Republic Act 10175: Cybercrime Prevention Act of 2012


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I. Introduction
    > Past proposals for an Anti-CyberCrime Law
II. Offenses under RA 10175
    > Child pornography under RA 9775, viz Section 4(c)(2) of RA 10175
    > Section 33 (a) of RA 8792, viz Section 4(a)(1) to (5) of RA 10175
    > New offenses under RA 10175
    > Other offenses under Section 5, RA 10175
    > Applicability to other penal laws, when crime committed using ICT, under Section 6, RA 10175
III. Contentious issue: Libel viz Freedom of Expression
    > Libel under Chapter 1, Title XIII of the Revised Penal Code (Act 3815 [RPC], 8 December 1930)
    > Libel under Section 4(c)(4), RA 10175
    > Freedom of Expression viz libel
    > Doctrine of privileged communication
    > ICCPR and General Comment No. 34
IV. Contentious issue: Privacy
    > Right to privacy
    > Section 12 to 17, RA 10175
    > Privacy in relation to Section 12, RA 10175
    > International Cooperation
V. Jurisdiction
VI. Admissibility of Evidence
VII. Takedowns
VIII. Conclusion


I
Introduction

There has been a lot of discussions observed days subsequent to the promulgation of Republic Act 10175, or the Cybercrime Prevention Act of 2012, on 12 September 2012. There are some who assail the law to be unconstitutional as it acts as a prior restraint to freedom of speech, or that it provides undue expanded interference of private activities in the Internet by the Philippine Government, among others. Let me form my opinion herein, without providing legal advice, regarding the present law in its final form.

Past proposals for an Anti-CyberCrime Law

The Anti-Cybercrime law was not a recent proposal. Prior versions have been introduced in previous Congresses but which have been archived when the previous Congresses adjourned, including the 14th Congress. It appears that prior versions were being pushed to meet (1) the urgency to penalize child pornography; (2) rectify the perceived weakness of provision(s) on computer-related crimes in Republic Act 8792, or the Electronic Commerce Act (2000); (3) the necessity of expanding the coverage of the applicability of electronic documents, or ITC-enable acts, to criminal/penal laws, especially those in the Revised Penal Code, where documents, or in which a computer may be used in the commission thereof, are involved; (4) the necessity to provide an efficient legal procedure/allowance in the acquisition of evidence by government agencies when crimes are being committed, or have been committed, through electronic means; and (5) arrangement towards international cooperation, as acts may be transnational.

II
Offenses under RA 10175

Child pornography under RA 9775, viz Section 4(c)(2) of RA 10175

The main legislation regarding child pornography was enacted in 17 November 2009, through Republic Act 9775, or the Anti-Child Pornography Act of 2009. As to the matter in meeting the urgency to penalize child pornography, this concern in past cybercrime bill proposals has been resolved by the enactment of RA 9775. As for international cooperation relating thereto, this is provided for under Sections 22 and 23 of RA 9775 [1], As for evidence that would be acquired therein, RA 9775 dumped the responsibility of monitoring, and preservation of data, relevant to infringing activities prohibited by RA 9775 to Internet Service Providers,[2] Mall owners/operators and owners/lessors of business establishments,[3] and Internet Content hosts.[4] Whether evidence acquired by government agencies, as a result of the notifications made by private entities, is not violative of Sections 2 and 3, Article III of the 1987 Philippine Constitution[5] may be a separate Constitutional question that needs to be resolved in the future.

Due to the prior promulgation of RA 9775 to the Anti-Cybercrime Act, details regarding measures against child pornography are no longer extensively included in the law’s body unlike prior proposals. Nevertheless, reference to child pornography in RA 10175 can be found in Section 4(c)(2) [6], and the fifth paragraph of Section 8 [7] thereof.

Section 33 (a) of RA 8792, viz Section 4(a)(1) to (5) of RA 10175

RA 10175 modified Section 33 (a)[8] of RA 8792, through Section 30 [9] thereof. Relevant to this matter, RA 10175 now, in Section 4(a)(1) to (5) thereof, enumerates “offenses against the confidentiality, integrity and availability of computer data and systems,” such as illegal access, illegal interception, data interference, system interference, and misuse of devices;[10] and the penalties therefor.[11]

The modification of Section 33 (a) of RA 8792 through the iteration of the specific acts under Section 4 (a)(1) to (5) in RA 10175, somehow clarifies questions/apparent confusions relevant to “white hat hacking.” Nevertheless, “access” “without right,” in the manner articulated in the law, does not resolve whether such access without right involves only those applying technical means or also includes violations of non-technical/layman computer/network usage policies. Will the Implementing Rules and Regulations clarify the matter? I don’t know.

New offenses under RA 10175

There are acts punishable under RA 10175, which have not been covered by previous statutes, or not covered by the elements of similar acts in previous statutes. These include Cyber-squatting in “Offenses against the confidentiality, integrity and availability of computer data and systems” under Section 4(a)(6) [12]; Computer-related forgery, computer-related fraud, and computer-related identity-theft in “Computer-related offenses” under Section 4(b) [13]. The penalties thereof are prescribed in the first and third paragraphs of Section 8.[14] These also include “content-related offenses” such as Cybersex under Section 4(c)(1) [15] and Unsolicited Commercial Communications under Section 4(c)(3).[16] The penalties for Cybersex and Unsolicited Commercial Communications are provided in the fourth [17] and sixth [18] paragraphs of Section 8, respectively.

Outside of this law, disputes pertaining to cyber-squatting are usually covered by administrative proceedings in pursuance of the ICANN’s Uniform Domain-Name Dispute-Resolution Policy . This provision was introduced by Senator Angara (at least for Senate Bill 2796, which was later consolidated with House Bill 5808 to create the present law; see 30 January 2012 Journal of the Senate ). It may be argued that the act of Congress to make this a criminal act is excessive else inappropriate, but the decision of Congress to make it a criminal act would be a political question. Judicial remedy might not be appropriate, and advocacy for a legislative amendment or repeal might be more suited, if one is opposed to it.

As to cybersex, under the law, such act is restrictively defined or described under the law. Thus, although engagement in any lascivious exhibition of sexual organs or sexual activity with the aid of a computer system would be cybersex in layman understanding, the absence of “for favor or consideration” would not necessarily make it a criminal act. This effectively removes the State from interfering in the personal intimate activities of persons in relationships, especially those separated by distance. Nevertheless, the law does not penalize exhibitionism under Section 4(c)(1), possibly to the consternation of moralists who intend to stamp out these allegedly sexually-deviant behavior. (See however, Section 6 in relation to Article 201 (2)(b)(2) of the Revised Penal Code. Nevertheless, “or any other place” might be argued to be a stretch following the “ejusdem generis” rule.)

As to unsolicited commercial communications, this is similar to the mechanics of the 2003 Can-Spam Act in the United States. That being said, this does not cover non-commercial communications, such as unsolicited political advertisements from politicians, notwithstanding the fact that they have the same annoying effect as common spams and hams.

Other offenses under Section 5, RA 10175

“Aiding or Abetting in the Commission of Cybercrime” penalizes non-principals in the commission of cybercrimes enumerated under the law, while “Attempt in the Commission of Cybercrime” recognizes the commission of the crime, notwithstanding the act is merely on the attempted stage. These offenses are mentioned in Section 5, RA 10175.[19] These are penalized under the last paragraph of Section 8.[20]

Applicability to other penal laws, when crime committed using ICT, under Section 6, RA 10175

RA 10175, in Section 6 thereof [21], recognizes that crimes under Revised Penal Code and other special criminal/penal laws may be committed using Information and Communication Technology (ICT), and imposes a penalty one degree higher than those prescribed under said laws.

III
Contentious issue: Libel viz Freedom of Expression

Libel under Chapter 1, Title XIII of the Revised Penal Code (Act 3815 [RPC], 8 December 1930)

Under Article 353 of the Revised Penal Code, libel is defined as “a 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.” From such definition, the elements of libel thus are: “(a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.” (Guingguing vs. Court of Appeals, GR 128959, 30 September 2005; Second Division, Tinga [J]; citing Vicario v. Court of Appeals, et. al., 367 Phil. 292, 297 [1990]; citing in turn Daez v. Court of Appeals , G.R. No. 47971, 31 October 1990, 191 SCRA 61, 67)

In elaborating the first element, the Court has held that “[a]n allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.” (Philippine Journalists, Inc. vs. Thoenen , GR 143372, 13 December 2005; Second Division, Chico-Nazario [J]; citing Vasquez v. Court of Appeals, G.R. No. 118971, 15 September 1999, 314 SCRA 460, citing in turn Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, with other citations omitted as per text of the decision.). As to the second element, “[t]here is publication if the material is communicated to a third person. It is not required that the person defamed has read or heard about the libelous remark. What is material is that a third person has read or heard the libelous statement, for ‘a man’s reputation is the estimate in which others hold him, not the good opinion which he has of himself.’” (Ibid.) As to the third element, “to satisfy the element of identifiability, it must be shown that at least a third person or a stranger was able to identify him as the object of the defamatory statement.” (Ibid.) As to the last element, “malice or ill will must be present.” (Ibid.) Under Article 354 of the Revised Penal Code, “Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: (1) A private communication made by any person to another in the performance of any legal, moral or social duty; and (2) A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”

It is often been said that truth is not a defense in libel cases in the Philippines, but such is a sweeping statement. The Court provides a caveat, to wit: “Truth then is not a defense, unless it is shown that the matter charged as libelous was made with good motives and for justifiable ends.” (Alonzo vs. Court of Appeals , GR 110088, 1 February 1995; First Division, Davide Jr. [J]) Albeit limited, Article 361 of the Revised Penal Code provides for acquittal in instances where truth is proven. Article 361 provides:

Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and moreover, that it was published with good motives and for justifiable ends, the defendant shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Considering the availability of other media beyond those contemplated in the 1930s that would allow publication of controversial utterance, and considering our history relevant to the primacy of constitutional rights, there appears a need to revisit the provisions of our libel law and tune it to the requirement of our times, through appropriate amendatory legislation. Current exceptions to these apparently archaic provisions include the limited defense of truth, the propriety of the presumption of malice in one’s articulation, and the shift of the burden of proof to the accused to demonstrate the truth of his/her articulation. An accused should remain to be presumed innocent of any wrongdoing, and those who impute against another person the commission of a crime or wrongdoing in a court of law should be the one tasked to discharge the burden of proving the same, and not the other way around.

Libel under Section 4(c)(4), RA 10175

Libel is enumerated as a content-related offense under Section 4(c)(4), RA 10175. [22]. If libel was not included as a separate entry in Section 4, it would have been covered by Section 6 anyhow. Curiously enough, nothing in Section 8 provides for a penalty therefor, unlike those in Section 6 where such acts would solicit a penalty one degree higher if committed using ICT.

The question, as to whether such omission was inadvertent, is something one ponders on, absent clearer indications. Was the inclusion of libel as a content-related offense a mere emphasis, a recognition that libel can be committed through the use of ICT, like all those mentioned in Section 6 thereof, and thus the additional degree for penalty would apply? Or was the separation of libel, from other crimes under Section 6, an indication that libel is removed from the ambit of Section 6, which imposes an additional degree as penalty? The provision sticks like a sore thumb, and is the rallying point on reactions against the law, for allegedly being a prior restraint on free expression.

Parenthetically, Senator Sotto introduced the amendment in Section 4(c)(4), according to the Senate Journal of 30 January 2012 . As to the question, as to whether the introduction of the same is connected to the slew of online reactions against the Senator for his alleged plagiarism, as retribution, that seems to be unfounded. The amendment was introduced months before his “turno en contra speeches,” (Pope issue (August 2012) , Kennedy issue (September 2012) . The timeline, on its face, militates against a causal connection.

Be as it may, the inclusion of libel in RA 10175 should not impose an increase penalty of imprisonment just because ICT has been utilized in the commission thereof, whether now or in the future, in keeping with our treaty obligation, especially under the International Covenant on Civil and Political Rights (ICCPR). Less severe sanctions than imprisonment should be resorted to, as much as practicable. Relevant to this, the Philippine Supreme Court already had promugated the guidelines in the observance of a rule of preference in the imposition of penalties in libel cases, through Administrative Circular 8-2008 on 25 January 2008.

Freedom of Expression viz libel

Section 4, Article III, of the 1987 Constitution states that “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

“The right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” (Philippine Journalists, Inc. vs. Thoenen, supra.; citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 Ct. 766, 86 L.Ed. 1031) Libel is not protected speech. (Ibid.)

The issue between the freedom of speech and press and assembly, and the laws on libel and slander, was first discussed in US v. Bustos (37 Phil. 731 [1918]). Applying the prevailing English and American jurisprudence therein, the Court declared to the effect that: “The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good? Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary – to any or all the agencies of Government – public opinion should be the constant source of liberty and democracy.” (Philippine Journalists, Inc. vs. Thoenen, supra.; citing US v. Bustos, 37 Phil. 731 [1918]; with original citations omitted)

Doctrine of privileged communication

“The demand to protect public opinion for the welfare of society and the orderly administration of government inevitably lead to the adoption of the doctrine of privileged communication.” (Philippine Journalists, Inc. vs. Thoenen, supra.) “A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong ‘private communications’ and ‘fair and true report without any comments or remarks.’” (Ibid.; citing Borjal v. Court of Appeals, G.R. No. 126466, 14 January 1999, 301 SCRA 1) Qualified privileged communications correspond to those enumerated in Article 354 of the RPC, where malice is not presumed.

Section 354 (1) which provides the privilege involving “[a] private communication made by any person to another in the performance of any legal, moral or social duty” would not have issues when the imputation is directed against a private person. With such situation, there is no entanglement in questions regarding free speech. The declaration that “[a] written letter containing libelous matter cannot be classified as privileged when it is published and circulated in public” (Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, 69; citing Lacsa v. IAC , G.R. No. 74907, 23 May 1988, 161 SCRA 427) would be understandable in such a context. Nevertheless, it has been previously declared that “A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable. A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter.” (Philippine Journalists, Inc. vs. Thoenen, supra.; citing US v. Bustos, 37 Phil. 731, 742-743 [1918]) This is expounded subsequently, that “[a]s a rule, it is the right and duty of a citizen to make a complaint of any misconduct on the part of public officials, which comes to his notice, to those charged with supervision over them. Such a communication is qualifiedly privileged and the author is not guilty of libel. The rule on privilege, however, imposes an additional requirement. Such complaints should be addressed solely to some official having jurisdiction to inquire into the charges, or power to redress the grievance or has some duty to perform or interest in connection therewith.” (Ibid.; citing Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, 69)

This presents a problem when the fine line between criticism and perceived defamation blurs, as it would due to the contending claims of parties involved. It could be contended that the additional requirement that “such complaints should be addressed solely to some official having jurisdiction to inquire into the charges, or power to redress the grievance or has some duty to perform or interest in connection therewith” provides a prior restraint in the exercise of free expression and the right to petition the government for redress of grievances. This apprehension or fear magnifies when it is made applicable in online speech, as it will affect more people.

The declarations in Guingguing vs. Court of Appeals appear more reasonable, when public officials or public figures are involved. In said case, the Court held:

Particularly, this Court has accepted the proposition that the actual malice standard governs the prosecution of criminal libel cases concerning public figures. In Adiong v. COMELEC , (G.R. No. 103956, 31 March 1992, 207 SCRA 712) the Court cited New York Times in noting that “[w]e have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” (Id. at 716). The Court was even more explicit in its affirmation of New York Times in Vasquez v. Court of Appeals (373 Phil. 238 [1999]). Speaking through Justice Mendoza:

For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with approval in several of its own decisions. (Particularly cited are Lopez v. Court of Appeals , 145 Phil. 219 [1970]; Mercado v. Court of First Instance , 201 Phil. 565 [1982]; Babst v. National Intelligence Board , 132 SCRA 316, 325 [1984] [Fernando, C.J., concurring]) This is the rule of “actual malice.” In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not. (Vasquez v. Court of Appeals, 373 Phil. 238, 254 [1999])

The Court has likewise extended the “actual malice” rule to apply not only to public officials, but also to public figures. In Ayer Productions Pty. Ltd. v. Capulong (G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA 861), the Court cited with approval the following definition of a public figure propounded by an American textbook on torts:

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a ‘public personage.’ He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person. (Id. at 874-875; citing Prosser and Keeton on Torts, [5th ed.] at 859-861)

Ayer did not involve a prosecution for libel, but a complaint for injunction on the filming of a dramatized account of the 1986 EDSA Revolution. Nonetheless, its definition of a public figure is important to this case, as it clearly establishes that even non-governmental officials are considered public figures. In fact, the definition propounded in Ayer was expressly applied by the Court in Borjal v. Court of Appeals (361 Phil. 1, 7 [1999]) in ascertaining whether the complainant therein was a public figure, thus warranting the application of the actual malice test.

We considered the following proposition as settled in this jurisdiction: that in order to justify a conviction for criminal libel against a public figure, it must be established beyond reasonable doubt that the libelous statements were made or published with actual malice, meaning knowledge that the statement was false or with reckless disregard as to whether or not it was true.

More importantly, the Court held, in the same case, that:

… [Article 354 of the Revised Penal Code], as applied to public figures complaining of criminal libel, must be construed in light of the constitutional guarantee of free expression, and this Court’s precedents upholding the standard of actual malice with the necessary implication that a statement regarding a public figure if true is not libelous. The provision itself allows for such leeway, accepting as a defense “good intention and justifiable motive.” The exercise of free expression, and its concordant assurance of commentary on public affairs and public figures, certainly qualify as “justifiable motive,” if not “good intention.”

It cannot be helped if the commentary protected by the Bill of Rights is accompanied by excessive color or innuendo. Certainly, persons in possession of truthful facts are not obliged to present the same in bland fashion. These true facts may be utilized to convince the listener/reader against a particular position, or to even dissuade one against accepting the credibility of a public figure. Dry facts, by themselves, are hardly stirring. It is the commentary thereupon that usually animates the discourse which is encouraged by the Constitution as integral to the democratic way of life. This is replete in many components of our daily life, such as political addresses, televised debates, and even commercial advertisements.

As adverted earlier, the guarantee of free speech was enacted to protect not only polite speech, but even expression in its most unsophisticated form. Criminal libel stands as a necessary qualification to any absolutist interpretation of the free speech clause, if only because it prevents the proliferation of untruths which if unrefuted, would gain an undue influence in the public discourse. But in order to safeguard against fears that the public debate might be muted due to the reckless enforcement of libel laws, truth has been sanctioned as a defense, much more in the case when the statements in question address public issues or involve public figures.

In ascertaining the degree of falsity that would constitute actual malice, the Court, citing New York Times, has even gone so far as acknowledging:

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy.

The reiteration of this holding could alleviate concerns regarding articulation of criticism of and/or grievances against the government and its agents by individuals, not directed to judicial or administrative fora, over the various media, including the Internet.

ICCPR and General Comment No. 34

In a submission where Article 19 [23] of the International Covenant on Civil and Political Rights was in point, the United Nations Human Rights Committee’s (UNHRC) declaration in Communication 1815/2008 , adopted 26 October 2011, provided, in part, that:

8.7 The Committee takes note of the author’s allegation that his conviction for defamation under the Philippine Penal Code constitutes an illegitimate restriction of his right to freedom of expression because it does not conform to the standards set by article 19, paragraph 3 of the Covenant. The author maintains, in particular, that the criminal sanction of imprisonment established by the Philippine Revised Penal Code for libel is neither necessary nor reasonable, because of the following reasons: a) there are less severe sanctions available; b) it admits no proof of truth as a defense except for very limited cases; c) it does not take into account the public interest as a defense; or d) it presumes maliced in the allegedly defamatory statements placing the burden of proof on the accused.

8.8 Article 19, paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed, i.e. the restrictions must be provided by law; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they conform to the strict tests of necessity and proportionality. (General Comment No. 34, cit. para. 22)

8.9 The Committee recalls its General Comment No. 34 according to which “Defamation laws must be crafted with care to ensure that they comply with paragraphs 3 and that they do not serve, in practice, to stifle freedom of expression. All such laws, in particular penal defamation laws, should include such defences as the defence of truth and they should not be applied with regard to those forms of expressions that are not, of their nature, subject to verification. At least with regards to comments about public figures, consideration should be given to avoiding penalising or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a public interest in the subject matter of the criticism should be recognised as a defence. Care should be taken by States parties to avoid excessively punitive measures and penalties. (…) State parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty” (Ibid. para. 47)

8.10 In light of the above the Committee considers that, in the present case the sanction of imprisonment imposed on the author was incompatible with article 19, paragraph 3 of the Covenant.

9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), is of the view that the facts before the Committee disclose a violation by the Philippines of articles 14, paragraph 3 and 19 of the Covenant.

It must be recalled that the journalist, who sought remedies from the UNHRC, was sentenced to imprisonment of a minimum of five months and one day to a maximum of four years, six months and one day and to pay a fine of P100,000 in January 2007 for publishing reports that the House Speaker and his alleged mistress had been caught in a hotel by the latter’s husband. The sentence was imposed before the promulgation of AC 8-2008, which recommended the preference of fine over imprisonment.

That being said, the possibility of imprisonment remains to be available notwithstanding AC 8-2008. It would thus be understandable that there is a push to decriminalize libel laws. Proposals for the decriminalization of libel are already being pushed through House Bill 6391 and Senate Bill 3244 . Both bills propose the decriminalization of libel, and shift the responsibility of utmost imposing discipline among practitioners of mass communications (who should be, under the bills, members of registered professional organizations). The proposed bills appear abbreviated and sweeping, but at the same time oriented to a specific class. There are questions that I would not acquire answers for, based on the current contents of the proposed bills.

IV
Contentious issue: Privacy

Right to privacy

“The right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional right.” (Gamboa vs. Chan, GR 193636, 24 July 2012; En Banc, Sereno [J]) “Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom. “ (Morfe vs. Mutuc, GR L-20387, 31 January 1968, En Banc, Fernando [J]; citing Douglas [J], dissenting, Public Utilities Commission of the District of Columbia et al. vs. Pollak et al. , 343 US 451) “[A]s against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.” (Morfe vs. Mutuc, GR L-20387, 31 January 1968, En Banc, Fernando [J]; citing Brandeis [J], dissenting, in Olmstead et al. vs. United States , 277 US 438)

In Morfe vs. Mutuc , GR L-20387, 31 January 1968, En Banc, Fernando [J]:

The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: “The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government, safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly important as modern society has developed. All the forces of a technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.” (Emerson, Nine Justices in Search of a Doctrine, 64 Mich. Law. Rev. 219, 229 [1965])

“The right of privacy is recognized and enshrined in several provisions of our Constitution.” (Ople v. Torres, GR 127685, 23 July 1998; En Banc, Puno [J]; citing Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of Privacy, p. 18 [1970]) In the same case, it was stated that it is explicitly recognized under Section 3(1), Article III of the 1987 Constitution.[24]; and that certain facets of the right of privacy can also be found in other provisions of the 1987 Constitution, such as Section 1 [25]; Paragraph 1 of Section 2 [26], Section 6 [27], Section 8 [28], and Section 17 [29] of Article III, 1987 Constitution.

In Ople v. Torres , GR 127685, 23 July 1998; En Banc, Puno [J]:

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. (Article 26, Civil Code) It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, (Article 32, Civil Code) and recognizes the privacy of letters and other private communications. (Article 723, Civil Code) The Revised Penal Code makes a crime the violation of secrets by an officer, (Article 229, Revised Penal Code) the revelation of trade and industrial secrets, (Articles 290-292, Revised Penal Code) and trespass to dwelling. (Article 280, Revised Penal Code) Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, (Republic Act 4200) the Secrecy of Bank Deposits Act (Republic Act 1405) and the Intellectual Property Code. (Republic Act 8293) The Rules of Court on privileged communication likewise recognize the privacy of certain information. (Section 24, Rule 130 [C], Revised Rules on Evidence)

In Gamboa vs. Chan , GR 193636, 24 July 2012; En Banc, Sereno [J]:

[T]he right to privacy is considered a fundamental right that must be protected from intrusion or constraint. However, in Standard Chartered Bank v. Senate Committee on Banks (G.R. No. 167173, 27 December 2007, 541 SCRA 456), this Court underscored that the right to privacy is not absolute, viz:

With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is not an absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights of persons affected by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held that the right of the people to access information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we declared that the right to privacy is not absolute where there is an overriding compelling state interest. Employing the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no infringement of the individual’s right to privacy as the requirement to disclosure information is for a valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to state that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation. (Id. at 475-476 [citing Morfe v. Mutuc, 130 Phil. 415 [1968]; Gordon v. Sabio , 535 Phil. 687 [2006])

Therefore, when the right to privacy finds tension with a competing state objective, the courts are required to weigh both notions. In these cases, although considered a fundamental right, the right to privacy may nevertheless succumb to an opposing or overriding state interest deemed legitimate and compelling.

Section 12 to 17, RA 10175

Section 12 to 17, of RA 10175,[30] provides for the mechanism in which evidence would be acquired, maintained, and disposed, pursuant to the law.

Some sectors fear the import of Section 12 as it appears to be a blanket allowance for the government to conduct surveillance against the general populace with impunity. The paragraphs one, two, and four of Section 12 provide:

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.

xxx

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

Privacy in relation to Section 12, RA 10175

To reiterate, Section 3 (1), Article III, 1987 Constitution provides: “The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. Data relating to offenses committed under RA 10175, to be seized would be covered by paragraphs three and five of Section 12 to comply with the law, as to the requirement of “upon lawful order of the court,” to wit:

All other data to be collected or seized or disclosed will require a court warrant.

xxx

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.

The only contention thus would gravitate towards the collection of data, prior to the issuance of a court warrant, specified under paragraphs one, two and four of Section 12. It is expected to be argued that these provisions are the ones covered by the clause “when public safety or order requires otherwise as prescribed by law.”

The key to the determination of whether the law is narrowly drawn may lie in the phrase “with due cause,” and its actual import. Is this a mere legal formalization of methods and procedures, with due regard to probable cause, in the conduct of investigation by police agencies (such as the National Bureau of Investigation [PNP], the Philippine National Police-Anti Kidnapping Group [PNP-AKG, formerly Police Anti-Crime and Emergency Response or PACER]) when crimes are being committed, or were just committed, through the use of ICT? Or is it the allowance for government to conduct active monitoring of the Internet activities of the populace, premised on any alleged pursuit of public safety or order?

It has been held, in Ople vs. Torres, supra., that “[W]hen the integrity of a fundamental right is at stake, this court will give the challenged law, administrative order, rule or regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity in the performance of official duties. Nor is it enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the government does not act irrationally. They must satisfactorily show the presence of compelling state interests and that the law, rule or regulation is narrowly drawn to preclude abuses. This approach is demanded by the 1987 Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected by the Constitution.”

The constitutionality of Section 12 can only be resolved, through the presentation of proof by the government. In the same case, the Court held that “[T]he right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that” the measure or legislation “is justified by some compelling state interest and that it is narrowly drawn.”

International Cooperation

Considering that the acts prohibited in the law may be transnational, Section 22 of the law provides:

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.

V
Jurisdiction

Section 21, RA 10175 provides:

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.

The jurisdiction of the Regional Trial Court is fixed under RA 10175 on all punishable acts (Sections 4-7 thereof). The phrase attached to such jurisdiction “including any violation committed by a Filipino national regardless of the place of commission”, however, appears oddly placed. The second sentence is more understandable, as it provides qualification to a basic precept in criminal procedure that “[U]nlike in civil cases, in criminal cases venue is jurisdictional.” (People vs. Metropolitan Trial Court of Quezon City, GR 123263, 16 December 1996; Third Division, Narvasa [CJ]; citing People v. Mercado, 65 Phil. 665; Alfelor, et al. v. Intia, et al., 70 SCRA 460, citing in turn Lopez v. City Judge, 18 SCRA 616, and in turn citing US v. Pagdayuman, 5 Phil. 265; Beltran v. Ramos, 96 Phil. 149; Ragpala v. Justice of the Peace of Tubod, 109 Phil. 373; People v. Yumang, 11 SCRA 279; People v. San Antonio, 14 SCRA 63; Bala v. Martinez, 181 SCRA 459, 569, citing in turn Ragpala v. Tubod, 109 Phil. 373) Although it may be implied that “including any violation committed by a Filipino national regardless of the place of commission” provides an exception to the venue-jurisdiction requirement, similar to Article 2 of the Revised Penal Code but this time directed to the specific nationality of the actor in the commission of offenses under RA 10175, such articulation is currently deficient in its form.

Parenthetically, it must be noted, even before the promulgation of the law, the Supreme Court has tackled the proper jurisdiction of “online libel” in Bonifacio vs. Regional Trial Court of Makati , GR 184800, 5 May 2010; First Division, Carpio-Morales [J]

VI
Admissibility of Evidence

My opinion on the matter has been previously articulated in Repost 10/Jan/12, update: “Phantom resolution” (Original post, 10 January 2012; updated, 29 August 2012), which tackles the Rules on Electronic Evidence (AM 01-7-01-SC) in light of the case of Ang vs. Court of Appeals , GR 182835, 20 April 2010; Second Division, Abad [J].

VII
Takedowns

Section 19 of RA 10175 provides:

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.

Prima facie evidence is defined as “Evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient. Evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue it supports, but which may be contradicted by other evidence.” (Wa-Acon vs. People , GR 164575, 6 December 2006; Third Division, Velasco Jr. [J]; citing H. Black, et al., Black’s Law Dictionary 1190 [6th ed.,1990]) In relation to the presumption of innocence, enjoyed as a right, “the establishment of a prima facie case does not take away the presumption of innocence which may x x x be such as to rebut and control it.” (Ibid.; citing Bautista v. Sarmiento, G.R. No. L-45137, September 23, 1985, 138 SCRA 587, 592) “Such prima facie evidence, if unexplained or uncontradicted, ‘can counterbalance the presumption of innocence to warrant a conviction.’” (Ibid., citing Salonga v. Cruz Pano, G.R. No. L-59524, February 18, 1985, 134 SCRA 438, 450)

Although evidence resulting in the determination of probable cause and prima facie evidence are sometimes taken synonymously, the Court has held in one case, Cometa vs. Court of Appeals , GR 124062, 29 December 1999; Second Division Resolution, Mendoza [J], that

prima facie evidence is different from probable cause. Prima facie evidence requires a degree or quantum of proof greater than probable cause. “[It] denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain a prosecution or establish the facts, as to counterbalance the presumption of innocence and warrant the conviction of the accused.” (People v. Montilla, 285 SCRA 703, 720 n. 22 [1998]) On the other hand, probable cause for the filing of an information merely means “reasonable ground for belief in the existence of facts warranting the proceedings complained of, or an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person has committed the crime.” (People v. Montilla, 285 SCRA 703, 720) What is needed to bring an action in court is simply probable cause, not prima facie evidence. (Cruz, Jr. v. People, 233 SCRA 439, 459 [1994]) In the terminology of the Rules Criminal Procedure (Rule 112, §11), what required for bringing a criminal action is only such evidence as is sufficient to “engender a well founded belief as to facts of the commission of a crime and the respondent’s probable guilt thereof.”

The power granted to the Department of Justice, under Section 19, is an overwhelming exercise of discretion, which can be susceptible to abuse if not exercised properly. Since it is a determination apparent on first view, and there are no clear mechanisms to controvert any perceived violations of the law in RA 10175 itself, a unilateral determination of taking down articles and websites, outside of a court process, may infringe upon the due process right under the Constitution. In Section 1, Article of the 1987 Constitution, it is provided, in part, that “No person shall be deprived of life, liberty, or property without due process of law …” Computer programs, posts, and the website as collection of posts, are copyrightable works and are covered by intellectual property law (RA 8293).[31]

Further, considering that posts and articles online may be protected speech, and considering that the scope of privileged communication are restrictively limited under the current provisions of the libel law, taking down posts in a unilateral manner may bring about a chilling effect on free speech. The fact that Department of Justice is under the control of the President, as the head of the Executive Branch, is not yet factored in, especially on matters involving political dissent.

Furthermore, there appears nothing in the law that would alleviate the situation where the government mistakenly takes down a person’s website. For example, RA 8792 (e-Commerce law) extended RA 8293 (Intellectual property law) to cover electronic documents, and nothing in that law allowed the DOJ to unilaterally take down websites. Considering under Section 6, RA 10175, extends to all criminal offenses provided by previous laws — and hence all penal provisions in other laws — this takedown power can be exercised by the DOJ in matters extended by RA 8792. There have been known instances of abuse of takedowns in other jurisdictions, that we should look into so that it does not happen similarly in our jurisdiction. (See, for example, the recent Dajaz1.com situation in the United States: ICE admits year-long seizure of music blog was a mistake )

VIII
Conclusion

RA 10175 has been recently promulgated and, as of this writing, the Implementing Rules and Regulations are yet to be promulgated. RA 10175 attempts to enumerate offenses that can be committed using Information and Communication Technologies, and to extend its application to crimes and offenses already available under other laws but where ICT may be used in its commission.

The fear of the populace regarding the perceived encroachment of the law in the exercise of Free Expression, and the right to privacy, is well-taken, and in some degree, shared.

It can be shown that our present libel law is not in tune with the times, and in some shades of its archaic notion may indeed infringe upon the right of the people to free speech and to right to air its grievances against the government. Amendment(s) of the source law in the Revised Penal Code appears necessary, so as to safeguard the people’s freedom of speech and of the press, considering new avenues for publication. I reserve my agreement with the movement to decriminalize libel laws for the meantime, for lack of personal research so far to form a concrete opinion on the matter. On the other hand, the provision in the law that would warrant the collection and seizure of data, prior to the acquisition of a warrant of search with the proper court, in compliance with the provisions of the Constitution, should be likewise be narrowly drawn. The law should not be the source of unbridled authority by the government to pry into the private lives of people.

Ordinarily, I tend to support the government’s drive to pursue public welfare, especially as to public order, and tried my best to show, in this discussion, where the law may not necessarily be invalid, in light of the fear articulated in its passage. Nevertheless, our recent history provided us the experience on how abuses may be wrought due to unbridled power provided to the State. Evil does occur, even in pursuit of best intentions, and the people should be assured that the certain evils would be prevented or avoided in pursuit of such intentions. This week’s commemmoration of the 40th anniversary of the proclamation of Martial Law by the late and former dictator Ferdinand E. Marcos this week (21 September 1972 as dated, 23 September 1972 as actually proclaimed) should provide us with the reminder that laws which were crafted for the public good may be used to unduly deprive people life, liberty and property. The government should assure the people, with clear proof, that it does not emasculate people’s civil liberties.

For other readings:


Endnotes

[1] Sections 22 and 23, RA 9775 provide:

Section 22. Child Pornography as a Transnational Crime. – Pursuant to the Convention on transnational Organized Crime, the DOJ may execute the request of a foreign state for assistance in the investigation or prosecution of any form of child pornography by: (1) conducting a preliminary investigation against the offender and, if appropriate, to file the necessary charges in court; (2) giving information needed by the foreign state; and (3) to apply for an order of forfeiture of any proceeds or monetary instrument or properly located in the Philippines used in connection with child pornography in the court; Provided, That if the DOJ refuses to act on the request of for delaying the execution thereof: Provided, further, That the principles of mutuality and reciprocity shall, for this purpose, be at all times recognized.

Section 23. Extradition. – The DOJ, in consultation with the Department of Foreign Affairs (DFA), shall endeavor to include child pornography among extraditable offenses in future treaties.

[2] Section 9, RA 9775 (Duties of an Internet Service Provider [ISP]) provides:

All internet service providers (ISPs) shall notify the Philippine National Police (PNP) or the National Bureau of Investigation (NBI) within seven (7) days from obtaining facts and circumstances that any form of child pornography is being committed using its server or facility. Nothing in this section may be construed to require an ISP to engage in the monitoring of any user, subscriber or customer, or the content of any communication of any such person: Provided, That no ISP shall be held civilly liable for damages on account of any notice given in good faith in compliance with this section.

Furthermore, an ISP shall preserve such evidence for purpose of investigation and prosecution by relevant authorities.

An ISP shall, upon the request of proper authorities, furnish the particulars of users who gained or attempted to gain access to an internet address which contains any form of child pornography.

All ISPs shall install available technology, program or software to ensure that access to or transmittal of any form of child pornography will be blocked or filtered.

An ISP who shall knowingly, willfully and intentionally violate this provision shall be subject to the penalty provided under Section 15(k) of this Act.

The National Telecommunications Commission (NTC) shall promulgate within ninety (90) days from the effectivity of this Act the necessary rules and regulations for the implementation of this provision which shall include, among others, the installation of filtering software that will block access to or transmission of any form of the child pornography.

[3] Section 10, RA 9775 (Responsibility of Mall Owners/Operators and Owners or Lessors of Other Business Establishments) provides:

All mall owners/operators and owners or lessors of other business establishments shall notify the PNP or the NBI within seven (7) days from obtaining facts and circumstances that child pornography is being committed in their premises. Provided, That public display of any form of child pornography within their premises is a conclusive presumption of the knowledge of the mall owners/operators and owners or lessors of other business establishments of the violation of this Act: Provided, further, That a disputable presumption of knowledge by mall owners/operators and owners or lessors of other business establishments should know or reasonably know that a violation of this Act is being committed in their premises.

Photo developers, information technology professionals, credit card companies and banks and any person who has direct knowledge of any form of child pornography activities shall have the duty to report any suspected child pornography materials or transactions to the proper authorities within seven (7) days from discovery thereof.

Any willful and intentional violation of this provision shall be subject to the penalty provided under Section 15(l) of this Act.

[4] Section 11, RA 9775 (Duties of an Internet Content Host) provides:

An internet content host shall:

(a) Not host any form of child pornography on its internet address;

(b) Within seven (7) days, report the presence of any form of child pornography, as well as the particulars of the person maintaining, hosting, distributing or in any manner contributing to such internet address, to the proper authorities; and

(c) Preserve such evidence for purposes of investigation and prosecution by relevant authorities.

An internet content host shall, upon the request of proper authorities, furnish the particulars of users who gained or attempted to gain access to an internet address that contains any form of child pornography.

An internet content host who shall knowingly, willfully and intentionally violate this provision shall be subject to the penalty provided under Section 15(j) of this Act: Provided, That the failure of the internet content host to remove any form of child pornography within forty-eight (48) hours from receiving the notice that any form of child pornography is hitting its server shall be conclusive evidence of willful and intentional violation thereof.

[5] Sections 2 and 3, Article III, of the 1987 Philippine Constitution provides:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Section 3.

(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

[6] Section 4, RA 10175 (Cybercrime Offenses) provides:

The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

(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.

[7] The fifth paragraph of Section 8, RA 10175 (Penalties) provides “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.”

[8] Section 33 (a), RA 8792 provided “(a) Hacking or crackling with refers to unauthorized access into or interference in a computer system/server or information and communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar information and communication devices, without the knowledge and consent of the owner of the computer or information and communications system, including the introduction of computer viruses and the like, resulting in the corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents shall be punished by a minimum fine of One Hundred Thousand pesos (P 100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years;”

[9] Section 30, RA 10175 (Repealing Clause) provides “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.”

[10] Section 4(a)(1) to (5), RA 10175 provide:

(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.

[11] The first to third paragraphs of Section 8, RA 10175 provide:

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.

[12] Section 4(a)(6), RA 10175 provides:

(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.

[13] Section 4(b), RA 10175 provides:

(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.

[14] See Footnote 11.

[15] Section 4(c)(1), RA 10175 provides “(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.”

[16] Section 4(c)(3), RA 10175 provides:

(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.

[17] The fourth paragraph of Section 8, RA 10175 provides: “Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos (PhPl,000,000.00) or both.”

[18] The sixth paragraph of Section 8, RA 10175 provides: “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.”

[19] Section 5, RA 10175 (Other offenses) provides:

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.

[20] The last paragraph of Section 8, RA 10175 provides: “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 (PhPl00,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.”

[21] Section 6, RA 10175 provides: “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.”

[22] Section 4(c)(4), RA 10175 provides: “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.”

[23] Article 19 of the International Covenant on Civil and Political Rights provides:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

[24] Section 3 (1), Article III, 1987 Constitution provides: “The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

[25] Section 1, Article III, 1987 Constitution provides: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”

[26] The first paragraph of Section 2, Article III, 1987 Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”

[27] Section 6, Article III, 1987 Constitution provides: “The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health as may be provided by law.”

[28] Section 8, Article III, 1987 Constitution provides: “The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.”

[29] Section 17, Article III, 1987 Constitution provides: “No person shall be compelled to be a witness against himself.”

[30] Sections 12 to 17 of RA 10175 provide:

Section 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.

Section 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.

Section 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.

Section 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.

Section 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.

Section 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.

Section 172 of Republic Act 8293 provides:

Section 172. Literary and Artistic Works. – 172.1. Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular:

(a) Books, pamphlets, articles and other writings;

(b) Periodicals and newspapers;

(c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;

(d) Letters;

(e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;

(f) Musical compositions, with or without words;

(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art;

(h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art;

(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science;

(j) Drawings or plastic works of a scientific or technical character;

(k) Photographic works including works produced by a process analogous to photography; lantern slides;

(l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;

(m) Pictorial illustrations and advertisements;

(n) Computer programs; and

(o) Other literary, scholarly, scientific and artistic works.

172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.



This article is shared under Creative Commons Attribution-NonCommercial-NoDerivative 3.0 Philippine license .

11 responses to “Republic Act 10175: Cybercrime Prevention Act of 2012

  1. Pingback: 2 October 2012 Blackout | Berne Guerrero

  2. More readings:
    * Toral, Janette. “17 cybercrimes covered under Republic Act 10175 – Cybercrime Prevention Act“. http://digitalfilipino.com/introduction-cybercrime-prevention-act-republic-act-10175/
    * Romero, Purple. “Cybercrime law: ’50 shades of liability’” http://www.rappler.com/nation/12766-50-shades-of-liability
    * Bernas, Joaquin SJ. “WHAT’S FRIGHTENING ABOUT CYBERCRIME LAW?” http://fatherbernasblogs.blogspot.com/2012/09/whats-frightening-about-cybercfrime-law.html

  3. More readings:
    * Te, Theodore. “Cyberauthoritarianism 101″ http://www.rappler.com/thought-leaders/13525-cyberauthoritarianism

  4. More readings:
    * Dela Cruz, Albert. “How the Anti-Cybercrime Bill Looked like when it Started.” http://digitaldelacruz.com/post/32767685443/how-the-anti-cybercrime-bill-looked-like-when-it

  5. Pingback: “¿Para qué estáis en el gobierno?” | Berne Guerrero

  6. Pingback: Decriminalizing Philippine Libel Laws? | Berne Guerrero

  7. More readings:
    * Robles, Raissa. “The Cybercrime Law was brought to you by 7 senators & 12 congressmen” http://raissarobles.com/2012/10/05/the-cybercrime-law-was-brought-to-you-by-7-senators-12-congressmen/

  8. Lee Tat Fung Billy. “Fighting against New Cyber Law for the Philippines” http://hklawblog.com/2012/10/11/fighting-against-new-cyber-law-for-the-philippines/

  9. Pingback: 15 January 2013 | Berne Guerrero

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