OTHER SPECIAL PENAL LAWS UNDER CRIMES AGAINST PUBLIC INTEREST

6. Anti-Money Laundering Act of 2001 (RA 9160)

Salient Features of R.A. No. 9160 (The Anti-Money Laundering Act (AMLA) of 2001)

a. Criminalizes money laundering.b. Creates a Financial Intelligence Unit (FIU).c. Imposes requirements on customer identification, record-keeping and reporting of covered and suspicious transactions.d. Relaxes strict bank deposit secrecy laws.e. Provides for freezing/seizure/forfeiture recovery of dirty money/property.f. Provides for international cooperation.

Amendments under R.A. No. 9194

a. Lowers the threshold amount for single covered transactions (cash or other equivalent monetary instrument) from P4M to P500,000.00 within one (1) banking day.

b. Expands the reporting requirements to include the reporting of suspicious transactions regardless of the amount involved

c. Authorizes AMLC to inquire into or examine any particular deposit or investment, with any banking institution or non-bank financial institution and their subsidiaries and affiliates upon order of any competent court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activity. However, no court order is required in cases involving unlawful activities of kidnapping for ransom, narcotics offenses and hijacking, destructive arson and murder, including those perpetrated by terrorists against non-combatant persons and similar targets.

d. Authorizes the Bangko Sentral ng Pilipinas to inquire into or examine any deposit or investment with any banking institution or non-bank financial institution and their subsidiaries and affiliates when the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP to ensure compliance with R.A. No. 9160, as amended.

e. Transfers the authority to freeze any money/property from the AMLC to the Court of Appeals.

R.A. No.  10167

a. allows application for bank inquiry ex parte

b. allows verified ex parte for freeze order

A Bangko Sentral ng Pilipinas briefer on the Anti-Money Laundering Act of 2001

1. What is money laundering?

Money laundering is an act or series or combination of acts whereby proceeds of an unlawful activity, whether in cash, property or other assets, are converted, concealed or

disguised to make them appear to have originated from legitimate sources. One way of laundering money is through the financial system. Republic Act No. 9160, otherwise known as the Anti-Money Laundering Act of 2001 (AMLA), as amended, defined money laundering as a scheme whereby proceeds of an unlawful activity are transacted or attempted to be transacted, thereby making them appear to have originated from legitimate sources.

2. What has the Philippine government done to curb money laundering?

The government enacted Republic Act (R.A.) No. 9160 (The Anti-Money Laundering Act of 2001), which took effect on 17 October 2001. Certain provisions of AMLA were amended by R.A. No. 9194 (An Act Amending R.A. 9160) effective 23 March 2003. It has also issued the Revised Implementing Rules and Regulations (RIRR) implementing R.A. No. 9160, as amended.

3. What are considered unlawful activities under the AMLA, as amended?

There are 14 unlawful activities or predicate crimes covered by the AMLA. These are, in the order enumerated in the law:

Kidnapping for ransom

Drug offenses

Graft and corrupt practices

Plunder

Robbery and extortion

Jueteng and masiao

Piracy on the high seas

Qualified theft

Swindling

Smuggling

Electronic Commerce crimes

Hijacking, destructive arson and murder, including those perpetrated against non-combatant persons (terrorist acts)

Securities fraud

Felonies or offenses of a similar nature punishable under penal laws of other countries

4. How is money laundered through the financial system?

Placement – involves initial placement or introduction of the illegal funds into the financial system. Financial institutions are usually used at this point.

Layering – involves a series of financial transactions during which the dirty money is passed through a series of procedures, putting layer upon layer of persons and financial activities into the laundering process. Ex. wire transfers, use of shell corporations, etc.

Integration – the money is once again made available to the criminal with the occupational and geographic origin obscured or concealed. The laundered funds are now integrated back into the legitimate economy through the purchase of properties, businesses and other investments.

5. Why is Money Laundering a problem?

Money laundering allows criminals to preserve and enjoy the proceeds of their crimes, thus providing them with the incentives and the means to continue their illegal activities. At the same time, it provides them the opportunity to appear in public like legitimate entrepreneurs. Organized crime, through money laundering, is known to have the capacity to destabilize governments and undermine their financial systems. It is thus a threat to national security.

6. What are the salient features of the law?

It criminalizes money laundering, meaning it makes money laundering a crime, and provides penalties for its commission, including hefty fines and imprisonment.

It states clearly the determination of the government to prevent the Philippines from becoming a haven for money laundering, while ensuring to preserve the integrity and confidentiality of good bank accounts.

It creates an Anti-Money Laundering Council (AMLC) that is tasked to oversee the implementation of the law and to act as a financial intelligence unit to receive and analyze covered and suspicious transaction reports.

It establishes the rules and the administration process for the prevention, detection and prosecution of money laundering activities.

It relaxes the bank deposit secrecy laws authorizing the AMLC and the Bangko Sentral ng Pilipinas access to deposit and investment accounts in specific circumstances.

It requires covered institutions to report covered and suspicious transactions and to cooperate with the government in prosecuting offenders. It also requires them to know their customers and to safely keep all records of their transactions.

It carries provisions to protect innocent parties by providing penalties for causing the disclosure to the public of confidential information contained in the covered and suspicious transactions.

It establishes procedures for international cooperation and assistance in the apprehension and prosecution of money laundering suspects.

7. What is the Anti-Money Laundering Council (AMLC)? What are its powers?

The AMLC is the Philippines’ financial intelligence unit, which is tasked to implement the AMLA. It is composed of the Governor of the Bangko Sentral ng Pilipinas (BSP) as Chairman & the Commissioner of the Insurance Commission (IC) and the Chairman of

the Securities and Exchange Commission (SEC) as members. The AMLC is authorized to:

Require and receive covered or suspicious transaction reports from covered institutions.

Issue orders to determine the true identity of the owner of any monetary instrument or property that is the subject of a covered or suspicious transaction report, and to request the assistance of a foreign country if the Council believes it is necessary.

Institute civil forfeiture and all other remedial proceedings through the Office of the Solicitor General.

Cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses.

Investigate suspicious transactions, covered transactions deemed suspicious, money laundering activities and other violations of the AMLA.

Secure the order of the Court of Appeals to freeze any monetary instrument or property alleged to be the proceeds of unlawful activity.

Implement such measures as may be necessary and justified to counteract money laundering.

Receive and take action on any request from foreign countries for assistance in their own anti-money laundering operations.

Develop educational programs to make the public aware of the pernicious effects of money laundering and how they can participate in bringing the offenders to the fold of the law.

Enlist the assistance of any branch of government for the prevention, detection and investigation of money laundering offenses and the prosecution of offenders. In this connection, the AMLC can require intelligence agencies of the government to divulge any information that will facilitate the work of the Council in going after money launderers.

Impose administrative sanctions on those who violate the law, and the rules, regulations, orders and resolutions issued in connection with the enforcement of the law.

8. What are the covered institutions?

Banks, offshore banking units, quasi-banks, trust entities, non-stock savings and loan associations, pawnshops, and all other institutions, including their subsidiaries and affiliates supervised and/or regulated by the Bangko Sentral ng Pilipinas (BSP)

Insurance companies, holding companies and all other institutions supervised or regulated by the Insurance Commission (IC)

Securities dealers, brokers, pre-need companies, foreign exchange corporations, investment houses, trading advisers, as well as other entities supervised or regulated by the Securities and Exchange Commission (SEC)

9. What are the Customer Identification Requirements – KYC (Know Your Customer Rule)?

Covered institutions shall:

Establish and record the true identity of their clients based on official documents.

In case of individual clients, maintain a system of verifying the true identity of their clients.

In case of corporate clients, require a system verifying their legal existence and organizational structure, as well as the authority and identification of all persons purporting to act in their behalf.

Establish appropriate systems and methods based on internationally compliant standards and adequate internal controls for verifying and recording the true and full identify of their customers.

10. What are the Record-Keeping Requirements?

All covered institutions shall:

Maintain and safely store all records of all their transactions for five years from the transaction dates;

Ensure that said records/files contain the full and true identity of the owners or holders of the accounts involved in the covered transactions and all other identification documents;

Undertake the necessary adequate measures to ensure the confidentiality of such files;

Prepare and maintain documentation, in accordance with client identification requirements, on their customer accounts, relationships and transactions such that any account, relationship or transaction can be so reconstructed as to enable the AMLC and/or the courts to establish an audit trail for money laundering;

Maintain and safely store all records of existing and new accounts and of new transactions for 5 years from October 17, 2001 or from the dates of the accounts or transactions, whichever is later;

Anent closed accounts, preserve and safely store the records on customer identification, account files and business correspondence for at least 5 years from the dates they were closed;

If a money laundering case based on any record kept by the covered institution has been filed in court, retain said files until it is confirmed that the case has been finally resolved or terminated by the court; and

Retain records as originals in such forms as are admissible in court

11. What are covered transactions?

Transaction in cash or other equivalent monetary instruments involving a total amount in excess of P500,000.00 within one business day.

12. What are suspicious transactions?

Transactions, regardless of the amount involved, where the following circumstances exist:

a. there is no underlying legal or trade obligation, purpose or economic justification;

b.the client is not properly identified;

c. the amount involved is not commensurate with the business or financial capacity of the client;

d. taking into account all known circumstances, it may be perceived that the client’s transaction is structured in order to avoid being the subject of reporting requirements under the Act;

e. any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the client’s past transactions with the covered institution;

f. the transaction is in any way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or

g. any transaction that is similar or analogous to the foregoing.

13. What are the reporting requirements?

Covered institutions shall report to the AMLC all covered transactions and suspicious transactions within five working days from occurrence thereof, unless the Supervision Authority (the Bangko Sentral ng Pilipinas, the Securities and Exchange Commission, or the Insurance Commission) prescribes a longer period not exceeding ten working days. Should a transaction be determined to be both a covered transaction and a suspicious transaction, it shall be reported as suspicious transaction.

14. How is reporting done?

The reports on covered and/or suspicious transactions shall be accomplished in the prescribed formats and submitted within five business days from occurrence of the transactions in a secured manner to the AMLC in electronic form, either via diskettes, leased lines, or through internet facilities. The corresponding hard copy for suspicious transactions shall be sent to AMLC at the 5th Floor EDPC Building, Bangko Sentral ng Pilipinas Complex, Manila, Philippines. All pawnshops should coordinate with the AMLC thru tel. nos. 523-4421, 521-5662 or 302-3979 on reporting requirements, procedures and deadlines.

15. Are there sanctions for failure to report covered or suspicious transactions and non-compliance with R.A. 9160, as amended?

Sanctions/penalties shall be imposed on pawnshops that will fail to comply with the provisions of R.A. 9160, as amended.

16. What are the sanctions for failure to report covered or suspicious transactions?

Any person, required to report covered and suspicious transactions failed to do so will be subjected to penalty of 6 months to 4 years imprisonment or a fine of not less than P100,000.00 but not more than P500,000.00, or both.

17. Are there confidentiality restrictions on the reporting of covered transaction and/or suspicious transaction?

When reporting covered transactions or suspicious transactions to the AMLC, covered institutions and their officers and employees, are prohibited from communicating, directly or indirectly, in any manner or by any means, to any person, entity, the media, the fact that a covered or suspicious transaction report was made, the contents thereof, or any other information in relation thereto. Neither may such reporting be published or aired in any manner or form by the mass media, electronic mail, or other similar devices. In case of violation thereof, the concerned officer, and employee, of the covered institution, or media shall be held criminally liable.

18. What are the other offenses punishable under the AMLA, as amended?

a. Failure to keep records  is committed by any responsible official or employee of a covered institution who fails to maintain and safely store all records of transactions for 5 years from the dates the transactions were made or when the accounts were closed. The penalty is 6 months to 1 year imprisonment or a fine of not less than P100,000.00 but not more than P500,000.00, or both.

b. Malicious reporting is committed by any person who, with malice or in bad faith, reports or files a completely unwarranted or false information regarding a money laundering transaction against any person. The penalty is 6 months to 4 years imprisonment and a fine of not less than P100,000.00 but not more than P500,000.00. The offender is not entitled to the benefits of the Probation Law.

c. Breach of Confidentiality. For this offense, the penalty is 3 to 8 years imprisonment and a fine of not less than P500,000.00 but not more than P1 million. In case the prohibited information is reported by media, the responsible reporter, writer, president, publisher, manager, and editor-in-chief are held criminally liable.

d. Administrative offenses. The AMLC, after due investigation, can impose fines from P100,000.00 to P500,000.00 on officers and employees of covered institutions or any person who violates the provisions of the AMLA, as amended, the Implementing Rules and Regulations, and orders and resolutions issued pursuant thereto.

Republic of the Phil. Vs. Cabrini Green & Ross, Inc.

Facts: AMLC issued freeze orders against various bank accounts of respondents. The frozen accounts were previously found prima facie to be related to the unlawful activities of the respondents. The AMLC filed with the CA various petitions. It invoked the jurisdiction of the CA in the belief that the power given to the CA to issue a TRO or writ of injunction against any freeze order issued by the AMLC carried with it the power to extend the effectivity of a freeze order. The CA disagreed and dismissed the petitions.

Issue: Which court has jurisdiction to extend the effectivity of a freeze order?

Held: The amendment by RA 9194 of RA 9160 erased any doubt on the jurisdiction of the CA over the extension of freeze orders. As the law now stands, it is solely the CA which has the authority to issue a freeze order as well as to extend its effectivity. It also has the exclusive jurisdiction to extend existing freeze orders previously issued by the AMLC vis-à-vis accounts and deposits related to money-laundering activities.

Republic of the Phil. Vs. Glasglow Credit and Collection Services, Inc.

Facts: On July 18, 2003, the Republic filed a complaint in the RTC for civil forfeiture of assets against the bank deposits maintained by Glasgow in CSBI. The case filed pursuant to RA 9160 (AMLA 2001). Acting on the Republic’s urgent plea for the issuance of TRO, the executive judge of RTC issued a 72-hour of a writ of preliminary injunction. The trial court issued an order granting the issuance of a writ of preliminary injuction. In order, the trial court directed the issuance of alias summons. However, no mention was made of the motion for leave of court to serve summons by publication. In an order, the trial court archived the case allegedly for failure of the Republic to serve the motion for leave of court to serve summons by publication. In an order, the trial court ordered the reinstatement of the case and directed the Republic to serve the alias summons on Glasgow and CSBI within 15 days. However, it did not resolve the Republic’s motion for leave of court to serve summons by publication. Because the Republic’s motion for leave of court to serve summons by publication remain unresolved, the Republic filed a manifestation and ex parte motion to resolve its motion for leave of court to serve summons by publication. Glasgow filed for motion to dismiss. It alleged that the court had no jurisdiction over its person as summons had not yet been served on it; and that the complaint was premature and stated no cause of action; and there was failure to prosecute on the part of the Republic. The RP opposed Glasgow’s motion to dismiss. It contended that its suit was an action quasi in rem where jurisdiction over the person of the defendant was not a prerequisite to confer jurisdiction on the court. It asserted that prior conviction for unlawful activity was not a precondition to the filing of a civil forfeiture case and that its complaint alleged ultimate facts sufficient to establish a cause of action. It denied that it failed to prosecute the case. The trial court issued the assailed order. It dismissed the case on the grounds of improper venue; insufficiency of the complaint in form and substance; and failure to prosecute. It lifted the writ of preliminary injunction and directed CSBI to release to Glasgow the funds.

Issue: Whether or not the complaint for civil forfeiture was correctly dismissed on grounds of (a) improper venue, (b) insufficiency in form and substance; and (c) failure to prosecute

Held: the case is remanded to the RTC, which shall proceed with the case. (a) The trial court was a proper venue. Sec. 3. Venue of cases cognizable by the regional trial court. – A petition for civil forfeiture shall be filed in any regional trial court of the judicial region where the monetary instrument, property or proceeds representing, involving, or relating to an unlawful activity or to a money laundering offense are located; provided, however, that where all or any portion of the monetary instrument, property or proceeds is located outside the Philippines, the petition may be filed in the regional trial court in Manila or of the judicial region where any portion of the monetary instrument, property, or proceeds is located, at the option of the petitioner. (emphasis supplied) Under Section 3, Title II of the Rule of Procedure in Cases of Civil Forfeiture, therefore, the venue of civil forfeiture cases is any RTC of the judicial region where the monetary instrument, property or proceeds representing, involving, or relating to an unlawful

activity or to a money laundering offense are located. Pasig City, where the account sought to be forfeited in this case is situated, is within the National Capital Judicial Region (NCJR). Clearly, the complaint for civil forfeiture of the account may be filed in any RTC of the NCJR. Since the RTC Manila is one of the RTCs of the NCJR,10 it was a proper venue of the Republic’s complaint for civil forfeiture of Glasgow’s account.

(b) The test of the sufficiency of the facts alleged in the complaint is whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer of the complaint. Regardless of the absence, pendency or outcome of a criminal prosecution for the unlawful activity or for money laundering, an action for civil forfeiture may be separately and independently prosecuted and resolved.

(c) Given the circumstances, how could the Republic be faulted for failure to prosecute the complaint for civil forfeiture? While there was admittedly a delay in the proceeding, it could not be entirely or primarily ascribed to the Republic. That Glasgow’s whereabouts could not be ascertained was not only beyond the Republic’s control, it was also attributable to Glasgow which left its principal office address without informing the Securities and Exchange Commission or any official regulatory body (like the Bureau of Internal Revenue or the Department of Trade and Industry) of its new address. Moreover, as early as October 8, 2003, the Republic was already seeking leave of court to serve summons by publication. In Marahay v. Melicor,18 this Court ruled: While a court can dismiss a case on the ground of non prosequitur, the real test for the exercise of such power is whether, under the circumstances, plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. In the absence of a pattern or scheme to delay the disposition of the case or a wanton failure to observe the mandatory requirement of the rules on the part of the plaintiff, as in the case at bar, courts should decide to dispense with rather than wield their authority to dismiss. (emphasis supplied) We see no pattern or scheme on the part of the Republic to delay the disposition of the case or a wanton failure to observe the mandatory requirement of the rules. The trial court should not have so eagerly wielded its power to dismiss the Republic’s complaint. 

7. Access Devices Regulation Act of 1998 (RA No. 8484)

Section 9. Prohibited Acts. – The following acts shall constitute access device fraud and are hereby declared to be unlawful:

(a) producing, using, trafficking in one or more counterfeit access devices;

(b) trafficking in one or more unauthorized access devices or access devices fraudulently applied for;

(c) using, with intent to defraud, an unauthorized access device;

(d) using an access device fraudulently applied for;

(e) possessing one or more counterfeit access devices or access devices fraudulently applied for;

(f) producing, trafficking in, having control or custody of, or possessing device-making or altering equipment without being in the business or employment, which lawfully deals with the manufacture, issuance, or distribution of such equipment;

(g) inducing, enticing, permitting or in any manner allowing another, for consideration or otherwise to produce, use, traffic in counterfeit access devices, unauthorized access devices or access devices fraudulently applied for;

(h) multiple imprinting on more than one transaction record, sales slip or similar document, thereby making it appear that the device holder has entered into a transaction other than those which said device holder had lawfully contracted for, or submitting, without being an affiliated merchant, an order to collect from the issuer of the access device, such extra sales slip through an affiliated merchant who connives therewith, or, under false pretenses of being an affiliated merchant, present for collection such sales slips, and similar documents;

(i) disclosing any information imprinted on the access device, such as, but not limited to, the account number or name or address of the device holder, without the latter's authority or permission;

(j) obtaining money or anything of value through the use of an access device, with intent to defraud or with intent to gain and fleeing thereafter;

(k) having in one's possession, without authority from the owner of the access device or the access device company, an access device, or any material, such as slips, carbon paper, or any other medium, on which the access device is written, printed, embossed, or otherwise indicated;

(l) writing or causing to be written on sales slips, approval numbers from the issuer of the access device of the fact of approval, where in fact no such approval was given, or where, if given, what is written is deliberately different from the approval actually given;

(m) making any alteration, without the access device holder's authority, of any amount or other information written on the sales slip;

(n) effecting transaction, with one or more access devices issued to another person or persons, to receive payment or any other thing of value;

(o) without the authorization of the issuer of the access device, soliciting a person for the purpose of:

1) offering an access device; or

2) selling information regarding or an application to obtain an access device; or

(p) without the authorization of the credit card system member or its agent, causing or arranging for another person to present to the member or its agent, for payment, one or more evidence or records of transactions made by credit card.

Section 14. Presumption and prima facie evidence of intent to defraud. – The mere possession, control or custody of:

(a) an access device, without permission of the owner or without any lawful authority;

(b) a counterfeit access device;

(c) access device fraudulently applied for;

(d) any device-making or altering equipment by any person whose business or employment does not lawfully deal with the manufacture, issuance, or distribution of access device;

(e) an access device or medium on which an access device is written, not in the ordinary course of the possessor's trade or business; or

(f) a genuine access device, not in the name of the possessor, or not in the ordinary course of the possessor's trade or business, shall be prima facie evidence that such device or equipment is intended to be used to defraud.

A cardholder who abandons or surreptitiously leaves the place of employment, business or residence stated in his application or credit card, without informing the credit card company of the place where he could actually be found, if at the time of such abandonment or surreptitious leaving, the outstanding and unpaid balance is past due for at least ninety (90) days and is more than Ten thousand pesos (P10,000.00), shall be prima facie presumed to have used his credit card with intent to defraud.

NON-IMPRISONMENT FOR CREDIT CARD DEBTS (Source: Police, Facts and Law Facebook, July 2013)

The question that is frequently asked, as far as credit cards are concerned, is whether one may be imprisoned for failure to pay credit card debts. This has often been posed by no less than the credit card holders, who, for some reasons, failed to pay their credit card debts.

In order to obtain the desired answer, there is an imperative need to examine the applicable law on credit cards; and, for similar purpose, it is equally important to take a closer look at the pertinent provisions in our Constitution, particularly those found under the “Bill of Rights.”

Here in the Philippines, the law governing credit cards is Republic Act No. 8484 (RA 8484), otherwise known as the “Access Devices Regulation Act of 1998.” Approved by the Tenth Congress of the Philippines on February 11, 1998, RA 8484 is an act crafted to, among others, regulate the issuance and use of access devices and prohibit fraudulent acts committed in relation to such devices.

An “Access Device” is defined under RA 8484 as “any card, plate, code, account number, electronic serial number, personal identification number, or other telecommunications service, equipment, or instrumental identifier, or other means of account access that can be used to obtain money, good, services, or any other thing of value or to initiate a transfer of funds (other than a transfer originated solely by paper instrument).”

While a “Credit Card,” which is included within the meaning of an access device, is defined under RA 8484 as “any card, plate, coupon book, or other credit device existing for the purpose of obtaining money, goods, property, labor or services or any thing of value on credit.”

Upon careful reading of RA 8484 in its entirety, it becomes apparent that “mere failure to pay credit card debts” is not among the “Prohibited Acts,” constituting “Access Device Fraud,” which are declared to be unlawful and, thus, punishable with a fine and imprisonment.

What is punishable under RA 8484 is the act of “obtaining money or anything of value through the use of an access device, with intent to defraud or with intent to gain and fleeing thereafter.”

Notably, as far as the element of “Intent to Defraud” is concerned, RA 8484 provides for a prima facie presumption to the effect that “a cardholder who abandons or surreptitiously leaves the place of employment, business or residence stated in his application or credit card, without informing the credit card company of the place where he could actually be found, if at the time of such abandonment or surreptitious leaving, the outstanding and unpaid balance is past due for at least ninety (90) days and is more than Ten thousand pesos (P10,000.00), shall be prima facie presumed to have used his credit card with intent to defraud.”

Nevertheless, what is clear from RA 8484 is that “mere failure to pay credit card debts,” in the absence of fraud, will never give rise to any criminal liability on the part of any credit card holder.

Even assuming, just for the sake of discussion, that “mere failure to pay credit card debts” is among the prohibited acts constituting access device fraud, which, as discussed, are declared to be unlawful and, thus, punishable with a fine and imprisonment, still, it will be struck down as void and, as such, of no effect for being unconstitutional, it being in direct contravention of the constitutional prohibition against imprisonment for debts.

Under Section 20 of Article III (Bill of Rights) of the 1987 Constitution, it is explicitly provided that “no person shall be imprisoned for debts,” and, this, no doubt, includes, within its scope, credit card debts.

Soledad vs. People, February 23, 2011

Information; when sufficient. The Supreme Court rejected the petitioner’s claim that the Information against him was invalid. He argued that though he was charged with “possession of an access device fraudulently applied for,” the act of “possession,” which is the gravamen of the offense, was not alleged in the Information. Section 6, Rule 110 of the Rules of Criminal Procedure lays down the guidelines in determining the sufficiency of a complaint or information which states that “a complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.” In Information filed before the RTC against petitioner, it was clearly stated that the accused is petitioner “Mark Soledad y Cristobal a.k.a. Henry Yu/Arthur.”  It was also specified in the preamble of the Information that he was being charged with Violation of R.A. No. 8484, Section 9(e) for possessing a counterfeit access device or access device fraudulently applied for. In the accusatory portion thereof, the acts constituting the offense were clearly narrated in that

“[petitioner], together with other persons[,] willfully, unlawfully and feloniously defrauded private complainant by applying [for] a credit card, an access device defined under R.A. [No.] 8484, from Metrobank Card Corporation, using the name of complainant Henry C. Yu and his personal documents fraudulently obtained from him, and which credit card in the name of Henry Yu was successfully issued, and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice of the real Henry Yu.” Moreover, it was identified that the offended party was private complainant Henry Yu and the crime was committed on or about the 13th day of August 2004 in the City of Las Piñas. Undoubtedly, the Information contained all the necessary details of the offense committed, sufficient to apprise petitioner of the nature and cause of the accusation against him. Mark Soledad y Cristobal v. People of the Philippines, G.R. No. 184274, February 23, 2011. 

8. Anti-Camcording Act of 2010 (RA10088)

I highly doubt any of my readers sneak in cameras to document movies, but if you’re a fan of the flea market DVD bonanza, you’ll know what I mean. It’s no secret that movie piracy is rampant in this country, and there is definitely a blind eye cast upon this. It appears that the fines are slapped on those caught recording inside movie theaters.

Today, it’s now a law. RA 10088, the Anti-Camcording Act of 2010, was passed by the Senate on January 18, 2010 and the House of Representatives on January 27, 2010, and approved by the President on May 13, 2010. The Act declares unlawful the following acts committed when a copyright exists in a cinematographic film or other audiovisual work or its soundtrack, without the authorization of the copyright owner or exclusive licensee: (a) use or attempt to use an audiovisual recording device to transmit or make a copy of any performance in an exhibition facility; (b) to possess an audiovisual recording device in an exhibition facility, with the intent of using or attempting to use the same to transmit or make a copy of the performance; and (c) aid, abet or connive in the commission of these prohibited acts.  These shall be punished by a fine from P50 thousand to P750 thousand, and imprisonment of 6 months and 1 day to 6 years and 1 day.  If the purpose of the acts is the sale, rental or other commercial distribution of a copy, the penalty shall be imposed in the maximum.  If the offender is an alien, he shall be deported immediately after payment of the fine and imprisonment, and shall thereafter be refused entry into the country.

The Act provides for presumptions on the subsistence of copyright and/or ownership of copyright.  It shall not be a defense that the transmission or the making of a copy is for private or domestic purposes, or in connection with a fair use deal.

All exhibition facilities, cinemas or theatres are required to conspicuously post notices or signages warning against the bringing in of audiovisual recording devices into the screening/exhibition area.  The management/operator who fails to post these required notices shall be fined P50 thousand.

Members of the Philippine National Police and the National Bureau of Investigation are given the power to enter and search an exhibition facility, without a warrant and without

payment of admission fee or other charge, when he has reasonable grounds to believe that a violation of this Act has been or is being committed.  These authorized persons may also, under the same circumstances, (i) search any person who has any audiovisual recording device by which an offense has been, or is being, committed; (ii) seize, remove, or detain any audiovisual recording device or other object which appear to contain, or likely to contain, evidence of an offense; (iii) use reasonable force to remove any person or object obstructing them in the exercise of any of their powers under the Act; (iv) detain any person, within a reasonable time not exceeding 18 hours, found in the exhibition facility and is reasonably believed to be connected to the subject of the search, when detention is necessary to adequately perform the search; and (v) require the operator or other responsible person of the exhibition facility to give information or render assistance that may be necessary to enable the authorized persons to carry out their functions under this Act.

Regardless of the conviction of the accused, the courts may order any copy of a cinematographic film or other audiovisual work, which the court believes to be an unauthorized copy, and any audiovisual recording device or other equipment that was in the possession of the accused, be destroyed or delivered to the owner or exclusive licensee of the copyright.

Section 3. Acts Constituting Unauthorized Possession, Use and/or Control of Audiovisual Recording Devices. - It shall be unlawful for any person, at a time when copyright subsists in a cinematographic film or other audiovisual work or its soundtrack and without the authorization of the copyright owner or exclusive licensee thereof, to:

(a)use or attempt to use an audiovisual recording device to transmit or make a copy of any performance in an exhibition facility of such cinematographic film or other audiovisual work or its soundtrack, or any part thereof;

(b)have in his/her possession, an audiovisual recording device in an exhibition facility, with the intent of using or attempts to use the audiovisual recording device to transmit or make a copy of any performance in the exhibition facility of such cinematographic film or other audiovisual work or its soundtrack, or any part thereof; or

(c)aid, abet or connive in the commission of the acts prohibited under this section.

Section 8. Powers of Authorized Persons to Enter an Exhibition Facility and Search the Same. - An authorized person, without a warrant and without payment of any admission fee or other charge, may enter and search any exhibition facility if the authorized person has reasonable ground to believe that any violation of this Act has been or is being committed and, due to the delay necessary to obtain a warrant could result in the loss or destruction of evidence, or for any other reason it would not be reasonably practicable to obtain a warrant.

Section 9. Other Powers of Authorized Persons. - An authorized person who has reasonable ground to believe that a violation under this Act has been or is being committed may:

(a)search any person if the person subject of the search has in his/her actual possession, any audiovisual recording device, in respect of which an offense under this Act has been or is being committed;

(b)seize, remove or detain any audiovisual recording device or other object which appears to contain, or likely to contain evidence of an offense committed under this Act;

(c)use reasonable force to remove any person or object obstructing the authorized person in the exercise of any power conferred upon him/her by this Act;

(d)detain any person, within a reasonable time not exceeding eighteen (18) hours, found in any place which the authorized person is empowered to enter and search if, after inquiry made, said authorized person has reasonable ground to believe that the person subject of the search is connected with the subject matter of the search and it is considered necessary to detain the person subject of the search to be able to adequately perform the search; and

(e)require the operator of an exhibition facility or any other person who appears to be at the time responsible for the control or management of the exhibition facility to give information or render assistance that may be necessary to enable the authorized person to carry out the functions under this Act.

9. Illegal Recruitment (RA No. 8042 as amended by RA NO. 10022)

Acts of illegal recruitment: RA No. 10022, Section 5. Section 6 of Republic Act No. 8042, as amended, is hereby amended to read as follows:

"SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

"(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance;

"(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;

"(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA;

"(d) To include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;

"(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization;

"(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;

"(h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;

"(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment;

"(j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency;

"(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations;

"(l) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;

"(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and

"(n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.

"Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

"In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts:

"(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees

and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan;

"(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;

"(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own;

"(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner;

"(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;

"(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and

"(7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage.

"The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.

"In the filing of cases for illegal recruitment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused.

"In the prosecution of offenses punishable under this section, the public prosecutors of the Department of Justice shall collaborate with the anti-illegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive additional allowances as may be determined by the POEA Administrator.

"The filing of an offense punishable under this Act shall be without prejudice to the filing of cases punishable under other existing laws, rules or regulations."1avvphi1

Sto. Tomas vs. Salac (November 13, 2012)

This case is a consolidation of the following cases: G.R. No. 152642, G.R. No. 152710, G.R. No. 167590, G.R. Nos. 182978-79, and G.R. Nos. 184298-99.

G.R. No. 152642 and G.R. No. 152710

In G.R. No. 152642, in 2002, Rey Salac et al, who are recruiters deploying workers abroad, sought to enjoin the Secretary of Labor, Patricia Sto. Tomas, the POEA, and TESDA, from regulating the activities of private recruiters. Salac et al invoked Sections 29 and 30 of the Republic Act 8042 or the Migrant Workers Act which provides that recruitment agency in the Philippines shall be deregulated one year from the passage of the said law; that 5 years thereafter, recruitment should be fully deregulated. RA 8042 was passed in 1995, hence, Salac et al insisted that as early as 2000, the aforementioned government agencies should have stopped issuing memorandums and circulars regulating the recruitment of workers abroad.

Sto. Tomas then questioned the validity of Sections 29 and 30.

ISSUE: Whether or not Sections 29 and 30 are valid.

HELD: The issue became moot and academic. It appears that during the pendency of this case in 2007, RA 9422 (An Act to Strengthen the Regulatory Functions of the POEA) was passed which repealed Sections 29 and 30 of RA 8042.

G.R. 167590

In this case, the Philippine Association of Service Exporters, Inc. (PASEI) questioned the validity of the following provisions of RA 8042:

a. Section 6, which defines the term “illegal recruitment”. PASEI claims that the definition by the law is vague as it fails to distinguish between licensed and non-licensed recruiters;

b. Section 7, which penalizes violations against RA 8042. PASEI argues that the penalties for simple violations against RA 8042, i.e., mere failure to render report or obstructing inspection are already punishable for at least 6 years and 1 day imprisonment an a fine of at least P200k. PASEI argues that such is unreasonable;

c. Section 9, which allows the victims of illegal recruitment to have the option to either file the criminal case where he or she resides or at the place where the crime was committed. PASEI argues that this provision is void for being contrary to the Rules of Court which provides that criminal cases must be prosecuted in the place where the crime or any of its essential elements were committed;

d. Section 10, which provides that corporate officers and directors of a company found to be in violation of RA 8042 shall be themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. PASEI claims that this automatic liability imposed upon corporate officers and directors is void for being violative of due process.

RTC Judge Jose Paneda of Quezon City agreed with PASEI and he declared the said provisions of RA 8042 as void. Secretary Sto. Tomas petitioned for the annulment of the RTC judgment.

ISSUE: Whether or not Sections 6, 7, 9, and 10 of RA 8042 are void.

HELD: No, they are valid provisions.

a. Section 6: The law clearly and unambiguously distinguished between licensed and non-licensed recruiters. By its terms, persons who engage in “canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers” without the appropriate government license or authority are guilty of illegal recruitment whether or not they commit the wrongful acts enumerated in that section. On the other hand, recruiters who engage in the canvassing, enlisting, etc. of OFWs, although with the appropriate government license or authority, are guilty of illegal recruitment only if they commit any of the wrongful acts enumerated in Section 6.

b. Section 7: The penalties are valid. Congress is well within its right to prescribed the said penalties. Besides, it is not the duty of the courts to inquire into the wisdom behind the law.

c. Section 9: The Rules on Criminal Procedure, particularly Section 15(a) of Rule 110, itself, provides that the rule on venue when it comes to criminal cases is subject to existing laws. Therefore, there is nothing arbitrary when Congress provided an alternative venue for violations of a special penal law like RA 8042.

d. Section 10: The liability of corporate officers and directors is not automatic. To make them jointly and solidarily liable with their company, there must be a finding that they were remiss in directing the affairs of that company, such as sponsoring or tolerating the conduct of illegal activities.

G.R. 182978-79, and G.R. 184298-99

In this case, Jasmin Cuaresma, a nurse working in Saudi Arabia was found dead. Her parents received insurance benefits from the OWWA (Overseas Workers Welfare Administration). But when they found out based on an autopsy conducted in the Philippines that Jasmin was raped and thereafter killed, her parents (Simplicio and Mila Cuaresma) filed for death and insurance benefits with damages from the recruitment and placement agency which handled Jasmin (Becmen Service Exporter and Promotion, Inc.).

The case reached the Supreme Court where the Supreme Court ruled that since Becmen was negligent in investigating the true cause of death of Jasmin ( a violation of RA 8042), it shall be liable for damages. The Supreme Court also ruled that pursuant to Section 10 of RA 8042, the directors and officers of Becmen are themselves jointly and solidarily liable with Becmen.

Eufrocina Gumabay and the other officers of Becmen filed a motion for leave to intervene. They aver that Section 10 is invalid.

ISSUE: Whether or not Section is invalid.

HELD: No. As earlier discussed, Section 10 is valid. The liability of Gumabay et al is not automatic. However, the SC reconsidered its earlier ruling that Gumabay et al are solidarily and jointly liable with Becmen there being no evidence on record which shows that they ere personally involved in their company’s particular actions or omissions in Jasmin’s case.

People vs. Hadja Jarma Lalli

FACTS: Lolita Sagadsad Plando, herein complainant, was a victim of illegal recruitment and human trafficking. She was allegedly recruited by a certain Ronnie Masion Aringoy to work in Malaysia as a restaurant entertainer. She was told that she only needed a passport to get to Malaysia. She then took her sister’s passport which was altered by Ronnie Masion Aringoy . In a matter of days, she was bound to Malaysia. One Hadja Jarma Lalli and one Nestor Relagampos accompanied her to her workplace in Malaysia, together with three other recruits. It was Nestor Relampagos who introduced them to their “Boss”. However, when she arrived there, the restaurant turned out to be a prostitution den where she was forced to work as a prostitute. After a month, she escaped from the said prostitution den with the help of her sister residing in Malaysia. Thereafter, she returned to the Philippines and filed a complaint against Hadja Jarma Lalli, Nestor Relagampos and Ronnie Masion Aringoy. The accused were found guilty by both the trial court and the Court of Appeals.

ISSUE: Did the accused commit illegal recruitment?

RULING: YES. A person or entity engaged in recruitment and placement activities without the requisite authority from DOLE, whether for profit or not, is deemed to be engaged in illegal recruitment. The commission of illegal recruitment by three or more persons conspiring or confederating with one another is deemed committed by a syndicate and constitutes economic sabotage. The three elements of syndicated illegal recruitment are present in this case, in particular: (1) the accused have no valid license or authority required by law to enable them to lawfully engage in the recruitment and placement of workers; (2) the accused engaged in this activity of recruitment and placement by actually recruiting, deploying and transporting Lolita to Malaysia; and (3) illegal recruitment was committed by three persons, conspiring and confederating with one another.

People vs. Melissa Chua G.R. No. 184058, March 10, 2010

Facts: Melissa Chua (appellant) was indicted for Illegal Recruitment (Large Scale). Appellant pleaded not guilty on arraignment. Her co-accused Josie remained at large. The cases were consolidated, hence, trial proceeded only with respect to appellant. Of the five complainants, only three testified, namely, Marilyn D. Macaranas (Marilyn), Erik de Guia Tan (Tan) and Harry James King (King). Appellant denied the charges. Claiming having worked as a temporary cashier from January to October, 2002 at the office of Golden Gate, owned by one Marilyn Calueng, she maintained that Golden Gate was a licensed recruitment agency and that Josie, who is her godmother, was an agent. Appellant was convicted thereof by the Regional Trial Court (RTC) of Manila. She was also indicted for five counts of Estafa but was convicted only for three. The Court of Appeals affirmed appellant’s conviction.

Issue: Is appellant guilty of illegal recruitment in large scale?

Ruling: Yes. For illegal recruitment in large scale to prosper, the prosecution has to prove three essential elements, to wit: (1) the accused undertook a recruitment activity under Article 13(b) or any prohibited practice under Article 34 of the Labor Code; (2) the accused did not have the license or the authority to lawfully engage in the recruitment and placement of workers; and (3) the accused committed such illegal activity against three or more persons individually or as a group.

In the present case, Golden Gate, of which appellant admitted being a cashier from January to October 2002, was initially authorized to recruit workers for deployment abroad. Per the certification from the POEA, Golden Gate’s license only expired on February 23, 2002 and it was delisted from the roster of licensed agencies on April 2, 2002.

Appellant was positively pointed to as one of the persons who enticed the complainants to part with their money upon the fraudulent representation that they would be able to secure for them employment abroad. In the absence of any evidence that the complainants were motivated by improper motives, the trial court’s assessment of their credibility shall not be interfered with by the Court

Even if appellant were a mere temporary cashier of Golden Gate, that did not make her any less an employee to be held liable for illegal recruitment as principal by direct participation, together with the employer, as it was shown that she actively and consciously participated in the recruitment process.

Assuming arguendo that appellant was unaware of the illegal nature of the recruitment business of Golden Gate, that does not free her of liability either. Illegal Recruitment in Large Scale penalized under Republic Act No. 8042, or "The Migrant Workers and Overseas Filipinos Act of 1995," is a special law, a violation of which is malum prohibitum, not malum in se. Intent is thus immaterial. And that explains why appellant was, aside from Estafa, convicted of such offense. [I]llegal recruitment is malum prohibitum, while estafa is malum in se. In the first, the criminal intent of the accused is not necessary for conviction. In the second, such an intent is imperative. Estafa under Article 315, paragraph 2, of the Revised Penal Code, is committed by any person who defrauds another by using fictitious name, or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of similar deceits executed prior to or simultaneously with the commission of fraud.

10. Cybercrime Prevention Act (RA No. 10175)

Source: http://www.ilonggotechblog.com/2012/10/what-is-republic-act-no-ra-10175-or.html#sthash.UOiNoogC.dpuf

Republic Act No. 10175 or the Cybercrime Prevention Act of 2012 is a Philippine Republic Act signed by President Aquino on 12 September 2012. It aims to address legal issues concerning

online interactions. Among the cybercrime offenses included in the bill are cybersquatting, cybersex, child pornography, identity theft, illegal access to data and libel, but the new Act received mixed reactions upon its enactment especially on the grounds of freedom of expression, freedom of speech and data security. Several petitions are currently submitted to the Supreme Court of the Philippines questioning the constitutionality of the Act.

The Cybercrime Prevention Act of 2012 is the first law in the Philippines which specifically criminalizes computer crime, which prior to the passage of the law had no strong legal precedent in Philippine jurisprudence. The Act, divided into 31 sections split across eight chapters, criminalizes several types of offenses, including illegal access (hacking), data interference, device misuse, cybersquatting, computer-related offenses such as computer fraud, content-related offenses such as cybersex and spam, and other offenses. The law also reaffirms existing laws against child pornography, an offense under Republic Act No. 9779 (the Anti-Child Pornography Act of 2009), and libel, an offense under Section 377 of the Revised Penal Code of the Philippines, also criminalizing them when committed using a computer system. Finally, the Act provides for a "catch-all" clause, wherein all offenses currently punishable under the Revised Penal Code are likewise punishable under the Act when committed using a computer, with corresponding stricter penalties than if the crimes were punishable under the Revised Penal Code alone.

Section 4 - Cyber Crime Offenses(a) Offenses against the confidentiality, integrity and availability of computer data and systems

Illegal Access - The access to the whole or any part of a computer system without right.

Illegal Interception - The interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.

Data Interference - The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

System Interference - The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or computer program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.

Misuse of Devices - The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of:

A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under this Act; or

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.

Cyber-squatting - The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is:

Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration:

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.

(b) Computer-related offenses

Computer-related Forgery- 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 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.

Computer-related Fraud - The unauthorized input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

Computer-related Identity Theft - The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

(c) Content-related offenses

Cybersex - The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

Child Pornography - The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system. The penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

Unsolicited Commercial Communications - The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited unless:

There is prior affirmative consent from the recipient; or

The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or

The following conditions are present:

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;

The commercial electronic communication does not purposely disguise the source of the electronic message; and

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.

Libel - The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

Section 5 - Other offenses under R.A. 10175

Aiding or Abetting in the Commission of Cybercrime - Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

Attempt in the Commission of Cybercrime - Any person who willfully attempts to commit any of the offenses enumerated in R.A. 10175 shall be held liable.

Penalties:

For sections 4a and 4b, imprisonment of prision mayor or a fine of at least P200,000 or both.

For section 4a5, imprisonment of prision mayor or a fine of not more than P500,000 or both.

If section 4a are committed in critical infrastructure, penalty of reclusion temporal or a fine of at least P500,000 or both.

For section 4c1, imprisonment of prision mayor or a fine of at least P200,000 but not exceeding P1,000,000 or both.

For section 4c2, penalties as enumerated in RA 9775 or Anti-Child Pornography Act of 2009. 1 degree higher if committed in computer system.

For section 4c3, punishment of arresto mayor or a fine of at least P50,000 but not exceeding P250,000 or both

For section 5, punishment of 1 degree lower of the prescribed penalty for the offense or a fine of at least P100,000 but not exceeding P500,000 or both.

Corporate liability is equivalent to at least double the fines imposable in section 7 up to maximum of P10,000,000.

Enforcement and Implementation

Law enforcement authorities, such as the National Bureau of Investigation (NBI) and the Philippine National Police (PNP) shall be responsible for the implementation of the provisions of this Act.

The Department of Justice (DOJ) shall be responsible for assisting in investigations or proceedings concerning criminal offenses related to computer systems or data, in collection of electronic evidence of criminal offense and in ensuring the provisions of the law are complied with.

JOSE JESUS M. DISINI, JR., ET AL. v. THE SECRETARY OF JUSTICE, ET AL., G.R. No. 203335, FEBRUARY 18, 2014

Constitutional law; Unsolicited commercial communications, also known as “spam” is entitled to protection under freedom of expression.   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. The State cannot rob him of this right without violating the constitutionally guaranteed freedom of expression.  Unsolicited advertisements are legitimate forms of expression.

Criminal law; Cyberlibel under Section 4(c)(4) of the Cybercrime Law is constitutional.   The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation.  Indeed, cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the Penal Code, already punishes it.  In effect, Section 4(c)(4) above merely affirms that online defamation constitutes “similar means” for committing libel. But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or article.  Cyberlibel brings with it certain intricacies, unheard of when the Penal Code provisions on libel were enacted.  The culture associated with internet media is distinct from that of print.

Criminal law; Section 5 of the Cybercrime Law that punishes “aiding or abetting” libel on the cyberspace is a nullity. The terms “aiding or abetting” constitute broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way.  What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated. In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.

FACTS:Petitioners Jose Jesus M. Disini, Jr., Rowena S. Disini, Lianne Ivy P.

Medina, Janette Toral and Ernesto Sonido, Jr., as taxpayers, file a Petition

for Certiorari and Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, the petitioners seek to 1) nullify Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175, otherwise known as the “Cybercrime Prevention Act of 2012” for violating the fundamental rights protected under the Constitution; and 2) prohibit the Respondents, singly and collectively, from enforcing the afore-mentioned provisions of the Cybercrime Act.

Named as Respondents are the Secretary of Justice, the Secretary of the Interior and Local Government, the Executive Director of the Information Communications Technology Office, the Chief of the Philippine National Police, and the Director of the National Bureau of Investigation.

ISSUES/GROUNDS:1. Sections 4(c)(4), 6, 7, 12 and 19 of The Cybercrime Act violate the

petitioners’ constitutionally protected rights to freedom of expression, due process, equal protection, privacy of communications, as well as the Constitutional sanctions against double jeopardy, undue delegation of legislative authority and the right against unreasonable searches and seizure;

o • Sections 6 and 7 of the Cybercrime Act more than doubles the liability for imprisonment for any violation of existing penal laws are in violation of the petitioners’ right against Double Jeopardy;

o • Section 12 of the Cybercrime Act, which permits the NBI and the PNP “with due cause” to engage in real time collection of traffic data without the benefit of the intervention of a judge, violates the Petitioners’ Constitutionally-protected right to be free from unreasonable searches and seizure as well as the right to the privacy of communications;

o • Section 19 of the Cybercrime Act, which authorizes the Respondent Secretary of DOJ to block or restrict access to any content upon a prima facie finding that the same violates the law, contains an undue delegation of legislative authority, infringes upon the judicial power of the judiciary, and violates the Petitioners’ Constitutionally-protected right to due process and freedom of expression; and

o • Section 4(c)(4) defines libel as a cybercrime and in relation to Section 6 of the law increased the penalty from 6 months  to 4 years and 2 months to the greater period of 6 years to 10 years, infringes upon the right to freedom of expression and also restricts the freedom of the press. Under Section 12, a prima facie finding by the Secretary of DOJ can trigger an order directed at service providers to block access to the said material without the benefit of a trial or a conviction. Thus, RA 10175 infringes upon the right to freedom of expression and also restricts the freedom of the press. The increased penalties, plus the ease by which allegedly libelous materials can be removed from access, work together as a “chilling effect” upon protected speech.

2. No other plain, speedy, or adequate remedy in the court of law, and that this Petition is therefore cognizable by the SC’s judicial power under Article VIII, Section 1 par. 2 of the Constitution and pursuant to Rule 65, Sec. 1 of the 1997 Rules of Civil Procedure, as amended.

ARGUMENTS/DISCUSSIONS:1. The Cybercrime Act Violates Free Speech:

o • imposes heavier penalties for online libel than paper-based libel; single act of online libel will result in two convictions penalized separately under the RP and the Cybercrime Act;

o online libel under the Cybercrime Act will ensure the imprisonment of the accused and for a much longer period. Such changes will result in a chilling effect upon the freedom of speech;

o • with the passage of the Cybercrime Act, Senator Vicente Sotto III’s earlier threat to criminally prosecute all bloggers and internet users who were critical of his alleged plagiarism of online materials for use in his speech against the Reproductive Health Bill became real; threat of criminal prosecution under RA 10175 will work to preclude people such as Petitioners from posting social commentaries online, thus creating a “chilling effect” upon the freedom of expression;

o • gives the DOJ Secretary blanket authority to restrain and block access to content whether authored by private citizens or the organized press sans any hearing of any kind but merely upon a mere prima facie showing that a particular Internet article constitutes online libel;

o • respondents must demonstrate how the Cybercrime Act will fare under strict scrutiny

2. Sections 6 and 7 of the Cybercrime Act violate the Double Jeopardy and Equal Protection Clauses of the Constitution:

o • Persons who commit crimes using information and communication technologies (ICTs) face the possibility of being imprisoned more than double the imprisonment laid down in the RPC or special law, simply by the passage of the Cybercrime Act;

o • the cybercrimes defined and punished under Section 6 of the Act are absolutely identical to the crimes defined in the RPC and special laws which raises the possibility that an accused will be punished twice for the same offense in violation of the Constitution;

o • Congress created a class of offenders who commit crimes “by, through or with the use” of ICTs in violation of the equal protection clause

3. The Real Time Collection of Traffic Date Violate the Right to Privacy and the Right Against Unreasonable Searches and Seizure:

o • No compelling state interest that justifies real time collection of data; the authority vested on the Philippine National Police and

the National Bureau of Investigation to collect data is not bounded by any reasonable standard except “due cause” which presumably, the PNP and NBI will determine for itself;

o • While the privacy of suspected terrorists, through the Human Security Act, are protected by the intervention of the Court of Appeals before surveillance operations are conducted, the privacy of all citizens may be infringed without judicial participation in the Cybercrime Act;

o • Neither the PNP nor the NBI is required to justify the incursion into the right to privacy;

o No limits imposed upon the PNP or the NBI since they can lawfully collect traffic data at all times without interruption;

o • No stated justification for this warrant-free unlimited incursion into the privacy of citizens

4. The Respondent DOJ Secretary’s Take Down Authority under Section 19 of the Cybercrime Act violates Due Process and is an Undue Delegation of Legislative Authority

o • The DOJ Secretary’s overwhelming powers to order the restriction or blocking of access to certain content upon a mere prima facie finding without any need for a judicial determination is in clear violation of petitioners’ Constitutionally protected right to due process;

o • The Cybercrime Act contemplates that the respondent DOJ Secretary will be “judge, jury and executioner” of all cybercrime-related complaints;

o To consider that all penal provisions in all specials laws are cybercrimes under Section 6, it • follows that:

1. Complaints filed by intellectual property rights owners may be acted upon the Respondent DOJ Secretary to block access to websites and content upon a mere prima facie showing of an infringement;

2. Foreign sites (e.g. Amazon.com) offering goods on retail to Philippine citizens may be blocked for violating the Retail Trade Law;

3. Foreign service providers such as Skype may be blocked from offering voice services without securing a license from the National Telecommunications Communication;

4. YouTube video may be blocked for presumably violating the IP Code.

o • The Cybercrime Act fails the two tests laid down by the Court in Abakada Guro Party List v. Purisima (GR No. 166715) to determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test

1. Nowhere in the Cybercrime Act’s declaration of policy does it lay down the legislative policy with respect to the blocking of content. No limits upon the takedown power of the respondent DOJ Secretary;

2. Prima facie standard is not enough to prevent the DOJ Secretary from exercising infinite discretion and becoming the supreme authority in the Philippine Internet landscape.

PRAYER:1. Declare null and void, for being unconstitutional, Sections 4(c)(4), 6, 7,

12 and 19 of RA 10175;2. Prohibit all Respondents from implementing Sections 4(c)(4), 6, 7, 12

and 19 of RA 10175;3. Issue a TRO enjoining the Respondents from implementing Sections

4(c)(4), 6, 7, 12 and 19 of RA 10175; and4. Issue other reliefs, just and equitable in the premises.5. The Supreme Court on Tuesday, February 18, upheld as constitutional

most provisions of Republic Act 10175 or the Cybercrime Law, including online libel – subject to one condition.

6. The High Court also struck down a provision of the law that gives the state the power to take down online content without a court warrant.

7. Seeking to strike a balance between fundamental freedoms and government control, the High Court decided on the constitutionality of Republic Act 10175 a little over a year afteroral arguments were heard on Jan 15, 2013.

8. Among the hotly-debated issues during the oral arguments was the law's provision on online libel. (READ: 'Libel gone is best-case scenario for SC cybercime ruling')

9. The Supreme Court decision, penned by Justice Roberto Abad, ruled online libel to be constitutional but with an exception – that is, in cases where it covers persons other than the original author. Recipients of, and netizens who react to a potentially defamatory post, will not be covered by online libel.

Unconstitutional provisionsThree provisions were voted down as categorically unconstitutional:

Section 4 (c)(3) which pertains to unsolicited commercial communications

Section 12 which pertains to real-time collection of traffic data Section 19 which pertains to restricting or blocking access to computer

dataThe SC decided that Section 19 – granting power to the Department of

Justice (DOJ) to restrict computer data on the basis of prima facie or initially observed evidence – was not in keeping with the Constitution. The said automatic take-down clause is found in Section 19 of the cybercrime law.

Even the SOLICITOR General, in his defense of RA 10175, admitted before the SC that Section 19 is "constitutionally impermissible, because it permits a form of final restraint on speech without prior judicial determination."Section 12 would have allowed law enforcement authorities with due cause to collect or record by technical or electronic means "traffic data" in real time.

Section 4 (c)(3) of the law says that "the transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited" unless certain conditions – such as prior affirmative consent from the recipient – are met. This was ruled unconstitutional.A separability clause contained in Section 29, Chapter VIII of the law allows the rest of the law to "remain in full force and effect" even if certain provisions are held invalid.

Nuances in other provisionsThree other provisions were not struck down and remain in the law, but

they will not apply in certain cases as decided by the SC. Among these provisions is online libel, which is constitutional as far as the original author is concerned.

Section 5, which pertains to aiding or abetting the commission of a cybercrime and to the attempt to commit a cybercrime, was declared unconstitutional only in the following cases: child pornography, unsolicited commercial communications (or spam), and online libel. Section 5 will apply to all other cybercrimes outlined in the law.National Bureau of Investigation (NBI) Cybercrime Division Chief Ronald Aguto explained to Rappler that it will also be hard for both law enforcement and the prosecution to prove the "attempt to commit a cybercrime."

Aiding a nd abetting the commission of a cybercrime, he added, might unduly cover certain players in the online industry.

Section 7, which pertains to liability of a cyber criminal under other laws, was declared unconstitutional only in the following cases: online libel and child pornography.

The SC cited the guarantee against double jeopardy or being punished more than once for the same offense – a guarantee outlined in the Constitution – in deciding on Section 7.

Libel is punishable by Article 353 of the Revised Penal Code, while child pornography is punishable by RA 9775 or the Anti-Child Pornography Act.A person convicted of libel or child pornography can only be punished once, under the coverage of a single law.

10. RA No. 10586 ANTI DRUNK OR DRUGGED DRIVING LAW (REPUBLIC ACT NO. 10586)

DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS IS NOW A CRIME. 

Republic Act No. 10586 was recently signed into law. This law makes it unlawful for any person to drive a motor vehicle while under the influence of alcohol, dangerous drugs and/or other similar substances. (So, somebody  who is drunk or drugged and rides his bicycle through the streets is not liable under this law. This seems to be true even if he be the cause of a vehicular accident!)

It appears that the law does not require any specific level of alcohol intoxication one has to be under in order that he can be held liable for driving while in the influence of liquor. 

Under this law, law enforcement officers are authorized to conduct “field sobriety test” (Field sobriety tests refer to standardized tests to initially assess and determine intoxication, such as the horizontal gaze nystagmus, the walk-and-turn, the one-leg stand, and other similar tests as determined jointly by the DOH, the NAPOLCOM and the DOTC) when he has probable cause to believe that the driver is under the influence of alcohol, dangerous drugs and/or other similar substances by apparent indications and manifestations, including overspeeding, weaving, lane straddling, sudden stops, swerving, poor coordination or the evident smell of alcohol in a person’s breath or signs of use of dangerous drugs and other similar substances.  If the driver fails in the sobriety tests, it shall be the duty of the law enforcement officer to implement the mandatory determination of the driver’s blood alcohol concentration level through the use of a breath analyzer or similar measuring instrument. If the law enforcement officer has probable cause to believe that a person is driving under the influence of dangerous drugs and/or other similar substances, it shall be the duty of the law enforcement officer to bring the driver to the nearest police station to be subjected to a drug screening test and, if necessary, a drug confirmatory test as mandated under Republic Act No. 9165.

Refusal to subject oneself to undergo the mandatory field sobriety test and drug test is likewise punishable by confiscation and automatic revocation of his or her driver’s license, in addition to other penalties.

Another remarkable provision of the law is the direct and principal liability of the owner or operator of the vehicle together with offending driver. However, this solidary liability of the vehicle owner or operator is limited only on the penalty of fine and damages. The penalty of imprisonment can be imposed only against the offending driver. The only defense the vehicle owner or operator can set up his exercise of extraordinary diligence in the selection and supervision of his or her drivers in general and the offending driver in particular. The law merely provides that this solidary liability shall principally (not exclusively) apply to the owners and/or operators of public utility vehicles and commercial vehicles such as delivery vans, cargo trucks, container trucks, school and company buses, hotel transports, cars or vans for rent, taxi cabs, and the like. Thus, textually, the law does not exclude from this solidary liability, the owners of private vehicles.

The penalties for violation of the law are as follows:

SEC. 12. Penalties. – A driver found to have been driving a motor vehicle while under the influence of alcohol, dangerous drugs and/or other similar substances, as provided for under Section 5 of this Act, shall be penalized as follows:

(a) If the violation of Section 5 did not result in physical injuries or homicide, the penalty of three (3) months imprisonment, and a fine ranging from Twenty thousand pesos (Php20,000.00) to Eighty thousand pesos (Php80,000.00) shall be imposed;

(b) If the violation of Section 5 resulted in physical injuries, the penalty provided in Article 263 of the Revised Penal Code or the penalty provided in the next preceding subparagraph, whichever is higher, and a fine ranging from One hundred thousand pesos (Php100,000.00) to Two hundred thousand pesos (Php200,000.00) shall be imposed;

(c) If the violation of Section 5 resulted in homicide, the penalty provided in Article 249 of the Revised Penal Code and a fine ranging from Three hundred thousand pesos (Php300,000.00) to Five hundred thousand pesos (Php500,000.00) shall be imposed; and

(d) The nonprofessional driver’s license of any person found to have violated Section 5 of this Act shall also be confiscated and suspended for a period of twelve (12) months for the first conviction and perpetually revoked for the second conviction. The professional driver’s license of any person found to have violated Section 5 of this Act shall also be confiscated and perpetually revoked for the first conviction. The perpetual revocation of a driver’s license shall disqualify the person from being granted any kind of driver’s license thereafter.

The prosecution for any violation of this Act shall be without prejudice to criminal prosecution for violation of the Revised Penal Code, Republic Act No. 9165 and other special laws and existing local ordinances, whenever applicable.

Let us all drive sanely and responsibly! (Even if you drive a bicycle or something else.)

- See more at: http://philjurislaw.blogspot.com/2013/06/anti-drunk-or-drugged-driving-law.html#sthash.6gEsM8zQ.dpuf