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
CitationRepublic Act 10175
Territorial extentPhilippines
Enacted byHouse of Representatives
Enacted bySenate
SignedSeptember 12, 2012
Signed byBenigno Aquino III
CommencedOctober 3, 2012[note 1]
Legislative history
Bill introduced in the House of RepresentativesSame title as final law
Bill citationHouse Bill 5808[note 2]
Bill published onFebruary 9, 2012
Introduced bySusan Yap (Tarlac 2nd District)
First readingFebruary 13, 2012
Second readingMay 9, 2012
Third readingMay 21, 2012
Conference committee bill passedJune 4, 2012
Committee reportJoint Explanation of the Conference Committee:1323–1327
Bill introduced in the SenateSame title as final law
Bill citationSenate Bill 2796
Bill published onMay 3, 2011
Introduced byEdgardo Angara
First readingMay 3, 2011
Second readingJanuary 24, 2012
Third readingJanuary 30, 2012
Conference committee bill passedJune 5, 2012
Date passed by conference committeeMay 30, 2012
Status: In force

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.[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 of the freedom of expression—"cyber authoritarianism".[2] Its use against journalists like Maria Ressa, of Rappler, has drawn international condemnation.[3][4]

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."[5][6]

On February 18, 2014, the Supreme Court upheld most of the sections of the law, including the controversial cyberlibel component.[7][note 1]

History[edit]

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[8]) 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.[9]

The first draft of the 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). It was headed by former Secretary Virgilio "Ver" Peña and the committee was chaired by Atty. Claro Parlade (+). It was an initiative of the Information Security and Privacy Sub-Committee chaired by Albert Dela Cruz who was the President of PHCERT together with then Anti-Computer Crime and Fraud Division 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.[10]

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. 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.[11] 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[edit]

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.[12] 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:[13] 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.[14]

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.[15] He also added that the new law is unlike the controversial Stop Online Piracy Act and PROTECT IP Act.[16] However, Senator TG Guingona criticized the bill, calling it a prior restraint to the freedom of speech and freedom of expression.[17]

The Electronic Frontier Foundation has also expressed concern about the Act,[18] 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.[19]

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.[20]

Constitutionality[edit]

Several petitions were submitted to the Supreme Court questioning the constitutionality of the Act.[21] 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.[22] 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.[23] "Anonymous" also defaced government websites, including those of the Bangko Sentral ng Pilipinas, the Metropolitan Waterworks and Sewerage System and the Intellectual Property Office.[24]

On October 8, 2012, the Supreme Court decided to issue a temporary restraining order, pausing implementation of the law for 120 days.[25] In early December 2012, the government requested the lifting of the TRO,[26] which was denied.[27] 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.[28] This was the first time in Philippine history that oral arguments were uploaded online by the Supreme Court.[29]

Disini v. Secretary of Justice[edit]

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.[7][30][note 1] Notably, likes and "retweets" of libelous content, originally themselves also criminalized as libel under the law, were found to be legal.[30] Only justice Marvic Leonen dissented from the ruling, writing that he believes the whole idea of criminal libel to be unconstitutional.[31]

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.[32][33] 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.[34]

Effects[edit]

Cyberlibel[edit]

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,[35][36] but cyberlibel remains on the books as a crime in the Philippines, and has been charged by DOJ prosecutors multiple times since then.[37] Senator Tito Sotto is primarily responsible for the cyberlibel provision, which he added after social media comments accusing him of plagiarism;[35] 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?"[38] 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).[39][40][1]

Duterte's administration has been accused of targeting journalists with the law, in particular Rappler.[3] Journalists charged with cyberlibel since 2013 include Ramon Tulfo,[41] RJ Nieto,[42] and Maria Ressa.[4] An online post does not even need to be public for cases to be filed by the DOJ.[43] Roman Catholic clergy have also faced cyberlibel charges.[44] Even foreigners have both accused others of and been accused of cyberlibel charges.[45][46] 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".[47]

Insults that would be seen in other countries as minor have led to DOJ prosecutors filing cyberlibel charges: such as "crazy"; "asshole";[48] "senile"; and "incompetent".[49]

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.[50] 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).[50]

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;[51] it failed to pass.[52] Several organizations continue to fight for the decriminalization of libel, including the National Union of Journalists of the Philippines[53] and Vera Files.[54]

See also[edit]

Notes[edit]

  1. ^ a b c The law was temporarily restrained by the Supreme Court from October 9, 2012 to February 18, 2014. Most of the law was in the end found constitutional, but sections 4(c)(3), 4(c)(4) [on online libel; but 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 in Disini v. Secretary of Justice.
  2. ^ "Legislative History at the House of Representatives". Archived from the original on February 23, 2014. Retrieved February 18, 2014.

References[edit]

  1. ^ a b Republic Act No. 10175
  2. ^ Gonzales, Iris (November 2, 2012). "Filipino law is 'cyber authoritarianism'". New Internationalist. Retrieved June 5, 2020.
  3. ^ a b Jennings, Ralph (April 24, 2020). "Rare Cyber Libel Case Tests Fragile Media Freedoms in Philippines". Voice of America. Retrieved June 5, 2020.
  4. ^ a b Hammer, Joshua (October 15, 2019). "The Journalist vs. the President, With Life on the Line". The New York Times. ISSN 0362-4331. Retrieved June 5, 2020.
  5. ^ "SC extends TRO on cybercrime law". GMA News. February 5, 2013. Retrieved February 5, 2013.
  6. ^ "SC won't lift TRO on cybercrime law". Sunstar. February 5, 2013. Archived from the original on February 12, 2013. Retrieved February 5, 2013.
  7. ^ a b Merueñas, Mark (February 18, 2014). "Internet libel in cybercrime law constitutional – SC". GMA News. Retrieved May 20, 2016.
  8. ^ Electronic Commerce Act of 2000 Archived September 30, 2014, at the Wayback Machine (Republic Act No. 8792)
  9. ^ Arnold, Wayne (August 22, 2000). "Technology; Philippines to Drop Charges on E-Mail Virus". The New York Times. Retrieved October 3, 2012.
  10. ^ [1] A Short History of the Development of Cybercrime Legislation in the Philippines - Geronimo L. Sy, Assistant Secretary - Department of Justice Manila
  11. ^ Reyes, Karl John C. (October 2, 2012). "Senate inserted Section 19: How the 'take-down' clause emerged in Cybercrime Law". TV5 News and Information. Archived from the original on October 4, 2012. Retrieved October 3, 2012.
  12. ^ Agcaoili, Lawrence (September 20, 2012). "IT-BPO industry welcomes passage of Cybercrime Prevention Act". The Philippine Star. Retrieved September 24, 2012.
  13. ^ Panela, Shaira (September 19, 2012). "Cybercrime Act extends reach of 'draconian', outdated libel laws". GMA News. GMA News and Public Affairs. Retrieved September 24, 2012.
  14. ^ Tiongson, Frank Lloyd (January 30, 2012). "Libel law violates freedom of expression – UN rights panel". The Manila Times. Retrieved September 24, 2012.
  15. ^ Sy, Marvin (September 23, 2012). "'Give Cybercrime Prevention Act a chance'". The Philippine Star. Retrieved April 5, 2013.
  16. ^ Angara, Edgardo. "Protecting our Cyberspace - The Cybercrime Prevention Act of 2012". EdAngara.com. Retrieved September 24, 2012.
  17. ^ Mendes, Christina (September 22, 2012). "Guingona criticizes Cybercrime Prevention Act". The Philippine Star. Retrieved September 25, 2012.
  18. ^ "Philippines' New Cybercrime Prevention Act Troubling for Free Expression". Electronic Frontier Foundation. Retrieved October 1, 2012.
  19. ^ "Philippines: Analysis Finds Major Problems in Cybercrime Law". Centre for Law and Democracy. Retrieved January 1, 2014.
  20. ^ "Malacanang reminds critics: Cyberlibel Act passed under Aquino Administration - UNTV News". UNTV News. June 16, 2020. Retrieved June 18, 2020.
  21. ^ Canlas, Jonas (September 27, 2012). "Suits pile up assailing anti-cybercrime law". The Manila Times. Archived from the original on September 30, 2012. Retrieved September 27, 2012 – via PressReader. Alt URL
  22. ^ Torres, Tetch (October 2, 2012). "SC defers action on petitions vs cybercrime law". Philippine Daily Inquirer. Retrieved October 2, 2012.
  23. ^ "#NoToCybercrimeLaw protest goes viral". Rappler. October 2, 2012. Retrieved June 5, 2020.
  24. ^ "Websites hacked in protest vs new law". Rappler. September 26, 2012. Retrieved June 5, 2020.
  25. ^ Torres, Tetch (October 9, 2012). "SC issues TRO vs cyber law". Philippine Daily Inquirer. Philippine Daily Inquirer, Inc. Retrieved October 9, 2012.
  26. ^ Phneah, Ellyne (December 11, 2012). "Philippine govt asks court to lift injunction on Cybercrime Law". ZDNet. ZDNet. Retrieved December 19, 2012.
  27. ^ Phneah, Ellyne (February 5, 2013). "Philippines extends suspension of cybercrime law". ZDNet. Retrieved June 5, 2020.
  28. ^ "Petitions challenging Republic Act No. 10175". Supreme Court of the Philippines. Archived from the original on April 20, 2013.
  29. ^ 2013 Judiciary Annual Report (PDF). Manila: Supreme Court of the Philippines. 2013. p. 46. Later on, the Court approved another first -- the uploading of the audio recording of the proceedings of the oral arguments of the cases starting with the cases on Cybercrime Law.
  30. ^ a b Jose Disini, et al. v. Secretary of Justice, et al., G.R. No. 203335 (Supreme Court of the Philippines 2014-02-11). Text
  31. ^ Disini v. Secretary of Justice, Opinion dissenting in part and concurring in part by Leonen, J.
  32. ^ Judiciary Annual Report 2014 (PDF). Manila: Supreme Court of the Philippines. 2014. p. 31. In a later signed resolution, the Court denied all the motions for reconsiderationof its decision dated February 18, 2014. (GR No. 203335, GR No. 203299, GR No.203306, GR No. 203359, GR No. 203378, GR No. 203391, GR No. 203407, GR No.203440, GR No. 203453, GR No. 203454, GR No. 203469, GR No. 203501, GR No.203509, GR No. 203515, and GR No. 203518, April 22, 2014)
  33. ^ Jose Disini, et al. v. Secretary of Justice, et al. (Ruling on Motion for Reconsideration), G.R. No. 203335 (Supreme Court of the Philippines 2014-04-22). Text
  34. ^ Disini v. Secretary of Justice (Ruling on Motion for Reconsideration), Dissent by Brion, J.
  35. ^ a b Merueñas, Mark (May 23, 2013). "DOJ to drop online libel from revised cybercrime law". GMA News. Retrieved June 5, 2020.
  36. ^ DOJ deletes libel from new anti-cybercrime bill Archived June 16, 2013, at Archive.today by Rene Acosta with InterAksyon.com, businessmirror.com.ph, 23 May 2013
  37. ^ Tordesillas, Ellen T. (July 2, 2018). "OPINION: Trillanes vs Nieto case underscores need to decriminalize libel". ABS-CBN News. Retrieved June 5, 2020.
  38. ^ Bordadora, Norman (September 23, 2012). "Sotto: What's wrong with having libel law in cyber space?". Philippine Daily Inquirer. Retrieved June 5, 2020.
  39. ^ La Viña, Tony (March 4, 2014). "Ending criminal libel". Manila Standard. Retrieved June 5, 2020.
  40. ^ Revised Penal Code of the Philippines, Act No. 3815, 8 December 1930, Title 13, Chapter One, Section One, "Crimes Against Honor"
  41. ^ Gonzales, Cathrine (March 13, 2020). "Ramon Tulfo surrenders to police over cyberlibel cases". Philippine Daily Inquirer. Retrieved June 5, 2020.
  42. ^ Movido, Angel (October 10, 2018). "'Thinking Pinoy' blogger pleads not guilty to libel". ABS-CBN News. Retrieved June 5, 2020.
  43. ^ Delta Dyrecka Letigio (November 6, 2019). "Two women arrested after classmate files cyber libel charges". Philippine Daily Inquirer. Retrieved June 5, 2020.
  44. ^ Cullen, Shay (September 8, 2019). "Speaking the truth". The Manila Times. Retrieved June 5, 2020.
  45. ^ Dalipe, Gerome M. (October 25, 2016). "BPO senior manager faces online libel case". Sunstar. Retrieved June 5, 2020.
  46. ^ Victor, Daniel (February 27, 2020). "Founder of 8chan Faces Arrest on 'Cyberlibel' Charge". The New York Times. ISSN 0362-4331. Retrieved June 5, 2020.
  47. ^ J. C. Gotinga (April 25, 2020). "DOLE asks Taiwan to deport OFW with Facebook posts criticizing Duterte". Rappler. Retrieved June 6, 2020.
  48. ^ Buan, Lian (May 14, 2020). "Salesman arrested, jailed for calling Duterte 'crazy'". Rappler. Retrieved June 5, 2020.
  49. ^ Gilbert, David (February 27, 2020). "The Philippines Wants to Arrest 8chan Founder Fredrick Brennan: 'It's Basically a Death Sentence'". Vice. Retrieved June 5, 2020.
  50. ^ a b Santiago, Salvador (March 2, 2020). "Court finds Zambo Sur town dad guilty of cyber libel". Philippine News Agency. Retrieved June 5, 2020.
  51. ^ De Santos, Jonathan (January 21, 2013). "The Wisdom of Crowds: Crowdsourcing Net Freedom". Yahoo News Philippines. VERA Files. Retrieved January 25, 2014.
  52. ^ "Freedom on the Net 2016 - Philippines". Freedom House. November 14, 2016. Retrieved June 5, 2020 – via Refworld, UNHCR.
  53. ^ Kristine Joy Patag (February 18, 2019). "Journalists reiterate call to decriminalize libel". The Philippine Star. Retrieved June 5, 2020.
  54. ^ Ellen T. Tordesillas (July 2, 2018). "Trillanes vs Nieto case underscores need to decriminalize libel". Vera Files. Retrieved June 5, 2020.

External links[edit]