Republic Act No. 10175
S. No. 2796
H. No. 5808
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,
(Sgd.) FELICIANO BELMONTE JR.
Speaker of the House
of Representatives
|
(Sgd.) JUAN PONCE ENRILE
President of the Senate
|
This Act which is a consolidation of
Senate Bill No. 2796 and House Bill No. 5808 was finally passed by the
Senate and the House of Representatives on June 5, 2012 and June 4,
2012, respectively.
(Sgd.) MARILYN B BARUA-YAP
Secretary General
House of Representatives
|
(Sgd.) EMMA LIRIO-REYES
Secretary of the Senate
|
Approved: SEP 12 2012
(Sgd.) BENIGNO S. AQUINO III
President of the Philippines
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