Cybercrime Prevention Act of 2012

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AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION,

INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR,

AND FOR OTHER PURPOSES

CHAPTER I

Preliminary Provisions

SECTION 1. Title. — This Act shall be known as the "Cybercrime Prevention

Act of 2012".

SECTION 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.

SECTION 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

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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

SECTION 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 punishable 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

(PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4 (c)

(2) of this Act shall be punished with the penalties as enumerated in Republic Act No.

9775 or the "Anti-Child Pornography Act of 2009": Provided,That the penalty to be

imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775,

if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4 (c)

(3) shall be punished with imprisonment of arresto mayor or a fine of at least Fifty

thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos

(PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5

shall be punished with imprisonment one (1) degree lower than that of the prescribed

penalty for the offense or a fine of at least One hundred thousand pesos

(PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or

both.

SECTION 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

SECTION 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.

SECTION 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.

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 their 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 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.

SECTION 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.

SECTION 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

correccional 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

SECTION 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

SECTION 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

SECTION 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. 

SECTION 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.

SECTION 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.

SECTION 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 handled 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

SECTION 27. Appropriations. — The amount of Fifty million pesos

(PhP50,000,000.00) shall be appropriated annually for the implementation of this Act.

SECTION 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.

SECTION 29. Separability Clause. — If any provision of this Act is held

invalid, the other provisions not affected shall remain in full force and effect.

SECTION 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.

SECTION 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: September 12, 2012.

c Note from the Publisher: The Supreme Court, in Disini, Jr. v. Secretary of Justice, G.R. No.

203335, in a decision rendered on February 18, 2014 and affirmed in a resolution dated April 22, 2014, declared the following provisions of R.A. No. 10175 void for being

UNCONSTITUTIONAL:

a. Section 4 (c) (3) that penalizes posting of unsolicited commercial communications as

to prohibit transmission of unsolicited ads would deny a person the right to read his

emails, even unsolicited commercial ads addressed to him;

b. Section 12 that authorizes the collection or recording of traffic data in real-time as the

authority it gives to law enforcement agencies is too sweeping and lacks restraint; and

c. Section 19 that authorizes the Department of Justice to restrict or block access to

suspected Computer Data for being violative of the constitutional guarantees to freedom

of expression and against unreasonable searches and seizures.

The Court declared further:

1. Section 4 (c) (4) that penalizes online libel as VALID and CONSTITUTIONAL with

respect to the original author of the post; but VOID and UNCONSTITUTIONAL with

respect to others who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of

cybercrimes as VALID and CONSTITUTIONAL only in relation to Section 4 (a) (1) on

Illegal Access, Section 4 (a) (2) on Illegal Interception, Section 4 (a) (3) on Data

Interference, Section 4 (a) (4) on System Interference, Section 4 (a) (5) on Misuse of

Devices, Section 4 (a) (6) on Cyber-squatting, Section 4 (b) (1) on Computer-related

Forgery, Section 4 (b) (2) on Computer-related Fraud, Section 4 (b) (3) on Computerrelated

Identity Theft, and Section 4 (c) (1) on Cybersex; but VOID and

UNCONSTITUTIONAL with respect to Sections 4 (c) (2) on Child Pornography, 4 (c) (3)

on Unsolicited Commercial Communications, and 4 (c) (4) on online Libel.

Published in The Philippine Star on September 18, 2012 .