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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 arts 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.

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