Cybercrime Prevention Act of 2012

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The Cybercrime Prevention Act of 2012 (Republic Act No. 10175, An Act Defining Cybercrime, Providing For The Prevention, Investigation, Suppression And The Imposition Of Penalties Therefor And For Other Purposes) was signed by President Aquino on 12 September 2012. It will 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.[1]

Contents

Cybercrimes

The law defines and punishes certain acts, generally classified as:[2] (a) Offenses against the confidentiality, integrity and availability of computer data and systems; (b) Computer-related Offenses; and (c) Content-related Offenses.

Offenses against the confidentiality, integrity and availability of computer data and systems

Illegal Access

The access to the whole or any part of a computer system without right.[3]

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.[4]

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.[5]

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.[6]

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 computer program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.[7]

Misuse of Devices

(i) The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of:[8]

(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.

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:[9]

(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.

Computer-related offenses

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[10]

(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.

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.[11]

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.[12]

Content-related offenses

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.[13]

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. The penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.[14]

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:[15]

(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.

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.[16]


Other offenses under R.A. 10175

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.[17]

Attempt in the Commission of Cybercrime

Any person who willfully attempts to commit any of the offenses enumerated in R.A. 10175 shall be held liable.[18]


Effect of R.A. 10175 on crimes punished by the Revised Penal Code

A prosecution under R.A. 10175 shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.[19]

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 R.A. 10175.[20] However, 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.[21]


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.[22]

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.[23]

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.[24]

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 (PhPl,000,000.00) or both.[25]

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.[26]

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.[27]

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 (PhPl00,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.[28]

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).[29]

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).[30]

The liability imposed on the juridical person shall be without prejudice to the criminal liability of the natural person who has committed the offense.[31]


Enforcement and Implementation

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.[32]

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.[33]

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.[34]

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.

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.[35]

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.

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.[36]

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.[37]

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.

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.[38]

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.[39]

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.[40]

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.[41]

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.[42]


Jurisdiction

The Regional Trial Court shall have jurisdiction over any violation of the provisions of R.A. 10175, 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 person or juridical person who, at the time the offense was committed, was in the Philippines.[43] There shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases.[44]


International Cooperation

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.[45]


Competent Authorities

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.[46]

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.[47]

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.[48]

Powers and Functions

The CICC shall have the following powers and functions:[49]

(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.


See also


References

  1. Sec. 31, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  2. Sec. 4, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  3. Sec. 4(a)(1), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  4. Sec. 4(a)(2), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  5. Sec. 3(m), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  6. Sec. 4(a)(3), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  7. Sec. 4(a)(4), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  8. Sec. 4(a)(5), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  9. Sec. 4(a)(6), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  10. Sec. 4(b)(1), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  11. Sec. 4(b)(2), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  12. Sec. 4(b)(3), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  13. Sec. 4(c)(1), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  14. Sec. 4(c)(2), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  15. Sec. 4(c)(3), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  16. Sec. 4(c)(4), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  17. Sec. 5(a), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  18. Sec. 5(b), Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  19. Sec. 7, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  20. Sec. 6, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  21. Sec. 6, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  22. Sec. 8, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  23. Sec. 8, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  24. Sec. 8, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  25. Sec. 8, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  26. Sec. 8, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  27. Sec. 8, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  28. Sec. 8, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  29. Sec. 9, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  30. Sec. 9, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  31. Sec. 9, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  32. Sec. 10, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  33. Sec. 11, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  34. Sec. 12, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  35. Sec. 13, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  36. Sec. 14, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  37. Sec. 15, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  38. Sec. 16, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  39. Sec. 17, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  40. Sec. 18, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  41. Sec. 19, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  42. Sec. 20, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  43. Sec. 21, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  44. Sec. 21, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  45. Sec. 22, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  46. Sec. 23, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  47. Sec. 24, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  48. Sec. 25, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
  49. Sec. 26, Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012
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