By Mary Kay Grajo, JD 1 and Airene Ruiz, JD 1
In this modern world of technology and internet access, pornography and scandals are inevitable. Who among here have not seen the sex scandals of Hyden Kho and Katrina Halili, the Wally Bayola and EB Babe Yosh as well as the Chito Miranda and Neri Naig sex scandals? These celebrity scandals were among those who were highly publicized and rocked our Philippine society. These videos were easily spread with the help of social media. Nowadays, Photographs and videos are increasingly becoming central part of our everyday landscape of communication, and it is becoming more visible as people share it on digital platforms. This however becomes an issue when people share offensive photos and videos without the consent of the person/s involved.
RA 9995 was legislated after a case involving a scandal of an actress and her lover. In this case, after their affair the actress received a tip from a reporter that her ex-lover published a video online of them performing sex. It has been downloaded and profited from by the public. All this, without her consent or knowledge. Her perpetrator alleged that she knew that they were being recorded. She brought this case up to the NBI and DOJ but since RA 9995 was not in effect nor was it legislated at the time of the filing; she filed a case under Anti-Violence against Women and Children Act. The court believed that the complainant was aware that she was being recorded and the address of the website was not traced to the respondent hence they dismissed the case. The actress suffered depression and had to undergo psychotherapy. As the video went viral, she felt repeatedly violated. It was only in the early part of the year 2010 that RA 9995 was legislated. In some way, the actress catalyzed the legislation of this Republic Act for the purposes of protecting vulnerable women like her.
If this RA was not legislated many men and especially women would be victimized and degraded just like in the case mentioned above. Not only are cases like this embarrassing but also traumatizing; having to live by being the subject of criticism. In these situations, it is important that we enact laws that protect men and women of all ages from perpetrators. No one must be publicly criticized for performing sex in believing that during those intimate moments, their privacy is guaranteed. This RA also benefits minors who are most vulnerable and exploited. At their young age, they must be educated and made aware of the dangers of the internet: pornography sites and materials. Most importantly, we must be careful of what we post online, what we consent to, and be aware of our environment. We must protect ourselves, especially women and children.
In this regard, Congress enacted R.A. 9995 also known as (Anti-Photo and Video Voyeurism Act of 2009). This Republic Act is geared towards protecting the privacy, honor, dignity and integrity of a person. Investigative Directive No. 2016-09 issued by National Headquarters, PNP Directorate for investigation and Directive Management, Camp Crame, Quezon City listed RA 9995 as a special law that addresses Gender-Based Violence or grant special protection to vulnerable sectors.
Under Sec. 3 of RA 9995, photo or video voyeurism means the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter’s consent, under circumstances in which such person/s has/have a reasonable expectation of privacy. It also includes the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved, notwithstanding that consent to record or take photo or video coverage of same was given by such persons.
Violation of RA 9995 is punishable by imprisonment of not less than three (3) years but not more than seven (7) years and/or a fine of not less than One hundred thousand pesos (P100,000.00) but not more than Five hundred thousand pesos (P500,000.00) or both, at the discretion of the court
If a juridical person is proven guilty of violating this act, its license or franchise shall be revoked while a public officer or employee, or a professional shall be administratively liable if proven the same. If an alien violates this provision, he/she shall be deported after serving his/her sentence and payment of fines. A peace officer who is authorized by a written order of the court, shall not be held liable for holding the record or copy as evidence in the course of the trial.
NBI reports 142 cases of violations against RA 9995 for the first quarter of the year 2019. The DOJ Office of Cybercrime published data of the 162 cases for violation of RA 9995 as: 30 cases that were dismissed, 13 are for resolution, 9 are for filing in court, and the rest (37) are pending preliminary investigation. The statistics provided above show that there has been an improvement in the prosecution of violators of this provision and that the government acted on cases like this since its effectivity.
This Republic Act aims to protect persons that are vulnerable and easily exploited from perpetrators. It provides protection to the victim who consents to the sexual act or any similar activity and the recording of it but not to the copying and reproduction of said material and holds the offender liable for violating such provision. It protects the victims who are made to believe that they are performing sexual acts in private. A person violates this Republic Act when he/she has not obtained consent of any of the persons in the picture or video but chooses to copy, reproduce, and make public the said materials. The consummation of the crime begins when the offender publicizes the content without the consent of the victim.
What are the exemptions to this law? In general, any record, photo or video, or copy thereof, obtained or secured by any person in violation of the preceding sections shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. However, a peace officer who is authorized by written order of the court, to use the record or any copy thereof as evidence in any copy thereof as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism: Provided, that such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he/she may produce, and upon showing that there are reasonable grounds to believe that photo or video voyeurism has been committed or is about to be committed, and that the evidence to be obtained is essential to the conviction of any person for, or to the solution or prevention of such, crime.
The salient points of RA 9995 that the public ought to know are:
- The male’s breast is not covered by law while any part of the female breast is.
- The “private area of a person” includes naked or undergarment-clad genitals, pubic area, buttocks, or the female breast. However, even if the private areas of a person are clad by undergarments, the offending party is held liable for violating this law.
- R.A. 9995 contemplates two situations where a person can have a reasonable expectation of privacy:
- When the person believes that one could undress in privacy without being concerned that an image of him or her is being taken; and,
- When a reasonable person would believe that one’s private area would not be visible regardless of whether the person is in a public or private place.
- The mere copying or reproduction of said material will make one liable under the law regardless of the reason or whether one profits or not from such act. Indeed, the mere showing of the material on one’s cellphone would violate the law.
- If the photo or video was taken with the person’s consent, then he or she cannot complain that his photo or video was taken since there is no reasonable expectation of privacy. If the person or persons in the photo or video gave written consent for the reproduction, distribution, or broadcasting of said material, then one will not be held liable under the Anti-Photo and Video Voyeurism Act.
- However, if the person consented to the taking of his video or photo in intimate moments, that does not mean that such person is consenting to the reproduction, distribution, broadcast or publication of such photos and videos. Hence, showing third parties such photos or videos, sharing them to others on the internet, mobile phones, selling copies of them and the like are punishable under RA 9995.