Presentation delivered at ICT4PHD conference - Sept 2012

1. This paper provides an overview of certain provisions of Republic
Act No. 9775 or the Anti-Child Pornography Act of 2009,
particularly those that affect the Internet, the Constitutional
provisions related to the Right to Privacy, other pieces of
legislation as well as jurisprudence related to the Right to Privacy,
and the questions arising from this law’s provisions.
The Anti-Child Pornography Act of 2009:
An Impending Debate on Privacy in the Philippines

2. 1.0 Child Pornography in the Philippines
• STATISTICS: there is scant data available on child pornography
and these statistics do not present the actual extent of the
problem.
Case/ Year 2000 2001 2002 2003
Victims of Pornography 9 4 7 13
Victims of Prostitution 186 224 245 247
Table 1. Reported Cases of Victims of Child Pornography as Compared to
Victims. Survivors of Child Prostitution.

3. 1.1 Paedophilia and Child Pornography in the Philippines
 The need for Anti-Child Pornography legislation in
the Philippines, particularly in relation to the
Internet and the role of the Philippines as a
producer of cybersex and child pornography in
Cyberspace.
 The situation obtaining prior to passage of the
Act, both as regards Child Abuse (e.g. R.A. 7610)
and regulation of the Internet (e.g. R.A. 8792).
1.2 Internet Regulatory Situation Prior to R.A. 9775

4. 2.0 R.A. 9775 – Anti-Child Pornography Act of 2009
2.1 Prohibited Acts
Expressed goal of guaranteeing the fundamental rights of children from all
forms of neglect, cruelty and other conditions prejudicial to their
development; protecting them from all forms of exploitation including their
use in pornographic performances and materials and their inducement or
coercion to engage or be involved in pornography; and complying with
international treaties concerning the rights of children to which the
Philippines is a signatory or a State party.
1. To hire, employ, use, persuade, induce or coerce a child to perform in
the creation or production of any form of child pornography;
2. To produce, direct, manufacture or create any form of child
pornography;
3. To publish offer, transmit, sell, distribute, broadcast, advertise, promote,
export or import any form of child pornography;
4. To knowingly, wilfully and intentionally provide a venue for the
commission of the prohibited acts such as, but not limited to, dens,
private rooms, cubicles, cinemas, houses or in establishments
purporting to be a legitimate business;

5. 2.1 Prohibited Acts (Cont.)
5. To engage in the luring and grooming of a child;
6. To engage in pandering of any form of child pornography;
7. To wilfully access any form of child pornography;
8. To conspire to commit any of the prohibited acts stated; and
9. To possess any form of child pornography and to possess them with
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 broad
cast.
In addition, the Act also declares it unlawful:
1. For film directors, theatres and telecommunication companies, by
themselves or in cooperation with other entities, to distribute any form
of child pornography; and
2. 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.

6. 2.2 Duties of Internet Service Providers (ISPs)
2.2.1 Monitoring (Mandatory Reporting)
All Internet Service Providers (ISPs) shall notify the Philippine
National Police (PNP) or the National Bureau of Investigation (NBI)
within seven (7) days from obtaining facts and circumstances that
any form of child pornography is being committed using its server or
facility. Nothing in this section may be construed to require an ISP to
engage in the monitoring of any user, subscriber or customer or the
content of any communication of such person …
- ISPs now have broad, discretionary, and warrant-less
surveillance powers
- No limits on ISP’s use of monitoring and information for
other purposes: e.g. commercial, marketing or profiling
- Violates principle of ISPs as public utilities

7. 2.2 Duties of ISPs (cont.)
2.2.2 Mandatory Data Retention
Furthermore, an ISP shall preserve such evidence for purposes of
investigation and prosecution by relevant authorities `` …
- No specifics nor limits on the information that ISPs may
collect. Assume any and all.
- No safeguards nor time limits on storage of subscriber data
or information. Forever?
- No safeguards against commercial re-purposing or trading of
subscriber data.
An ISP shall, upon the request of proper authorities, furnish particulars
of users who gained or attempted to gain access to an internet address
that contains any form of child pornography …
- Personal information available upon request,
- No warrant, court order or any judicial review required.

8. 2.2.3 Mandatory Filtering
2.2 Duties of ISPs (cont.)
All ISPs shall install available technology, program or software to
ensure that access to or transmittal of any form of child
pornography will be blocked or filtered.
- Legitimizes filtering and prior censorship of Internet content
- No safeguards to limit discretionary filtering powers
- Overly broad and vague, may be misused by ISPs for anti-
competitive practices
- Reliance on technological “magic bullets” that rarely work as
advertised

9. 2.2.4 Safeguards of Civil Liberties and Consumer Rights
- ISPs are provided immunity from civil suit --
Provided that, no ISP shall be held civilly liable for damages
on account of any notice given in good faith in compliance
with this section.
- Overly broad discretionary powers are vested in an “Anti-
Child Pornography Council”

10. 2.3 Duties of Internet Content Host
a person who hosts or who proposes to host Internet
content in the Philippines.
• Internet content hosts are prohibited from hosting any form
of child pornography on its address;
• to report within seven (7) days the presence of any form of
child pornography, as well as the particulars of the person
maintaining, hosting, distributing or in any manner
contributing to child pornography, to the proper authorities;
and
• to preserve such evidence for purposes of investigation and
prosecution by relevant authorities.
In addition, an Internet content host, upon the request of
proper authorities, is required to furnish the particulars of
users who gained or attempted to gain access to an internet
address that contains any form of child pornography.

11. 2.5 Surfacing Tensions
2.5.1 Defining “pornography”
2.5.2 Vesting powers in an “overseer”
• Who decides what is “pornographic”?
• Quis custodiet ipsos custodes?
- Freedom of Expression issues
- Legislating Morality – modes of controlling sexual roles and
identities
• Mission creep (e.g. application to National Security)?
• Emerging problematic legal concepts (e.g. intermediary
liability)
• Surveillance applications in Mobile Telephony
2.4 Comparison to Model Legislation
• Absence of Blocking Provision in ICME framework
• Global norm is voluntary filtering, if any

12. 2.4 Surfacing Tensions (cont.)
2.5.4 Problems with new technologies – exposing socio-
technological gaps
2.5.3 Reliance on technological solutions
• Technological solutions (alone) rarely work
• Vests power in (commercial) vendors of technology
• Locks people into proprietary technologies
• Vendor-capture and graft
• Anonymity on the Internet
• Privacy and the handling of Personally Identifiable Information

13. 3.0 Privacy in the Philippines
3.1 Habeas Data and the Common Right to Privacy
3.2 Constitutional Provisions (Sections 2 and 3-1)
3.3 Civil Code (Articles 26 and 32-1)
3.4 Tañada Anti-Wiretapping Act of 1965 (R.A. 4200)
3.5 E-Commerce Act (R.A. 8792) on ISPs
3.6 Anti-Photo and Video Voyeurism Act of 2009
(R.A. 9995)
3.7 Senate Bill No. 2796: Cybercrime Prevention Act of
2012

14. Strands of Privacy and Standards for Intrusion
• Locational or situational privacy
• Informational privacy
• Decisional privacy
the standard for a valid intrusion to privacy is either a
valid warrant or lawful order by a court or a law
prescribing such intrusion based on public safety or
public order.
• Morfe vs. Mutuc (
• Ople vs. Torres (Supreme Court nullified A.O. No. 308
-National ID system)

15. 4.0 Existing Legislations
4.1 Anti-Wiretapping law (1965)
4.2 Electronic Commerce Act (2000)
4.3 Anti-Photo and Video Voyeurism Act (2009)
4.4 Data Privacy Act (2012)
4.5 Cyber Crime Prevention Act (2012)

16. 5.0 Contentious Legal Issues
5.1 Efficacy of Technical Means of Cyber-control
5.2 Implementation of Reporting, Monitoring and
Blocking
5.3 Government Attitudes (Feature Creep and Law
Enforcement)
5.4 Commercial Use of Internet Monitoring and Filtering
5.5 Preservation of Evidence
5.6 Furnishing of Particulars of Users
5.7 Blocking, Filtering and Removal

17. Other Questions:
• Technical Issues
• Efficacy of Filtering
• Public Websites versus Private Exchanges
• Filtering as a Palliative
• Commercial Interests of ISPs
• R.A. 9775’s Implementing Rules and Regulations

18. 6.0 Summary and Recommendations
 Passage of a (newer) Anti-Cybercrime law with
statutory/ judicial safeguards of civil liberties,
specifically to expand upon and supersede the
relevant sections in the Anti-Child Porn Act.
 Amendments and additions to the Data Privacy Bill
that would restrict re-purposing of data.
 Amendments to the Anti-Child Porn IRRs to provide
legal protections, delimit the commercial use of
monitoring and filtering capabilities, include other
stakeholders.

19. Salamat Po !!!
• Winthrop Yu (ISOC-PH) w.yu@gmx.net
• Gilbert Lumantao (DAP) lumantao@gmail.com
• Charlyn Justimbaste