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News  15, Jan 2013

Arguments for and against the Philippine Cybercrime Law

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Does the Philippines need a cybercrime law? Yes, but the current one still has some issues that legislators need to resolve, says online safety and security consultant Sonnie Santos.

Editor’s note: We earlier featured a news and opinion piece on the Philippine Cybercrime law, notably online activist Tonyo Cruz’ take on the temporary restraining order issued against the Cybercrime Law late in 2012. In this syndicated guest article, online safety advocate Sonnie Santos pitches in with the pros and cons of the said legislation, in view of the pending expiry of the TRO.

Update: Interaksyon reported that Atty. JJ Disini said two possibilities could arise from the Supreme Court decision: one, that some of the controversial provisions could be struck down by the high court due to unconstitutionality; and two, that the entire law will be scrapped through a doctrine known as “facial invalidity,” prompting Congress to draft a new version of the law.

We all know that implementation of the Cybercrime Prevention Act of 2012 or Republic Act 10175 is suspended due to 16 petitions filed against it at the Supreme Court of the Philippines. Oral arguments are set for today, and if TRO will not be extended, implementation is likely in February.

Though public opinion is against the cybercrime law, it is better to be  informed objectively of the facts of both sides so we can make an intelligent conclusion, rather than join the mob blindly. Now what are the arguments for or against the law?

Why we need a cybercrime law

Aside from the obvious reasons that we need to protect the citizen from abuses not  covered by the e-Commerce act of 2000Anti-child pornography act of 2009 and Anti Photo and Video Voyeurism act of 2009. The Philippines’ need to align itself to the Budapest Convention for international cooperation in cybercrime enforcement and investigation. Furthermore, the biz sectors clamor for a law that will protect their interests.

The crimes stipulated in the suspended Republic Act 10175 are as follows:

A. Offenses against the confidentiality, integrity and availability of computer data and systems

  • Illegal access to the whole or any part of a computer system without rights
  • Illegal interception of any non-public transmission of computer data to, from, or within a computer system
  • Data interference such as alteration, damaging, deletion or deterioration of data without rights, including the introduction or transmission of viruses
  • System (computer or computer network) interference
  • Cyber-squatting or the acquisition of a domain name over the Internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same
  • Misuse of devices

B. Computer-related offenses

  • Computer-related forgery (input, alteration, or deletion of data) without rights resulting in inauthentic data, with the intent that it be considered or acted upon for legal purposes as if it were authentic
  • Computer-related fraud (input, alteration, or deletion of data or interference in the functioning of a computer system) causing damage
  • Computer-related identity theft or the acquisition, use, misuse, transfer, possession, alteration or deletion of the identifying information of another person

C. Content-related offenses

  • Cybersex or the engagement, maintenance, control, or operation of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system
  • Child pornography or the unlawful acts as defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009 committed through a computer system
  • Unsolicited commercial communications which seek to advertise, sell, or offer for sale products and services
  • Libel or unlawful acts as defined in Article 355 of the Revised Penal Code

D. Others

  • Aiding or abetting in the commission of cybercrime
  • Attempt in the commission of cybercrime

E. Corporate liability

  • If any of these offenses are knowingly committed by a natural person on behalf of or for the benefit of a juridical person, the latter shall be held liable for fines enumerated above up to a maximum of PHP 10,000,000.
  • If, for the benefit of the juridical person, the offense was made possible because of a natural person’s failure to supervise or control, the former shall be held liable for fines enumerated above up to a maximum of PHP 5,000,000.

Why the current form of the cybercrime law is thought to be in bad taste

1. The cybercrime law is a special law – According to  Atty. Mel Sta. Maria, special laws dont need a criminal mind to be convicted. In short, good faith or lack of intent to do harm is not a defense. Therefore, liking or retweeting potentially libelous posts can get you in trouble.

2. section 4 - The law includes libel as crime and increased its penalty, but failed to define how the crime can be committed.

3. section 5 - Facebook likes and retweets can be a violation of the cybercrime law.

4. section 6 - The 1st “catch-all provision” makes the crime committed under the revise penal code graver with the use of technology.

5. section 12 - Allows the law enforcement agencies the work around to monitor our online activities without our knowledge.

6. section 19 - The take-down clause violates due process.

7. section 20 - The 2nd “catch-all provision” clause is also known as the draconian rule of martial law.

8. Aside from libel, another supposed crime that violates freedom is cyber sex, because even legit couples are prohibited from engaging in that.

There is no doubt we need a legal framework to fight cyber crime, but this should not violate our right to privacy, due process and freedom of expression. I hope the supreme court will have wisdom to deal with what is best for the country.

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About the author

Sonnie Santos is a digital HR consultant and cyber wellness coach. He runs the Web Safety Philippines (WSPH) Training and Consultancy Services, through which he imparts wisdom and practical knowledge on safe and secure use of IT resources in the workplace, school and home.

This article originally appeared on WSPH, and was re-published with permission.

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