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.

I. CYBERSECURITY

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.

II. CYBERCRIMES

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

III. OFFENSES AGAINST 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. This provision was questioned, but sustained as valid and constitutional by the Supreme Court in Disini vs. Secretary of Justice, G.R. No. 203335, 11 February 2014.

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.

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.

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. This provision was questioned, but sustained as valid and constitutional by the Supreme Court in Disini vs. Secretary of Justice, G.R. No. 203335, 11 February 2014.

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. This provision was questioned, but sustained as valid and constitutional by the Supreme Court in Disini vs. Secretary of Justice.

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. This provision was questioned, but sustained as valid and constitutional by the Supreme Court in Disini vs. Secretary of Justice.

IV. 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. [This provision was questioned, but sustained as valid and constitutional by the Supreme Court in Disini vs. Secretary of Justice. See Discussion on Identity Theft.]

V. 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. This provision was questioned, but sustained as valid and constitutional by the Supreme Court in Disini vs. Secretary of Justice.

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. This provision was questioned, but sustained as valid and constitutional by the Supreme Court in Disini vs. Secretary of Justice.

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.

• This provision, however, was declared VOID for being UNCONSTITUTIONAL by the Supreme Court in Disini vs. Secretary of Justice.

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. This provision was questioned, but sustained as valid and constitutional by the Supreme Court in Disini vs. Secretary of Justice, with respect to the original author of the post. However, it is unconstitutional to others who simply receive the post and react to it. [See Online Libel as Cybercrime in the Philippines: Definition, Requisites and Application of Penalties]

VI. OTHER OFFENSES

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.

In Disini vs. Secretary of Justice, the Supreme Court declared that the provisions on aiding/abetting and attempt are valid and constitutional in relation to:

• (a) illegal access;
• (b) illegal interception;
• (c) data interference;
• (d) system interference
• (e) misuse of devices
• (f) cyber-squatting
• (g) computer-related forgery
• (h) computer-related fraud
• (i) computer-related identity theft
• (j) cybersex

The Supreme Court also declared that the provisions on aiding/abetting and attempt are void and unconstitutional with respect to:

• (a) child pornography
• (b) unsolicited commercial communications
• (c) online libel.

VII. EFFECT ON 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.

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.

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.

In Disini vs. Secretary of Justice, the Supreme Court resolved to leave the determination of the correct application of these provisions to actual cases. However, the application of these provisions are declared void and unconstitutional with respect to the following:

• 1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; and

• 2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a violation of the same proscription.

These crimes are within the jurisdiction of Cybercrime Courts.