Law on Media and the Arts

Reginald Alberto B. Nolido

Law 199 - Law on Media and the Arts

Threatening to Publish

Art. 356. Threatening to publish and offer to present such publication for a compensation. The penalty of arresto mayor or a fine from 200 to 2,000 pesos, or both, shall be imposed upon any person who threatens another to publish a libel concerning him or the parents, spouse, child, or other members of the family of the latter or upon anyone who shall offer to prevent the publication of such libel for a compensation or money consideration.

Law 199 - Law on Media and the Arts

Threatening to Publish Acts Punished: 1. By Threatening another to publish a libel concerning him or his parents, spouse, child or other member of his family. 2. By Offering to prevent the publication of such libel for compensation or money consideration. Blackmail Defined: Blackmail, in its metaphorical sense, may be defined as any unlawful extortion of money by threats of accusation or exposure. Two words are expressive of the crime hush money. (US v Eguia, 38 Phil 857)
Law 199 - Law on Media and the Arts

Gag Law

Art. 357. Prohibited publication of acts referred to in the course of official proceedings. The penalty of arresto mayor or a fine of from 200 to 2,000 pesos, or both, shall be imposed upon any reporter, editor or manager of a newspaper, daily or magazine, who shall publish facts connected with the private life of another and offensive to the honor, virtue and reputation of said person, even though said publication be made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned.
Law 199 - Law on Media and the Arts

Gag Law Elements: 1. That the offender is a reporter editor or manager of a newspaper, daily or magazine; 2. That he publishes facts connected with the private life of another; 3. That such facts are offensive to the honor, virtue and reputation of said person. n.b. The prohibition applies even though said publication be made in connection wit or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned.
Law 199 - Law on Media and the Arts

Gag Law
This law must be viewed against the jurisprudence laid out in cases like Borjal Versus CA though. Considering this, this law is more likely applicable only when the person involved is not considered a public figure. Rep Act No. 1477, amending Rep. Act No. 53 Without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication which was related in confidence to such publisher, editor or reporter, unless the court of a House or committee of Congress finds that such revelation is demanded by the security of the state.
Law 199 - Law on Media and the Arts

Grave Scandal Art. 200. Grave scandal. The penalties of arresto mayor and public censure shall be imposed upon any person who shall offend against decency or good customs by any highly scandalous conduct not expressly falling within any other article of this Code. When the acts are performed in a private house but seen by a person that is not grave scandal. How about private sex shows? Is this grave scandal? How about private rooms in ktv establishments?
Law 199 - Law on Media and the Arts

Grave Scandal
Elements: 1. That the offender performs an act or acts. 2. That such act or acts be highly scandalous as offending against decency (propriety of conduct) or good customs (established usage, social conventions carried on by tradition and enforced by social disapproval of any violation thereof). 3. That the highly scandalous conduct is not expressly falling within any other article of this Code. 4. That the act or acts complained of be committed in a public place or within the public knowledge or view (US v Samaniego 16 Phil 663), giving rise to scandal to persons who have accidentally witnessed the same.
Law 199 - Law on Media and the Arts

Pornography

Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows. The penalty of prision mayor or a fine ranging from six thousand 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;
(2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;

Law 199 - Law on Media and the Arts

Pornography
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, 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, and good customs, established policies, lawful orders, decrees and edicts;

(3) Those who shall sell, give away (distribute) or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (As amended by PD Nos. 960 and 969).
Law 199 - Law on Media and the Arts

Pornography

This offense in any of the forms mentioned in the article is committed only when there is publicity.
Moral implies conformity with the generally accepted standards of goodness and rightness in conduct or character, sometimes specifically to sexual conduct.

Author of obscene literature is liable only when it is published with his knowledge.
Law 199 - Law on Media and the Arts

Pornography

Test of Obscenity: The test is whether the tendency of the matter charged as obscene, is to deprive or corrupt those whose minds are open to such immoral influences and into whose hands such a publication may fall and also whether or not such publication or act shocks the ordinary and common sense of men as an indecency. This follows the Hinklin Rule. Indecency is an act against the good behavior and a just delicacy. (US v Kottinger, 45 Phil 352). This case though looked at isolated passages and based thereon the SC made a decision.

Law 199 - Law on Media and the Arts

Pornography

In the Kalaw Katigbak case, the work was viewed using the dominant theme of the work to see if it appeals merely to prurient interests. The test employed there is as follows: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. Mere nudity in pictures or paintings is not necessarily obscenity. The proper test is whether the motive of he picture as indicated by it is pure or impure or whether it is naturally calculated to excite impure imaginations.

Law 199 - Law on Media and the Arts

Pornography
Definitions: Obscenity A narrow class of material defined by the Supreme Court in the Miller Test. Material that is legally obscene is not protected by the 1st Amendment. Obscene material is sometimes referred to as hard-core pornography. Indecent Material Material that may be sexually graphic but is protected by the First Amendment. Indecent Material is also referred to as adult material or sexually explicit material. Many laws ban the sale or distribution of indecent material to minors. Such material may, however, be freely distributed amongst adults.

Law 199 - Law on Media and the Arts

Pornography

The Hinklin Rule: A work is obscene if it has the tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall. Objection to this rule is that because of this rule American adults were permitted to read only what was fit for children. How about the freedom for adults to read adult material?

Law 199 - Law on Media and the Arts

Pornography
In 1957, the USSC ruled in the case of Roth v US and several other cases thereafter, thus forming the Roth-Memoirs Test, which has 3 stages: 1. the dominant theme of the material taken as a whole must appeal to prurient interest in sex. 2. a court must find that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. 3. before something can be found to be obscene, it must be utterly without redeeming social value. (This proved to be troublesome.)

Law 199 - Law on Media and the Arts

Pornography
In 1973, the USSC ruled in the case of Miller v California, which led to the Miller Test. This also had three steps: 1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest. 2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. 3. The work in question lacks serious literary, artistic, political or scientific value.

Law 199 - Law on Media and the Arts

Pornography
Average Person: In Pinkus v US, the USSC said that The community includes all adults who comprise it, and a jury can consider them all in determining relevant community standards The vice is in focusing upon the most susceptible or sensitive members when judging the obscenity of the material. Prurient Interest has been defined as a shameful or morbid interest in nudity, sex or excretion. Also, Prurient cannot simply mean having the tendency to excite lustful thoughts. This would be a dangerous rule as it can cover even healthy sexual appetites.

Law 199 - Law on Media and the Arts

Pornography
Community Standards: This has been defined in the Miller Test to mean the standard of the local community, or state standards as it is deemed that all communities within the same state share the same standard. This gives rise to problems however where materials are shipped from across states. This becomes a bigger problem when materials are broadcast nationally. In the Home Dish Case hard core and soft core materials were provided subscribers nationally. Some 50 people subscribed in Montgomery County Alabama. The company was indicted for violating the state obscenity statutes and they pleaded guilty. This is a case where local criminal laws were applied to programs carried nationwide by a satellite technology.
Law 199 - Law on Media and the Arts

Pornography Patent Offensiveness: This is to be judged by a trier of facts using contemporary community standards. The USSC has ruled however that only what is called hard-core sexual materials meet the patently offensive standard. In the case involving the R-rated movie Carnal Knowlegde, Justice Rehnquist wrote that materials are patently offensive if the include representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated and representations or descriptions of masturbation, excretory functions and lewd exhibitions of genitals. In the Philippines there must be passed some statute that defines what is patently offensive if our courts would wish to utilize the Miller Test.
Law 199 - Law on Media and the Arts

Pornography

Serious Value: The test for this is not whether an ordinary person in the community would find serious literary, artistic, political or scientific value, but whether a reasonable person could find such value in the material.
While the USSC has not set the standards for what constitutes serious value, the USSC has warned lower courts to remain sensitive to any infringement on genuinely serious literary, artistic, political or scientific value.

Law 199 - Law on Media and the Arts

Pornography Variable Obscenity: The USSC has ruled in several cases that variable standards of obscenity may be used especially if the same is done for the protection of minors. In other words, what may be permissible for adults could be held obscene for children. Thus selling such materials to children would be violations of obscenity laws or to allow them to peruse the same.

Law 199 - Law on Media and the Arts

Pornography
Child Pornography: What is often prohibited is the act of distributing, selling and even possessing such materials. In determining whether a material involves child pornography, the USSC has said that A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that the sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. In Ohio, a statute barred possession of any minor in a state of nudity who is not the person s ward. This would have prohibited grandparents from have nude photos of their grandkids. The Ohio SC then ruled that the law only barred depictions of nudity involving a lewd exhibition or graphic focus on a minors genitals.
Law 199 - Law on Media and the Arts

Pornography
In 1996, the US Congress passed an amendment to the child pornography act, which now prohibits not just the sale and distribution of any actual image that appears to depict minors performing sexually explicit acts but also computer-generated images and other pictures that are generated by electronic, mechanical or other means in which such visual depiction is, or appears to be, a minor engaging in sexually explicit conduct. This was passed purportedly to protect children from pedophiles and child molesters. The USSC ruled that certain portions of this law violated the first amendment. This law would bar the depiction of an idea, which is a fact of modern society and has been the theme of various works of art and literature, that of teenagers having sexual relations. They also ruled that no evidence had been presented that would link between the work and the possibility of child abuse.
Law 199 - Law on Media and the Arts

Pornography Under RP Law: RA 7610 states: Section 9. Obscene Publications and Indecent Shows. - Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period.

Law 199 - Law on Media and the Arts

Pornography If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period. Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play, scene, act, movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period.

Law 199 - Law on Media and the Arts

Pornography
Pornography and Women: In 1984, an Indianapolis Law was passed prohibiting works that portrayed the graphic, sexually explicit subordination of women, which were defined as pornographic. These include depiction of women as sexual objects who enjoy pain or humiliation, who enjoy sexual pleasure in being raped, who are tied up, cut up or mutilated and who are presented as being dominated, violated, exploited or possessed through postures or positions of servility or submission. This law was deemed a violation of the 1st Amendment as it is unconstitutionally vague. Interestingly, this same law was upheld in Canada.
Law 199 - Law on Media and the Arts

Pornography

Criminal Prosecution: In Smith v California (1959) the USSC ruled that before a person can be convicted for selling obscene books or magazines or whatever, the state has to prove that the seller was aware of the contents of this material. The USSC said that If the bookseller is criminally liable without knowledge of the contents he will tend to restrict the books he sells to those to he has inspected; and thus the state will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature.
Reality though is that criminal prosecution for obscenity is low because this is not deemed as serious as other crimes.
Law 199 - Law on Media and the Arts

Pornography

Film Censorship: Films acquired First Amendment protection in 1952. Since then the USSC has reviewed many censorship laws to determine whether they comply with 1st Amendment standards. In general, the USSC has consistently said that censorship boards and the courts must make prompt rulings on whether a film may be exhibited and the government bears the burden of proving that a film is not protected under the 1st Amendment.

Law 199 - Law on Media and the Arts

Pornography
The Phil. SC said that a process, which requires prior submission of a film to a censor, avoids constitutional infirmity if it takes the following procedural safeguards: 1. The burden of proving that the film is unprotected expression must rest on the censor. 2. Only a procedure requiring a judicial determination suffices to impose a valid and final restraint. To this end, the exhibitor must be assured, by statute or authoritative judicial construction that the censor will, within a specified brief period, either issue a license or go to court to restrain the showing of the film.

Law 199 - Law on Media and the Arts

Pornography

3. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.
4. Moreover, the procedure must also assure a prompt judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.

Law 199 - Law on Media and the Arts

Pornography
Erotic Material in Cyberspace: Starting in 1996 the US Congress passed three critical laws that dealt with erotic material in the Internet. These are the Communications Decency Act of 1996, the Child On-Line Protection Act of 1998 and the Childrens Internet Protection Act of 2001.

The CDA made it a crime to, among others, transmit indecent material or allow indecent material to be transmitted over public computer networks to which minors have access. Indecency was defined as any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.
Law 199 - Law on Media and the Arts

Pornography

The USSC struck down the CDA because it was plagued by vagueness. Without a definition of either indecency or patent offensiveness, the USSC asked, could a speaker confidently assume that a serious discussion about birth control practices, homosexuality or consequences of prison rape would not violate the CDA? Justice Stevens added that by attempting to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.
Law 199 - Law on Media and the Arts

Pornography
The Child On-Line Protection Act prohibits website from knowingly transmitting to minors material that is harmful to minors. Harmful material was defined as material that, with respect to minors, and applying contemporary community standards, is specifically created to appeal to prurient interests, that graphically depicts lewd or sexual behavior and that lacks serious literary, artistic or scientific value. A US District Court said that the law is unconstitutional because it suffered the same defect as the CDA. In attempting to protect minors from commercial sex sites, the Congress once again passed a law that interferes with the receipt by adults of constitutionally protected material. The USCA did not touch on this but said the use of community standard as basis is overbroad. The USSC disagreed and remanded the case to the USCA.

Law 199 - Law on Media and the Arts

Pornography
The Child Internet Protection Act requires public libraries to install anti-pornography filters on all computers hat provide internet access in order to continue to receive federal funding that subsidizes their internet access. These filters are controversial because many believe that libraries should not be in the business of censoring patrons and also because such filters do not work properly. For example the filters prevent access to some important health sites. Federal Courts struck down the law as it requires libraries to violate the 1st amendment to gain federal funding. The USSC upheld the law though. The court said that the limitation to internet access would be the same as limitations to books which the libraries do not acquire. The SC though invited further actions on this based on realworld experience.
Law 199 - Law on Media and the Arts

Pornography
Philippine Cases: People v Kottinger (1923) Facts: Kottinger was charged with having kept for sale in the store of the Camera Supply Co., obscene and indecent pictures, in violation of section 12 of Act No, 277. The pictures which it is argued offend against the law on account of being obscene and indecent, disclose six different postures of non-Christian inhabitants of the Philippines. Exhibit A carries the legend "Philippines, Bontoc Woman." Exhibit A-1 is a picture of five young boys and carries the legend "Greetings from the Philippines." Exhibit A-2 has the legend "Ifugao Belle, Philippines. Greetings from the Philippines." Exhibit A-3 has the legend "Igorrot Girl, Rice Field Costume." Exhibit A-4 has the legend "Kalinga Girls, Philippines." Exhibit A-5 has the legend "Moros, Philippines."
Law 199 - Law on Media and the Arts

Pornography
Held: The test ordinarily followed by the courts in determining whether a particular publication or other thing is obscene within the meaning of the statutes, is 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. Another test of obscenity is that which shocks the ordinary and common sense of men as an indecency. The pictures which depict the non-Christian inhabitants of the Philippine Islands as they actually live, without attempted presentation of them in unusual posture of dress, are not offensive to chastity, or foul, or filthy. Pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live, are not obscene or indecent.
Law 199 - Law on Media and the Arts

Pornography
People v Go Pin Facts: Go Pin, an alien and a Chinese citizen, was charged with a violation of Article 201 of the Revised Penal Code for having exhibited in the City of Manila at the Globe Arcade, a recreation center, a large number of one-reel 16-millimeter films about 100 feet in length each, which are allegedly indecent and/or immoral. Held: Paintings and pictures of women in the nude, including sculptures of the kind are offensive to morals where they are made and shown not for the sake of art but profit commercial purposes, that is, when gain and profit would appear to be the main, if not the exclusive consideration in their exhibition, and the case of art only of secondary or minor importance.
Law 199 - Law on Media and the Arts

Pornography
Gain and profit would appear to have been the main, if not the 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 tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love for 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. (This is a dangerous test as the venue would dictate whether a work is indecent or not.)

Law 199 - Law on Media and the Arts

Pornography
Gonzalez v Kalaw Katigbak Facts: In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under the classification "For Adults Only," with certain changes and deletions enumerated was granted. A motion for reconsideration was filed by petitioners stating that the classification of the film "For Adults Only" was without basis. Then on November 12, 1984, respondent Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the Board, x x x Resolves to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to Withhold the issuance of the Permit to exhibit until these deficiencies are supplied.

Law 199 - Law on Media and the Arts

Pornography
The adult classification given the film serves as a warning to theater operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative in the young audience will misunderstand these scenes. Further: "Respondents further stated in its answer that petitioner company has an option to have the film reclassified to For-General-Patronage if it would agree to remove the obscene scenes and pare down the violence in the film. Petitioners, however, refused and, filed this suit.
Law 199 - Law on Media and the Arts

Pornography
Held: Citing Roth, Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying contemporary Filipino cultural values as standard, words which can be construed in an analogous manner. Moreover, as far as the question of sex and obscenity are concerned, it cannot be stressed strongly that the arts and letters "shall be under the patronage of the State.

Law 199 - Law on Media and the Arts

Pornography
The SC used the following test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. It then said, It will be less than true to its function if any government office or agency would invade the sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It is for the artist to determine what for him is a true representation. It is not to be forgotten that art and belles lettres deal primarily with imagination, not so much with ideas in a strict sense. What is seen or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent rightfully may be considered obscene.
Law 199 - Law on Media and the Arts

Pornography
As so when put by Justice Frankfurter in a concurring opinion, "the widest scope of freedom is to be given to the adventurous and imaginative exercise of the human spirit in this sensitive area of a man's personality. On the question of obscenity, therefore, and in the light of the facts of this case, such standard set forth in Executive Order No. 878 is to be construed in such a fashion to avoid any taint of unconstitutionality. Significantly, there were not enough votes to justify a finding of grave abuse of discretion, so the ruling remained valid, in spite of the findings of the majority of the court.

Law 199 - Law on Media and the Arts

Pornography
People v Palan Facts: That on or about the 13th day of September, 1953, in the city of Manila, Philippines, the said accused conspiring and confederating together and mutually helping one another, did then and there willfully, unlawfully and feloniously exhibit or cause to be exhibited inside a building at the corner of Camba Ext. and Morga Ext., Tondo, this City, immoral scenes and acts, to wit: the said accused Jose Fajador y Garcia, being then the manager and Ernesto Reyes y Yabut, as ticket collector and or exhibitor, willfully, unlawfully and feloniously hired their co-accused Marina Palan y Alova and Cosme Espinosa y Abordo to act as performers or exhibitionists to perform and in fact performed sexual intercourse in the presence of many spectators, thereby exhibiting or performing highly immoral and indecent acts or shows thereat."
Law 199 - Law on Media and the Arts

Pornography
Held: We have had occasion to consider offenses like the exhibition of still or moving pictures of women in the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there was involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants. But 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.

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Pornography
Pita v CA Facts: On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized and confiscated from dealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines, publications and other reading materials believed to be obscene, pornographic and indecent and later burned the seized materials in public at the University belt along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several officers and members of various student organizations. Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-edited by plaintiff Leo Pita.
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Pornography
Held: In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply because one insists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generation. The burden is on the State to demonstrate the existence of a danger, a danger that must not only be (1) clear but also, (2) present, to justify State action to stop the speech.

Law 199 - Law on Media and the Arts

Pornography Fernando vs. CA Facts: Acting on reports of sale and distribution of pornographic materials, police conducted a surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued a Search Warrant for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of Gaudencio E. Fernando Music Fair, and the seizure of the following items:

Law 199 - Law on Media and the Arts

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a. Copies of New Rave Magazines with nude obscene pictures; b. Copies of IOU Penthouse Magazine with nude obscene pictures; c. Copies of Hustler International Magazine with nude obscene pictures; and d. Copies of VHS tapes containing pornographic shows. On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution, introduced himself as the store attendant of Music Fair. The police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different magazines, which they deemed pornographic. Issue: Are they guilty?

Law 199 - Law on Media and the Arts

Pornography Held: To be held liable under Art 201, the prosecution must prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials. The Court in Pita emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all.
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It is evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. It seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases. There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines. X x x But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is "patently offensive." No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct.

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Pornography
Examples included (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judges sound discretion. In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings.

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Pornography
Did petitioners participate in the distribution and exhibition of obscene materials? We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity. The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners are engaged in selling and exhibiting obscene materials.

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Senate Bill No. 2464: Anti-Pornography Bill

On July 8, 2008, Senate President Manuel Villar proposed the creation of an Anti-Pornography Bill. In the explanatory notes it states that it is the duty of the State to give special value to the dignity of every human person and to promote and safeguard its integrity and the moral, spiritual and social well-being of its citizenry, especially the youth in general and women in particular, from the pernicious effects of obscenity and pornography. The bill aims to criminalize the publication, broadcast, exhibition of pornographic materials including images that appear in traditional media x x x to protect the morals of society.

Law 199 - Law on Media and the Arts

Pornography
Obscene is defined therein as anything that is indecent or offensive or contrary to good customs or religious beliefs, principles or doctrines, or tends to corrupt or deprave the human mind, or is calculated to excite impure thoughts or arouse prurient interest, or violates the proprieties of language and human behavior, regardless of the motive of the producer, printer, publisher, writer, importer, seller, distributor or exhibitor such as but not limited to: (1) showing, depicting or describing sexual acts; (2) showing, depicting or describing human sexual organs or the female breasts; (3) showing, depicting or describing completely nude human bodies; (4) describing erotic reactions, feelings or experiences or sexual acts ;or (5) performing live sexual acts in whatever form. Law 199 - Law on Media and the Arts

Pornography

Pornography or pornographic is defined referring to objects or subjects of film, television shows, photography, illustrations, music, games, paintings, drawings, illustrations, advertisements, writings literature or narratives, contained in any format, whether audio or visual, still or moving pictures, in all forms of film, print, electronic, outdoor or broadcast mass media, or whatever future technologies to be developed, which are calculated to excite, stimulate or arouse impure thoughts and prurient interest, regardless of the motive of the author thereof.

Law 199 - Law on Media and the Arts

Pornography
The following acts are declared illegal and punishable: (a) Producing, printing, showing, exhibiting, importing, selling advertising or distributing obscene or pornographic materials in all forms of mass media; (b) Causing the showing or exhibition, distributing or the printing, publication or advertising, of the selling of obscene or pornographic materials in all forms of mass media; (c) Showing, exhibiting, selling or distributing obscene or pornographic movies in whatever format, whether produced in the Philippines or abroad, in any restaurant, club, or other places open to the public, including private buildings, places or houses where the viewers are not limited to the owners thereof and the members of his family;
Law 199 - Law on Media and the Arts

Pornography

(d) Writing any obscene or pornographic article in any print or electronic medium; (e) Performing, demonstrating, acting or exhibiting any obscene or pornographic act in any form of mass media; and (f) Performing or allowing the performance of live sex or live sexual act in public, public places or any place open to public viewing.

Law 199 - Law on Media and the Arts

Pornography House Bill 2294

The 10-member commission, as proposed in the bill, shall primarily be tasked to promulgate and implement the policies and rules and procedures governing the mandate of the MTRCC, while the Review and Classification Committee shall review and classify motion pictures, and free and cable television materials.
Rep. Abante added that the commission shall also serve as an appeals body for all X or D classifications, which, under the current set-up, can be appealed to the Office of the President.

Law 199 - Law on Media and the Arts

Pornography He said the proposed MTRCC would not only classify movies but censor them as well. We would like a board or a commission (whose policies) would be more family-oriented, more womenfriendly and children-friendly, he stressed.

Law 199 - Law on Media and the Arts

Pornography House Bill 6425 shall establish a Movie and Television Classification Board (MTCB) which shall replace the existing MTRCB. The MTCB shall be confined only to the classification of motion pictures and television programs, and other related materials. The MTCB shall not be authorized to censor or modify or absolutely ban any motion picture. Section 15 of MTCB Act of 2009 specifies how a motion picture or material can be considered obscene, violent or inimical to public interest. It states that a motion picture or material shall be considered obscene only when the same clearly meets all the following elements:
Law 199 - Law on Media and the Arts

Pornography
The average person, applying contemporary community standards, would find the work, taken as a whole, appealing to prurient interest and satisfying only the market for gratuitous sex and violence. The work depicts or describes sexual conduct in a patently offensive way The work taken as a whole, and viewed within its context, manner of presentation, intention and culture, lacks serious literary, artistic, political or scientific value. Furthermore, the proposed measure shall ensure that those who have qualifications, expertise and skills shall be the ones responsible in the classification of motion pictures and television programs.

Law 199 - Law on Media and the Arts

Inciting to Sedition
Art. 142. Inciting to sedition. The penalty of prision correccional in x x x shall be imposed upon any person who, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government (x x x) of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices.
Law 199 - Law on Media and the Arts

Inciting to Sedition
Different Acts of Committing Inciting to Sedition: 1. Inciting others to the accomplishment of ay of the acts which constitutes sedition by means of speeches, proclamations, writings, emblems, etc. Uttering seditious words or speeches which tend to disturb the public peace. Writing, publishing or circulating scurrilous libels against the Government or any of the duly constituted authorities thereof, which tend to disturb the public peace.

2.

3.

Law 199 - Law on Media and the Arts

Inciting to Sedition
Elements of Inciting to Sedition to accomplish any of its objects: 1. 2. That the offender does not take direct part in the crime of sedition. That he incites others to the accomplishment of any of the acts which constitute sedition. That the inciting is done by means of speeches, proclamations, writings, emblems, cartoons banners or other representations tending to the same end.

3.

Law 199 - Law on Media and the Arts

Inciting to Sedition
Uttering seditious words or speeches and writing, publishing or circulating scurrilous libels are punishable when: 1. They tend to disturb or obstruct any lawful officer in executing the functions of his office; or 2. They tend to instigate others to cabal and meet together for unlawful purposes; or 3. They suggest or incite rebellious conspiracies or riots; or 4. They lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government.

Law 199 - Law on Media and the Arts