IT Law Journal

administrator January 3rd, 2005

IT Law Journal Welcomes new Editor-in-Chief

The e-Law Center and the IT Law Society have been active in sourcing talents among law students in the Arellano University School of Law, especially those oriented to journalism. As part of the constant effor for improvement of the IT Law Journal, the individuals behind it endeavor to develop an optimized production system for the publication, the first step being the installation of a formal editorial board. As a token step towards that direction, the IT Law Journal welcomes its new Editor-in-Chief, Mary Ann L. Reyes.

Mary Ann L. Reyes is a Business columnist of the Philippine Star, one of the major daily newspapers in the Philippines. She is the editor of the Real Estate Section and also the Telecommunincations and IT Reporter of the said newspaper. She is an incoming fourth year student of the Arellano University School of Law, enrolled in the five-year executive program, and is currently the Vice-President of the Order of the Flaming Arrows, the school’s organization of honor students. She holds a degree in BS Math and a Masters degree in Business Administation from the University of the Philippines (Diliman campus).

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administrator January 3rd, 2005

The IT Law Society, which was established on 10 January 2004, maintained its roster of officers for the next school year. Michael Vernon M. Guerrero remained as President, Carlyn Marie Bernadette C. Ocampo-Guerrero as secretary, Ailyn L. Cortez as Treasurer, Peter Joseph L. Fauni as Publication chairperson and Ma. Cristina A. Ramos as Research and Seminars chairperson. Jhonelle S. Estrada was installed as Vice President for the Society during the middle of school year 2004-2005 and shall continue in such capacity. Mary Ann L. Reyes has been installed as the Journal’s Editor-in-Chief.

The incumbent officers, however, are in the process of promulgating the Society’s Constitution and By-laws, which would effectively streamline the structure of the organization. Among the changes expected are: (1) the position of the Vice-President and the chairperson for the Publication Committee being combined in the person of the Journal’s Editor-in-Chief, (2) the position of Chairperson for the Website Committee being integrated to the position of Public Relations Officer, and (3) the positions of chairperson for Research and Seminars Committee and chairperson for Advocacy Committee being combined into the position of chairperson for Research and Advocacy Committee and integrated to the position of Auditor.

Neophyte members, on the other hand, have been introduced into the Society during the last semester. Among these are Katherine Austria, Ma. Theresa Japos, Chalyz Odessa Lagdameo, Roberto Lock, Cristine Prado, John Ivan Tablizo, John Michael Timbre, and Marc Villanueva. Additional members are expected to be included further at the advent of the next semester from pending applications and subsequent recruitment.

Most incumbent officers are incoming fourth year students enrolled in the four-year regular program. Among the Society’s officers and members, Cortez, Guerrero, Lock, Ocampo-Guerrero, Ramos, and Reyes are members of the Order of the Flaming Arrows, the school’s organization of honor students.

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administrator January 3rd, 2005

IT Law Society-sponsored Lager Night Held
by Peter Joseph L. Fauni

On 5 February 2005, the IT Law Society sponsored the schoolwide Lager Night. It serves as an opportunity to foster closer relationship between law students and law professors, and is a welcome breather to law students in light of the rigors of law studies.

The February 2005 Lager Night provided an opportunity to make the Society visible to the studentry, and to show a wholly different side to its normal serious self. The event also served as an avenue to announce the creation of the Bar Operations Commission for the 2005 Bar Exams in September, by the Continuing Legal Education and Research (CLEAR) office, and solicit involvement from students subsequent thereto. The event was marked by spirited discussions between students from various batches, on academic topics or otherwise, casual conversations between faculty members and students, and for the more courageous ones, attempts to exhibit their singing prowess using the videoke machine. It was held at the College garden fronting Donada street.

The Lager Night is a project initiated by the Dean’s Office, with the Office of the College Secretary having an active participation in its conceptualization and initial implementation. The project, or event, was first implemented during the start of the school year 2004-2005, and it is sponsored by a different school-accredited student organization every month. It is the first time that the event was held on a Saturday to benefit Executive students, or students who are enrolled in the weekend study program. The event has been held previously during the last Friday of each month, benefiting regular or weekday students. The Lager Night, starting school year 2005-2006, will be held alternately on a Friday in one month and on a Saturday in the next month.

The Society would like to extend its gratitude to the School Administration under Dean Mariano Magsalin Jr. for providing this opportunity for student-faculty interaction; Mr. Florentino Cayco III for his generosity; the various staff members of the Dean’s Office, the IT Center, and Maintenance Department in facilitating the Society’s requests, whether pertaining to paperwork, audio-visual equipment, or venue maintenance.

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administrator January 3rd, 2005

www.sec.gov.ph: Making the public more secure
by Ma. Cristina A. Ramos

This section is a continuing series of articles featuring various websites which may be relevant to legal practitioners, legal researchers, and law students.

Adapting to the needs of the changing times, the Securities and Exchange Commission (SEC) maximizes the benefits of Internet technology by making information available online and by offering online transactions. The SEC is now one of the most advanced agencies of the government in terms of compliance with the mandate of Republic Act no. 8792 or the Electronic Commerce Act.

The SEC’s website, following a functionalist design, provides on its main menu well- classified submenus for easier access. The menu consists of ‘Main,’ ‘Online Transactions,’ ‘What`s New,’ ‘Investor Info,’ ‘About SEC,’ ‘Archives,’ ‘Publications’ and ‘Downloads.’ ‘Main’ provides the access to the html files of the Securities Regulation Code (Republic Act No. 8799), its implementing rules and regulations, as well as memorandum circulars and notices issued by the SEC.

Basic information about the commission is found in ‘About SEC.’ This section provides information on the accomplishment, history, management, mission and vision, organizational setup, powers and functions, location and directors of the SEC. It also has a link to a separate site of one of the offices of the SEC, the compliance and enforcement department.

‘Archives’ meanwhile contains market reports, other circulars, speeches, IT-related materials, seminars, announcements, examination results, and concluded public consultations while ‘Publication’ provides access to the SEC primer on IAS, SEC in the News, Citizen’s Manual and Philippines 5000.

Online Transactions

By using information technology, the SEC offered a solution to the bureaucratic red tape usually associated with transactions with government. People who want to transact with the SEC can now avoid the slow moving traffic along EDSA. Moreover, they do not have to fall in line and spend the whole day falling in line or waiting for their names to be called inside the SEC’s office, and then wait another week to get results. Now, people can do business with the SEC through the computer any time of the day.

Transactions that usually take a day or two, or even a week, can now be finished in just several clicks of the mouse. For example, prospective registrants of corporations or partnerships who want to find out whether their desired corporate or partnership name are still available can do it in just two mouse clicks. They simply have to visit the website of the SEC, click ‘Search Reserved/Registered Companies’ under ‘Online Transactions,’ enter the desired corporate or partnership name in the space provided, and press enter.

Another online service that the SEC website offers is the ‘Search for Registered Names.’ This facility allows a person to know whether or not a given corporation or partnership is registered with the SEC in accordance with the Corporation Code of the Philippines. However, the fact that a certain corporate or partnership name is indeed registered with the SEC is not an assurance that the identified corporation is authorized to sell to the public securities or other investment instruments.

SEC-iRegister

Probably the most valuable service that the SEC offers is the SEC-iRegister. It is a web-based company registration system of the SEC. The commission describes this service as ‘quick, affordable, and user-friendly.’ It is available to the public 24 hours a day, seven days a week.

SEC-iRegister allows SEC’s clients to do the following online:

• Verify the availability of the desired name for corporation or partnership;
• Reserve the verified name;
• Accomplish and print the registration from online without the need to buy the SEC forms;
• On-line registration of business organizations, whether a stock or non-stock corporation or a general, limited, or professional partnership;
• Deposit the paid-up capital online;
• Pay the appropriate registration fees online, and;
• Receive notice of approval within the same day.

This facility has been made available to the public even before June 30, 2002, the deadline set by RA 8792, otherwise known as the E-Commerce Act. At present, the SEC uses version 2 of the SEC i-Register system, an enhanced version of the original I-Register system. The new version has the following features:

• Enhanced Name Verification. This feature provides for a list of reserved and registered companies that is similar to a proposed company or partnership name.
• Cancel Reservation Facility. This allows the user to change his reserved company name. The client only has to cancel the reserved company name and reserve a new one again.
• Endorsement Listing. For the guidance of the public, a list of selected industries that require endorsement from government agencies is provided.
• Search Industry. This feature makes the selection of industry easier and faster.

For easier computation of fees, the site also provides an online calculator.

Public Beware

For public safety and convenience, the SEC provided in its website, under the menu ‘Investor Info,’ the following: SEC Advisory, SEC Orders, Settlement Offers, Companies with Cease and Desist Order, and Corporations with Revoked Certificate of Registration. The link to corporations with revoked certificates of registration is available from 8 am to 9 pm Monday through Friday except holidays. All the lists are in PDF files. The lists of companies that have CDOs issued against them or CDOs that became permanent after the effectivity of the SRC are likewise available from 8 am to 9 pm Monday through Friday except during holidays. The files are downloadable in PDF format.

More on Investor’s Info

The website also provides listings of registered entities, market participants, and issuers of registered commercial papers/bonds, equity securities, and securities to the public.

The list of market participants, as posted in the SEC’s website, are classified as follows:

• Broker/Dealer (PSE Trading Participants)
• Investment Company Adviser
• Transfer Agent
• Other Market Participants
• Investment Houses - Associated Person
• Investment Houses
• Underwriter of Securities
• Dealers in Government Securities.

However, in the matter of registered entities, the SEC made it clear that the inclusion of any company in the list does not mean that any or all of those listed is being endorsed by the SEC to solicit, take, receive, or hold investments from the public. According to the SEC, the decision of anyone to place one’s investment on any company in whatever form is an individual decision based on one’s own judgment Thus, SEC suggests that anyone interested to invest in any of the companies listed herein or in any other company should study all publicly available materials that have been issued by the company following the full disclosure principle.

Downloadable Annexes and Forms

The site also offers downloadable annexes and forms. The following are some of the annexes in zip files that are available for download.

• Registration of Securities
• Definition of Terms Used In Full Disclosure Forms
• Non-Financial Disclosure Requirements
• Information Relating to Possession or Control Requirements Under SRC Rule 49.2-1
• Formula for Determination of Reserve Requirements 1of Broker Dealers Under SRC Rule 49.2-1
• Explanation of Books and Records Rule
• Customer Account Information Form

Forms that are available for sale in the SEC are now downloadable for free. This can be found under the menu ‘Downloads.’ Some of the forms available for download are the following:

• Notice of Exempt Transaction
• Application for Confirmation
• Registration Statement Under the Securities Regulation Code
• Annual Report
• Current Report
• Notification of Suspension of Duty to File Reports
• Tender Offer Report
• Proxy Statement
• Initial Statement of Beneficial Ownership of Securities
• Statement Of Changes In Beneficial Ownership Of Securities
• Application For Registration as a Salesman or Associated Person of a Broker Dealer and Amendments Thereto
• Application for Broker Dealer Registration Renewal
• Application for Registration Renewal of Investment Houses, Underwriters of Securities and Government Securities Eligible Dealers

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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.

   [↩]

   • ITLJ 2-1
   • Comments(3)

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 ]

III. Prosecuting the Offenses

I. Criminal Law

Act No. 3815, or the Revised Penal Code (RPC), was promulgated way back in 1930, decades before the advent of computers and the Internet and before the proliferation of cheap image capturing devices, such video recorders and cameras. A number of special laws have provided means to protect both children and women from exploitation, such as Republic Act No. 7610, otherwise known as the “Special Protection And Discrimination Act,” as amended by Republic Act No. 7658 and Republic Act No. 9231, and Republic Act No. 9208 or the “Anti- Trafficking of Persons Act of 2003,” among others.

1. In General

The Revised Penal Code provision applicable in common to cybersex, sex scandal, MMS sex clips, and child pornography is Article 201, which provides:

Article 201. ¹ Immoral doctrines, obscene publications and exhibitions and indecent shows. — The penalty of prision mayor² or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
2. 1. The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;
   2. Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which
      1. glorify criminals or condone crimes;
      2. serve no other purpose but to satisfy the market for violence, lust or pornography;
      3. offend any race or religion;
      4. tend to abet traffic in and use of prohibited drugs; and

      are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.

In case Article 201, by certain circumstances, does not apply; Article 200 of the Revised Penal Code provides:

Article 200. Grave scandal. – The penalties of arresto mayor and public censure shall be imposed upon any person who shall offend against decency or good customs by any highly scandalous conduct not expressly falling within any other article of this Code.

2. Cybersex and Child Pornography

A. Act No. 3815, the Revised Penal Code

Article 201, else Article 200, of the Revised Penal Code likewise applies as to the photographs and videos that may have been produced and distributed in the commission of child abuse. The minors depicted therein are properly victims in the crime, even if they may have been willing in participating in such, as they lack maturity and lack legal capacity to provide legal consent.

In contrast, chat hosts (cybersex models), who are above 18 years old and who conduct themselves in such practice in a lewd or lustful manner, although there may be no physical sexual intercourse at all, are within the purview of Article 202 (5) of the Revised Penal Code, which provides:

Article 202. Vagrants and prostitutes; penalty. – xxx

xxx

5. Prostitutes. — For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes.

Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor³ or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccional⁴ in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court.

Persons who are responsible in employing or inducing these persons into prostitution may be pursued through Article 341 of the Revised Penal Code:

Article 341.⁵ White slave trade. — The penalty of prision mayor in its medium and maximum period shall be imposed upon any person who, in any manner, or under any pretext, shall engage in the business or shall profit by prostitution or shall enlist the services of any other for the purpose of prostitution.

Persons who are responsible in employing or inducing minors into prostitution may, in addition, be pursued through Article 340 of the Revised Penal Code.

Article 340.⁶ Corruption of minors. — Any person who shall promote or facilitate the prostitution or corruption of persons underage to satisfy the lust of another, shall be punished by prision mayor, and if the culprit is a public officer or employee, including those in government-owned or controlled corporations, he shall also suffer the penalty of temporary absolute disqualification.

Other acts of lasciviousness, which may have been committed in line with child abuse, may also be penalized as provided by Article 339 of the Revised Penal Code, which states:

Article 339. Acts of lasciviousness with the consent of the offended party. — The penalty of arresto mayor shall be imposed to punish any other acts of lasciviousness committed by the same persons and the same circumstances as those provided in Articles 337 and 338.

B. Republic Act 9208

Section 3(a), of Republic Act No. 9208 (RA 9208, or the Anti- Trafficking of Persons Act of 2003) provides that

“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.⁷

Various acts and circumstances in RA 9208 are specifically penalized. First, Section 4 of said Act enumerates the acts constituting trafficking in persons, particularly involving prostitution, pornography and sexual exploitation, as

Section 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts:

1. To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
2. To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
3. To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage;
4. To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation;
5. To maintain or hire a person to engage in prostitution or pornography;
6. To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;

xxx

A violation of any act enumerated in Section 4 penalizes the person guilty of committing said act(s) to suffer “the penalty of imprisonment of twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) but not more than Two million pesos (P2,000,000.00).”⁸

Second, Section 5 of the same Act enumerates the acts that promote trafficking in persons, to wit:

Section 5. Acts that Promote Trafficking in Persons. - The following acts which promote or facilitate trafficking in persons, shall be unlawful:

1. To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons;
2. To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons;
3. To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons;
4. To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons;
5. To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons;
6. To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and
7. To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery.

Any person found guilty of committing any of the acts enumerated in Section 5 of RA 9208 “shall suffer the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00).”⁹

Third, Section 6 of the same Act enumerates the ways how trafficking in persons may be deemed qualified, to wit:

Section 6. Qualified Trafficking in Persons. - The following are considered as qualified trafficking:

1. When the trafficked person is a child;
2. When the adoption is effected through Republic Act No. 8043, otherwise known as the “Inter-Country Adoption Act of 1995” and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
3. When the crime is committed by a syndicate, or in large scale. Trafficking 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;
4. When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee;
5. When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies;
6. When the offender is a member of the military or law enforcement agencies; and
7. When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).

Any person found guilty of qualified trafficking under Section 6 suffers “the penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) but not more than Five million pesos (P5,000,000.00).”¹⁰

Lastly, Section 7 of the same Act provides for the protection of the right of privacy of trafficked persons and the accused, to wit:

Section 7. Confidentiality. - At any stage of the investigation, prosecution and trial of an offense under this Act, law enforcement officers, prosecutors, judges, court personnel and medical practitioners, as well as parties to the case, shall recognize the right to privacy of the trafficked person and the accused. Towards this end, law enforcement officers, prosecutors and judges to whom the complaint has been referred may, whenever necessary to ensure a fair and impartial proceeding, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial. The name and personal circumstances of the trafficked person or of the accused, or any other information tending to establish their identities and such circumstances or information shall not be disclosed to the public.

In cases when prosecution or trial is conducted behind closed-doors, it shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio, producer and director of a film in case of the movie industry, or any person utilizing tri-media facilities or information technology to cause publicity of any case of trafficking in persons.

Any person who violates Section 7 of the law suffers “the penalty of imprisonment of six (6) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00).”¹¹

Certain persons, natural or juridical, are meted additional penalties or limitations when they violate RA 9208, that is:

1. Corporation, partnership, and other juridical persons

If the offender is a corporation, partnership, association, club, establishment or any juridical person, the penalty shall be imposed upon the owner, president, partner, manager, and/or any responsible officer who participated in the commission of the crime or who shall have knowingly permitted or failed to prevent its commission.¹²

The registration with the Securities and Exchange Commission (SEC) and license to operate of the erring agency, corporation, association, religious group, tour or travel agent, club or establishment, or any place of entertainment shall be cancelled and revoked permanently. The owner, president, partner or manager thereof shall not be allowed to operate similar establishments in a different name.¹³

2. Foreigners

If the offender is a foreigner, he shall be immediately deported after serving his sentence and be barred permanently from entering the country.¹⁴

3. Government employees or officials

Any employee or official of government agencies who shall issue or approve the issuance of travel exit clearances, passports, registration certificates, counseling certificates, marriage license, and other similar documents to persons, whether juridical or natural, recruitment agencies, establishments or other individuals or groups, who fail to observe the prescribed procedures and the requirement as provided for by laws, rules and regulations, shall be held administratively liable, without prejudice to criminal liability under RA 9208. The concerned government official or employee shall, upon conviction, be dismissed from the service and be barred permanently to hold public office. His/her retirement and other benefits shall likewise be forfeited.¹⁵

4. Adopter

Conviction by final judgment of the adopter for any offense under RA 9208 shall result is the immediate rescission of the decree of adoption.

5. Person who engages services of trafficked persons

Any person who buys or engages the services of trafficked persons for prostitution shall be penalized, on his/her first offense for six (6) months of community service, as may be determined by the court, and a fine of Fifty thousand pesos (P50,000.00). On his/her second and subsequent offenses, such person may be penalized to imprisonment of one (1) year and a fine of One hundred thousand pesos (P100,000.00).¹⁶

C. Republic Act 7610

In addition, Article V, Section 9, of Republic Act No. 7610 establishes that “Obscene Publications and Indecent Shows” involves

“Any person who shall hire, employ, use, persuade or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, pose, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prison mayor in its medium period.

If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period.

Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play, scene, act or movie shall be imposed a penalty of prison mayor in its medium period.”¹⁷

3. Sex Scandal optical discs and sexually-explicit MMS clips

Article 201, or Article 200 of the Revised Penal Code, are the provisions applicable to these forms of pornography. It is only by certain circumstances, such as that a pornographic material is included to an otherwise ambivalent statement, that Articles 355 and 359 of the Revised Penal Code may attach, as the issue as to “imputation” is emphasized. Article 355 provides:

Article 355. Libel means by writings or similar means. — A libel¹⁸ committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

Article 359, on the other hand, of the Revised Penal Code provides:

Article 359. Slander by deed. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period or a fine ranging from 200 to 1,000 pesos shall be imposed upon any person who shall perform any act not included and punished in this title, which shall cast dishonor, discredit or contempt upon another person. If said act is not of a serious nature, the penalty shall be arresto menor or a fine not exceeding 200 pesos.

II. Civil Damages

Civil damages, clearly, may be had for sex clip leakages that occur with sex scandal optical disc and MMS clips distribution.

The right to dignity, and the right to privacy of communication and correspondence, are rights protected by the Constitution. Section 11 of Article II of the 1987 Constitution (Declaration of Principles and State Policies”states that the

“The State values the dignity of every human person and guarantees full respect for human rights.”

Section 3(1) states that the

“privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.”

In consonance to these, Article 26 of the Civil Code provides that

“every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another’s residence; (2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.”

Article 32 of the Civil Code, in turn, provides that

“Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

xxx

(11) The privacy of communication and correspondence;

xxx

In any of the cases referred to in this article, whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.”

III. Evidence

The Rules on Electronic Evidence¹⁹ was made effective on 1 August 2001 and initially applied to civil, quasi-judicial and administrative proceedings pending after the date of effectivity, and was a direct result of the enactment of Republic Act No. 8792,²⁰ or the Electronic Commerce Act. The Supreme Court notes at the head of the Rules (Administrative Memorandum No. 01-7-01-SC) that

Acting on the Memorandum dated 18 June 2001 of the Committee on the Revision of the Rules of Court to Draft the Rules on E-Commerce Law [R.A. No. 8792] submitting the Rules on Electronic Evidence for this Court’s consideration and approval, the Court Resolved to APPROVE the same.

The Rules on Electronic Evidence shall apply to cases pending after their effectivity. These Rules shall take effect on the first day of August 2001 following their publication before the 20th of July in two newspapers of general circulation in the Philippines. (17th July 2001.)²¹

The Rules were amended on 24 September 2002 to include criminal cases in its coverage, effective 24 October 2002.²² Section 2, Rule 1, of AM No. 01-7-01-SC, now reads as

Section 2. Cases covered. - These Rules shall apply to the criminal and civil actions and proceeding, as well as quasi-judicial and administrative cases.²³

Electronic document is defined by Section 1 (h), Rule 2, of the Rules on Electronic Evidence as

(h) “Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with “electronic data message”.

In relation thereto, “Electronic data message” is defined by Section 1 (g), Rule 2, of the same Rules as

(g) “Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means.

On the other hand, “Ephemeral electronic communication,” is defined by Section 1(k), of the same Rule, which provides

(k) “Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.

Electronic documents are functional equivalents of paper-based documents, as provided by Section 1, Rule 3 of the said Rules, to wit:

Section 1. Electronic documents as functional equivalent of paper-based documents. – Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules.

and the fact that a privilege communication is in the form of an electronic document does not lose the confidential character, as provided for by Section 3, of the same Rule:

Section 3. Privileged communication. – The confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document.

Electronic documents are admissible as evidence, according to Section 2, Rule 3 of the said Rules, which provides:

Section 2. Admissibility. – An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules.

Particularly, the manner audio, video and similar evidence is made admissible is provided by Section 1 of Rule 11, of the Rules on Electronic Evidence, to wit:

Section 1. Audio, video and similar evidence. – Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.

Section 2 of Rule 11, of the said Rules, on the other hand, provides for the admissibility of ephemeral electronic communications, to wit:

Section 2. Ephemeral electronic communications. – Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section.

If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.

Electronic videos, audios and images, whether in electronic or optical medium, although strictly not “Electronic documents” according the first sentence of Section 1(h), Rule 2, may be argued by technologically-inclined professionals to be within its context in light of the second sentence of said section in relation to Section 1 (g) of the same Rule, inasmuch as basic electronic formats of written documents, images, audio files, and video remain in binary²⁴ and ASCII²⁵ modes (the latter with proper file format identifiers at the start of its code), which are merely interpreted as user-viewable text, sound, images, and videos by appropriate computer programs or applications. This argument, however, may result to the same outcome as to the issue as to the definition of “hacking,”²⁶ which favors a legal conclusion without consideration to technical persuasion. It thus may be said that electronic video, images and audio, and similar forms are not “Electronic documents” although they constitute “Electronic evidence” nonetheless; in the same manner that photographs, videos, and phonographic records are not considered as part of such class of evidence which are documentary, but rather are included as object evidence.

The question remains whether the application of the Rules of Electronic Evidence is limited to cases based on its original context, that which relates to the Electronic Commerce Act and thus which involves purely business transactions, but which has been extended to include criminal cases; or whether the application of the Rules of Electronic Evidence is to be broadly applied to be deemed an extension of Rules 128 to 134 of the Revised Rules of Court, and thus the Rules apply to criminal cases even those without business complexion. A perusal of Section 1, Rule 1 of the Rules of Electronic Evidence – which provides

Section 1. Scope. – Unless otherwise provided herein, these Rules shall apply whenever an electronic document or electronic data message, as defined in Rule 2 hereof, is offered or used in evidence.

– and a perusal of the general definitions of electronic data message and electronic documents in Section 1 (g) and (h) of Rule 2, respectively – as quoted earlier – do not suggest data transmission to be exclusively confined to business transactions, and thus favor the second conclusion as to the applicability of the Rules.

IV. Miscellaneous: Convention and Treaty obligations

The Philippines is a signatory of the United Nations Convention on the Rights of the Child and thus is obligated to protect children from all forms of sexual exploitation and sexual abuse. Article 34 of said Convention requires that parties must protect children from being coerced to engage in any unlawful sexual activity, from being exploited in prostitution, and from being used in pornographic performances and materials. Article 34 of the Convention specifically provides:

“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

1. The inducement or coercion of a child to engage in any unlawful sexual activity;
2. The exploitative use of children in prostitution or other unlawful sexual practices;
3. The exploitative use of children in pornographic performances and materials.”²⁷

In addition to this, the Philippines also ratified in 2002 the “Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography,”²⁸ which calls for governments to ensure that adults involved in the exploitation of children are punished, and that children who have been sexually exploited, abused, or trafficked receive services to allow for their full social reintegration and their physical and psychological recovery.

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[ NEXT: Proposals ]

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1. Article 201, Revised Penal Code, as amended by Presidential Decrees Nos. 960 and 969. [↩]
2. Arresto mayor has the duration of one month and one day to 6 months (Paragraph 5, Article 27, Revised Penal Code of the Philippines). [↩]
3. Arresto menor has the duration of one day to thirty days (Paragraph 6, Article 27, Revised Penal Code of the Philippines). [↩]
4. Prision correccional has the duration of six months and one day to six years (Paragraph 4, Article 27, Revised Penal Code of the Philippines) [↩]
5. Article 341, Revised Penal Code, as amended by Batas Pambansa Blg. 186. [↩]
6. Article 340, Revised Penal Code, as amended by Batas Pambansa Blg. 92. [↩]
7. Section 3(a), RA 9208. Supra, see note 3. [↩]
8. Section 10 (a) of Republic Act 9208. Ibid., see Note 3. [↩]
9. Section 10 (b) of Republic Act 9208. Ibid., see Note 3. [↩]
10. Section 10 (c) of Republic Act 9208. Supra., see Note 3. [↩]
11. Section 10 (d) of Republic Act 9208. Supra., see Note 3. [↩]
12. Section 10 (e) of Republic Act 9208. Supra., see Note 3. [↩]
13. Section 10 (f) of Republic Act 9208. Supra., see Note 3. [↩]
14. Section 10 (g) of Republic Act 9208. Supra., see Note 3. [↩]
15. Section 10 (h) of Republic Act 9208. Supra., see Note 3. [↩]
16. Section 11 of Republic Act 9208. Supra., see Note 3. [↩]
17. Republic Act 7610 is entitled :An Act for Stronger Deterrents and Special Protection against Child Abuse, Exploitation and Discrimination, Providing Penalties for its violation and for Other Purposes.” See the Philippine Laws and Jurisprudence Databank - The Lawphil Project. http://www.lawphil.net/statutes/repacts/ra1992/ra_7610_1992.html. [↩]
18. Libel is defined by Article 353 of the Revised Penal Code as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.” [↩]
19. See Rules on Electronic Evidence (A.M. No. 01-7-01-SC), See the Philippine Laws and Jurisprudence Databank - The Lawphil Project. http://www.lawphil.net/courts/supreme/am/am_01-7-01_2001.html. [↩]
20. Republic Act No. 8792 is entitled “An Act Providing and Use of Electronic Commercial and Non-Commercial Transactions, Penalties for Unlawful Use Thereof, and other purposes.” See the Philippine Laws and Jurisprudence Databank - The Lawphil Project. http://www.lawphil.net/statutes/repacts/ra2000/ra_8792_2000.html [↩]
21. Rules of Electronic Evidence. Supra, see Note 172. [↩]
22. Soriano, Jaime N. “The Philippine Rules on Electronic Evidence: An Outline.” The Philippine Quarterly IT Law Journal, Volume 1, Number 1, p. 7. [↩]
23. Re: Expansion of the Coverage of the Rules on Electronic Evidence. Retrieved 20 February 2005 from Disini and Disini. http://www.disini.ph/res_sc_am_1-7-01.html [↩]
24. Binary. Supra, see Note 22. [↩]
25. ASCII (American Standard Code for Information Interchange), generally pronounced ass-key, is “a character set and a character encoding based on the Roman alphabet as used in modern English and other Western European languages. It is most commonly used by computers and other communication equipment to represent text and by control devices that work with text. The printable characters in the correct order are !”#$%&’()*+,-./0123456789:;=?@ABCDEFGHIJKLMNOPQRSTUVWXYZ[\]^_’abcdefghijklmnopqrstuvwxyz{|}~ with a blank space in front.” (ASCII. Wikipedia, the free encyclopedia. Retrieved 20 February 2005 from Wikipedia. http://en.wikipedia.org/wiki/ASCII) [↩]
26. Guerrero, Michael Vernon M., “’Hacking’ the Mercantile Law Bar Exam Questions.” The Philippine Quarterly IT Law Journal, Volume 1, Number 1, p. 1. [↩]
27. See the Convention on the Rights of the Child. Office of the High Commissioner for Human Rights. http://www.unhchr.ch/html/menu3/b/k2crc.htm. [↩]
28. See the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Office of the High Commissioner for Human Rights. http://www.unhchr.ch/html/menu2/6/crc/treaties/opsc.htm. [↩]

• ITLJ 2-1
• Comments(3)

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 ]

II. The Philippine Experience

I. Cybersex

Cybersex is sexual activity of arousal through communication by computer; and Cybersex-for-pay substantially employs the Internet, and utilizes computer cameras and microphones that allow clients to see and talk to girls doing the role play with or for them.¹ Such form of Internet pornography works when (1) an Internet surfer accesses a certain website on sex and chooses a woman through the photos shown in the site; (2) the surfer then contacts the operator to chat online with the selected woman; (3) the operator, through transactional tools in the adult website, asks for the surfer’s credit card number and the surfer will be charged for anywhere from $2 upwards a minute; and (4) the surfer thereafter asks the woman to perform sexual acts to be shown on the screens of the surfer’s, now subscriber’s, computer.²

Philippine Senator Maria Ana Consuelo “Jamby” Madrigal claims that Cybersex has become a billion dollar underground industry in the Philippines, emphasizing that the operator of the Orgasmic Ventures Inc. in Las Piñas arrested January 2005 was earning at least 100,000 dollars a day.³ Atty. Elfren Meneses Jr., chief of the NBI-AFFCD states that the degree of the proliferation of internet pornography in the country is doubly increasing since year 2000. Financiers or investors of such business, usually foreign nationals, are investing largely in the Philippines since they have contacts already with some Filipinos who will host the site.⁴ Senior Supt. Rodolfo “Boogie” Mendoza, officer in charge of the PNP Criminal Investigation and Detection Group (CIDG), identified the cities of Angeles and San Fernando in Pampanga, Las Pi¤as and Davao as cybersex “hot spots.”⁵ It is also claimed that Internet sex rings have spread all over the country, with satellite centers in Visayas and Mindanao, specifically in Cebu and Surigao.⁶

A. Organized

1. John Bagcal; Pasay City (8 May 2003)

After a month of Internet and physical surveillance by the National Bureau of Investigation (NBI)’s Anti-Fraud and Computer Crimes Division (AFCCD), and on 8 May 2003, the NBI-AFCCD raided three residential apartments in Cliff Townhomes on Roberts Street, Pasay City, owned by a John Bagcal (37 years old, Filipino), due to alleged operation of internet pornography. The NBI-AFCCD team arrested around 15 pornography female models during the raid, four of them caught in the act of performing in front of Web cameras, but not the Filipino owner, who was said to be hiding in a province near Manila. The team seized several personal computers, digital cameras, telephones, and sex toys such as vibrators. Bagcal was arrested subsequently.⁷

2. Asianbabes.com; Angeles City, Pampanga (4 October 2004)

On 4 October 2004, the Criminal Investigation and Detection Group (CIDG) agents arrested Roland Thys (Belgian), Dean Punke Arthur (American), Ali Dimanlao Bonjoc and are pursuing other suspects – Morley Arthur Everly, Simon Thorpe and other still unidentified members of the cybersex ring who escaped during the raid made on the houses of the suspects. The policemen, armed with 14 search warrants issued by Judge Maria Angelica Paras Quiambao of the Angeles City Regional Trial Court, swooped down on the houses located at 115 Nile Street, barangay Anunas; 240 Narciso Street; 112-A Sarmiento Street, Plaridel Subdivision, and Apple corner Pear Streets, all in Angeles City; and were able to rescue 23 “sex goddesses,” including four minors.⁸

On 2 November 2004, the Department of Justice had ruled in a resolution that mere possession of accessories used in the illegal activity was not enough to elevate the case against the Belgian, Roland Thys, in court. It is in the opinion of Senior Supt. Rodolfo “Boogie” Mendoza, officer in charge of the PNP CIDG that materials like pictures and messages found in a computer seized during a raid would have to be “reconstituted” by police authorities to actually prove that someone is being used for trafficking purposes .⁹

3. Eldon Lopez, et. al.; Angeles City, Pampanga (8 November 2004)

As part of police’s operation “Operation Magdalena” – a campaign plan against prostitution – twenty (20) persons (17 young women or so-called “cybermodels,” an employee, a computer technician, and the Internet café operator-manager – were arrested by police 8 November 2004 during a raid on a suspected cybersex den in Angeles City, Pampanga. The policemen belonging under the Central Luzon police, in tandem with agents of the Criminal Investigation and Detection Group (CIDG), raided the house owned by one Sol Mesias pursuant to a search warrant issued by Judge Maria Angelica Paras Quiambao of the Angeles City Regional Trial Court. The policemen confiscated 15 computers with video cameras, communication devices and pornographic material. Arrested were Rocell C. Palo (27), Michelle M. Chua (20), Merlinda A. Atibagos (18), Mary Ann O. Galantes (21), Rose Mary P. Quibec (24), Michelle V. Nuevo (18), Monica M. Chua (19), Deanne C. Duero (19), Jennifer Ellaine Pasay (20), Marian Estrada (23), Jenny Ompad (18), Raquel V. Abala (23), Estephanie Agasite (18), Analiza R. Rosario (22), Ivory Washington (Gay, 19), Kim Cereno (25); Arthur Eric Javier (21); Reynaldo Quillao, a computer technician; Nestor Layda, a janitor-employee; and Eldon Lopez, reportedly the operator and manager of the internet café. Charges of violation of Republic Act (RA) 9208 or the Anti-trafficking of Persons Act were being prepared against the suspects.¹⁰

4. Clifford Hacket, et. al.; San Fernando, La Union (23 November 2004)

On 23 November 2004, Clifford Hacket, 40, from Colorado, USA, and his wife, Jaqueline, 24, along with three of their female employees – most of them minors: one was 15, another was 16 – were arrested during a raid on a rented house at Barangay Catbangen, San Fernando, La Union, where they had been operating the cybersex den. Seized during the raid were three computers with complete accessories, three Web cameras and speakers, assorted diskettes, pornographic VCDs and CDs, a CD writer, payrolls and the daily time records of the Hackets’ employees.

The spouses were arraigned on 14 January 2005 at the Regional Trial Court Branch 30, presided upon by Judge Alpino Florendo. The two have been transferred to the La Union provincial jail from the Poro Point police assistance center after they failed to post bail. It was alleged that the employees were paid only P50 for working eight hours a day, and that some of them posed nude and did sexual acts in front of the computer for their foreign customers abroad. The couple pleaded not guilty.¹¹

5. Orgasmic Studios Inc.; Las Pinas, Metro Manila (21 January 2005)

On 21 January 2005, Criminal Investigation and Detection Group (CIDG) agents rescued twenty (20) persons engaged in live sex acts over webcams in a raid of a cybersex shop, located at apartment units A, D, F and G on Lead st., and apartment D and F Daisy st., Barangay Pilar, Las Piñas, pursuant to a search warrant issued by Judge Joselito Vibandor, of the Regional Trial Court Branch 199. The police agents arrested Aloysious Galvez of the Orgarmic Studios Inc., along with nine employees, during the raid and seized 23 computer units and peripherals, compact discs, sex toys, lingerie, and other paraphernalia (or in other accounts, 30 computers and 100 cameras). Galvez reportedly yielded a number of foreign and local bank accounts that will be investigated by the police.

The girls were distributed in fourteen rooms that served as studios where they performed various role playing acts for clients, and sometimes did live sex with a partner in front of a camera, mostly from the United States and Germany. Inside each studio at Orgasmic was a bed and an air-conditioned unit. The walls were draped with multicolored, pastel curtains. Each room had a distinct look, like one was decorated with neon lights and plastic flowers, while others were made to appear like a typical girl’s room. Scattered in some of the rooms were sex toys, costumes and skimpy lingerie.¹² Among the chat hosts, Sherry Passion was able to hit the longest video chat of two hours and 25 minutes on 14 Nov. 2004. As a result, Sherry was entitled to an additional 50% of her earnings as incentive and to a clothing allowance of $30. The incentive rate for best chat hosts like Sherry Passion ranges f