SOME THOUGHTS ON THE ANTI- PHOTO AND VIDEO VOYEURISM LAW

SOME THOUGHTS ON THE ANTI- PHOTO AND VIDEO VOYEURISM LAW

The Anti-Photo and Video Voyeurism Act , Republic Act 9995, was passed by the Philippine Congress last year but little is known about the salient provisions of this law. So far, since the passage of this law, there are no available figures showing how many cases have been filed and successfully prosecuted when the law took effect. This is understandable for the law is fairly recent.

The reported sex scandals which featured well heeled celebrities, caught in sexually explicit acts, nakedness, or exposure of the very private  part of their human sexuality,  without their knowing it, through the use of  photo or video devices, uploaded in the internet,  led to the public and private outcry demanding for legislation  penalizing  voyeurism. The product of this advocacy is Republic Act 9995.   

What are the basic features of this law?

I would like first  to summarize the specific acts defined as  offenses under this law, and reserve my comments  later.

There are generally three (3)  specific acts, punishable under this law.

First, is the taking of photo or video coverage of a person or group of persons performing sexual act or any similar activity, or capturing an image of the private area of a person such as the naked or undergarment clad genitals, pubic area, buttocks or female breast, without the consent of the person or persons  involved and under circumstances in which the person or persons has/have a reasonable expectation of privacy.

Second, the copying or reproducing or causing the copying or reproducing of such photo or recording of the acts described in the first, with or without consideration, notwithstanding consent to record or take the photo or video given by the person or persons subject of the photo or video.

Third, the selling, distributing or causing the sale or distribution such photo or video recording of sexual act, whether it be the original copy or reproduction thereof, notwithstanding the consent to record or take the photo or video coverage given by the person or persons subject of the photo or video.

And Fourth,  the publishing, broadcasting or causing to publish or broadcast, whether in print or broadcast media, or the showing or exhibiting of the photo or video coverage or recording of such sexual act or any similar activity through VCD, DVD, Internet, cellular phones or other similar devices, notwithstanding the consent to record or take the photo or video coverage given by the person or persons subject of the photo or video coverage.

The law provides for  the same penalty for any of the acts defined as an offense under the law. The penalty is imprisonment of not less than 3 years but not more than 7 years and fine of not less than P100,000.00 but not more than P500,000.00.

If the offense is committed by   a juridical person (corporate entity),  its license or franchise will be automatically deemed revoked. To be held criminally liable  are the corporate officers, including the editor and reporter in the case of print media,  the station manager, editor and broadcaster in the case of a broadcast media.  If the offender is a public officer or employee,  he or she  will be further be administratively liable.  If the offender is an alien, he or she will be subject to deportation proceedings after serving his/her sentence and payment of fines.

Any photo or video, or any copy of such photo or video, illegally obtained,  cannot not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

The law strictly provides that the use of  such photo or video or any copy of such photo or video as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism, may be allowed  only when so authorized by a written order of the court.  Such written order will be issued only upon written application and the examination under oath or affirmation of the applicant and the witnesses he/she may produce, and upon showing that there are reasonable grounds to believe that photo or video voyeurism has been committed or is about to be committed, and that the evidence to be obtained is essential to the conviction of any person for, or to the solution or prevention of such, crime.

A careful reading of this law raises a lot of interesting questions. May I offer the observation that the Anti-Voyeurism Law punishes  four (4) specific acts defined as offenses.

First, is the mere act of taking of photo or video filming or recording of person or persons  performing sexual act or any similar activity, or capturing an image of the private area of a person such as the naked or undergarment clad genitals, pubic area, buttocks or female breast, without the consent of the person or persons  involved and under circumstances in which the person or persons has/have a reasonable expectation of privacy.

A reading of the law clearly implies that either persons of the opposite sex could be victims. In this particular type of offense consent of the subject involved in the photo or video could be a valid defense. This is unmistakably the implication, since the taking of photo or video should be without the consent of the subject who has a reasonable expectation of privacy. In other words if there is consent from the subject of the photo taking or video recording, then the subject consented to give up whatever privacy, decency, or modesty he or she may at least have. How to prove the defense of consent is another question. Notice that mere taking of photo or video recording or filming without the subject’s consent is already an offense.

Second is the copying or reproducing such voyeur photo or video or providing the means of copying or reproducing them. In this type of offense, observe that consent of the subject is immaterial, and not a valid defense. So even if the subject may have consented to the taking of the voyeur photo or video, and the perpetrator could possibly raise the defense of consent if charged under the first type of offense, once the perpetrator performs the act of copying or reproducing the voyeur photo or video, then he is liable under the second type of offense. As already noted consent of the subject is no longer a defense.

The third is the act of selling or distributing the voyeur photo or video or providing the means of selling or distributing them. As in the second, type, consent of the subject is not a valid defense, and mere selling or distributing is a consummated offense.

The fourth is publishing or broadcasting voyeur photo or video, or providing the means of publishing them, or exhibiting or showing them through any of the medium of publication,  broadcasting, or exhibition,  through VCD, DVD, Internet, cellular phones or other similar devices. As in the second and third type of offenses, consent to be photographed, filmed or videotaped, is immaterial and not a valid defense in the criminal prosecution.

Another interesting question that might arise is if it is possible for the defendant to be charged of all four separate offenses defined under this law if he committed all four types of offenses, from the photographing and filming, to copying, then selling, and publishing or exhibiting. I believe that he can be charged of all four separate offenses.

Finally since the mere act of taking of voyeur photo or video recording is punishable, where do I stand if let’s say I take pictures of bikini clad women frolicking and basking in the sun by the blue waters of the beach, which I would rather sincerely call an art work. Furthermore under the circumstances since these beauties had already publicly exposed themselves, isn’t it logical that by implication one is given the license capture them in their glorious beauty through the lens?