Cybercrime Prevention Act of 2012

History

The Cybercrime Prevention Act of 2012 is the first law in the Philippines which specifically criminalizes computer crime, which prior to the passage of the law had no strong legal precedent in Philippine jurisprudence. While laws such as the Electronic Commerce Act of 2000 (Republic Act No. 8792) regulated certain computer-related activities, these laws did not provide a legal basis for criminalizing crimes committed on a computer in general: for example, Onel de Guzman, the computer programmer charged with purportedly writing the ILOVEYOU computer worm, was ultimately not prosecuted by Philippine authorities due to a lack of legal basis for him to be charged under existing Philippine laws at the time of his arrest.

The first draft of the law started in 2001 under the Legal and Regulatory Committee of the former Information Technology and eCommerce Council (ITECC) which is the forerunner of the Commission on Information and Communication Technology (CICT). It was headed by former Secretary Virgilio "Ver" Peña and the Committee was chaired by Atty. Claro Parlade (+). It was an initiative of the Information Security and Privacy Sub-Committee chaired by Albert Dela Cruz who was the President of PHCERT together with then Anti-Computer Crime and Fraud Division Chief, Atty. Elfren Meneses of the NBI. The administrative and operational functions was provided by the Presidential Management Staff (PMS) acting as the CICT secretariat.

This was superseded by several cybercrime-related bills filed in the 14th and 15th Congress. The Cybercrime Prevention Act ultimately was the product of House Bill No. 5808, authored by Representative Susan Yap-Sulit of the second district of Tarlac and 36 other co-authors, and Senate Bill No. 2796, proposed by Senator Edgardo Angara. Both bills were passed by their respective chambers within one day of each other on June 5 and 4, 2012, respectively, shortly after the impeachment of Renato Corona, and the final version of the Act was signed into law by President Benigno Aquino III on September 12.

Provisions

The Act, divided into 31 sections split across eight chapters, criminalizes several types of offense, including illegal access (hacking), data interference, device misuse, cybersquatting, computer-related offenses such as computer fraud, content-related offenses such as cybersex and spam, and other offenses. The law also reaffirms existing laws against child pornography, an offense under Republic Act No. 9775 (the Anti-Child Pornography Act of 2009), and libel, an offense under Section 355 of the Revised Penal Code of the Philippines, also criminalizing them when committed using a computer system. Finally, the Act includes a "catch-all" clause, making all offenses currently punishable under the Revised Penal Code also punishable under the Act when committed using a computer, with severer penalties than provided by the Revised Penal Code alone.

The Act has universal jurisdiction: its provisions apply to all Filipino nationals regardless of the place of commission. Jurisdiction also lies when a punishable act is either committed within the Philippines, whether the erring device is wholly or partly situated in the Philippines, or whether damage was done to any natural or juridical person who at the time of commission was within the Philippines. Regional Trial Courts shall have jurisdiction over cases involving violations of the Act.

A takedown clause is included in the Act, empowering the Department of Justice to restrict and/or demand the removal of content found to be contrary to the provisions of the Act, without the need for a court order. This provision, originally not included in earlier iterations of the Act as it was being deliberated through Congress, was inserted during Senate deliberations on May 31, 2012. Complementary to the takedown clause is a clause mandating the retention of data on computer servers for six months after the date of transaction, which may be extended for another six months should law enforcement authorities request it.

The Act also mandates the National Bureau of Investigation and the Philippine National Police to organize a cybercrime unit Lyle Harvey Espinas, staffed by special investigators whose responsibility will be to exclusively handle cases pertaining to violations of the Act, under the supervision of the Department of Justice. The unit is empowered to, among others, collect real-time traffic data from Internet service providers with due cause, require the disclosure of computer data within 72 hours after receipt of a court warrant from a service provider, and conduct searches and seizures of computer data and equipment. It also mandates the establishment of special "cybercrime courts" which will handle cases involving cybercrime offenses (offenses enumerated in Section 4(a) of the Act).The Supreme Court of the Philippines declares on February 18, 2014 that the libel provisions of this act is now legal.

Reactions

The new Act received mixed reactions from several sectors upon its enactment, particularly with how its provisions could potentially affect freedom of expression, freedom of speech and data security in the Philippines.

The local business process outsourcing industry has received the new law well, citing an increase in the confidence of investors due to measures for the protection of electronic devices and online data. Media organizations and legal institutions though have criticized the Act for extending the definition of libel as defined in the Revised Penal Code of the Philippines, which has been criticized by international organizations as being outdated: the United Nations for one has remarked that the current definition of libel as defined in the Revised Penal Code is inconsistent with the International Covenant on Civil and Political Rights, and therefore violates the respect of freedom of expression.

Senator Edgardo Angara, the main proponent of the Act, defended the law by saying that it is a legal framework to protect freedoms such as the freedom of expression. He asked the Act's critics to wait for the bill's implementing rules and regulations to see if the issues were addressed. He also added that the new law is unlike the controversial Stop Online Piracy Act and PROTECT IP Act. However, Senator TG Guingona criticized the bill, calling it a prior restraint to the freedom of speech and freedom of expression.

The Electronic Frontier Foundation has also expressed concern about the Act, supporting local media and journalist groups which are opposed to it. The Centre for Law and Democracy also published a detailed analysis criticizing the law from a freedom of expression perspective.

Petitions to the Supreme Court

Several petitions have been submitted to the Supreme Court questioning the constitutionality of the Act. However, on October 2, the Supreme Court deferred on acting on the petitions, citing the absence of justices which prevented the Court from sitting en banc. The lack of a temporary restraining order meant that the law went into effect as scheduled on October 3. In protest, Filipino netizens reacted by blacking out their Facebook profile pictures and trending the hashtag #notocybercrimelaw on Twitter. Anonymous also defaced government websites, including those of the Bangko Sentral ng Pilipinas, the Metropolitan Waterworks and Sewerage System and the Intellectual Property Office.

On October 8, 2012, the Supreme Court issued a temporary restraining order, stopping implementation of the Act for 120 days. In early December, 2012, the government requested the lifting of the TRO

The Supreme Court scheduled the same amount of time on 15 January 2013 for oral arguments by the petitioners, and on 22 January by the Solicitor General. On 5 February 2013 The Supreme Court extended the temporary restraining order on the law, "until further orders from the court."

On August 2013, the Supreme Court issued a resolution ordering that the controlling title of the Cybercrime Case will be "Jose Jesus M. Disini Jr. et al. v. Secretary of Justice, et al."

Revision of the law

On May 24, 2013, The DOJ announced that online libel provisions of the law have been dropped, as well as other provisions that "are punishable under other laws already", like child pornography and cybersquatting. The DOJ will endorse the revised law to the next 16th Congress of the Philippines.

Supreme Court Ruling

On February 18, 2014, The Supreme Court ruled the online libel provision of the act to be constitutional, although it struck down other provisions, including the ones that violated the provisions on double jeopardy. The petitioners planned to appeal the decision.

Repeal of the law

A Magna Carta for Philippine Internet Freedom was crowdsourced by Filipino netizens with the intent of, among other things, repealing the Cybercrime Prevention Act of 2012.