Cybercrime Prevention Act of 2012

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Cybercrime Prevention Act of 2012
Coat of arms of the Philippines.svg
Congress of the Philippines
An Act Defining Cybercrime, Providing for the Prevention, Investigation, Suppression and the Imposition of Penalties Therefor and for Other Purposes
Citation Republic Act No. 10175
Territorial extent Philippines
Enacted by House of Representatives of the Philippines
Date enacted June 4, 2012
Enacted by Senate of the Philippines
Date enacted June 5, 2012
Date signed September 12, 2012
Signed by Benigno Aquino III
Date commenced October 3, 2012[note 1]
Legislative history
Bill introduced in the House of Representatives of the Philippines An Act Defining Cybercrime, Providing for the Prevention, Suppression and Imposition of Penalties Therefor and for Other Purposes
Bill citation House Bill 5808[note 2]
Bill published on February 9, 2012
Introduced by Susan Yap (Tarlac)
First reading February 13, 2012
Second reading May 9, 2012
Third reading May 21, 2012
Conference committee bill passed June 4, 2012
Committee report Joint Explanation of the Conference Committee on the Disagreeing Provisions of Senate Bill No. 2796 and House Bill No. 5808
Bill introduced in the Senate of the Philippines An Act Defining Cybercrime, Providing for Prevention, Investigation and Imposition of Penalties Therefor and for Other Purposes
Bill citation Senate Bill 2796
Bill published on May 3, 2011
Introduced by Edgardo Angara
First reading May 3, 2011
Second reading January 24, 2012
Third reading January 30, 2012
Conference committee bill passed June 5, 2012
Date passed by conference committee May 30, 2012
Keywords
Aiding and abetting, defamation, fraud, obscenity, trespass to chattels
Status: Not fully in force

The Cybercrime Prevention Act of 2012, officially recorded as Republic Act No. 10175, is a law in the Philippines 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.[1]

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 in freedom of expression.

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."[2][3]

On May 24, 2013, The DOJ announced that the contentious online libel provisions of the law had been dropped.[4]

On February 18, 2014, the Supreme Court ruled that section 5 of the law decision was constitutional, and that sections 4-C-3, 7, 12 and 19 were unconstitutional.[5]

History[edit]

The Cybercrime Prevention Act of 2012 is 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[6]) 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.[7]

The initial draft of the law started in 2002 from the former Information Technology and eCommerce Council (ITECC) Legal and Regulatory Commitee chaired by Atty. Claro Parlade and its Information Security and Privacy subcommittee co-chaired by Albert Dela Cruz of PHCERT and Atty. Elfren Meneses of the NBI. ITECC was established under the presidency of Joseph Estrada, and continued during the term of President Gloria Macapagal Arroyo. It was headed by Secretary Virgilio 'Ver' Peña, the first Chair of the former Commission on Communications and Information Technology (CICT), and was an attempt to harmonize the U.S. Computer Fraud and Abuse Act, the EU Cybercrime Prevention Treaty or Budapest Convention on Cybercrime, Pending House and Senate bills. It was originally known as proposed bill HB377.

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.

Provisions[edit]

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. 9779 (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.[8] 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 Lyle Harvey Espinas, 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. It also mandates the establishment of special "cybercrime courts" which will handle cases involving cybercrime offenses (offenses enumerated in Section 4(a) of the Act).The Supreme Court of the Philippines declares on February 18, 2014 that the libel provisions of this act is now legal.

Reactions[edit]

Screenshot of the social networking site Facebook, as the Filipinos changed their profile pictures into black in protest against the Cybercrime Prevention Law of 2012

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.[9] 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:[10] 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.[11]

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.[12] He also added that the new law is unlike the controversial Stop Online Piracy Act and PROTECT IP Act.[13] However, Senator Teofisto Guingona III criticized the bill, calling it a prior restraint to the freedom of speech and freedom of expression.[14]

The Electronic Frontier Foundation has also expressed concern about the Act,[15] 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.[16]

Petitions to the Supreme Court[edit]

Several petitions have been submitted to the Supreme Court questioning the constitutionality of the Act.[17] However, on October 2, the Supreme Court deferred on acting on the petitions, citing the absence of justices which prevented the Court from sitting en banc.[18] The 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 9, 2012, the Supreme Court issued a temporary restraining order, stopping implementation of the Act for 120 days.[19] In early December, 2012, the government requested the lifting of the TRO [20]

Petitioner Date of Filling
1 Sen. Teofisto Guingona III
2 Group of lawyers from the Ateneo School of Law
3 Journalists led by Alab ng Mamahayag (ALAM) September 24, 2012
4 Kabataan party-list Rep. Raymond Palatino
5 National Artist Bienvenido Lumbera et al.
6 Technology law experts led by UP Law professor JJ Disini
7 Louis Biraogo September 25, 2012
8 National Union of Journalists of the Philippines and the Center for Media Freedom and Responsibility
9 Bloggers and Netizens for Democracy (BAND) led by Tonyo Cruz, "The Professional Heckler” and 18 more bloggers October 4, 2012
10 Philippine Bar Association
11 Paul Cornelius Castillo and Ryan Andres October 3, 2012
12 Bayan Muna. Rep. Neri Colmenares
13 National Press Club
14 Philippine Internet Freedom Alliance
15 Harry Roque et al.

The Supreme Court scheduled the same amount of time on 15 January 2013 for oral arguments by the petitioners, and on 22 January by the Solicitor General.[21] On 5 February 2013 The Supreme Court extended the temporary restraining order on the law, "until further orders from the court."[2][3]

Revision of the law[edit]

On May 24, 2013, The DOJ announced that online libel provisions of the law have been dropped, as well as other provisions that "are punishable under other laws already", like child pornography and cybersquatting. The DOJ will endorse the revised law to the next 16th Congress of the Philippines.[4][22]

Supreme Court Ruling[edit]

On February 18, 2014, The Supreme Curt ruled the online libel provision of the act to be constitutional, although it struck down other provisions, including the ones that violated the provisions on double jeopardy. The petitioners planned to appeal the decision.[5]

Repeal of the law[edit]

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.[23]

Notes[edit]

  1. ^ The law was restrained by the Supreme Court from October 9, 2012 to February 18, 2014. Sections 4(c)(3), 4(c)(4) [on online libel; only where it penalizes those who simply receive the post or react to it], 5 [only in relation to sections 4(c)(2), 4(c)(3), and 4(c)(4)], 7 [only in relation to sections 4(c)(2) and 4(c)(4)], 12, and 19 were struck down by the Court for being unconstitutional.
  2. ^ Legislative History at the House of Representatives

See also[edit]

References[edit]

  1. ^ Republic Act No. 10175 AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES. Approved by President of the Philippines BENIGNO S. AQUINO III on September 12, 2012
  2. ^ a b "SC extends TRO on cybercrime law". GMA News Online. 5 February 2013. Retrieved 5 February 2013. 
  3. ^ a b "SC won't lift TRO on cybercrime law". Sunstar. 5 February 2013. Retrieved 5 February 2013. 
  4. ^ a b DOJ to drop online libel from revised cybercrime law Mark Merueñas, GMA network May 23, 2013
  5. ^ a b http://www.gmanetwork.com/news/story/348945/scitech/technology/internet-libel-in-cybercrime-law-constitutional-sc
  6. ^ Electronic Commerce Act of 2000 (Republic Act No. 8792)
  7. ^ Arnold, Wayne (22 August 2000). "Technology; Philippines to Drop Charges on E-Mail Virus". The New York Times. Retrieved 3 October 2012. 
  8. ^ Reyes, Karl John C. (2 October 2012). "Senate inserted Section 19: How the 'take-down' clause emerged in Cybercrime Law". TV5 News and Information. Retrieved 3 October 2012. 
  9. ^ Agcaoili, Lawrence (20 September 2012). "IT-BPO industry welcomes passage of Cybercrime Prevention Act". The Philippine Star. Retrieved 24 September 2012. 
  10. ^ Panela, Shaira (19 September 2012). "Cybercrime Act extends reach of 'draconian', outdated libel laws". GMA News and Public Affairs. Retrieved 24 September 2012. 
  11. ^ Tiongson, Frank Lloyd (30 January 2012). "Libel law violates freedom of expression – UN rights panel". The Manila Times. Retrieved 24 September 2012. 
  12. ^ Sy, Marvin (23 September 2012). "'Give Cybercrime Prevention Act a chance'". The Philippine Star. Retrieved 5 April 2013. 
  13. ^ Angara, Edgardo. "Protecting our Cyberspace - The Cybercrime Prevention Act of 2012". EdAngara.com. Retrieved 24 September 2012. 
  14. ^ Mendes, Christina (22 September 2012). "Guingona criticizes Cybercrime Prevention Act". The Philippine Star. Retrieved 25 September 2012. 
  15. ^ "Philippines' New Cybercrime Prevention Act Troubling for Free Expression". Electronic Frontier Foundation. Retrieved 1 October 2012. 
  16. ^ "Philippines: Analysis Finds Major Problems in Cybercrime Law". Centre for Law and Democracy. Retrieved 1 January 2014. 
  17. ^ Canlas, Jonas (27 September 2012). "Suits pile up assailing anti-cybercrime law". The Manila Times. Retrieved 27 September 2012. 
  18. ^ Torres, Tetch (2 October 2012). "SC defers action on petitions vs cybercrime law". Philippine Daily Inquirer. Retrieved 2 October 2012. 
  19. ^ Torres, Tetch (9 October 2012). "SC issues TRO vs cyber law". Philippine Daily Inquirer (Philippine Daily Inquirer, Inc.). Retrieved 9 October 2012. 
  20. ^ Phneah, Ellyne (11 December 2012). "Philippine govt asks court to lift injunction on Cybercrime Law". ZDNet (ZDNet). Retrieved 19 December 2012. 
  21. ^ Advisory for the oral arguments. Website of the Supreme Court of the Philippines
  22. ^ DOJ deletes libel from new anti-cybercrime bill by Rene Acosta with InterAksyon.com, businessmirror.com.ph, 23 May 2013
  23. ^ De Santos, Jonathan (21 January 2013). "The Wisdom of Crowds: Crowdsourcing Net Freedom". Yahoo News Philippines (VERA Files). Retrieved 25 January 2014. 

External links[edit]