IT Law Journal

administrator January 3rd, 2005

A descriptive study on Cybersex, Audio-Visual Sex Scandals, and Child Pornography: Prosecution under existing Philippine Laws, and Other proposals as a framework for future legislation
by Ailyn L. Cortez, Carlyn Marie Bernadette C. Ocampo-Guerrero, Michael Vernon M. Guerrero, and Reynaldo M. Pijo

[ PREVIOUS: Understanding Pornography and an Overview of the Technology Available Today ]
[ PREVIOUS: The Philippine Experience ]
[ PREVIOUS: Prosecuting the Offenses ]

IV. Proposals

Dealing with computer-related crimes in the Philippines is still in its infancy. The law enforcement agencies and the judicial system are still ill-equipped to handle high-tech cases, both in terms of experience and equipment. As computer-related crimes exist across borders, technical assistance is necessary among countries, with equipment and training being provided by more developed countries. For one, the United States of America set up a computer crime unit in the Philippines in 2003. Atty. Ivan John E. Uy, chairman of the subcommittee on e-commerce of the Rules of Court committee and Director of the Management Information System Office of the Supreme Court, said that the computer crime unit was envisioned to supervise all computer-related crimes that will be manned by Philippine government officials skilled in computer crime investigation and prosecution.¹ The question of enforcement is a constant, and the outcome of such relies upon the political will of public authorities. The question of the existence of law should never laxly taken, and should be revised and reconciled with the reality of the situation, inasmuch as the ones who aim to violate the law are active and crafty in finding ways to bend, if not break, or go around the law.

I. Cybersex

The prominence of organized cybersex business, with the recent raid on Orgasmic Studios Inc., highlighted the need for stricter laws against obscenities.² Although certain senators, such as Senate President Franklin Drilon and Senator Mar Roxas, claim that there are enough laws to prosecute prostitution and sexual exploitation through the Internet, in light of the anti-trafficking law, certain sectors remain to see them as inadequate and lax. Still, there is an agreement that proper agencies should pursue the drive against cybersex vigorously. Supplementary to this, legislators propose that said agencies should be adequately equipped in terms of technology, human resources, state-of-the-art equipment and the necessary facilities and logistics.³

Certain measures are proposed herein:

1. There should be stricter fines against operators of organized cybersex business, and effectively classify such operators in the same level as other participants in organized crime.
2. There should be better system of facilities inspection to determine whether a cybercafe, indeed operates for the benefit of public, or is being used as a front to cater to private indulgences.
3. There should be a central registry of all mobile phone numbers, whether pre-paid or post-paid, to determine the identity of the person who used said SIM card in the perpetuation of prohibited acts. Said registry should also include transaction dates of transfer of SIM.
4. There should also be proper regulations as to the operation of money transfers over mobile phones, inasmuch as mobile phones may be utilized to acquire remote remittance of money generated by illicit means, in a degree lesser than what may be placed within the purview of the money laundering law.
5. There should be proper mapping of Philippine websites, featuring adult content, even if such do not espouse the .ph domain. Pornography is not condoned within Philippine jurisdiction, and thus there is no reason to mitigate or qualify the issue with arguments involving financial viability, or implication as to lost taxes.
6. There should be a central registry of all MAC addresses for computers (and similar devices) to determine the identity of the user-owner of the computer which may be used in the perpetuation of prohibited acts. Said registry should also include transaction dates of sale of the computer (and allied devices).

II. Sex Scandals and lewd MMS clips

The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos or both is obviously inadequate to impose upon a violator of Article 201 of the Revised Penal Code. Stiffer fines should be made inasmuch as the reputation and dignity of those who took part in the film, particularly the women, are forever ruined. Producers and distributors of such film or videos should be fined more harshly inasmuch as they have the financial means and the boldness to mass produce the films, and therefore magnifies the damage that would be inflicted upon the ad hoc porn actors depicted in the video/film/clip.

Further, some other measures are proposed herein:

1. Further regulation must be made in the proper use of telecommunication networks, especially as to the transmission of objectionable content.
2. There should be a central registry of all computer peripherals and consumer devices which are able to transfer electronic data into optical media. A system to determine the relation, or impose the determination of a relation, between the optical disc writer (CD-R, CD-RW, DVD-R, DVD+R, DVD-RW, and DVD+RW) and the optical disc written, should be made.
3. There should be an tailor-fit article within the Revised Penal Code as to crimes against honor that would shield persons from dishonor, discredit, or contempt, even without manifest imputation by words or writing, but by imputation by analogous deed (such as unconsented distribution). Stiff penalties should be imposed against persons who leak personal sexual documents, which incriminates other persons besides the distributor himself/herself, to the public.
4. There should be a law imposing higher penalties against people who install hidden cameras and other paraphernalia to spy upon people in their intimate moments. Thus, there should be an equivalent law to the Wire Tapping Law – as the latter dwells solely on sound recordings – that would apply to videos and pictures. This is necessary inasmuch as a University instructor in Bacolod City, to illustrate, installed surveillance equipment or a hidden camera inside his boarding house’s bathroom.⁴
5. Proper laws must be made in preventing voyeurs from utilizing any camera-like devices to acquire images of strangers, especially for malicious reasons (such as downblousing and upskirting), in public places and communal spaces.
6. Proper laws must be made to strengthen the rights of people to dignity and privacy.
7. Laws regulating data handling by technicians, whether as to computers, mobile phones or analogous devices, must be in place.

III. Child Pornography

The disturbing fact involving websites containing Filipino teens is that this conclusively shows that pornography involving Filipino females exists, and the volume of which is increasingly growing. The other disturbing fact is that the models appearing therein, especially in the Filipina 18 and Manila 18 websites, are in the borderline of legal, depending on the proper appraisal of the models’ age. The costumes use by the models, i.e. high school uniforms, provide a confusing assessment as to the real age of such models, taking into mind that most high school students graduate usually at the age of 17 to 18.⁵ The two conclusions that can be made from the images are that (1) the models are by themselves underage, or that (2) the models simulate to appear to be underage. Such dilemma provides a good debate ground, therefore, whether child pornography would necessary include simulated child pornography.

Although child pornography may be prosecuted according to Article 201 of the Revised Penal Code and Republic Act 7610, the laws are obviously inadequate to specifically handle such evil. It is necessary that a specific law pertaining to child pornography should be promulgated, to distinguish such phenomenon from regular pornography, and to provide harsher measures against those who indulge in it, in light of the clear vulnerability of children to such illicit practice. The law should include simulated child pornography as part of child pornography. Arguments as to valid role-playing cannot even be taken into consideration inasmuch as pornography, and not just child pornography, is illegal in our jurisdiction; such materials being obscene and do not easily attach to the concept of freedom of expression as in the United States. The law should provide the proper penalties for its production, possession, and/or distribution; not necessarily as a compound act but such acts taken individually; but with proper provisions to provide consideration to child abuse investigators, enforcers, and legitimate researchers. The penalty should be more than prision mayor, or a Php 6,000 to Php 12,000 fine. The penalty should be per count of illicit material and not as a lump sum of all the acts. Our present laws pale in comparison to the penalties provided to similar cases in the United States.⁶

It is also necessary to provide certain laws or amendments⁷ to existing laws to strengthen and further facilitate the successful acquisition of the custody of the perpetrator, especially if the perpetrator is a foreigner, and prevent him to take flight from the Philippines, and to make him liable to his crime in the Philippines even if his native country has acquired custody of the perpetrator and has punished him accordingly with their laws.

Thus, in fine, the following are being proposed:

1. Perez, Maria Patricia Anne. US plans to setup a computer crime Unit in RP. 10 June 2003 i.t. matters. http://itmatters.com.ph/news/news_06102003b.html [↩]
2. Various House Bills have been submitted, currently pending, and aimed to provide necessary legislation relevant to pornography, which may well include child pornography 1:
   • HB01278 (An Act Prohibiting the Publication, Sale or Distribution, Production, Importation and Exhibition of Obscene and Pornographic Materials and the Demonstation, Performance or Exhibition in Public Indecent and Sexual Acts and Providing Penalties for violation thereof) was filed 8 July 2004 by Congressman Emmanuel Joel J. Villanueva, which declares that “it a State policy to safeguard the morality of society, particularly the youth and women, against the eroding influence of immoral doctrines, obscene and pornographic publications and indecent shows. It seeks to prohibit the public demonstration of sexual acts, the distribution, sale and production of pornographic materials and provides penalties for violations.” It is currently pending with the Committee on Public Information since 2 February 2005.
   • HB02031 (An Act Prohibiting the Publication, Sale, Distribution, Importation and Exhibition of Obscene and Pornographic Materials and the Performance or Exhibition of Indecent Acts in Public and Providing Penalties for violation thereof) was filed 10 August 2004 by Congresswoman Eileen Ermita-Buhain, aiming to prohibit “the following acts: a) the publication, sale, distribution and importation of obscene and pornographic materials; b) the portrayal, depiction, performance and exhibition of any indecent act in public; and c) the coercion of another person to listen, read or view obscene and pornographic materials in public places.” It is currently pending with the Committee on Public Information since 1 February 2005.
   • HB02887 (An Act Prohibiting and Penalizing the Production, Printing, Publication, Importation, Sale, Distribution and Exhibition of Obscene and Pornographic Movies and Materials, and the Exhibition of Live Sexual Acts, amending for the purpose Article 201 of the Revised Penal Code) was filed 20 September 2004 by Congressman Bienvenido M. Abante Jr., aiming to penalize “the following acts: a) the production, importation, distribution, showing and sale of obscene or pornographic movies; b) the printing, publication, importation, sale or distribution of any magazine or comic book containing obscene or pornographic materials; c) the writing of obscene or pornographic articles; and d) the performance of live sex acts for public viewing.” It is currently pending with the Committee on Public Information since 2 February 2005.

   Various House Bills have been submitted, currently pending, and aimed to provide necessary legislation relevant to cybercrimes, which may well include electronically transmitted child pornography 2:

   • HB00337 (An Act Preventing and Penalizing Computer-Related Crimes, further amending for the purpose Certain Provisions of Act No. 3815, as amended, otherwise known as the Revised Penal Code) was filed on 1 July 2004 by Congresswoman Imee R. Marcos, on the premise that “The proliferation of advanced and state-of-the art technologies necessitates the enactment of laws to regulate human conduct in this fast changing world. The bill seeks to supplement and update the Revised Penal Code (RPC) to cover computer-related offenses which are not much different from crimes classifically punished under the RPC.” It is currently pending with the Committee on Revision of Laws since 27 July 2004.
   • HB01246 (An Act Preventing and Penalizing Computer Fraud, Abuses and other Cyber-Related Fraudulent Activities, and creating for the purpose the Cyber-Crime Investigation and Coordinating Center, Prescribing its Powers and Functions, and appropriating funds therefor) was filed on 7 July 2004 by Congressman Eric D. Singson, on the premise that “The bill seeks to protect and safeguard the integrity of computers, computer systems, computer networks, computer servers, database, and information and data stores from computer users who resort to computer fraud, abuses and other cyber-related fraudulent activities, by providing penal sanctions to the perpetrators. It creates a coordinating body, the Cyber-Crime Investigation and Coordinating Center (CICC), which shall coordinate, collate and synergize efforts of all law enforcement agencies in combating cyber crimes.” It is currently pending with the Committee on Information Communications Technology since 12 January 2005.

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3. Senators alarmed by cybersex business. 25 January 2005. Manila Headlines. http://manilaheadline.net/News/01-05/24/senators_alarmed_by_cybersex_bus.htm [↩]
4. City to bring to Congress concerns on hidden cams. 11 November 2003. SunStar Bacolod. http://www.sunstar.com.ph/static/bac/2003/11/11/news/city.to.bring.to.congress.concerns.on.hidden.cams.html [↩]
5. The original article includes sample screen shots of pre-explicit materials from various websites featuring Filipina teens. [↩]
6. In the United States, the receipt, distribution, or possession of child pornography, which includes the downloading of child pornography from the Internet, is a violation of Title 18, US Code, Section 2252. Persons convicted of child pornography offenses face criminal penalties of up to 15 years in prison, a fine of up to $250,000, or both. ICE Arrests Campus Minister on Child Pornography Violations. Retrieved 8 January 2005 from the US Immigration and Customs Enforcement (ICE) website. http://www.ice.gov/graphics/news/newsreleases/articles/arrest010604.htm The US Code Title on Obscenity may be found at US Code Collection of the Legal Information Institute of the Cornell University Law School. http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_71.html. [↩]
7. Present efforts to curb Child Pornography, including proposed legislation in Congress, include:
   1. Organizational
      • The Program on Psychosocial Trauma and Human Rights Center for Integrative and Development Studies of the University of the Philippines (UPCIDS-PST) began the Rapid Appraisal of Child Pornography in the Philippines, the purpose of which was to give a comprehensive appraisal of the issue of child pornography in the Philippines. It aimed to consolidate literature that has been written on the issue; investigate how the internet and globalization aid in perpetuating this, and conduct interviews and focus group discussions with key informants from government and non-government organizations, the media, electronic commerce practitioners, and actual victims of child pornography. Participating organizations, forming the steering committee for the Child Protection in the Philippines (Philippine Resource Network), include The Advisory Board Foundation, Arci Cultura e Sviluppo, Ateneo Human Rights Center-Adhikain Para Sa Karapatang Pambata, Center for the Prevention and Treatment of Child Sexual Abuse (http://www.cptcsa.org/), Council for the Welfare of Children, Department of Social Welfare and Development (http://www.dswd.gov.ph/), ECPAT-Philippines, Child Protection Unit (http://www.childprotection.org.ph/), Save the Children (UK) Philippines (www.oneworld.org/scf), UNICEF-Manila (www.unicef.org/philippines), and the UP Center for Integrative and Development Studies-Psychosocial Trauma & Human Rights Program.
      • The Philippine Senate Committee on Youth, Women and Family Relations has provided a spot report on 22 September 2004 pertaining to the issue of Child Pornography and Pedophilia. As an abstract, the report provides “Child Pornography and Pedophilia is long overdue, and although there are already laws to address the same, such as R.A. 7610- Law Against Child Abuse, Exploitation and Discrimination; R.A. 9208 - Anti Trafficking in Persons Act ; and R.A. 9231 – Elimination of All Forms of Child Labor.”
   2. Legislation
      1. That simulated child pornography should be included in the class of pornography determined to be child pornography.
      2. Registration of computer users in Internet cafés should be mandatory, to facilitate the apprehension of law offenders who transmit illicit materials through anonymous webmail accounts through these facilities.
      3. That stiff penalties be made against adults who distribute pornographic materials or encourage the viewing of such materials to minors.
      4. That stiffer penalties be made against pedophiles who take theatrical and photographic mementos of the children that they ravish, and that further stiffer fines be made against pedophiles who distribute these pornographic materials to other individuals.
      5. That mere possession of child pornography be made to constitute a crime, and that production and distribution be considered as separate counts of committed crime.
      6. That civil penalties be determined not by the lump sum of confiscated materials but per piece of photograph (and its electronic equivalent), and per determined duration for videos.
      7. That proper laws be made or strengthened to effectively prevent foreigners who committed criminal acts in the Philippines from leaving the country, and that stiff sanction be given to other individuals who advice, aid, or by such analogous act, the felon to take flight.
      8. That Philippine courts be given jurisdiction, through the enactment of the proper law, over instances of publication of child pornography, whether stored in servers outside the country, as long as the individual depicted therein is a Filipino. (A proposal to enforce global jurisdiction, which is recognized in acts enumerated in Article 2 of the Revised Penal Code.)
      9. That proper laws be made to curb the current situation that the Philippines is made a prime destination due to sex tourism.
      10. That extradition treaties with developed countries, especially Australia, United States, and the United Kingdom, be strengthened to acquire jurisdiction over foreigners who, although remotely done in their respective countries, are cultivating child and women-related crimes in the Philippines.
      11. That the culpability of foreigners who have taken flight from the Philippines from crimes committed within Philippine jurisdiction remain even if the foreigner has been charged in their own country for violation of their laws, and thereby be subjected to extradition after they have served their sentence in their country, if not yet dead.
      • Various House Bills have been submitted, currently pending, and aimed to amend certain provisions of Republic Act 7610, or the Special Protection of Children against Child Abuse, Exploitation and Discrimination Act 3 :
        • HB00371 (An Act Amending Republic Act No. 7610 otherwise known as the Special Protection of Children against Child Abuse, Exploitation and Discrimination Act, and for other purposes) was filed on 1 July 2004 by Congressman Roseller Barinaga, on the premise that “the cases of child rape and sexual molestation remain unabated despite the enactment of RA 7610. The manner in which government agencies and law enforcement officers handle these cases are outrageous. To correct the situation, the bill seeks to amend RA 7610, as follows: a) cause a mandatory hold departure order for these accused on cases involving children below 12 years old; and b)make law enforcers and government officials criminally culpable for willfully abetting these crimes or causing or assisting in the plight of the accused.” It is currently pending with the Committee on Social Services since 27 July 2004.
        • HB01296 (An Act amending Republic Act No. 7610 otherwise known as ‘The Special Protection of Children against Child Abuse, Exploitation and Discrimination Act’, and for other purposes) was filed on 8 July 2004 by Congresswoman Darlene Magnolia R. Antonino-Custodio, on the premise that “This bill enumerates additional remedial measures to correct the deplorable manner by which local government and law enforcement officials, as well as members of the justice sector, handle cases of child rape and sexual molestations and child prostitution involving minors below the age of twelve (12). It provides for the issuance of an automatic hold order for those accused to prevent them from fleeing abroad. Furthermore, it imposes the maximum penalty on law enforcers and members of the Judiciary Department found guilty including willfully abetting these crimes or causing or assisting in the plight of those accused.” It is currently pending with the Committee on Social Services since 2 August 2004.
        • HB01961 (An Act seeking to Improve Child Protection against Abuse, Exploitation And Discrimination, amending for the purpose Republic Act No. 7610, as amended by Republic Act No. 7658, otherwise known as the “Special Protection And Discrimination Act”, appropriating Funds therefor and for other purposes) was filed on 30 July 2004 by Congressman Robert Ace S. Barbers, on the premise that “The bill bans and penalizes the employment of children in all forms of hazardous occupations and aims for “greater participation of local social workers and law enforcers.” Imposes penalties for child pornography through the internet. Mandates the creation of a central data bank to monitor abuses made by foreigners against children and prevent their reentry.” It is currently pending with the Committee on Social Services since 9 August 2004.
        • HB00731 (An Act Increasing the Penalties for Child Abuse and Exploitation, thereby declaring it as Heinous Crime, amending for the purpose Republic Act No. 7160 as amended, otherwise known as The “Special Protection Of Children Against Child Abuse, Exploitation and Discrimination Act”, and for other purposes) was filed on 1 July 2004 by Congresswoman Judy Syjuco, on the premise that “The bill seeks to impose the penalty of reclusion perpetua TO DEATH for the crimes of child trafficking and child prostitution.” It is currently pending with the Committee on Revision of Laws since 28 July 2004.
        • HB03468 (An Act amending Republic Act No. 7610, as amended, otherwise known as The Special Protection of Children against Child Abuse, Exploitation and Discrimination) was filed on 8 December 2004 by Congresswoman Imee R. Marcos, on the premise that “The bill imposes the penalties of reclusion temporal in its medium term to reclusion perpetua for acts that are either preparatory to or per se amounts to child pornography and prostitution.” It is currently pending with the Committee on Social Services since 14 December 2004.

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