Republic of the Philippines
Congress of the Philippines
Metro Manila
Fifteenth Congress
Second Regular Session
Begun and held in Metro Manila, on
Monday the Twenty-fifth day of July two thousand eleven.
[ Republic Act No. 10175 ]
AN ACT DEFINING CYBERCRIME,
PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF
PENALTIES THEREFOR AND FOR OTHER PURPOSES
Be it enacted by the Senate and
House of Representatives of the Philippines in Congress assembled:
CHAPTER
I
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
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
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 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.
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 (PhPl00,000.00) 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
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
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
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
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
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.
Approved,
FELICIANO BELMONTE JR.
Speaker of the House
of Representatives
JUAN PONCE ENRILE
President of the Senate
BENIGNO S. AQUINO III
President of the Philippines