Leah May Tacuel

COM411

September 25, 2009

Atty. Jo Imbong
On digital obscenity and community standards

In a time where technology content is pervasive and geography is no longer a limitation,

materials posted on the Internet should be subjected to regulation. Obscene materials in
particular should be filtered, given that they adhere to the violations identified in the Miller Test.
However, due to the irregularities in applying contemporary community standards, it might be
better to adopt a national, if not international, standard on what is permissible online.
The article Obscenity in the Digital Age presents reasons why a better policy on digital
standards and regulation should be crafted. After all, the Miller Test may no longer be applicable
to the Internet as a medium. Aside from the fact that obscene content could be accessed by
almost anyone, regardless of age, it could also accessed by anyone, regardless of location. This
is why it is important to hold a common policy that will promote the interests of any community. I
even agree with Justice O Connor that a uniform national policy is better than relative and
disagreeing state policies.
I think the main conflict here, however, is the balancing of interests. On one hand, there
is the general welfare of the community and the upholding of their values and principles. On the
other hand, there is the individuals freedom of expression and right to access information. This
may be applicable to general forms of expression or other types of information, but this may not
hold for obscene materials. This, I think, is what the article missed to emphasize. As the Miller
Test defines, obscene materials are works that (a) as a whole appeals to the prurient interest of
the average person, (b) depicts or describes in a patently offensive way, sexual conduct
specifically defined by the applicable state law, and (c) taken as whole, lacks serious literary,
artistic, political or scientific value. Hence, if this type of material circulates online, it is
condonable, regardless of community standards. After all, the Internet cannot be reduced to
specific community or state.
Indeed, subjecting all obscene materials to a national policy may curtail an individual or
groups freedom of expression, but the greater interest of the public outweighs that. As pointed
out in the case of Miller v. California, "All ideas having even the slightest redeeming social
importanceunorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate
of opinionhave the full protection of the First Amendment guaranties, unless excludable
because they encroach upon the limited area of more important interests. But implicit in the

history of the First Amendment is the rejection of obscenity as utterly without redeeming social
importance. This holds true regardless of the medium where obscenity circulates. While the
Miller case judged that obscene materials can be regulated by the States, this may not be
applicable, considering obscene materials online cannot be reduced to a specific state and in
fact permeates even to other countries. Considering its reach, the more important it is then to
regulate it. After all, an obscene material is not protected by the First Amendment or the
freedom of speech and it could violate the laws of the recipient countries.
Point in case is our very own Article 201 of the Revised Penal Code, which deals with
immoral doctrines. As the Article states, the authors of obscene literature, published with their
knowledge in any form, and the editors publishing such literature, owners/operators of the
establishment selling the same is punishable. In addition to this, those who exhibit indecent or
immoral plays, scenes, acts or shows, whether live or in film is punishable. Most importantly,
the Article condones as crime those who shall sell, give away or exhibit prints, engravings,
sculptures or literature which are offensive to morals. Given these, online obscenity clearly
violates Philippine laws. With the amount of obscene and pornographic materials made
available online, the values of the public may be threatened. Children in particular, being
susceptible to these kinds of materials, could be affected. This does not only apply to the
Philippines but to other countries as well. Indeed, it is one thing to allow these materials to
circulate online and to filter it for adult consumption, but one cannot say that for the Internet,
considering its nature. Given that the Internet has mobilized content to global reach, it is
inevitable that it harms a greater community. This only reinforces the need to adopt more
concrete rules in digital media, which can be adopted even internationally.
Therefore, digital regulation should be given more priority. Indeed there have been
initiatives to filter content and adopt a walled garden approach where content is limited to
memberships only, still, the very idea of the possibility of leaking obscenity is condonable. I
think, to cater to both interests of the individual and the public, it is important to develop a more
innovative technology to secure privacy but in the meantime, concrete rules should be crafted
not only by legislators but by the digital community itself so as to guarantee the general welfare
of global communities.