This article has been written by Sanjay Kumar, pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. It has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
The Philippine Congress enacted Republic Act No. 10175 or “Cybercrime Prevention Act of 2012” which addresses crimes committed against and through computer systems on 12 September 2012. It includes penal substantive rules, procedural rules and also rules on international cooperation.
Amendatory bills on cybercrime investigations are under work in the Philippines, with new provisions being introduced on procedural powers, responsibilities, and extradition. The aim is for the amendments to provide a structured approach for prosecutors and investigators on cybercrime investigations and to further align national legislation with the Budapest Convention.
In India, The Information Act, 2000 was enacted to regulate cyber crimes. The Act is based on the United Nations Model law on electronic commerce, 1996 recommended by the General Assembly of the United Nations in the year 1997. The Information Act, 2000 was later amended in the year 2008to improve certain provisions of the original Act.
Cybercrime Prevention act of Philippines
The Fundamentals of the Act
Cybercrime also called computer crime is the use of a computer as an instrument to further illegal ends such as committing fraud trafficking child pornography, intellectual property violations, stealing identities or violation of privacy. The difference between traditional criminal offences from cybercrime is the use of the computer in committing such offences. Majorlycybercrime is an attack on the information of Individuals, governments or corporations.
To combat and prevent cybercrime, the government of the Philippines introduced the Republic Act No.101175 or Cyber Prevention Act of 2012. This Act was signed by the President of the Philippines Mr. Benigno Aquino on September 12th of 2012. The original goal of this Act was to penalize acts like cybersex, child pornography, identity theft etc.
The key provisions of the Cybercrime Prevention Act of 2012
There are sixteen types of cybercrime covered under the Cybercrime Prevention Act of 2012. They are:
Access to a computer or any application without permission.
Interception of any non-public communication of computer data to, from, or within a computer system by an unauthorised person.
Unauthorized tampering with, destroying, deleting, or deteriorating computer data, electronic documents, or electronic data messages, as well as the introduction or transmission of viruses. This provision can also cover authorised activity if the person’s behaviour went beyond the agreed-upon scope and resulted in the damages listed in this provision.
Unauthorized interference with the operation of a computer or computer network, including the introduction or transmission of viruses, by inputting, transmitting, damaging, deleting, deteriorating, altering, or suppressing computer data or programmes, electronic data messages, or by deleting, deteriorating, altering, or suppressing them. This provision can also cover authorised activity if the person’s behaviour went beyond the agreed-upon scope and resulted in the damages listed in this provision.
Misuse of devices:
Unauthorized use, possession, production, sale, procurement, importation, distribution, or otherwise making available of gadgets, computer programmes, or other materials developed or adapted for committing any of the acts listed in Republic Act 10175. Unauthorized use of a computer password, access code, or similar data that allows the entire or a portion of a computer system to be accessed with the intent of using it to perpetrate any of the offences listed in Republic Act 10175.
Acquisition of a domain name in bad faith on the internet to profit, deceive, harm reputation, and prevent others from registering it. This includes trademarks that were already registered at the time of registration, names of people other than the registrant, and trademarks that were purchased with intellectual property interests in them. Those who get domain names of prominent brands and individuals who in turn are used to damage their reputation can be sued under this provision. Note that freedom of expression and infringement on trademarks or names of persons are usually treated separately. A party can exercise freedom of expression without necessarily violating the trademarks of a brand or the names of persons.
Computer related Forgery:
Unauthorized input, alteration, or deletion of computer data that results in inauthentic data with the intent that it be considered or acted on for legal purposes as if it were authentic, regardless of whether the data is directly readable and intelligible; or the act of knowingly using computer data that is the product of computer-related forgery as defined here to perpetuate .
Unauthorized access to, alteration of, or deletion of computer data or programmes, or interference with the operation of a computer system, with the purpose to cause damage.
Computer-related Identity Theft:
Unauthorized acquisition, use, abuse, transfer, possession, change, or deletion of an individual’s identifying information, whether natural or legal.
For favour or consideration, willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious presentation of sexual organs or sexual activity via a computer system.
Unlawful or banned activities conducted through a computer system, as defined and punished by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009.
Acts of libel that are illegal or forbidden under Article 355 of the Revised Penal Code, as amended, and are committed using a computer system or any other similar means that may be created in the future. Penal Code Revision According to Article 355 Libel is defined as defamation of character by writings or other means. Libel committed by writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any other similar means is punishable by prison correctional for the minimum and medium periods, or a fine ranging from 200 to 6,000 pesos, or both, in addition to any civil action that the offended party may bring.
Aiding or Abetting in the commission of cybercrime:
Anyone who knowingly assists or abets the conduct of any of the offences listed in this Act will be held accountable.
Attempt in the commission of cybercrime:
Any person who willfully attempts to commit any of the offences enumerated in this Act shall be held liable.
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.
(Section 9): 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; or (b) an authority to make decisions on behalf of the juridical person. It also includes the commission of any of the penal acts made possible due to the lack of supervision, provided that the act committed falls within the scope of such authority; or(c) an authority to exercise control inside the juridical person.
Advantages and Disadvantages of the Cybercrime Prevention Act of 2012
- Cybersex, Cyberbullying, Child pornography are now offences and such offenders can be punished. The children’s rights are protected by this Act.
- All kinds of businesses using the internet as a medium are protected by this Act.
- Provisions of this act now define the offence of cybersquatting and this deters people from the act of cybersquatting.
- Provisions that penalizes online identity theft. This provision protects the individual’s privacy and its protection.
- Ambiguity in the terms given in the Act such as the term online libel is not defined anywhere which can lead to different interpretations. Ambiguity can be seen in the provision of real-time data collection.
- The ambiguity in the Act may lead to the freedom of speech. The ambiguities like the absence of a proper definition of online libel may lead to confusion. Sometimes the expression of some truth may be misinterpreted as Libel. People may be restrained from expressing themselves.
- The implementation and execution of this Act yearly cost a huge cost to the government.
Will new Cybercrime Law harm free speech?
A new Philippine “cybercrime” law drastically increases punishments for criminal libel and gives authorities excessive and unchecked powers to shut down websites and monitor online information, Human Rights Watch said today.
The criminal penalties and other restrictions of the law are a serious threat to free expression in the nation. Several legal cases have been filed in the supreme court of the nation and demanded that this law be declared unconstitutional because it violates guarantees to free expression contained in the constitution of the Philippines and Human Rights treaties ratified by the nation.
Brad Adams, executive director of Human Rights Watch’s Asia Division, said “The cybercrime law needs to be repealed or replaced, “It violates Filipinos’ rights to free expression and it is wholly incompatible with the Philippine government’s obligations under international law.”
A comparison between the cybercrime prevention acts and the policies of Philippines and India shows similarities to some extent and at the same time there are slight differences. If the provision of cyber libel in both countries are compared, it can be seen that both countries included this provision and immediately attracted the difference of opinion from the netizens. In India, the Information Technology Act of 2000, Section 66A, defines the penalty for sending “offensive” messages through the computer, mobile phones, or tablets. Because the government failed to define the term “offensive,” it began to be used to suppress freedom of speech. In the year 2015, the Supreme Court overturned this law. In the Philippines, the same uproar from the netizens was heard when the cyber libel was introduced as an offence under the cyber prevention Act 2012. In Disini v. Secretary of Justice, the validity of the rule on online libel was challenged (G.R. 203335, 11 February 2014). The Supreme Court, on the other hand, determined that libel is not protected speech under the Constitution. As a result, the internet libel is not unconstitutional. There may be different approaches to the provisions of the Act by different countries, nevertheless to say that strict enforcement of the cyber law is essential to combat cybercrimes. Technology crimes are not just limited to a geographical region but it is a global phenomenon and stringent cyber laws are essential across the globe.
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