Republic of the Philippines
Congress of the Philippines
Third Regular Session
Republic Act No. 9775
AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY, PRESCRIBING PENALTIES THEREFOR AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
Section 1. Short Title. - This Act shall be known as the "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 their development;
(b) Protect the child from all forms of exploitation and abuse including, but not limited to:
(1) the exploitative use of a child or children in pornographic performances and materials; and
(2) the inducement or coercion of a child to engage in or perform any sexual activity or practices, 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 2nd Optional Protocol to the Convention on the Rights 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) "Children" refers to persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves 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 believed to be a child as defined herein; and
(2) a 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.
(b) "Child pornography" refers to any public or private representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.
(c) "Child pornography materials" refers to the means and methods by which child pornography is carried out:
(1) As to form:
(i) Visual depiction - which includes not only images of real children but also digital image, computer image or computer-generated image that is indistinguishable from that of real children engaging in an explicit sexual activity. Visual depiction shall include:
(aa) undeveloped film and videotapes;
(bb) data and/or images stored on a computer disk or by electronic means capable of conversion into a visual image;
(cc) photograph, film, video, picture, digital image or picture, computer image or picture, whether made or produced by electronic, mechanical or other means;
(dd) drawings, cartoons, sculptures or paintings depicting children; or
(ee) other analogous visual depiction; or
(ii) Audio representation of a person who is or is represented as being a child and who is engaged in or is represented as being engaged in explicit sexual activity, or an audio representation that advocates, encourages or counsels any sexual activity with children which is an offense under this Act.
Such representation includes audio recordings and live audio transmission conveyed through whatever medium including real-time internet communications; or
(iii) Written text or material that advocates or counsels explicit sexual activity with a child and whose dominant characteristic is the description, for a sexual purpose, of an explicit sexual activity with a child.
(2) As to content:
(i) It includes representation of a person who is, appears to be, or is represented as being a child, the dominant characteristic of which is the depiction, for a sexual purpose, of:
(aa) the sexual organ or the anal region, or a representation thereof; or
(bb) the breasts, or a representation of the breasts, of a female person.
(d) "Explicit sexual activity" refers to actual or simulated -
(1) 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;
(4) Sadistic or masochistic abuse;
(5) Exhibition of the genitals, buttocks, breast, pubic area and/or anus; or
(6) Use of any object or instrument for lascivious acts.
(e) "Internet address" refers to a website, bulletin board service, internet chat room or news group, or any other internet or shared network protocol address.
(f) "Internet café 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.
(g) "Internet content host" refers to a person who hosts or who proposes to host Internet content in the Philippines.
(h) "Internet service provider (ISP)" refers to a person or entity that supplies, or proposes to supply, an Internet carriage service to the public.
(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 a sexual activity or production of child pornography.
(j) "Grooming" refers to the act of preparing a child or someone who the offender believes to be a child for a sexual activity or sexual relationship by communicating child pornography. It includes online enticement, or enticement through any other means.
(k) "Primarily sexual purposes" refers to purposes which will fulfill all the following conditions:
(1) 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;
(2) The work depicts or describes sexual conduct in a patentlyoffensive way; and
(3) The work taken as a whole imbued within its context, manner or presentation, intention and culture, lascivious, literary, artistic, political and scientific value.
Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for a person to commit any of the following acts:
(a) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of child pornography;
(b) To produce, direct, manufacture or create any form of child pornography and child pornography materials;
(c) To sell, offer, advertise and promote child pornography and child pornography materials;
(d) To possess, download, purchase, reproduce or make available child pornography materials with the intent of selling or distributing them;
(e) To publish, post, exhibit, disseminate, distribute, transmit or broadcast child pornography or child pornography materials;
(f) To knowingly possess, view, download, purchase or in any way take steps to procure, obtain or access for personal use child pornography materials; and
(g) To attempt to commit child pornography by luring or grooming a child.
Section 5. Duties of an Internet Service Provider (ISP). - An ISP shall:
(a) Prevent access or transmittal of child pornography materials by any person and shall install a blocking system to prevent access to such materials;
(b) Within seven (7) days, report the presence thereof, as well as the particulars of the person maintaining, hosting, distributing or in any manner contributing to the Internet address, to the proper authorities; and
(c) Preserve such evidence for purposes of investigation and prosecution by relevant authorities.
An ISP shall, upon the request of proper authorities, furnish the particulars of users who gained or attempted to gain access to an Internet address which contains child pornography materials.
An ISP who shall knowingly, willfully and intentionally violate this provision shall be subject to the penalty provided under Section 13(e) of this Act.
Section 6. Duties of an Internet Content Host. - An Internet content host shall:
(a) Not host any child pornography on its Internet address;
(b) Within seven (7) days, report the presence of child pornography, as well as the particulars of the person maintaining, hosting, distributing or in any manner contributing to such Internet address, to the proper authorities; and
(c) Preserve such evidence for purposes of investigation and prosecution by relevant authorities.
An Internet content host shall, upon the request of proper authorities, furnish the particulars of users who gained or attempted to gain access to an Internet address that contains child pornography materials.
An Internet content host who shall knowingly, willfully and intentionally violate this provision shall be subject to the penalty provided under Section 13(e) of this Act.
Section 7. Duty to Provide Blocking System or Software. - The following shall also have the duty to install blocking system or software to prevent transmittal of or access to the child pornography materials:
(a) Internet café establishments;
(b) Private and public educational institutions;
(c) Public and private offices; and
(d) Service providers such as telephone companies and others.
Section 8. Duty to Report. - Photo developers, information technology (IT) professionals, credit card companies and banks, and any person who has direct knowledge of any child pornography activities shall have the duty to report any suspected child pornography materials or transactions to the proper authorities within seven (7) days from discovery thereof.
Section 9. Facilitating Unlawful or Prohibited Acts. - It shall be unlawful for a person to knowingly facilitate the commission of any of the prohibited or unlawful acts under any of the provisions of this Act.
Section 10. Providing Venue for Commission of Prohibited Acts. - It shall be unlawful for a person to knowingly, willfully and intentionally provide a venue for the commission of prohibited acts such as, but not limited to, dens, private rooms, cubicles in Internet cafes, cinemas, secluded areas in residential houses or in establishments purporting to be a legitimate business.
Section 11. Confidentiality. - The right to privacy of the child shall be ensured at any stage of the investigation, prosecution and trial of an offense under this Act. Towards this end, the following rules shall be observed:
(a) The judge, prosecutor or any officer of the law to whom the complaint has been referred to may, whenever necessary to ensure a fair and impartial proceeding and after considering all circumstances for the best interest of the child, conduct a closed-door investigation, prosecution or trial;
(b) The name and personal circumstances of the child or any other information tending to establish his/her identity shall not be disclosed to the public;
(c) Any record regarding a child shall be confidential and kept under seal. Except upon written request and order of the court, a record shall be released only to the following:
(1) Members of the court staff for administrative use;
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement agencies; and
(6) Other persons as determined by the court;.
(d) Any child pornography material that is part of the court records shall be subject to a protective order that provides as follows:
(1) Child pornography materials may be viewed only by the parties, their counsel, their expert witness and guardian ad litem;
(2) No child pornography material, or any portion thereof, shall be divulged to any other person, except as necessary for the investigation, prosecution or trial; and
(3) No person shall be granted access to the child pornography material or any part thereof unless he/she signs a written affirmation that he/she has received and read a copy of the protection order; that he/she submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he/she will be subject to the contempt power of the court; and
(e) In cases when prosecution or trial is conducted behind closed doors, it shall be unlawful for any editor, publisher and reporter or columnist in case of printed materials, announcer or producer in case of television and radio, producer and director of a film in case of the movie industry, or any person utilizing the tri-media facilities or information technology to cause publicity of any case of child pornography.
Section 12. Common Penal Provisions. -
(a) The penalty provided under this Act shall be imposed in its maximum period if the offender has been previously convicted under this Act.
(b) When the offender is a corporation, partnership or association, the officer or employee thereof who is responsible for the violation of this Act shall suffer the penalty imposed in its maximum period.
(c) When the perpetrator is an ascendant, parent, guardian, step-parent or collateral relative within the second degree of consanguinity, the perpetrator thereof who is responsible for the violation of this Act shall suffer the penalty imposed in its maximum period.
(d) The penalty provided for in this Act shall be imposed in its maximum period if the offender is a public officer or employee: Provided, That if the penalty imposed is reclusion perpetua or reclusion temporal, then the penalty of perpetual or temporary absolute disqualification shall also be imposed.
(e) Any attempt to commit any of the prohibited acts under Section 4 hereof shall be punished by a penalty two (2) degrees lower than that prescribed for the consummated acts.
(f) If the offender is a foreigner, he/she shall be immediately deported after serving his/her sentence and be barred permanently from entering the country.
(g) In all cases, any person found guilty of providing venue for the commission of prohibited acts under Section 4 hereof shall be treated as a principal and penalized as such.
(h) Any person found guilty of facilitating the commission of any prohibited acts shall be punished with a penalty two (2) degrees lower than that prescribed by the offense.
(i) Any business establishment used in the commission of the prohibited acts provided herein shall be immediately closed, the authority or license to operate cancelled, without prejudice to the forfeiture of the proceeds and investments, and without prejudice to the prosecution of the owner, president, managers or responsible officer who participated in the commission of the offense or who shall knowingly permit or fail to prevent its commission.
Section 13. Penalties and Sanctions. - The following penalties and sanctions are hereby established for the offenses enumerated in this Act:
(a) Any person found guilty of violating Section 4(a), (b), (c) and (d) of this Act shall suffer the penalty of reclusion temporal in its maximum period and a fine of not less than One million pesos (P1,000,000.00) but not more than Two million pesos (P2,000,000.00);
(b) Any person guilty of violating Section 4(e) shall suffer the penalty of reclusion temporal in its minimum period and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00);
(c) Any person found guilty of violating Section 4(f) shall suffer the penalty of prision mayor in its maximum period and a fine of not less than Three hundred thousand pesos (P300,000.00) but not more than Five hundred thousand pesos (P500,000.00);
(d) Any person found guilty of violating Section 4(g) shall suffer the penalty of prision mayor in its medium period and a fine of not less than One hundred thousand pesos (P100,000.00) but not more than Three hundred thousand pesos (P300,000.00);
(e) The owner, head, president, partner, manager or responsible officer of any ISP or Internet content host who shall knowingly, willfully or intentionally fail to perform his/her duties under Sections 5 and 6 of this Act shall suffer the penalty of prision correccional and a fine of not less than Fifty thousand pesos (P50,000.00) but not more than One hundred thousand pesos (P100,000.00);
(f) Any person found guilty of violating Section 8 of this Act shall pay a fine of not less than Thirty thousand pesos (P30,000.00) but not more than Fifty thousand pesos (P50,000.00); and
(g) Any person found guilty of violating Section 11(e) hereof shall suffer the penalty of arresto mayor in its maximum period and a fine of not less than Thirty thousand pesos (P30,000.00) but not more than Fifty thousand pesos (P50,000.00).
Section 14. Who May File a Complaint. - Complaints on cases of child pornography and other offenses punishable under this Act may be filed by the following:
(a) Offended party;
(b) Parents or guardians;
(c) Ascendant or collateral relative within the third degree of consanguinity;
(d) Officer, social worker or representative of a licensed child-caring institution;
(e) Officer or social worker of the Department of Social Welfare and Development (DSWD);
(f) Local social welfare development officer;
(g) Barangay chairman;
(h) At least three (3) concerned responsible citizens where the violation occurred; or
(i) Any person who has personal knowledge of the circumstances of the commission of any offense under this Act.
Section 15. Venue. - A criminal action arising from a violation of this Act shall be filed where the offense was committed, or where any of its elements occurred, or where the child is found or actually resides at the time of the commission of the offense: Provided, That the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of the other courts.
Section 16. Authority to Regulate Internet Café or Kiosk. - The local government unit (LGU) of the city or municipality where an Internet café or kiosk is located shall have the authority to monitor and regulate the establishment and operation of the same or similar establishments in order to prevent violation of the provisions of this Act.
Section 17. Legal Protection to Victims of Child Pornography. - The child who is a victim of child pornography shall be recognized as a victim of violent crime defined under Section 3(d) of Republic Act No. 7309, or "An Act Creating a Board of Claims under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and for Other Purposes" so that the child may claim compensation therein. The child and family shall be entitled to protection as well as the rights and benefits of witnesses under Republic Act No. 6981, or the "Witness Protection, Security and Benefit Act".
Section 18. Mandatory Services to Child Pornography Victims. - To ensure recovery, rehabilitation and reintegration into the mainstream of society, concerned government agencies and the LGUs shall make available the following services to victims of child pornography:
(a) Emergency shelter or appropriate housing;
(c) Free legal services, which shall include information about the victim’s rights and the procedure for filing complaints, claiming compensation and such other legal remedies available to them, in a language understood by the child;
(d) Medical or psychological services;
(e) Livelihood and skills training; and
(f) Educational assistance.
Sustained supervision and follow through mechanism that will track the progress of recovery, rehabilitation and reintegration of the child victims shall be adopted and carried out.
Section 19. Confiscation and Forfeiture of the Proceeds and Instruments Derived from Child Pornography. - In addition to the penalty imposed for the violation of this Act, the court shall order the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from the commission of the crime, unless they are the property of a third person not liable for the unlawful act: Provided, however, That all awards for damages shall be taken from the personal and separate properties of the offender:
Provided, further, That if such properties are insufficient, the balance shall be taken from the confiscated and forfeited properties.
When the proceeds, properties and instruments of the offense have been destroyed or diminished in value or otherwise rendered worthless by any act or omission, directly or indirectly, of the offender, or it has been concealed, removed, converted or transferred to prevent the same from being found or to avoid forfeiture or confiscation, the offender shall be ordered to pay the amount equal to the value of the proceeds, property or instruments of the offense.
Section 20. Programs for Victims of Child Pornography. - The Inter-Agency Council Against Child Pornography, created under Section 21 of this Act, shall develop and implement the necessary programs that will prevent child pornography, as well as protect, heal and reintegrate the child into the mainstream of society. Such programs shall include, but not limited to, the following:
(a) Provision of mandatory services including counseling, free legal services, medical or psychological services, livelihood and skills training and educational assistance to the child pursuant to Section 18 of this Act;
(b) Sponsorship of a national research program on child pornography and other acts covered by the law and the establishment of a data collection system for monitoring and evaluation purposes;
(c) Provision of necessary technical and material support services to appropriate government agencies and nongovernmental organizations;
(d) Sponsorship of conferences and seminars to provide venue for consensus building amongst the public, the academe, government, nongovernmental and international organizations; and
(e) Promotion of information and education campaign.
Section 21. Inter-Agency Council Against Child Pornography. - There is hereby established an Inter-Agency Council Against Child Pornography, to be composed of the Secretary of the DSWD as chairperson and the following as members:
(a) Secretary, Department of Justice (DOJ);
(b) Secretary, Department of Labor and Employment;
(c) Secretary, Department of Science and Technology;
(d) Chief, Philippine National Police;
(e) Chairperson, Commission on Human Rights;
(f) Chairperson, Commission on Information and Communications Technology;
(g) Commissioner, National Telecommunications Commission;
(h) Executive Director, Council for the Welfare of Children;
(i) Executive Director, Philippine Center for Transnational Crimes;
(j) Executive Director, Optical Media Board;
(k) Director, National Bureau of Investigation; and
(l) Three representatives from children’s NGOs. These representatives shall be nominated by the government agency representatives of the Council, for appointment by the President for a term of three (3) years, and may be renewed upon renomination and reappointment by the Council and the President, respectively.
The members of the Council may designate their permanent representatives, who shall have a rank not lower than assistant secretary or its equivalent, to meetings, and shall receive emoluments as may be determined by the Council in accordance with existing budget and accounting, rules and regulations.
The DSWD shall establish the necessary Secretariat for the Council.
Section 22. Functions of the Council. - The Council shall have the following powers and functions:
(a) Formulate comprehensive and integrated plans and programs to prevent and suppress child pornography;
(b) Promulgate rules and regulations as may be necessary for the effective implementation of this Act;
(c) Monitor and oversee the strict implementation of this Act;
(d) Coordinate the programs and projects of the various member agencies to effectively address the issues and problems attendant to child pornography;
(e) Conduct and coordinate massive information dissemination and campaign on the existence of the law and the various issues and problems attendant to child pornography;
(f) Direct other agencies to immediately respond to the problems brought to their attention and report to the Council on the action taken;
(g) Assist in the filing of cases against individuals, agencies, institutions or establishments that violate the provisions of this Act;
(h) Formulate a program for the reintegration of victims of child pornography;
(i) Secure from any department, bureau, office, agency or instrumentality of the government or from NGOs and other civic organizations such assistance as may be needed to effectively implement this Act;
(j) Complement the shared government information system relative to child abuse and exploitation, and ensure that the proper agencies conduct a continuing research and study on the patterns and schemes of child pornography which form the basis for policy formulation and program direction;
(k) Develop the mechanism to ensure the timely, coordinated and effective response to cases of child pornography;
(l) Recommend measures to enhance cooperative efforts and mutual assistance among foreign countries through bilateral and/or multilateral arrangements to prevent and suppress child pornography;
(m) Adopt measures and policies to protect the rights and needs of the victims of child pornography who are foreign nationals in the Philippines;
(n) Maintain a database of cases of child pornography;
(o) Initiate training programs in identifying and providing the necessary intervention or assistance to trafficked persons;
(p) Initiate training programs in identifying and providing the necessary intervention or assistance to victims of child pornography;
(q) Submit to the President and the Congressional Oversight Committee created herein the annual report on the policies, plans, programs and activities of the Council relative to the implementation of this Act; and
(r) Exercise all the powers and perform such other functions necessary to attain the purposes and objectives of this Act.
Section 23. Extradition. - The DOJ, in consultation with the Department of Foreign Affairs, shall endeavor to include child pornography among extraditable offenses in future treaties.
Section 24. Congressional Oversight Committee. - There is hereby created a Congressional Oversight Committee composed of five (5) Members from the Senate and five (5) Members from the House of Representatives. The Members from the Senate shall be appointed by the Senate President based onthe proportional representation from the parties or coalition therein with at least one (1) Member representing the Minority. The Members from the House of Representatives shall be appointed by the Speaker, also based on proportional representation of the parties or coalitions therein, with at least one (1) Member representing the Minority.
The Committee shall be headed by the respective chairpersons of the Senate Committee on Justice and Human Rights and the House of Representatives’ Committee on Justice. The Secretariat of the Congressional Oversight Committee shall come from the existing Secretariat personnel of the Committees of the Senate and the House of Representatives concerned.
The Committee shall monitor and ensure the effective implementation of this Act, determine inherent weakness and loopholes in the law and recommend the necessary remedial legislation or administrative measures, and perform such other duties and functions as may be necessary to attain the objectives of this Act.
Section 25. Appropriations. - The amount necessary to implement the provisions of the Anti-Child Pornography Act and the operationalization of the Inter-Agency Council Against Child Pornography shall be included in the annual General Appropriations Act.
Section 26. Implementing Rules and Regulations. - The Inter-Agency Council Against Child Pornography shall promulgate the necessary implementing rules and regulations within six (6) months from the effectivity of this Act.
Section 27. Separability Clause. - If any part or provision of this Act is declared invalid or unconstitutional, the other parts thereof not affected shall remain valid sections, or provisions shall not be affected.
Section 28. Repealing Clause. - All laws, presidential decrees, executive orders, administrative orders, rules and regulations inconsistent with or contrary to the provisions of this Act are deemed amended, modified or repealed accordingly.
Section 29. Effectivity. - This Act shall take effect fifteen (15) days following its publication in two (2) newspapers of general circulation.
Signed into law by President Gloria Macapagal-Arroyo: 17 November 2009.
Sgd. GLORIA MACAPAGAL-ARROYO
President of the Philippines
The Lawphil Project - Arellano Law Foundation