31 OCTOBER 2006
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BUT MALLARI says a major stumbling block in any campaign against stolen sex videos is the lack of any specific law that defines and penalizes the spread of pornography via computers and cell phones. What law enforcement agencies often resort to is Article 201 of the Revised Penal Code, the catchphrase provision that deals with the punishment of pornography. Article 201 concerns immoral doctrines, obscene publications and exhibitions, and indecent shows. Those caught selling, giving away or exhibiting films, prints, engravings, sculpture or literature that are offensive to morals are liable under this provision, including persons who publish lewd videos on the Web. They could face penalties of prision mayor (six to 12 years imprisonment) or a fine ranging from P6,000 to P12,000, or both. In the United States, violators of the Video Voyeurism Prevention Act could be fined not more than $100,000 or imprisoned for up to a year, or both. Passed in 2004, the law was in response to a rash of video voyeurism cases typified by a Louisiana family that was secretly videotaped by a neighbor. The family's story hit the headlines in 2002 when the neighbor's videosnooping was revealed not to be a crime under the law. With the Video Voyeurism Prevention Act in place, however, it is now illegal in the United States to take any type of photographic images — film-based, digital, camera phone, video — of various parts of people's unclothed bodies or undergarments without the consent of the person being photographed, and/or to place a secretly obtained photo on the Internet. In the absence of similar legislation here, lawyer Jesus Jose Disini Jr., director of the Internet and Society Program of the University of the Philippines College of Law, recommends a different legal tack through a novel, though untested, interpretation of the Revised Penal Code. "As a rule, the taking of scandalous videos may not necessarily be illegal or criminal," says Disini. "If the content is obscene or immoral, the distribution or publication of the material is a criminal offense. But in some cases, it may violate the anti-wiretapping law. Plus, the courts may hold that the act of distributing such materials constitutes slander by deed." Slander by deed under Article 359 of the Revised Penal Code carries a lighter penalty (arresto mayor of from one to six months to prision correccional in its medium term of four years and two months). But it is broader in scope as it is defined as a crime against honor that is committed by performing any act that casts dishonor, discredit, or contempt upon another person. This provision, Disini says, applies to owners of websites and blogs that contain the offending material. The rule would also apply to moderated mailing lists where the moderator has the power to edit or censor material (and has habitually engaged in such activities in the past). In addition, Disini says that while the anti-wiretapping law, Republic Act No. 4200, is not applicable to pictures, it covers videos. "The videos have audio, which is a recording of a communication or spoken word," he argues. "Note that what is punished is the recording of a private communication, which includes a conversation and expressive acts." Whether or not the sex act or a shot of someone's underwear constitutes a communication, says Disini, is for the courts to determine. But most non-legal observers would certainly consider sex as an expressive act best kept behind closed doors.
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