It has been weeks since the controversial Republic Act 10175 or “Cybercrime Prevention Act of 2012″ has been effective as a law. Netizens were outraged for its passing. Several memes, blog posts and comments flooded my timeline in Facebook and Twitter. They clamor that we entered again the era of Martial Law, electronic that is. But what is it really?
The passage of the Cybercrime Law is intended not to be a burden for us responsible Netizens but it is primarily meant to act as a protection for us against people who are abusing their freedom of speech. A lot of people are downright hurtful and reckless in expressing their thoughts in the Internet especially on celebrities on Twitter. They easily spread baseless rumors that tarnish the images of our celebrities, both local and international. But it is not just the local celebrities who are getting the hurt from all of these Internet fiascos. Ordinary netizens suffers, too. I have friends who were victims of anonymous and reprehensible people who made an account using their pictures. I couldn’t forget my friend who we shall name as “Shirley “(not her real name) who not only used her pictures, but names that fake account with her real named coupled by the word “skanky”. To make it worst, her picture was edited with a drawing of a penis near her lips and there were scribbles of fangs on her mouth and horns on her head. She requested everyone to report to Facebook that fake account as spam. I reported it to Facebook until the day it was officially taken down by the popular networking site.
The list of victims could go on and on. And while I wrote this article below about bullying, there is also Cyber-bullying now. The problem with the old school bullying of physical, emotional or verbal abuse compared to Cyber-bullying is that in the latter sometimes you have no idea on who is your bully. In Shirley’s case, she never found out who made that fake Facebook account. It’s easy to create accounts in the Internet, spread things about a person whether imbued with truth or of complete falsity and just go away with it.
Before we start, please take note on the definition of the Cybercrime Law on what a computer is: “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.” Therefore, everything here shall apply not only to our computers but as well as our mobile phones.
Anyway, let us analyze the penal provisions and the penalties one by one.
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.
Downright illegal. Of course who would want their computer accessed by anyone?
(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.
I’m not exactly sure how illegal interception could be used in computers. I suggest asking the opinion of an Electronics Engineer for this. I do not have a working knowledge of this so I cannot say if the provision is vague. Illegal interception usually occurs in telecommunication devices which is included in their definition of what a computer is. Weird, I know. Also, would this include people who are making unwarranted usage of their neighbor’s Wi-Fi without the latter’s permission?
(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.
Yes, this must be punishable. One of the major reasons for the decline of Friendster is some people ‘phished’ the information of its users. After clicking a graphic or an invite in your wall, you would be directed into a link which is asking for your Friendster username and password again. Thinking that you are accidentally logged out, you supply that information again not knowing that your login information was already acquired by a random person. That’s the Friendster virus everyone was talking about. Definitely, we do not want our information altered, damaged, deleted or deteriorated by a third person especially if we are talking about writings, photographs, videos and the like which are covered by the Intellectual Property Law. For your information, whether you registered your work or not, you already have a copyright for your work created.
One more thing, this probably applies to people who recklessly alter some of the tweets of known personalities like celebrities or newscasters to exaggerate the news especially in times of calamities like typhoons. Please, do not do this.
(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.
Similar to the provision on Data Interference but its scope includes computer program. The rest that it mentioned could be understood as included under Data Interference. I believe that it is best to just merge these two provisions together.
(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.
Wait? What? The law did not define what a ‘device’ is but reason would tell us that device would just mean the computer itself. I don’t know why there are suddenly commercial law provisions for this law but I’m pretty sure that selling of any goods without any right is illegal primarily because of taxation purposes and for fair market play under the commercial laws. Thus, what is this?
Why must there be a provision about the misuse of computer password or access code? I mean how can you access any data without the use of the password or access code? So if I hack one’s account and make use of his data, shall I be liable for both data interference and misuse of devices?
Also, by committing any other act in this law, aren’t you already misusing your device, too? I believe that this is a vague provision that must be removed if ever this law shall be amended.
(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.
Cyber-squatting. I chuckled when I first read it. Nonetheless, in my humble opinion, this is another useless provision. This is well-covered by the Intellectual Property Laws on trade names! I also assume that they copied this from Anticybersquatting Consumer Protection Act (ACPA) of the United States which states:
SEC. 2. FINDINGS. Congress finds that the unauthorized registration or use of trademarks as Internet domain names or other identifiers of online locations (commonly known as `cybersquatting’)–
(1) results in consumer fraud and public confusion as to the true source or sponsorship of products and services;
(2) impairs electronic commerce, which is important to the economy of the United States; and
(3) deprives owners of trademarks of substantial revenues and consumer goodwill.
(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.
I scratched my head reading this. Aren’t all of these a fancy repetition of Data and System Interception? Couldn’t this be just deleted?
(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.
I was pleased knowing that this is included in the law especially having Shirley’s case at the back of my head. But perhaps, this provision must have some more parameters regarding the use and the right of identifying information belonging to another. I mean, quote people from time to time especially in writing blogs and tweeting but do I really have the right to do so? Also, some people are using the pictures of their favorite celebrities as their profile pictures. I believe that it is also a form of usage of identifying information belonging to another after all damage would just mean a degree higher in penalty. But isn’t that vague? You could be imprisoned by just changing your profile picture of Angelina Jolie is utterly ridiculous.
Penalties: Any person found guilty of any of the punishable acts enumerated above shall be punished with imprisonment of prision mayor (6 years and 1 day to 12 years) 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. However, any person found guilty of the punishable act under Misuse of Devices shall be punished with imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.
But it does not stop there. If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal (12 years and 1 day to 20 years) 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. Critical infrastructure is referred under this law 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.
(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.
How about between two consenting adults? Some women ‘reward’ their men by sending them their private photos on-line. I believe that this act consists of exhibition of sexual organs with aid of computer systems for a consideration. Could they be punished under this act?
Penalties: Any person found guilty of any of the punishable acts hall be punished with imprisonment of prision mayor (12 years and 1 day to 20 years) 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. Good luck to you and your boyfriend in posting your videos.
(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 increased the penalty for child pornographers. I’m quite happy knowing that. Those pedophiles must receive all the penalties that they deserve. It breaks my heart knowing how many children are exploited sexually at a very young age. The effect to them is greater in the future. They will have no disregard for their being as a person and would sell their bodies as an adult. Worst, they could become pedophiles themselves.
Penalties: Any person found guilty under this provision 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.
(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.
This is useful for people who love transacting on-line. Internet is a source of fraudulent transaction because it’s very easy to advertise goods on-line but it is also very easy to abscond from your buyers. However, this is unnecessary. We already have the Republic Act 8792 or the E-Commerce Act for this.
Penalties: Any person found guilty of under this provision shall be punished with imprisonment of arresto mayor (1 month and 1 day to 6 months) 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.
(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.
Without a doubt, this is the most controversial provision in the entire law. Senator Tito Sotto supposedly inserted this provision when he got offended with the netizens who made fun of his anti-RH Bill speech that was supposedly copied from a blogger and the other speech was translated from the speech of Robert Kennedy. But first of all, what is libel? Libel is defined under Article 353 of the Revised Penal Code which states that, “A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.” While penal laws are supposedly prospective, the Cybercrime law may have a retrospective effect because the coverage of the term libel is so broad, it could include all other libelous statements including those you’ve posted on-line a year ago as long as it tends to cause dishonor, discredit or contempt a natural or juridical person or blacken the memory of a dead person. The prescription of the crime libel is one year under our Revised Penal Code. In addition, the truth of your statements is generally not a defense according to Article 354 although your liability could be lessened under Article 361 if you can prove your good faith in posting such statements on-line BUT remember that this is a special law, a mala prohibita. In special laws, good faith is NOT a defense.
Article 355 enumerated the means that libel could be done, “A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.” Nonetheless, I do not understand why the penalty for libel is so huge and harsh if done on-line. Article 355 continues, “shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.” Observe how little those pecuniary penalties are and the imprisonment simply means 6 months and 1 day to 4 years and 2 months.
Nonetheless, according to Atty. Disini an information technology legal expert, on-line libel under RA 10175 is punishable by a penalty one degree higher than the one in the penal code. In this case, it’s a maximum penalty of 10 years. Because the penalties are cumulative, a single act of online libel can result in a maximum jail time of more than 14 years.
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.
Maybe if you helped in carrying the computers knowing it shall be used for the commission of the crimes under this law, you could be penalized under this article? I don’t know. How do you exactly abet a cybercriminal?
(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.
Oh, my dear Lord, this made me LAUGH! Hysterical! So if I typed something like, “Die, you bitch!” on the wall of a girl I really hate BUT NOT actually post this message, I shall also be criminally liable under this law? How would the government play like God in this case? Perhaps they could just include an attempted stage in the Child Pornography. It will just not do in any other crimes included in this law. Anyone else here who had a good stretch of imagination, come suggest something that could be considered as an attempted stage in the Cybercrime law.
Penalties: Any person found guilty of any of the punishable acts enumerated under this section 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. 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.
In short, any of our crimes now named under the Revised Penal Code and other special laws shall have an aggravating circumstance if used with [digital?] information and technologies.
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.
Uh-oh. I smell double jeopardy here. It means that you could be prosecuted for let’s say, libel, under the Cybercrime Law AND the Revised Penal Code. Good luck with that.
At present, after several protests, the Supreme Court finally issued its 120-day Temporary Restraining Order (TRO) with all the justices voting unanimously to its issuance but the battle is far from over. Actually, as a responsible netizen, I am not afraid of the Cybercrime law. I have my Constitutional rights of freedom of speech and expression and I give only constructive criticism against the government in some of my blog entries. What I am mostly afraid of is Section 19 of the Cybercrime Law, declaring that “when a computer data is prima facie found to be in violation of the provisions of this Act, the Department of Justice (DOJ) shall issue an order to restrict or block access to such computer.'” No court intervention is needed because the DOJ can go right ahead and force you to stop publishing your posts. This is a clear violation of due process but how exactly are we going to be monitored by DOJ? I mean, personally, once I placed my post in an on-line forum, I can’t find it after a few hours especially if we are talking about hot topic here. Who will monitor our posts and how many shall they be? How far can the P50 Million annual budget for this law go?
While I understand the good intentions of the drafters of this law, this must completely be declared null and void by the Supreme Court as soon as possible. Not only because of its vagueness, its killer penalties and it being violative of our right to due process, speech and expression but it is almost completely unenforceable. Should we be afraid of these nuisance law? As the movie, V for Vendetta reminds us,
“”People should not be afraid of their governments. Governments should be afraid of their people.”
Read the full text of the Cybercrime Law in the Official Gazette.