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Cybercrimes 101

"Let us think and re-think before we post."

 

 

I recall first seeing a computer in an exhibit at San Beda High School sometime in 1981. At that time, we would only use typewriters for our written school requirements, while the more technologically-advanced used electric typewriters.

As a young lawyer more than a decade later, I had a beeper that would receive messages from those who wanted to talk with or see me. Then came the mobile analog phones in the mid-90s together with my first taste of the email in a computer. From then on, digital life seemed to evolve in a much faster way than any of us could have ever imagined: text messaging on phones were introduced, as well as cameras, email access, and other computer-like features.

A great part of our lives are now dictated by online and internet activities – we buy, sell, play games, watch movies, interact, meet, and fellowship, and videoconference on our devices. The way we live our lives has truly changed. And with this change, we have to face the fact that offenses may be committed, and persons may be aggrieved.

This is why the Cybercrime Prevention Act of 2012 was passed.

There are three (3) general classifications of cybercrime offenses under the Cybercrime Prevention Act of 2012, these are: (a) offenses against confidentiality, integrity and availability of computer data and systems; (b) computer-related offenses; and (c) content- related offenses. Offenses against confidentiality and integrity of computer data or system may be committed by the illegal access of computer data; illegal interception by technical means of computer data; data or system interference, whether intentionally or recklessly resulting to damage, deletion or deterioration of computer data, electronic document or data message including the introduction or transmission of viruses; misuse and possession of devices including computer programs, computer password, access code, or similar data for the purpose of committing any of the acts under the Cybercrime Prevention Act; and cyber-squatting (Section 4(a)1-6).

Cyber-squatting is the acquisition of a domain name over the internet in bad faith to profit, mislead, destroy the reputation, and deprive others from registering the same. The domain name must be similar, identical, or confusingly similar to an existing registered trademark, identical or in any way similar with the name of a person other than the registrant, in case of a personal name, and acquired without right or with intellectual property interests in it (Section 4(a)6). For offenses under this classification, it is evident that it may be committed primarily by persons who have information and technology proficiency or those who we may call as “computer savvy.”

Computer-related offenses, may be committed by computer related forgery, fraud and identity theft. Computer-related forgery occurs when the input, alteration, or deletion of any computer data results in the false authentication of otherwise inauthentic data; or when someone who knowingly uses data gathered from computer-related forgery for the purposes of perpetuating it. Computer-related fraud on the other hand is committed when the unauthorized input, alteration, or deletion of computer data or a program causes damage with fraudulent intent. Computer-related identity theft is the intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical (Section 4(b)1-3). These are cybercrimes usually involving credit card fraud, i.e. unauthorized purchases, online banking or credit card transaction scams, unauthorized use of one-time-pins issued by banks or other financial institutions, or phishing, which according to the Merriam-Webster Dictionary is a “scam by which an internet user is duped into revealing personal or confidential information” to be used by the scammer.

The content-related offenses are cybersex, child pornography and cyber libel. All of these offenses are committed with the aid of a computer system. Cybersex is 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. On the other hand, child pornography consists of 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. Cyber libel or online libel are the unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code committed through a computer system or any other similar device (Section 4(c)1,2 and 4). The offense of unsolicited commercial communication in Section 4(c)(3) was declared unconstitutional under Disini v. Secretary of Justice, G.R. No. 203335.

There are other offenses such as aiding or abetting the commission of cybercrime, attempting commission, and 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 (Sections 5 and 6). However, aiding and abetting commission of cybercrime has been declared unconstitutional in the case of Disini v. Secretary of Justice regarding child pornography and cyber or online libel. The vagueness of the provision on aiding and abetting child pornography and online libel would raise apprehensions on the part of internet users because of its probable curtailment of the freedom of expression (Disini v. Secretary of Justice , G.R. No. 203335). In the absence of legislation, tracing the interactions of netizens and their level of responsibility, such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel and Section 4(c)(2) on Child Pornography cannot stand scrutiny (Disini v. Secretary of Justice, G.R. No. 203335).

A common question among netizens which was likewise raised in the Disini v. Secretary of Justice is: are reactions on online posts such as liking an openly defamatory statement, commenting on it, or sharing it with others, to be regarded as "aiding or abetting?" In the same case, the Supreme Court said “[e]xcept for the original author of the assailed statement, the rest (those who pressed like, comment or share) are essentially knee-jerk sentiments of readers who may think little or haphazardly about their response to the original post. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding friends or followers in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting (Disini v. Secretary of Justice, G.R. No. 203335)?” The Cybercrime Prevention Act 2012 has no provision to cover all of these questions, so anyone who likes, comments, or shares may not be held criminally liable for aiding or abetting cyber or online libel.

However, if the comment does not merely react to the original posting but creates an altogether new defamatory story then that should be considered an original post published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory publications (Disini v. Secretary of Justice, G.R. No. 203335). For example, if Pedro receives a defamatory Facebook or Twitter post and added malicious imputations of a crime, vice or defect that makes it separate and distinct from the original post, Pedro is considered the author of the reconfigured and restated post and can be made liable for cyber or online libel.

Netizens should not find comfort in the Disini case and in its holding that liking, commenting, and sharing are not criminally punishable, because the law, much like social media, is dynamic and may change according to the needs of the time. Besides, recklessly or intentionally liking, commenting and sharing of malicious postings have destroyed and nipped lives, impaired relationships, disfigured institutions, and added to confusion. While reacting in social media may seem worthless and inconsequential to some, let us hope that it never occurs that you, your family, and friends be the butt of the joke or the subject of malice. Let us think and re-think before we post. 

Topics: Tranquil G.S. Salvador III , Cybercrimes 101 , Cybercrime Prevention Act of 2012
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