PHILIPPINES: Govt enacts law against child pornography

[PUERTO GALERA, 23 November 2009] - The Philippine government is providing greater protection for children against child pornography with the signing into law of Republic Act 9775, also known as the Anti-Child Pornography Act of 2009, by Philippine President Gloria Macapagal-Arroyo last week.

This landmark legislation provides the full legal armour against producers, transmitters, sellers and users of child pornography in whatever form, as well as the means of production, dissemination and consumption, in public and private spaces.

Definition

The law defines child pornography as "any representation, whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, or a child engaged or involved in real or simulated explicit sexual activities."

Aside from those below 18 years of age, any person of any age who is portrayed - by computer-generated, digitally or manually crafted images or graphics - as a child can be a victim. Considered as a victim of a violent crime, the person can claim for compensation with the Department of Justice (DOJ) and may avail of counseling, livelihood and skills training, educational assistance and free housing, legal, medical, and psychological services.

The law prohibits and imposes penalties for both real and virtual pornography, including “computer- generated, digitally created or manually crafted images or graphics of a person.” It covers visual, written material or audio representation, including “writings and pictures, books, magazines, billboards, tabloids, comics, posters, cards, calendars, decals, stickers, paintings, photographs, television shows, motion pictures, computer graphics or any electronic or other means, including the use of information technology such as mobile phones and the internet.”

Internet Service Providers

With a special concern for virtual child pornography, Internet service providers, Internet content hosts, mall owners and other business establishments are made accountable and required to report instances of the use of their server or facility for child pornography within seven days of a violation being committed, and obtain facts and evidence about the violation. Provincial, city/municipal, and barangay officials are mandated to monitor internet cafes or kiosks.

The law is expansive in its prohibition by including those who knowingly access or possess child pornography, including web producers and bloggers, as criminally liable, with or without the intention to sell.

‘Anti-Hentai’

Hentai refers to the genre of pornographic cartoons that carry sexual perversions or abnormalities as the overarching themes. While the anti-child pornography law does not directly ban Hentai, its expansive prohibition to include cartoons and video games makes gravely liable all Hentai producers, traders and users for any content that depicts child pornography as broadly defined by the law.

Creation of the Inter-Agency Council against Child Pornography

The law creates an Inter-Agency Council Against Child Pornography, led by the Department of Social Welfare and Development, with a membership composed of the heads of the Department of Justice, Department of Labour and Employment, Department of Science and Technology, Philippine National Police, Commission on Human Rights, Commission on Information and Communication Technology, National Telecommunications Commission, Council for the Welfare of Children, Philippine Center on Transnational Crime, Optical Media Board and National Bureau of Investigation. The council will also include representatives from child-focused non-government organisations.

Compliance with international legal instruments

The law pursues the implementation of the United Nations Convention on the Right of the Child (UN CRC)- 2nd Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, which the Philippine government ratified in 2003. The Optional Protocol defines child pornography as ‘any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child, the dominant characteristic of which is depiction for a sexual purpose.”

The UNCRC was ratified by the Philippine government in 1990. The Anti-Child Pornography Act also complies with government commitments to other international legal instruments such as 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. As a transnational crime, the DOJ can opt to request assistance from other countries in investigation and prosecution. Both the DOJ and the Department of Foreign Affairs (DFA) can use this law as an input to extraditable offenses in future foreign policies, including treaties.

The full text of the final copy of the law is expected to be released by the Philippine Congress soon.  

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