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CHAPTER IV:
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Cybersecurity Legislation and Enforcement
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Coverage:
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Lesson 3: The Cybercrime Prevention Act of 2012
Lesson 4: Punishable Acts and Penalties under the Cybercrime Prevention Act
Lesson 5: Other Liabilities and Penalties
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Sources:
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1. United Nations Office on Drugs and Crime. (2013, February). Retrieved March 23, 2023, pp. 82 from https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf
2. Disini v. Secretary of Justice(G.R. Nos. 203335, et al.)
3. Belo-Henares v. Atty. Guevarra, 801 Phil. 570 (2016)
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Definition of Terms
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The following terms are defined as follows:
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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;
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b) Act refers to Republic Act No. 10175 or the “Cybercrime Prevention Act of 2012”;
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c) Alteration refers to the modification or change, in form or substance, of an existing computer data or program;
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d) Central Authority refers to the DOJ – Office of Cybercrime;
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e) Child Pornography refers to 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 one (1) degree higher than that provided for in Republic Act No. 9775;
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f) Collection refers to gathering and receiving information;
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g) Communication refers to the transmission of information through information and communication technology (ICT) media, including voice, video and other forms of data;
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h) Competent Authority refers to either the Cybercrime Investigation and Coordinating Center or the DOJ – Office of Cybercrime, as the case may be;
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i) 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;
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j) 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;
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k) Computer program refers to a set of instructions executed by the computer to achieve intended results;
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l) 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 to a network or other similar devices. It also includes computer data storage devices or media;
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m) Content Data refers to the communication content of the communication, the meaning or purport of the communication, or the message or information being conveyed by the communication, other than traffic data.
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n) 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 that are 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;
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o) 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;
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p) National Cybersecurity Plan refers to a comprehensive plan of actions designed to improve the security and enhance cyber resilience of infrastructures and services. It is a top-down approach to cybersecurity that contains broad policy statements and establishes a set of national objectives and priorities that should be achieved within a specific timeframe;
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q) Cybersex refers to 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;
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r) Cyber refers to a computer or a computer network, the electronic medium in which online communication takes place;
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s) 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;
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t) Digital evidence refers to digital information that may be used as evidence in a case. The gathering of the digital information may be carried out by confiscation of the storage media (data carrier), the tapping or monitoring of network traffic, or the making of digital copies (e.g., forensic images, file copies, etc.), of the data held;
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u) Electronic evidence refers to evidence, the use of which is sanctioned by existing rules of evidence, in ascertaining in a judicial proceeding, the truth respecting a matter of fact, which evidence is received, recorded, transmitted, stored, processed, retrieved or produced electronically;
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v) Forensics refers to the application of investigative and analytical techniques that conform to evidentiary standards, and are used in, or appropriate for, a court of law or other legal context;
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w) Forensic image, also known as a forensic copy, refers to an exact bit-by-bit copy of a data carrier, including slack, unallocated space and unused space. There are forensic tools available for making these images. Most tools produce information, like a hash value, to ensure the integrity of the image;
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x) Hash value refers to the mathematical algorithm produced against digital information (a file, a physical disk or a logical disk) thereby creating a “digital fingerprint” or “digital DNA” for that information. It is a one-way algorithm and thus it is not possible to change digital evidence without changing the corresponding hash values;
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y) Identifying information refers to any name or number that may be used alone or in conjunction with any other information to identify any specific individual, including any of the following:
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1. Name, date of birth, driver’s license number, passport number or tax identification number;
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2. Unique biometric data, such as fingerprint or other unique physical representation;
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3. Unique electronic identification number, address or routing code; and
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4. Telecommunication identifying information or access device.
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z) Information and communication technology systemrefers to system intended for, and capable of, generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents, and includes the computer system or other similar device by or in which data is recorded or stored, and any procedures related to the recording or storage of electronic data message or electronic document;
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aa) Interception refers to listening to, recording, monitoring or surveillance of the content of communications, including procurement 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;
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bb) Internet content host refers to a person who hosts or who proposes to host internet content in the Philippines;
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cc) Law enforcement authorities refers to the National Bureau of Investigation (NBI) and the Philippine National Police (PNP) under Section 10 of the Act;
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dd) Original author refers to the person who created or is the origin of the assailed electronic statement or post using a computer system;
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ee) Preservation refers to the keeping of data that already exists in a stored form, protected from anything that would cause its current quality or condition to change or deteriorate. It is the activity that keeps that stored data secure and safe;
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ff) Service provider refers to:
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1. any public or private entity that provides users of its service with the ability to communicate by means of a computer system; and
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2. any other entity that processes or stores computer data on behalf of such communication service or users of such service.
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gg) Subscriber’s informationrefers 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 any of the following can be established:The type of communication service used, the technical provisions taken thereto and the period of service;The subscriber’s identity, postal or geographic address, telephone and other access number, any assigned network address, billing and payment information that are available on the basis of the service agreement or arrangement; orAny other available information on the site of the installation of communication equipment that is available on the basis of the service agreement or arrangement.
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hh) Traffic Data or Non-Content Datarefers 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; and
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ii) 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.
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Other Related Definitions:
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Social media
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– – – > are understood to be web-based platforms that enable and facilitate users to generate and share content, allowing subsequent online interactions with other users (where users are usually, but not always, individuals). [1]
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– – – > is a “voluntary social network to which members subscribe and submit information. x x x It has a worldwide forum enabling friends to share information such as thoughts, links, and photographs, with one another.” Users register at this site, create a personal profile or an open book of who they are, add other users as friends, and exchange messages, including automatic notifications when they update their profile. A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone, depending on the user’s privacy settings. [2]
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Punishable Acts
Under Republic Act 10175
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1) Cybercrime Offenses under Sec. 4
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a) Offenses against the confidentiality, integrity and availability of computer data and systems:
i) Illegal Access
ii) Illegal Interception
iii) Data Interference
iv) System Interference
v) Misuse of Devices.
vi) Cyber-squatting
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b) Computer-related Offenses:
i) Computer-related Forgery
ii) Computer-related Fraud
iii) Computer-related Identity Theft
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c) Content-related Offenses:
i) Cybersex
ii) Child Pornography
iii) Unsolicited Commercial Communications
v
iv) Libel
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d) Other offenses
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2) All crimes defined and penalized by the RPC, as amended, and special criminal laws committed by, through and with the use of information and communications technologies under Sec. 7.
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Offenses Against the
Confidentiality, Integrity and Availability
of Computer Data and Systems
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Sec. (4)(a)(1)
Illegal Access [3]
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Legal Text:
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Refers to the access to the whole or any part of a computer system without right.
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Elements:
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1. Actus Reus: The act of accessing a computer system.
2. Scope: Accessing the whole or any part of the computer system.
3. Without Right: The access is done without proper authorization or permission.
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Notes:
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– – – > All 50 states of the United States have passed individual state laws criminalizing hacking or unauthorized access. [4] The United States Congress has also passed the Computer Fraud and Abuse Act 18 U.S.C. § 1030 that penalizes, among others, hacking. The Budapest Convention on Cybercrime considers hacking as an offense against the confidentiality, integrity and availability of computer data and systems and 29 countries have already ratified or acceded [5] Thus, “It is a universally condemned conduct.” [6]
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– – – >Section 4(a)(1) of RA 10175, also known as the Cybercrime Prevention Act of 2012, defines Illegal Access as the act of accessing a computer system, whether in part or in whole, without the right to do so. This provision makes it a criminal offense to gain unauthorized access to a computer system, regardless of whether the act results in any harm or damage.
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– – – >In the field of criminology, the illegal access is considered a form of cybercrime. Cybercrimes are offenses that are committed using a computer or other electronic device. They can include acts such as hacking, identity theft, and the distribution of malware or viruses. The prevention and investigation of computer crimes are important areas of focus for criminologists. Law enforcement agencies and cybersecurity professionals rely on the expertise of criminologists to develop strategies and policies aimed at preventing and detecting cybercrime.
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– – – >Section 4(a)(1) of RA 10175 is an essential provision in the prevention and prosecution of cybercrime in the Philippines. It provides a legal framework for identifying and prosecuting individuals who engage in illegal access and other forms of computer crime. Criminologists can use this provision to develop research studies and investigative strategies aimed at reducing cybercrime in the Philippines.
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– – – >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.
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– – – >”Illegal access” means accessing a computer system or its parts without permission or authorization. In other words, it’s like breaking into a house without the owner’s permission. Just like how you need a key or permission to enter someone’s house, you need permission to access a computer system. If you access a computer system without permission, it’s considered illegal and could result in legal consequences.
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– – – >Illegal access to a computer system, for example, may consist of the unauthorized use of a discovered password, or remote access using exploit software. [7]
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– – – > Access to classified information may be a subset of illegal access to computer data in general. [8]
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– – – > Illegal access, interference or damage are viewed by the private sector as a greater threat than all other types of cybercrime. This reflects a primary concern of private sector organizations for the confidentiality, integrity and accessibility of their computer systems and data. [9]
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– – – > From a criminal law perspective, the installation of malware on a personal or enterprise computer system can represent illegal access to a computer system, and/or illegal data interference or system interference. [10]
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– – – > Illegal access threatens interests such as the integrity of computer systems. The legal interest is infringed not only when a person without authorization alters or ‘steals’ data in a computer system belonging to another, but also when a perpetrator merely ‘looks around’ in the computer system. The latter infringes upon the confidentiality of the data, and considerable actions on the part of the victim may be required to check the integrity or status of the system. ‘Pure’ or ‘mere’ illegal access to a computer system does not require that the offender accesses system files or other stored data. [11]
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– – – > Refers to acts involving entry into parts or the whole of a computer system without authorization or justification. This is the case, for example, if a perpetrator circumvents a firewall and enters the computer system of (for instance) a bank. This may also be the case if a user continues to remain connected to a computer system beyond his or her authorized time, such as when a perpetrator books server capacities for a certain period of time but continues to use them after the period has expired. Some national approaches require that the perpetrator circumvents protection measures or acts with specific intent. [12]
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– – – > Industrial or corporate espionage may often involve the act of illegal access, interception or acquisition of computer data. [13]
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– – – > Will ink refilling be considered as illegal access? An ink cartridge is part of a computer system which usually has a Radio Frequency Identification (RFID) tags installed by the manufacturer so that the manufacturer can control/make exclusive the ink supply and refilling, when one goes to a generic ink refilling station, the RFID tags are disabled. Asked if ink refilling would be considered as illegal access when the RFID tags are disabled, Senator Angara stated that it does not constitute a crime because it is done with the consent of the owner. [14]
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– – – > Will cellphone or telecommunication repairs performed by establishments other than the manufacturer, for example, Nokia or Apple Center, accredited Sony Centers, constitute illegal access? Although repealed, we should still be guided by the definition of “hacking” and “piracy” under Republic Act No, 8792, also known as the Electronic Commerce Act, particularly Section 33 in terms of narrowing the scope of international and unauthorized access. Similarly, Senator Angara stated that a cellphone repair man would not be able to repair a broken cell phone without the consent of its owner, He welcomed the proposal to narrow the scope of intentional and unauthorized access, saying that the definition in the E-Commerce Act would be adopted in Section 4(a)(1). [15]
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Sec. (4)(a)(2)
Illegal Interception [16]
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Legal Text:
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Refers to 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. [17]
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Provided, however, That it shall not be unlawful for an officer, employee, or agent of a service provider, whose facilities are used in the transmission of communications, to intercept, disclose or use that communication in the normal course of employment, while engaged in any activity that is necessary to the rendition of service or to the protection of the rights or property of the service provider, except that the latter shall not utilize service observing or random monitoring other than for purposes of mechanical or service control quality checks. [18]
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Elements:
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1) Interception: The act of capturing or acquiring non-public transmission of computer data.
2) Technical Means: Employing tools, devices, or methods to intercept the transmission.
3) Without Right: The interception is conducted without proper authorization or permission.
4) Non-public Transmission: The data being intercepted is not intended for public access or dissemination.
5) Scope: The interception can occur to data transmitted to, from, or within a computer system, including electromagnetic emissions carrying such data.
6) Exemptions for Service Providers: Certain individuals, namely officers, employees, or agents of a service provider, are exempted from the unlawful interception if:
a) The interception is conducted within the normal course of employment.
b) The interception is necessary for the rendition of service or the protection of the rights or property of the service provider.
c) Service observing or random monitoring is not utilized except for purposes of mechanical or service control quality checks.
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Note:
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– – – > “Illegal interception” refers to the act of secretly listening in or eavesdropping on private electronic communications without the legal right to do so. This can include listening in on phone calls, reading private emails, or intercepting text messages, among other forms of communication.
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– – – > The law generally prohibits this kind of activity, but there are some exceptions. For example, if you work for a company that provides communication services, you may be allowed to intercept communications in the course of your work if it’s necessary to provide the service or protect the company’s property or rights. However, the company cannot use this power to spy on its customers or randomly monitor their communications without a good reason.
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– – – > Overall, illegal interception is a serious violation of privacy and can result in legal consequences if caught.
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Comment:
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– – – > (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.
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– – – > “Illegal interception” refers to the act of secretly and unlawfully intercepting or eavesdropping on electronic communications, such as emails or text messages, without proper authorization. This can be done using technical means, such as hacking into a computer system or using a device to intercept electromagnetic signals that are being transmitted between computer systems.
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– – – > Intercepting someone’s private electronic communication without their permission is similar to secretly listening to someone’s phone conversation or reading their mail. It is a violation of privacy and can be a criminal offense. Therefore, it is important to respect the privacy of electronic communications and only intercept them with proper legal authority or consent from the parties involved.
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– – – > A primary concern behind prohibition of the interception of computer data in transmission is the breach of confidentiality in private communications. [19]
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Offense object:
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– – – > Most multilateral cybercrime instruments define the object of illegal interception as ‘non-public’ transmission of computer data, thus limiting the object to ‘private’ transmissions. This limitation refers to the intended nature of the transmission. [20]
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Explanation:
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– – – > When we use computers or the internet to send information like messages, emails, or files, this information can be intercepted by unauthorized people who want to access it without our permission. This is called illegal interception, and it’s a type of cybercrime.
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– – – > Most laws that deal with cybercrime define illegal interception as the unauthorized interception of “non-public” computer data. This means that if the information being sent is meant to be private, like a personal email or message, then intercepting it without permission is illegal.
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– – – > However, this definition doesn’t always take into account the way the information is transmitted. For example, if you send a private message over a public Wi-Fi network, the message is still meant to be private even though it’s being transmitted over a public network. So even though the transmission is going through a public network, intercepting it without permission is still illegal under these laws.
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– – – > Data can be considered ‘in transmission’ when they have not reached the final destination – either the system or the intended recipient. [21]
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– – – > Data transmission could be considered to end when the computer system of destination is reached. Alternatively, data could be considered as ‘in transmission’, when stored in the system until the intended recipient obtains access to them. No multilateral instrument provides guidance on the end-point of transmission. The distinction is important with respect to temporary data storage that occurs when computer data are transmitted with the use of protocols operated on a ‘store-and-forward’ basis. [22]
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Acts covered:
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– – – > …limit acts of interception to those committed using technical means. [23]
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State of mind:
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– – – > without right
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– – – > “INTERFERENCE” refers to intentionally or recklessly causing disruptions or hindrances to the normal functioning of a computer system or network. This can involve actions such as damaging or deleting data, altering computer programs, introducing viruses, or blocking access to specific parts of the system.
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– – – > For example, if a person hacks into a company’s computer system and deletes important data or programs, that would be considered interference. Similarly, if someone intentionally introduces a virus into a computer network, causing it to malfunction or shut down, that would also be interference.
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– – – > In simpler terms, interference is like causing a disturbance or interruption to a system, similar to how loud noise or physical obstacles can interfere with communication or movement in the physical world. In the digital world, interference can have serious consequences and is typically considered a violation of computer security and privacy.
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Sec. (4)(a)(3)
DATA INTERFERENCE [24]
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Legal Text:
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Refers to 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.
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Elements:
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1) How: Commission: Intentional or Reckless Conduct
2) What: Acts included:
a) Alteration, Damaging, Deletion, or Deterioration
b) Introduction or Transmission of Viruses
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3) Target or object: computer data, electronic document, or electronic data message
4) Without Right: The actions are carried out without proper authorization or permission.
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Note:
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– – – > Data interference goes against the crime of destroying computer data or programs; [25]
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– – – > It simply punishes what essentially is a form of vandalism, the act of willfully destroying without right the things that belong to others, in this case their computer data, electronic document, or electronic data message. [26]
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Comment:
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– – – > Interference with computer data or systems endangers the integrity and availability of computer data, as well as the proper operation of computer programmes and computer systems.
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– – – > “Data interference” refers to the intentional or reckless act of tampering with, damaging, deleting, or corrupting computer data, electronic documents, or electronic data messages without proper authorization. This can include introducing and transmitting viruses or other malicious code that can harm or disrupt computer systems or data.
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– – – > Data interference is like intentionally deleting or damaging someone’s files or documents without their permission. It is a violation of computer security and can cause significant harm, including data loss, financial damage, or even breaches of personal privacy.
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– – – > It is important to protect computer data and systems from unauthorized interference by implementing security measures such as firewalls, anti-virus software, and regular backups. Those who engage in data interference without proper authorization can face legal consequences and should be held accountable for their actions.
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Sec. (4)(a)(4)
SYSTEM INTERFERENCE [27]
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Legal Text:
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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.
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Elements:
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1) How: Commission: Intentional or Reckless Conduct;
2) What: Acts included:
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a) 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; or
b) Introduction or Transmission of Viruses;
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3) Without Right or Authority: The actions are carried out without proper authorization or permission.
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Comment:
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– – – > “System interference” refers to intentionally altering or recklessly hindering the functioning of a computer or computer network without proper authorization.
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– – – > This can be done by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or programs, electronic documents, or electronic data messages, including the introduction or transmission of viruses.
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– – – > System interference can cause significant harm to computer systems, leading to malfunctions, data loss, and financial damage. It is similar to tampering with the physical components of a computer system or network, such as cutting wires or damaging hardware.
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Sec. (4)(a)(5)
Misuse of Devices [28]
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Legal Text:
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Refers to:
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(i) The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of:
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(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.
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Comment:
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– – – > “Misuse of devices” refers to the inappropriate or unauthorized use of electronic devices or software, as well as the possession or distribution of such devices for illegal purposes.
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– – – > This can include using a device, such as a computer program, to commit a crime, such as hacking into a computer system to steal data or cause damage. It can also involve the unauthorized distribution or sale of such devices, or possessing them with the intention of using them for illegal purposes.
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– – – > For example, if someone creates and distributes a computer program specifically designed to steal personal information from other people’s computers, that would be considered misuse of devices. Similarly, if someone illegally procures a computer password or access code in order to gain unauthorized access to a computer system, that would also be considered misuse of devices.
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– – – > In simpler terms, misuse of devices involves using technology for illegal or unethical purposes, and can have serious consequences. It is important to use electronic devices and software responsibly and only for authorized purposes, and to avoid engaging in activities that could be considered misuse of devices.
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—ooo—
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Sec. (4)(a)(6)
Cyber-squatting [29]
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Refers to 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:
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1) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration:
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2) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and
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3) Acquired without right or with intellectual property interests in it.
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Notes:
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– – – > For example, supposing there exists a well known billionaire-philanthropist named “Julio Gandolfo,” the law would punish for cyber-squatting both the person who registers such name because he claims it to be his pseudo-name and another who registers the name because it happens to be his real name. xxx But there is no real difference whether he uses “Julio Gandolfo” which happens to be his real name or use it as a pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the same. [30]
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– – – > “Cyber-squatting” is a term used to describe the practice of registering, trafficking, or using a domain name with bad intentions. Cyber-squatters typically acquire a domain name in bad faith with the intent to profit from it, mislead people, damage the reputation of others, or prevent others from registering the same domain name.
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– – – > For example, a cyber-squatter may register a domain name that is identical or similar to an existing trademark or personal name, with the intention of profiting from it by selling it back to the trademark owner or using it to mislead people into thinking it is associated with the trademark owner. They may also use the domain name to damage the reputation of the trademark owner or prevent them from registering a domain name that they have a legitimate interest in.
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– – – > A domain name is a unique identifier that is used to locate a website on the internet. It is composed of a string of characters that are used to identify a specific website or web page. Domain names typically end in extensions such as .com, .org, or .net.
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– – – > In summary, cyber-squatting refers to the practice of acquiring a domain name in bad faith with the intention to profit, mislead, damage reputation, or prevent others from registering the same domain name. A domain name is a unique identifier used to locate a website on the internet.
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—ooo—
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Computer-related Offenses: [31]
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– – – > Computer-related acts for personal or financial gain or harm, including forms of identity-related crime, and computer content-related acts do not lend themselves easily to efforts to arrive at legal definitions of the aggregate term. [32]
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– – – > The second category focuses on acts for which the use of a computer system is inherent to the modus operandi. The object of such acts differs. In the case of computer-related fraud, the object may be considered as the economic property targeted. In the case of computer-related copyright or trademark offences, the offence object may be considered as the protected intellectual property right. In the case of computer-related acts causing personal harm, such as the use of a computer system to harass, bully, threaten, stalk or to cause fear or intimidation of an individual, or ‘grooming’ of a child, the offence object may be regarded as the individual targeted.[33]
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– – – > Computer-related offenses refer to criminal acts that involve the use of a computer or computer network as a tool or target of the offense. The three offenses listed in the law include computer-related forgery, computer-related fraud, and computer-related identity theft.
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– – – > Computer-related forgery involves the creation or alteration of computer data with the intent to deceive or defraud others.
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– – – > Computer-related fraud involves unauthorized access to computer data or programs with the intent to cause harm or financial loss to others.
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– – – > Computer-related identity theft involves the intentional acquisition or use of identifying information belonging to another person without their permission for fraudulent purposes. These offenses are punishable under cybercrime laws and can result in significant fines and imprisonment.
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The Computer-related Offenses are the following:
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1) Computer-related Forgery
2) Computer-related Fraud
3) Computer-related Identity Theft
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—ooo—
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Sec. (4)(b)(1)
Computer-related Forgery [34]
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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
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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.
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Comment:
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– – – > “Computer-related forgery” refers to the act of inputting, altering, or deleting computer data without authorization or permission, resulting in the creation of inauthentic data. This data is then presented or used with the intention of deceiving others into believing it is authentic and can be acted upon for legal purposes.
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– – – > For example, if someone alters a digital document without permission and creates a new version that appears authentic, they may be guilty of computer-related forgery. This altered document could then be presented as legitimate and could lead to legal consequences.
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– – – > The act of knowingly using computer data that is the product of computer-related forgery is also considered computer-related forgery. For instance, if someone knowingly uses an altered digital document in order to perpetuate a fraudulent or dishonest design, they may be guilty of computer-related forgery.
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– – – > In summary, computer-related forgery refers to the act of creating inauthentic computer data without authorization or permission, with the intent to deceive others into believing it is authentic and can be acted upon for legal purposes. It is a form of digital fraud that can have serious legal consequences.
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—ooo—
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Sec. (4)(b)(2)
Computer-related Fraud [35]
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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.
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Comment:
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– – – > Fraud is a type of dishonest behavior where someone intentionally deceives others in order to gain an advantage or benefit. It typically involves misrepresenting information or concealing facts in order to trick someone into giving up money, property, or other valuables.
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– – – > Examples of fraud might include a salesperson making false promises about the quality or performance of a product in order to convince a customer to buy it, an investment scheme that promises high returns but is actually a scam, or someone pretending to be a charity and asking for donations but pocketing the money instead of using it for a good cause. See Shopee/Lazada/ scam or Lending apps
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– – – > “Computer-related fraud” refers to the act of unauthorized access or interference with computer data, program, or system, with the intention of committing fraud. This can include inputting, altering, or deleting computer data or programs without permission, or interfering with the functioning of a computer system to cause damage, all with the intention of committing fraud.
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– – – > Examples of computer-related fraud could include hacking into a company’s computer system to steal customer data, altering financial records to hide illegal activity, or using a computer virus to cause damage to a computer system for personal gain.
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– – – > The severity of the penalty for computer-related fraud depends on the amount of damage caused. If no damage has been caused, the penalty is one degree lower than if damage had occurred. Penalties for computer-related fraud can include fines and imprisonment.
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– – – > In summary, computer-related fraud involves unauthorized access or interference with computer data, programs, or systems with fraudulent intent. It is a serious offense that can result in legal consequences, including fines and imprisonment.
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—ooo—
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Sec. (4)(b)(3)
Computer-related Identity Theft [36]
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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.
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Comment:
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– – – > In simple terms, computer-related identity theft refers to the intentional theft or use of someone else’s personal or business identifying information without permission, which can include things like their name, address, social security number, financial account information, and other confidential data.
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– – – > This kind of identity theft is specifically related to the use of computer systems or technology to obtain or manipulate the information. It can be carried out through various methods such as phishing, hacking, or other forms of cyberattacks. The purpose of this crime is typically to commit fraud, gain access to sensitive information, or impersonate the victim for financial gain or other malicious purposes. The penalty for this crime can vary depending on the severity of the case, and if no damage has been done, the penalty may be less severe.
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– – – > See: Online scam, https://www.philstar.com/nation/2022/07/23/2197319/online-seller-nabbed-identity-theft: complaint of a man who claimed the suspect used his photographs and identity in his illegal activities.
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—ooo—
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Content-related Offenses [37]
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– – – > The final category of cybercrime acts concerns computer content – the words, images, sounds and representations transmitted or stored by computer systems, including the internet. The material offence object in content-related offences is often a person, an identifiable group of persons, or a widely held value or belief. In the same way as the second category, these acts could in principle be committed ‘offline’, as well as through the use of computer systems. Nonetheless, many international and regional cybercrime instruments include specific provisions on computer content. One argument for the inclusion of content-related acts within the term ‘cybercrime’ is that computer systems, including the internet, have fundamentally altered the scope and reach of dissemination of information.
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– – – > Computer-related acts in support of terrorism offences are included in the content-related cybercrime category. The recent UNODC publication ‘The use of the Internet for terrorist purposes’106 observes that computer systems may be used for a range of acts that promote and support terrorism. These include propaganda (including recruitment, radicalization and incitement to terrorism); financing; training; planning (including through secret communication and open-source information); execution; and cyberattacks.107 The questionnaire used for information gathering for this Study referred directly to computer-related incitement to terrorism, terrorist financing offences and terrorist planning offences.108 As such, this Study concerns only on the computer content aspect of terrorism offences and excludes the threat of cyberattacks by terrorist organizations from the scope of the analysis – an approach equivalent to that of the UNODC publication on the use of the internet for terrorist purposes. [38]
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– – – > Content-related in RA 10175 are the following:
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1) Cybersex
2) Child Pornography
3) Unsolicited Commercial Communications (UNCONSTITUTIONAL)
4) Libel
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—ooo—
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Sec. (4)(c)(1)
Cybersex [39]
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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.
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Comment: [40]
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– – – > The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of the RPC punishes “obscene publications and exhibitions and indecent shows.” The Anti-Trafficking in Persons Act of 2003 penalizes those who “maintain or hire a person to engage in prostitution or pornography.”26 The law defines prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit, or any other consideration.
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– – – > The case of Nogales v. People shows the extent to which the State can regulate materials that serve no other purpose than satisfy the market for violence, lust, or pornography. The Court weighed the property rights of individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right, has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.
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– – – > In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity. The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.
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Sec. (4)(c)(2)
Child Pornography [41]
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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.
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Comment: [42]
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– – – > It seems that the above merely EXPANDS the scope of the Anti-Child Pornography Act of 2009 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when prosecuting persons who commit child pornography using a computer system. Actually, ACPA’s definition of child pornography already embraces the use of “electronic, mechanical, digital, optical, magnetic or any other means.” Notably, no one has questioned this ACPA provision.
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– – – > Of course, the law makes THE PENALTY HIGHER BY ONE DEGREE WHEN THE CRIME IS COMMITTED IN CYBERSPACE. But no one can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such higher penalty. The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded in the cyberspace is incalculable.
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– – – > Petitioners point out that the provision of ACPA that makes it unlawful for any person to “produce, direct, manufacture or create any form of child pornography” clearly relates to the prosecution of persons who aid and abet the core offenses that ACPA seeks to punish. Petitioners are wary that a person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be considered aiding and abetting a cybercrime.
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Sec. (4)(c)(3)
Unsolicited Commercial Communications
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(NOTE: Declared as a Unconstitutional provision by the Supreme Court in the case of Disini v. Sec. of Justice)
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The transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:
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(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.
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Comment:
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– – – > The above penalizes the transmission of unsolicited commercial communications, also known as “spam.” The term “spam” surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or comment was said to be making a “spam.” The term referred to a Monty Python’s Flying Circus scene in which actors would keep saying “Spam, Spam, Spam, and Spam” when reading options from a menu
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– – – > The Government, represented by the Solicitor General, points out that unsolicited commercial communications or spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.
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– – – > But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the “efficiency of computers.” Secondly, people, before the arrival of the age of computers, have already been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads. What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams. Their recipients always have the option to delete or not to read them.
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– – – > To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate forms of expression.
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Sec. (4)(c)(4)
Libel [43]
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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.
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Comment:
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The RPC provisions on libel read:
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Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
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Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
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1) A private communication made by any person to another in the performance of any legal, moral or social duty; and
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2) A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.
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Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.
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—ooo—
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Footnotes:
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[1] See Belo-Henares v. Atty. Guevarra, 801 Phil. 570 (2016)
[2] See Belo-Henares v. Atty. Guevarra, 801 Phil. 570 (2016)
[3] Sec. 4(a)(1) of RA 10175
[4] http://www.ncsl.org/issues-research/telecom/computer-hacking-and-unauthorized-access-laws.aspx (last accessed May 16, 2013)
[5]http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&CM=&DF=&CL=ENG (last accessed May 16, 2013).
[6] Disini v. Secretary of Justice (G.R. Nos. 203335, et al.)
[7] United Nations Office on Drugs and Crime. (2013, February). Retrieved March 23, 2023, pp. 17 from https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf
[8] United Nations Office on Drugs and Crime. (2013, February). Retrieved March 23, 2023, pp. 20 from https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf
[9] United Nations Office on Drugs and Crime. (2013, February). Retrieved March 23, 2023, pp. 27 from https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf
[10] United Nations Office on Drugs and Crime. (2013, February). Retrieved March 23, 2023, pp. 32 from https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf
[11] United Nations Office on Drugs and Crime. (2013, February). Retrieved March 23, 2023, pp. 82 from https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf
[12] United Nations Office on Drugs and Crime. (2013, February). Retrieved March 23, 2023, pp. 257 from https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf
[13] Ibid., 257
[14] Session No. 17, September 12, 2011, Fifteenth Congress, Second Regular Session, pp. 278
[15] Session No. 17, September 12, 2011, Fifteenth Congress, Second Regular Session, pp. 278
[16] Sec. 4(a)(2) of RA 10175
[17] Ibid.
[18] IRR of RA 10175, Sec. 4(a)(2)
[19] Ibid., 86
[20] Ibid., 86
[21] Ibid., 87
[22] Ibid., 87
[23] Ibid., 87
[24] Sec. 4(a)(3) of RA 10175
[25] Session No. 17, September 12, 2011, Fifteenth Congress, Second Regular Session, pp. 277
[26] Disini v. Secretary of Justice (G.R. Nos. 203335, et al.)
[27] Sec. 4(a)(4) of RA 10175
[28] Sec. 4(a)(5) of RA 10175
[29] Sec. 4(a)(6) of RA 10175
[30] Disini v. Secretary of Justice (G.R. Nos. 203335, et al.)
[31] Sec. 4(b) of RA 10175
[32] United Nations Office on Drugs and Crime. (2013, February). Retrieved March 23, 2023, pp. 17 from https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf
[33] United Nations Office on Drugs and Crime. (2013, February). Retrieved March 23, 2023, pp. 17 from https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf
[34] Sec. 4(b)(1) of RA 10175
[35] Sec. 4(b)(2) of RA 10175
[36] Sec. 4(b)(3) of RA 10175
[37] Sec. 4(c) of RA 10175
[38] United Nations Office on Drugs and Crime. (2013, February). Retrieved March 23, 2023, pp. 19 from https://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf
[39] Sec. 4(c)(1) of RA 10175
[40] Disini v. Secretary of Justice (G.R. Nos. 203335, et al.)
[41] Sec. 4(c)(2) of RA 10175
[42] Disini v. Secretary of Justice (G.R. Nos. 203335, et al.)
[43] Sec. 4(c)(4) of RA 10175
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