CRIMINAL LAW NOTES/OBSERVATIONS ON RA 9775 (NEW LAW ON CHILD PORNOGRAPHY IN CYBERSPACE)

Perhaps one of the dark sides of speedy distribution of information in the internet is the equally rapid spread of pornography. That pornography stimulates deviant sexual conduct to the point of actual commission of a crime is still a raging debate among experts here and abroad. However, at least with respect to child pornography, there is an increasing consensus that the same exposes children to real harm.

Just last 17 November 2009, President Arroyo signed into law RA 9775 AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY, PRESCRIBING PENALTIES THEREFOR AND FOR OTHER PURPOSES.

Among the unlawful acts covered by the law are:

Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for a person to commit any of the following acts:
(a) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of child pornography;
(b) To produce, direct, manufacture or create any form of child pornography and child pornography materials;
(c) To sell, offer, advertise and promote child pornography and child pornography materials;
(d) To possess, download, purchase, reproduce or make available child pornography materials with the intent of selling or distributing them;
(e) To publish, post, exhibit, disseminate, distribute, transmit or broadcast child pornography or child pornography materials;
(f) To knowingly possess, view, download, purchase or in any way take steps to procure, obtain or access for personal use child pornography materials; and
(g) To attempt to commit child pornography by luring or grooming a child.

Most of the provisions are self-explanatory. However, attention must be given to specific provisions particularly those which do not require ANIMO LUCRANDI (intent to profit or intent to gain) from child porn. Under Section 4(e) for instance, attention must be given to the words “post”, “disseminate,” “distribute,” “transmit, which are broad enough to include emailing, bluetooth transmissions, among other means of distributing information. The law does not distinguish between multiple or single distribution or transmission.

Our attention is also drawn to the terms used in Section 4(f): “or in any way takes steps to procure, obtain, or access for personal use.” The fact that the steps are preliminary will not exempt one from criminal liability. Neither will the preliminary or preparatory nature of the act, mitigate criminal liability. There is no attempted or frustrated stage for purposes of applying the law. A violation of the law is consummated by mere taking steps to procure child pornography (googling child pornography may very well fall within the coverage of the law).

The law provides extensive protection to children, particularly Section 3a of RA 9775 states:

Section 3. Definition of Terms. -
(a) "Children" refers to persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.
For the purpose of this Act, a child shall also refer to:
(1) a person regardless of age who is presented, depicted or believed to be a child as defined herein; and
(2) a computer-generated, digitally or manually crafted images or graphics of a person who is represented or who is made to appear to be a child as defined herein.


The definition in the new law is broad enough to prevent circumvention of the law through technological means. The phrase “regardless of age” obviates the possibility that adults consenting to engage in pornography may agree to be digitally altered to look like minors while engaging in sexual conduct.

Moreover, even the depiction of a digitally manufactured “child” engaged in sexual behavior will not exempt the violator from criminal liability. Any imagery conjured by a perverted mind once digitized and posted is also a violation of the law.

RA 9775 applies even if the porn trafficked or distributed are cartoon images of children. In the United States, whether or not cartoon images (or animes) of children are covered by anti-child porn laws is still hotly contested (See http://www.msnbc.msn.com/id/28319199/ ) pending a US Supreme Court determination on the matter. There is also discussion on whether or not graphic and suggestive depictions of Bart Simpson is within the coverage of child porn laws.

At least in the Philippines, RA 9775 forecloses any doubt as to the statutory liability of the violator with respect to cartoon child porn.

It is also important to note that the law does not distinguish as to the citizenship or nationality of the children depicted in the pornography. The fact that the children depicted in the porn materials are non-Filipinos or foreigners will not exempt one from criminal liability.

The physical location of the cyber pornographer is also not controlling. The point of contact, which gives rise to criminal liability can consist of a factual finding that the porn materials are viewed here. Once the foreigner is caught here, he may be successfully prosecuted here.

Although the interpretation in the preceding paragraph has implications on lex loci delicti commissi, a principle enshrined in the Revised Penal Code and the New Civil Code, I submit that once pornographic content is viewed in the Philippines, it may be argued that the situs of the crime is the Philippines.

I am of course, entertaining the possibility that the conflict of laws problem was anticipated by Congress in enacting this law, because Section 23 of the law mandated the DOJ and the DFA to include this crime in extradition treaties. It is my considered view however that this should not deter the Philippine Supreme Court from interpreting any doubt in the law for the protection of the child especially Filipino children.

The liability under the law is not only limited to the cyber pornographer. Criminal liability also attaches to officers or owners of Internet Service Providers, Internet Content Hosts, the Internet Cafes or kiosks.

RA 9775 is a great contribution to the protection of children in this country. I just note however that even without this law, cyber pornographers, distributors of cyber porn, owners of Internet Café may be held liable for violation of Section 9 and 10 of RA 7610, and in appropriate cases, RA 9262 (VAWC). These laws have interpretative spaces to protect children exploited in the internet.

This new law can only fill in the gaps, if any. It can never substitute for serious and effective implementation.


Bryan A. San Juan
Entry No. 4