AN
ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION,
SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES
CHAPTER I
PRELIMINARY PROVISIONS
PRELIMINARY PROVISIONS
SECTION 1. Title. — This Act shall be known as the
“Cybercrime Prevention Act of 2012”.
SEC. 2. Declaration of Policy. — The State recognizes the vital
role of information and communications industries such as content production,
telecommunications, broadcasting electronic commerce, and data processing, in
the nation’s overall social and economic development. The State also recognizes
the importance of providing an environment conducive to the development,
acceleration, and rational application and exploitation of information and
communications technology (ICT) to attain free, easy, and intelligible access
to exchange and/or delivery of information; and the need to protect and
safeguard the integrity of computer, computer and communications systems,
networks, and databases, and the confidentiality, integrity, and availability
of information and data stored therein, from all forms of misuse, abuse, and
illegal access by making punishable under the law such conduct or conducts. In
this light, the State shall adopt sufficient powers to effectively prevent and
combat such offenses by facilitating their detection, investigation, and
prosecution at both the domestic and international levels, and by providing
arrangements for fast and reliable international cooperation.
SEC. 3. Definition of Terms. — For purposes of this Act, the
following terms are hereby defined as follows:
(a) Access refers
to the instruction, communication with, storing data in, retrieving data from,
or otherwise making use of any resources of a computer system or communication
network.
(b) Alteration refers
to the modification or change, in form or substance, of an existing computer
data or program.
(c) Communication refers to the transmission of
information through ICT media, including voice, video and other forms of data.
(d) 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.
(e) Computer data refers to any representation of
facts, information, or concepts in a form suitable for processing in a computer
system including a program suitable to cause a computer system to perform a
function and includes electronic documents and/or electronic data messages
whether stored in local computer systems or online.
(f) Computer program refers to a set of instructions
executed by the computer to achieve intended results.
(g) Computer system refers to any device or group
of interconnected or related devices, one or more of which, pursuant to a
program, performs automated processing of data. It covers any type of device
with data processing capabilities including, but not limited to, computers and
mobile phones. The device consisting of hardware and software may include
input, output and storage components which may stand alone or be connected in a
network or other similar devices. It also includes computer data storage
devices or media.
(h) Without right refers to either: (i) conduct
undertaken without or in excess of authority; or (ii) conduct not covered by
established legal defenses, excuses, court orders, justifications, or relevant
principles under the law.
(i) Cyber refers
to a computer or a computer network, the electronic medium in which online
communication takes place.
(j) Critical infrastructure refers to 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.
(k) 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.
(l) Database refers
to a representation of information, knowledge, facts, concepts, or instructions
which are being prepared, processed or stored or have been prepared, processed
or stored in a formalized manner and which are intended for use in a computer
system.
(m) 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.
(n) Service provider refers to:
(1) Any public or private entity that provides to users of its
service the ability to communicate by means of a computer system; and
(2) Any other entity that processes or stores computer data on
behalf of such communication service or users of such service.
(o) Subscriber’s information refers to any information
contained in the form of computer data or any other form that is held by a
service provider, relating to subscribers of its services other than traffic or
content data and by which identity can be established:
(1) The type of communication service used, the technical
provisions taken thereto and the period of service;
(2) The subscriber’s identity, postal or geographic address,
telephone and other access numbers, any assigned network address, billing and
payment information, available on the basis of the service agreement or
arrangement; and
(3) Any other available information on the site of the installation
of communication equipment, available on the basis of the service agreement or
arrangement.
(p) Traffic data or non-content
data refers to
any computer data other than the content of the communication including, but
not limited to, the communication’s origin, destination, route, time, date,
size, duration, or type of underlying service.
CHAPTER II
PUNISHABLE ACTS
PUNISHABLE ACTS
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
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.
(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.
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.
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.
CHAPTER III
PENALTIES
PENALTIES
SEC. 8. 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.
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.
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.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(1) of this Act shall be punished with imprisonment ofprision mayor 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.
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.
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.
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 (PhP100,000.00) but not exceeding Five hundred thousand pesos
(PhP500,000.00) or both.
SEC. 9. 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).
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).
The liability imposed on the juridical person shall be without
prejudice to the criminal liability of the natural person who has committed the
offense.
CHAPTER IV
ENFORCEMENT AND IMPLEMENTATION
ENFORCEMENT AND IMPLEMENTATION
SEC. 10. 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.
SEC. 11. 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.
SEC. 12. 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.
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.
SEC. 13. 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.
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.
SEC. 14. 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.
SEC. 15. 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.
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.
SEC. 16. 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.
SEC. 17. 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.
SEC. 18. 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.
SEC. 19. 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.
SEC. 20. 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.
CHAPTER V
JURISDICTION
JURISDICTION
SEC. 21. Jurisdiction. — The Regional Trial Court
shall have jurisdiction over any violation of the provisions of this Act.
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 or juridical person who, at the time the offense
was committed, was in the Philippines.
There shall be designated special cybercrime courts manned by
specially trained judges to handle cybercrime cases.
CHAPTER VI
INTERNATIONAL COOPERATION
INTERNATIONAL COOPERATION
Sec. 22. 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.
CHAPTER VII
COMPETENT AUTHORITIES
COMPETENT AUTHORITIES
SEC 23. 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.
SEC. 24. 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.
SEC. 25. 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.
SEC. 26. Powers and Functions. — The CICC shall
have the following powers and functions:
(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.
CHAPTER VIII
FINAL PROVISIONS
FINAL PROVISIONS
SEC. 27. Appropriations. — The amount of Fifty million
pesos (PhP50,000,000.00) shall be appropriated annually for the implementation
of this Act.
SEC. 28. Implementing Rules and Regulations. — The ICTO-DOST, the DOJ and the
Department of the Interior and Local Government (DILG) shall jointly formulate
the necessary rules and regulations within ninety (90) days from approval of
this Act, for its effective implementation.
SEC. 29. Separability Clause — If any provision of this Act is
held invalid, the other provisions not affected shall remain in full force and
effect.
SEC. 30. Repealing Clause. — All laws, decrees or rules
inconsistent with this Act are hereby repealed or modified accordingly. Section
33(a) of Republic Act No. 8792 or the “Electronic Commerce Act” is hereby
modified accordingly.
SEC. 31. Effectivity. — This Act shall 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.