement of the provisions of this Act. The NBI and the PNP shall organize a cybercrime unit or center manned by special investigators to exclusively handle cases involving violations of this Act.

SEC. 11. Duties of Law Enforcement Authorities. — To ensure that the technical nature of cybercrime and its prevention is given focus and considering the procedures involved for international cooperation, law enforcement authorities specifically the computer or technology crime divisions or units responsible for the investigation of cybercrimes are required to submit timely and regular reports including pre-operation, post-operation and investigation results and such other documents as may be required to the Department of Justice (DOJ) for review and monitoring.

SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

SEC. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

SEC. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation.

SEC. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.

SEC. 16. Custody of Computer Data. — All computer data, including content and traffic data, examined under a proper warrant shall, within forty-eight (48) hours after the expiration of the period fixed therein, be deposited with the court in a sealed package, and shall be accompanied by an affidavit of the law enforcement authority executing it stating the dates and times covered by the examination, and the law enforcement authority who may access the deposit, among other relevant data. The law enforcement authority shall also certify that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the package deposited with the court. The package so deposited shall not be opened, or the recordings replayed, or used in evidence, or then contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.

SEC. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination.

SEC. 18. Exclusionary Rule. — Any evidence procured without a valid warrant or beyond the authority of the same shall be inadmissible for any proceeding before any court or tribunal.

SEC. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

SEC. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities.

CHAPTER V

JURISDICTION

SEC. 21. Jurisdiction. — The Regional Trial Court shall have jurisdiction over any violation of the provisions of this Act. including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines.

There shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases.

CHAPTER VI

INTERNATIONAL COOPERATION

Sec. 22. General Principles Relating to International Cooperation — All relevant international instruments on international cooperation in criminal matters, arrangements agreed on the basis of uniform or reciprocal legislation, and domestic laws, to the widest extent possible for the purposes of investigations or proceedings concerning criminal offenses related to computer systems and data, or for the collection of evidence in electronic form of a criminal, offense shall be given full force and effect.

CHAPTER VII

COMPETENT AUTHORITIES

SEC 23. Department of Justice (DOJ). — There is hereby created an Office of Cybercrime within the DOJ designated as the central authority in all matters related to international mutual assistance and extradition.

SEC. 24. Cybercrime Investigation and Coordinating Center. — There is hereby created, within thirty (30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

SEC. 25. Composition. — The CICC shall be headed by the Executive Director of the Information and Communications Technology Office under the Department of Science and Technology (ICTO-DOST) as Chairperson with the Director of the NBI as Vice Chairperson; the Chief of the PNP; Head of the DOJ Office of Cybercrime; and one (1) representative from the private sector and academe, as members. The CICC shall be manned by a secretariat of selected existing personnel and representatives from the different participating agencies.

SEC. 26. Powers and Functions. — The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance for the suppression of real-time commission of cybercrime offenses through a computer emergency response team (CERT);

(b) To coordinate the preparation of appropriate and effective measures to prevent and suppress cybercrime activities as provided for in this Act;

(c) To monitor cybercrime cases being bandied by participating law enforcement and prosecution agencies;

(d) To facilitate international cooperation on intelligence, investigations, training and capacity building related to cybercrime prevention, suppression and prosecution;

(e) To coordinate the support and participation of the business sector, local government units and nongovernment organizations in cybercrime prevention programs and other

related projects;

(f) To recommend the enactment of appropriate laws, issuances, measures and policies;

(g) To call upon any government agency to render assistance in the accomplishment of the CICC’s mandated tasks and functions; and

(h) To perform all other matters related to cybercrime prevention and suppression, including capacity building and such other functions and duties as may be necessary for the proper implementation of this Act.

CHAPTER VIII

FINAL PROVISIONS

SEC. 27. Appropriations. — The amount of Fifty million pesos (PhP50,000,000.00) shall be appropriated annually for the implementation of this Act.

SEC. 28. Implementing Rules and Regulations. — The ICTO-DOST, the DOJ and the Department of the Interior and Local Government (DILG) shall jointly formulate the necessary rules and regulations within ninety (90) days from approval of this Act, for its effective implementation.

SEC. 29. Separability Clause — If any provision of this Act is held invalid, the other provisions not affected shall remain in full force and effect.

SEC. 30. Repealing Clause. — All laws, decrees or rules inconsistent with this Act are hereby repealed or modified accordingly. Section 33(a) of Republic Act No. 8792 or the “Electronic Commerce Act” is hereby modified accordingly.

SEC. 31. Effectivity. — This Act shall take effect fifteen (15) days after the completion of its publication in the Official Gazette or in at least two (2) newspapers of general circulation.

Approved,

(Sgd.) FELICIANO BELMONTE JR.

Speaker of the House

of Representatives

(Sgd.) JUAN PONCE ENRILE

President of the Senate

This Act which is a consolidation of Senate Bill No. 2796 and House Bill No. 5808 was finally passed by the Senate and the House of Representatives on June 5, 2012 and June 4, 2012, respectively.

(Sgd.) MARILYN B. BARUA-YAP

Secretary General

House of Representatives

(Sgd.) EMMA LIRIO-REYES

Secretary of the Senate


Approved: SEP 12 2012

(Sgd.) BENIGNO S. AQUINO III

President

_________________

The Cybercrime Prevention Act of 2012, officially recorded as Republic Act No. 10175, is a law in the Philippines that was approved on September 12, 2012. It aims to address legal issues concerning online interactions and the Internet in the Philippines. Among the cybercrime offenses included in the bill are cybersquatting, cybersex, child pornography, identity theft, illegal access to data and libel.

While hailed for penalizing illegal acts done via the Internet that were not covered by old laws, the act has been criticized for its provision on criminalizing libel, which is perceived to be a curtailment of the freedom of expression—"cyber authoritarianism". Its use against journalists like Maria Ressa, of Rappler, has drawn international condemnation.

On October 9, 2012, the Supreme Court of the Philippines issued a temporary restraining order, stopping implementation of the Act for 120 days, and extended it on 5 February 2013 "until further orders from the court."

On February 18, 2014, the Supreme Court upheld most of the sections of the law, including the controversial cyberlibel component.

History

The Cybercrime Prevention Act of 2012 is the one of the first law in the Philippines which specifically criminalizes computer crime, which prior to the passage of the law had no strong legal precedent in Philippine jurisprudence. While laws such as the Electronic Commerce Act of 2000 (Republic Act No. 8792) regulated certain computer-related activities, these laws did not provide a legal basis for criminalizing crimes committed on a computer in general: for example, Onel de Guzman, the computer programmer charged with purportedly writing the ILOVEYOU computer worm, was ultimately not prosecuted by Philippine authorities due to a lack of legal basis for him to be charged under existing Philippine laws at the time of his arrest.

The first drafts of the Anti-Cybercrime and Data Privacy Law started in 2001 under the Legal and Regulatory Committee of the former Information Technology and eCommerce Council (ITECC) which is the forerunner of the Commission on Information and Communication Technology (CICT) and now the Department of Information and Communication Technology (DICT). It was headed by former Secretary Virgilio "Ver" Peña, with the Legal and Regulatory Committee chaired by Atty. Claro Parlade (+). The creation of the laws was an initiative of the Information Security and Privacy Sub-Committee chaired by Albert Dela Cruz who was then President of the Philippine Computer Emergency Response Team (PHCERT), together with Anti-Computer Crime and Fraud Division (ACCFD) Chief, Atty. Elfren Meneses of the NBI. The administrative and operational functions was provided by the Presidential Management Staff (PMS) acting as the CICT secretariat. The initial version of the law was communicated to various other organizations and special interest groups during that time.

This was superseded by several cybercrime-related bills filed in the 14th and 15th Congress. The Cybercrime Prevention Act ultimately was the product of House Bill No. 5808, authored by Representative Susan Yap-Sulit of the second district of Tarlac and 36 other co-authors, and Senate Bill No. 2796, proposed by Senator Edgardo Angara. Both bills were passed by their respective chambers within one day of each other on June 5 and 4, 2012, respectively, shortly after the impeachment of Renato Corona, and the final version of the Act was signed into law by President Benigno Aquino III on September 12.

PH Response

The public is aware of the importance of legislation that supports police efforts against computer crimes. Onel de Guzman, the Philippine dropout who, in August 2000, created and unleashed a remarkably dangerous computer virus called “I LOVE YOU”, cost several companies, governments, and citizens billions of US dollars in damages. In August of the same year, charges against him in our country were dismissed, mainly because we had not yet passed legislation addressing the crimes he had committed. The public around the world is justifiably outraged.

1. The “I LOVE YOU” Computer Virus[]

The virus was received in e-mail inboxes in Hong Kong on 4 May, 2000, with subject “I LOVE YOU” and an attachment “LOVE-LETTER-FOR-YOU.TXT.vbs.”. It erases or blurs the graphics and data in the computer and gets the contact addresses in the computer directory, and sends the same email to all contacts listed in that directory. Once received and opened in another computer, it replicates all that it did previously. The replication went on and on, sweeping all computers where the email was received and opened, from Hong Kong, to Europe, to the United States, infecting and damaging computers and networks of small and big companies, private and government institutions. The damage was about US$ 5.5 billion; some reports say US$ 10 billion.

2. Arrest of the Suspect[]

An international manhunt was conducted; the investigators traced the origin of the virus to its creator, a programming student (Onel de Guzman) at the AMA Computer University in Manila.

When arrested (11 May 2000), the suspect apologized to the public and said he had no intention of causing such great harm. Government prosecutors filed cases against him, but even at the first stage, the indictment was dismissed as there was no law penalizing the act at the time (May 2000) in the Philippines (nullum crimen, sine lege)!

3. Effect of the “I LOVE YOU” Virus[]

The “I LOVE YOU” virus illustrated that a person armed with a computer could, from a distant location, attack and/or disrupt computers and networks worldwide and cause severe damage.

* Chief, Anti-Transnational Crime Division of Criminal Investigation and Detection Group, Philippine National Police.

This whole episode points to the need for a domestic law to address a particular criminal act, and international/ bilateral legal instruments to give “no-safe haven” to cyber-criminals (or would-be cyber-terrorists).

The Philippine Congress subsequently passed a law that penalizes computer/cybercrimes, although it did not cover cyber-terrorism.

4. Societal’ Response[]

In order to curb the threat posed by cybercrime, the Philippine Congress enacted Republic Act (RA) 8792, otherwise known as the “Electronic Commerce Act of 2000”. RA 8792 provides for the legal recognition and admissibility of electronic data messages, documents and signatures. This was signed into law on 14 June 2000. The salient features of the Act are as follows:

•       Provides          for       the       admissibility  of         electronic        documents in         court   cases;

•       Penalizes         limited online  crime,  such    as        hacking, introduction   of         viruses and      copyright        violations        of         at least Php100,000 and a maximum commensurate to the damage incurred, and imprisonment of six months to three years, among others;

•       Promotes         e-commerce    in         the       country,          particularly    in business-to-business  and      business-to-consumer transactions whereby business relations are enhanced and facilitated and consumers are able to find and purchase products online;

•       Aims    to         reduce graft    and      corruption       in         government    as it         lessens personal          interaction      between          government agents and private individuals.

RA 8792 is considered the landmark law in the history of the Philippines as a legitimate player in the global marketplace. It has placed the Philippines among the countries penalizing cybercrime.

Likewise, the Supreme Court drafted the Rules on Electronic Evidence, which took effect on 1 August 2000, to emphasize the admissibility of evidence in electronic form, subject to its authenticity and reliability. This restriction intends to safeguard against accepting evidence of doubtful character.

We have also the Access Devices Regulation Act of 1998 (RA 8484) which regulates the issuance and use of access devices, prohibiting fraudulent acts committed and providing penalties and for other purposes; and, Philippine Central Bank Circular 240 dated 7 April 2000 regulating the electronic banking services of financial institutions.

While RA 8792 is already in place, it was found to have failed to address all forms of cybercrime that are enumerated in the Budapest Convention on Cybercrime of 2001, namely:

•       Offences           against            confidentiality,           integrity         and availability     of         computer        data     and      systems           which include illegal access, illegal interception, data interference, system interference, misuse of devices;

•       Computer-related       offences           which  include computer-related forgery and      computer-related        fraud;

•       Content-related           offences           such    as        child    pornography;

•       Offences           related to         infringement  of         copyright        and related rights.

Furthermore, enforcing the law with the use of the existing guidelines embodied in the Revised Penal Code, as amended, may not work for cybercrime. Unlike the traditional and terrestrial crimes which deal with corporeal evidence, cybercrime involves more electronic data which are intangible evidence.

In order to cope with the daunting problem of cybercrime, the Department of Justice (DOJ) created the Task Force on E-Government, Cyber-security and Cybercrime in 2007 to deal with cyber-security issues in relation to legislation and investigation. It was created to pursue the e-government agenda, institutionalize a cyber-security regime and implement laws. The said task force worked closely with the Council of Europe, a private organization, and local experts composed of IT practitioners and other stakeholders.

Among the top priorities of the Task Force was to work for the passage of the cybercrime prevention act, and the Task Force proposes the creation of e-courts to oversee all high-tech cases of hacking or crimes committed using Internet technology. Included in its effort is capacity-building of the technical knowledge of government prosecutors and judges whose courtrooms will be designated e-courts.

A related Technical Working Group (TWG) on Cybercrime and Cyber-security consists of representatives from National Government Agencies, including law enforcement agencies like the Philippine National Police (PNP), National Bureau of Investigation (NBI), private companies and academia, which have joined hands in order to address issues relating to cyber-security and cybercrime in the Philippines. It aims to consolidate and make concrete the government’s efforts on cyber-security and to successfully implement measures to fight cybercrime.

The TWG drafted and proposed a bill that will supplement the current RA 8792. The proposed cybercrime bill includes a definition of cybercrime, penalties and provisions on Internet piracy and provisions on co-operation with the international community.

The proposed bill covers not only computers and computer networks but mobile devices as well. The bill will also have anti-spam measures, and will cover SMS or text messaging for mobile phones, treating mobile phones as “communication devices”.

Another added provision concerns “corporate liability” and proposes that a company can be held liable for cybercrimes like hacking or virus attacks when its computer network is utilized in the commission of prohibited acts.

The bill also proposes to create a Computer Emergency Response Council (CERC) under the supervision and control of the Office of the President to formulate and implement a national action plan to address and combat cybercrime. The CERC shall be headed by the Chairman of the Commission on Information and Communications Technology (CICT). Other members shall be the Director of the National Bureau of Investigation (NBI) as Vice Chairman and Director General of the Philippine National Police (PNP), the Head of the National Prosecution Service (NPS), the Head of the National Computer Center (NCC), the Head of the Philippine Center on Transnational Crime (PCTC), the Head of the Anti-Fraud and Computer Crimes Division (AFCCD) of the NBI and the Head of the Criminal Investigation and Detection Group (CIDG) of the PNP, as well as three representatives from the private sector involved in information security, to be appointed by the President as members.

On 26 September 2007, the Philippines signed the United Nations Convention on the Use of Electronic Communications in International Contracts at United Nations Headquarters in New York. Adopted by the

United Nations General Assembly on 23 November 2005, the United Nations Convention on the Use of Electronic Communications in International Contracts aims to enhance legal certainty and commercial predictability where electronic communications are used in relation to international contracts.

In October 2007, the “Legislators and Experts Workshop on Cybercrime”, led by the Commission on Information and Communications Technology (CICT), declared their support for Philippine accession to the Budapest Convention on Cybercrime and the expeditious passage of an implementing anti-cybercrime law to prevent, mitigate, and deter the commission of ICT related crimes, to foster co-operation within the ICT community, government, private sector and civil society in promoting an atmosphere of safe computing.

The United Nations Commission on International Trade Law (UNCITRAL) is the core legal body of the United Nations system in the field of international trade law. Its mandate is to remove legal obstacles to international trade by progressively modernizing and harmonizing trade law. It prepares legal texts in a number of key areas such as international commercial dispute settlement, electronic commerce, insolvency, international payments, sale of goods, transport law, procurement and infrastructure development. UNCITRAL also provides technical assistance to law reform activities, including assisting member states to review and assess their law reform needs and to draft the legislation required to implement law.


Provisins of the Law

The Act, divided into 31 sections split across eight chapters, criminalizes several types of offense, including illegal access (hacking), data interference, device misuse, cybersquatting, computer-related offenses such as computer fraud, content-related offenses such as cybersex and spam, and other offenses. The law also reaffirms existing laws against child pornography, an offense under Republic Act No. 9775 (the Anti-Child Pornography Act of 2009), and libel, an offense under Section 355 of the Revised Penal Code of the Philippines, also criminalizing them when committed using a computer system. Finally, the Act includes a "catch-all" clause, making all offenses currently punishable under the Revised Penal Code also punishable under the Act when committed using a computer, with severer penalties than provided by the Revised Penal Code alone.

The Act has universal jurisdiction: its provisions apply to all Filipino nationals regardless of the place of commission. Jurisdiction also lies when a punishable act is either committed within the Philippines, whether the erring device is wholly or partly situated in the Philippines, or whether damage was done to any natural or juridical person who at the time of commission was within the Philippines. Regional Trial Courts shall have jurisdiction over cases involving violations of the Act.

A takedown clause is included in the Act, empowering the Department of Justice to restrict and/or demand the removal of content found to be contrary to the provisions of the Act, without the need for a court order. This provision, originally not included in earlier iterations of the Act as it was being deliberated through Congress, was inserted during Senate deliberations on May 31, 2012. Complementary to the takedown clause is a clause mandating the retention of data on computer servers for six months after the date of transaction, which may be extended for another six months should law enforcement authorities request it.

The Act also mandates the National Bureau of Investigation and the Philippine National Police to organize a cybercrime unit, staffed by special investigators whose responsibility will be to exclusively handle cases pertaining to violations of the Act, under the supervision of the Department of Justice. The unit is empowered to, among others, collect real-time traffic data from Internet service providers with due cause, require the disclosure of computer data within 72 hours after receipt of a court warrant from a service provider, and conduct searches and seizures of computer data and equipment.

Reaction of the Society

The new Act received mixed reactions from several sectors upon its enactment, particularly with how its provisions could potentially affect freedom of expression, freedom of speech and data security in the Philippines.

The local business process outsourcing industry has received the new law well, citing an increase in the confidence of investors due to measures for the protection of electronic devices and online data. Media organizations and legal institutions though have criticized the Act for extending the definition of libel as defined in the Revised Penal Code of the Philippines, which has been criticized by international organizations as being outdated: the United Nations for one has remarked that the current definition of libel as defined in the Revised Penal Code is inconsistent with the International Covenant on Civil and Political Rights, and therefore violates the respect of freedom of expression.

Senator Edgardo Angara, the main proponent of the Act, defended the law by saying that it is a legal framework to protect freedoms such as the freedom of expression. He asked the Act's critics to wait for the bill's implementing rules and regulations to see if the issues were addressed. He also added that the new law is unlike the controversial Stop Online Piracy Act and PROTECT IP Act. However, Senator TG Guingona criticized the bill, calling it a prior restraint to the freedom of speech and freedom of expression.

The Electronic Frontier Foundation has also expressed concern about the Act, supporting local media and journalist groups which are opposed to it. The Centre for Law and Democracy also published a detailed analysis criticizing the law from a freedom of expression perspective.

Malacañang has attempted to distance itself from the law; after the guilty verdict was rendered in the Maria Ressa cyberlibel case, presidential spokesman Harry Roque blamed President Duterte's predecessor, Noynoy Aquino, for any negative effects of the law.

Constitutionality

Several petitions were submitted to the Supreme Court questioning the constitutionality of the Act. On October 2, the Supreme Court initially deferred action on the petitions, citing an absence of justices which prevented the Court from sitting en banc. The initial lack of a temporary restraining order meant that the law went into effect as scheduled on October 3. In protest, Filipino netizens reacted by blacking out their Facebook profile pictures and trending the hashtag #NoToCybercrimeLaw on Twitter. "Anonymous" also defaced government websites, including those of the Bangko Sentral ng Pilipinas, the Metropolitan Waterworks and Sewerage System and the Intellectual Property Office.

On October 8, 2012, the Supreme Court decided to issue a temporary restraining order, pausing implementation of the law for 120 days. In early December 2012, the government requested the lifting of the TRO, which was denied. Over four hours of oral arguments by petitioners were heard on January 15, 2013, followed by a three-hour rebuttal by the Office of the Solicitor General, representing the government, on January 29, 2013. This was the first time in Philippine history that oral arguments were uploaded online by the Supreme Court.

Disini v. Secretary of Justice[]

Main article: Disini v. Secretary of Justice

On February 18, 2014, the Supreme Court ruled that most of the law was constitutional, although it struck down other provisions, including the ones that violated double jeopardy. Notably, likes and "retweets" of libelous content, originally themselves also criminalized as libel under the law, were found to be legal. Only justice Marvic Leonen dissented from the ruling, writing that he believes the whole idea of criminal libel to be unconstitutional.

While motions for reconsideration were immediately filed by numerous petitioners, including the Center for Media Freedom and Responsibility, they were all rejected on April 22, 2014. However, justice Arturo Brion, who originally wrote a separate concurring opinion, changed his vote to dissent after reconsidering whether it was just to impose higher penalties for cyberlibel than for regular libel.

Effects

On May 24, 2013, the DOJ announced they would seek to drop the online libel provisions of the law, as well as other provisions that "are punishable under other laws already", like child pornography and cybersquatting. The DOJ said it would endorse revising the law to the 16th Congress of the Philippines, but cyberlibel remains on the books as a crime in the Philippines, and has been charged by DOJ prosecutors multiple times since then. Senator Tito Sotto is primarily responsible for the cyberlibel provision, which he added after social media comments accusing him of plagiarism; he has defended his authorship of the last minute amendment, asking reporters if it was fair that "just because [bloggers] are now accountable under the law, they are angry with me?" While libel had been a crime in the Philippines since the American imperial period, before cyberlibel it had a penalty of minimum or medium prisión correccional (six months to four years and two months), but now has a penalty of prisión mayor (six to twelve years).

Duterte's administration has been accused of targeting journalists with the law, in particular Rappler. Journalists charged with cyberlibel since 2013 include Ramon Tulfo, RJ Nieto, and Maria Ressa. An online post does not even need to be public for cases to be filed by the DOJ. Roman Catholic clergy have also faced cyberlibel charges. Even foreigners have both accused others of and been accused of cyberlibel charges. As the act has universal jurisdiction, it is not required that an offender commit the offense in the Philippines; the DOJ brought up an OFW caregiver who lived in Taiwan on charges for allegedly "posting nasty and malevolent materials against President Duterte on Facebook".

Insults that would be seen in other countries as minor have led to DOJ prosecutors filing cyberlibel charges: such as "crazy"; "asshole"; "senile"; and "incompetent".

On 2 March 2020, the first guilty verdict in a cyberlibel case was returned against a local politician, Archie Yongco, of Aurora, Zamboanga del Sur. Yongco was found guilty of falsely accusing another local politician of murder-for-hire via a Facebook post, which he deleted minutes later, but of which archives were made; the court was unconvinced by his denial that he posted the message, and he was sentenced to eight years in jail and ordered to pay damages of ₱610,000 (US$12,175).

A Magna Carta for Philippine Internet Freedom was crowdsourced by Filipino netizens with the intent of, among other things, repealing the Cybercrime Prevention Act of 2012; it failed to pass. Several organizations continue to fight for the decriminalization of libel, including the National Union of Journalists of the Philippines and Vera Files.

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