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ART, OBSCENITY AND PORNOGRAPHY

ARTICLE 201 OF ACT. NO. 3815 – REVISED PENAL CODE OF THE PHILIPPINES

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. – The penalty of

prision mayor or a fine ranging from six 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 EITHER

ORAL OR WRITTEN, OR THROUGH REMOTE COMPUTER FACILITIES, ELECTRONIC

COMMUNICATIONS SERVICE, OR ELECTRONIC BULLETIN BOARD SERVICE;

2. (a) The authors of obscene literature, published with their knowledge in any form; the editors,

publishing such literature; and owners/ operators of the establishment selling the same; AND THE

OPERATORS, OWNERS, OR OFFICERS OF THE PROVIDERS OF REMOTE COMPUTER

FACILITIES, ELEC'TRONIC COMMUNICATIONS SERVICE, OR ELECTRONIC BULLETIN

BOARD SERVICE;

(b) Those who, in theaters, fairs, cinematographs, or any other place, exhibit indecent or

immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent

or immoral plays, scenes acts, or shows, whether live or in film, THROUGH REMOTE COMPUTER

FACILITIES, ELECTRONIC COMMUNICATIONS SERVICE, OR ELECTRONIC BULLETIN

BOARD SERVICE OR OTHERWISE, 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

5) are contrary to law, public order, morals, good customs, established policies, lawful

orders, decrees, and edicts.

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

offensive to morals EITHER THROUGH REMOTE COMPUTER FACILITIES, ELECTRONIC

COMMUNICATIONS SERVICE, OR ELECTRONIC BULLETIN BOARD SERVICE OR

OTHERWISE; (As amended by Presidential Decree Nos. 960 and 969, July 24, 1976.)

4. THOSE WHO ADVERTISE, SELL, OFFER FOR SUBSCRIPTION, PORNOGRAPHIC

MATERIALS THROUGH REMOTE COMPUTER FACILITIES, ELECTRONIC

COMMUNICATIONS SERVICE OR OTHERWISE;

5. THOSE WHO ACCESS, SUBSCRIBE, DOWNLOAD, USE OF REMOTE COMPUTER

FACILITIES, ELECTRONIC COMMUNICATIONS SERVICE, OR ELECTRONIC BULLETIN

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BOARD SERVICE, DISTRIBUTE, WHETHER FOR FREE OR WITH REMUNERATION THE

ABOVE PROHIBITED OBSCENE LITERATURE OR INDECENT OR IMMORAL PLAYS,

SCENES, ACTS PHOTOGRAPHS, SHOWS, OR DOCTRINES, AND ADVERTISEMENTS;

PRESIDENTIAL DECREE NO. 960, AS AMENDED BY PRESIDENTIAL DECREE NO. 969

Sec. 2. Disposition of the Prohibited Articles. – The disposition of the literature, films, prints, engravings,

sculptures, painting, or other materials involved in the violation referred to in Section 1 (referring to Article

201, Revised Penal Code) hereof shall be governed by the following rules:

a. Upon conviction of the offender, to be forfeited in favor of the government to be destroyed.

b. Where the criminal case against any violator of this decree results in acquittal, the obscene/immoral

literature, films, prints, engravings, sculpture, paintings or other materials and articles involved in

the violation referred to in Section 1 (referring to Article 201, Revised Penal Code) hereof shall

nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings

conducted as the Chief of Constabulary.

c. The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15)

days after his receipt of a copy of the decision, appeal the matter to the Secretary of National

Defense for review. The decision of the Secretary of National Defense shall be final and

unappealable. (As amended by Presidential Decree No. 969)

PRESIDENTIAL DECREE NO. 1986 (05 OCTOBER 1985) – CREATING THE MOVIE & TELEVISION

REVIEW & CLASSIFICATION BOARD

Section 3. Powers and Functions. - The BOARD shall have the following functions, powers and duties:

x x x

c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation,

exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of

the motion pictures, television programs and publicity materials subject of the preceding paragraph,

which, in the judgment of the board applying contemporary Filipino cultural values as standard, are

objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the

prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage

the commission of violence or of wrong or crime, such as but not limited to:

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the

State, or otherwise threaten the economic and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the people in their

government and/or the duly constituted authorities;

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iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence or

pornography;

v) Those which tend to abet the traffic in and use of prohibited drugs;

vi) Those which are libelous or defamatory to the good name and reputation of any person,

whether living or dead; and

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain

to matter which are sub-judice in nature.

REPUBLIC ACT NO. 9775 – "ANTI-CHILD PORNOGRAPHY ACT OF 2009"

Section 2. Declaration of Policy - The State recognizes the vital role of the youth in nation building and shall

promote and protect their physical, moral, spiritual, intellectual, emotional, psychological and social well-

being. Towards this end, the State shall:

(a) Guarantee the fundamental rights of every child from all forms of neglect, cruelty and other

conditions prejudicial to his/her development;

(b) Protect every child from all forms of exploitation and abuse including, but not limited to:

(1) the use of a child in pornographic performances and materials; and

(2) the inducement or coercion of a child to engage or be involved in pornography through

whatever means; and

(c) Comply with international treaties to which the Philippines is a signatory or a State party

concerning the rights of children which include, but not limited to, the Convention on the Rights of

the Child, the Optional Protocol to the Convention on the Rights of the Child of the Child on the

Sale of Children, Child Prostitution and Child Pornography, the International Labor Organization

(ILO) Convention No.182 on the Elimination of the Worst Forms of Child Labor and the Convention

Against Transnational Organized Crime.

Section 3. Definition of Terms. -

(a) "Child" refers to a person below eighteen (18) years of age or over, but is unable to fully take care of

himself/herself 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 portrayed as a child as defined herein;

and

(2) 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.

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(b) "Child pornography" refers to any representation, whether visual, audio, or written combination thereof,

by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real

or simulated explicit sexual activities.

(c) "Explicit Sexual Activity" includes actual or simulated -

(1) As to form:

(i) sexual intercourse or lascivious act including, but not limited to, contact involving genital to

genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or

opposite sex;

(2) bestiality;

(3) masturbation;

(4) sadistic or masochistic abuse;

(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or

(6) use of any object or instrument for lascivious acts

(d) "Internet address" refers to a website, bulletin board service, internet chat room or news group, or any

other internet or shared network protocol address.

(e) "Internet cafe or kiosk" refers to an establishment that offers or proposes to offer services to the public

for the use of its computer/s or computer system for the purpose of accessing the internet, computer games

or related services.

(f) "Internet content host" refers to a person who hosts or who proposes to host internet content in the

Philippines.

(g) "Internet service provider (ISP)" refers to a person or entity that supplies or proposes to supply, an

internet carriage service to the public.

(h) "Grooming" refers to the act of preparing a child or someone who the offender believes to be a child for

sexual activity or sexual relationship by communicating any form of child pornography. It includes online

enticement or enticement through any other means.

(i) "Luring" refers to the act of communicating, by means of a computer system, with a child or someone

who the offender believes to be a child for the purpose of facilitating the commission of sexual activity or

production of any form of child pornography.(2) Bestiality;

(j) "Pandering" refers to the act of offering, advertising, promoting, representing or distributing through any

means any material or purported material that is intended to cause another to believe that the material or

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purported material contains any form of child pornography, regardless of the actual content of the material

or purported material.

(k) "Person" refers to any natural or juridical entity.

Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person:

(a) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any

form of child pornography;

(b) To produce, direct, manufacture or create any form of child pornography;

(c) To publish offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of

child pornography;

(d) To possess any form of child pornography with the intent to sell, distribute, publish, or broadcast:

Provided. That possession of three (3) or more articles of child pornography of the same form shall be prima

facie evidence of the intent to sell, distribute, publish or broadcast;

(e) To knowingly, willfully and intentionally provide a venue for the commission of prohibited acts as, but

not limited to, dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a

legitimate business;

(f) For film distributors, theaters and telecommunication companies, by themselves or in cooperation with

other entities, to distribute any form of child pornography;

(g) For a parent, legal guardian or person having custody or control of a child to knowingly permit the child

to engage, participate or assist in any form of child pornography;

(h) To engage in the luring or grooming of a child;

(i) To engage in pandering of any form of child pornography;

(j) To willfully access any form of child pornography;

(k) To conspire to commit any of the prohibited acts stated in this section. Conspiracy to commit any form

of child pornography shall be committed when two (2) or more persons come to an agreement concerning

the commission of any of the said prohibited acts and decide to commit it; and

(l) To possess any form of child pornography.

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DEFINITION OF TERMS

The afore-quoted Philippine legal provisions do not undertake to define the terms obscene, obscenity,

indecent, indecency, and immoral. They merely enumerated examples of acts which may be considered

obscene, indecent, or immoral. Being such, these words are presumed to have given by the authors

themselves their ordinary acceptation and use.

Obscene

- Objectionable or offensive to accepted standards of decency.

Obscenity

- The character or quality of being obscene; conduct tending to corrupt the public morals by its

indecency or lewdness.

- Offensive to common propriety; offending against modesty or delicacy; grossly vulgar; obscene;

lewd; unseemly; unbecoming; indecorous; unfit to be seen or heard.

Immoral

- Contrary to good morals; inconsistent with the rules and principles of morality; inimical to public

welfare according to the standards of a given community, as expressed in law or otherwise. Morally

evil; impure; obscene; unprincipled; vicious; or dissolute.

- Immorality has not been confined to sexual matters, but includes conduct inconsistent with

rectitude, or indicative of corruption, indecency, depravity, and dissoluteness; or is willful, flagrant,

or shameless conduct showing moral indifference to opinions of respectable members of the

community, and as an inconsiderate attitude toward good order and public welfare.

Pornography (under Republic Act No. 9208 – May 26, 2003)

- refers to any representation, through publication, exhibition, cinematography, indecent shows,

information technology, or by whatever means, of a person engaged in real or simulated explicit

sexual activities or any representation of the sexual parts of a person for primarily sexual purposes.

TESTS OF OBSCENITY

1. Hicklin Test: Whether the tendency of the matter charged as obscene, is to deprave or corrupt

those whose minds are open to such immoral influences and into whose hands a publication or

other article charged as being obscene may fall.

2. If it shocks the ordinary and common sense of men as an indecency.

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3. Whether a picture is obscene or indecent must depend upon the circumstances of the case, and

that ultimately, the question is to be decided by the judgment of the aggregate sense of the

community reached by it.

4. If such pictures, sculptures and paintings are shown in art exhibit and art galleries for the cause of

art, to be viewed and appreciated by people interested in art, there would be no offense committed.

However, the pictures here in question were used not exactly for art’s sake but rather for

commercial purposes. In other words, the supposed artistic qualities of said pictures were being

commercialized so that the cause of art was of secondary or minor importance. Gain and profit

would appear to have been the main, if not exclusive consideration in their exhibition; and it would

not be surprising if the persons who went to see those pictures and paid entrance fees for the

privilege of doing so, were not exactly artists and persons interested in art and who generally go to

art exhibitions and galleries to satisfy and improve their artistic taste, and lust, and for love of

excitement, including the youth who because of their immaturity are not in a position to resist and

shield themselves from the ill and perverting effects of these pictures.

5. An actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming

feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity,

indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and

lewdness, and exerting a corrupting influence, specially on the youth of the land,

6. Roth Test: Whether to the average person, applying contemporary standards, the dominant theme

of the material, taken as a whole, appeals to prurient interest.

7. One that is utterly without redeeming social value.

8. Miller Test: (a) whether the average person, applying contemporary standards, would find the work,

taken as a whole, appeals to prurient interest; (b) whether the work depicts or describes, in a

patently offensive way, sexual conduct specifically defined by the applicable state law; and (c)

whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.