The Anti-Photo and Video Voyeurism Act of 2009: A Primer

 

 

The Anti-Photo and Video Voyeurism Act of 2009

A Primer

The highly publicized sex videos of celebrity physician Hayden Kho with various celebrity partners rocked Philippine society in May 2009 and was quickly shared online and later distributed through DVD in the streets and sidewalks. In response to this, Congress passed Republic Act 9995 (Anti-Photo and Video Voyeurism Act of 2009) to prevent the publication and distribution of similar material in the future.[1] The law prohibits recording videos or taking photos of a sexual act, the male or female genitalia, and of the female breast, among others, without consent of the persons featured in the material. The law ultimately seeks to prevent the reproduction, distribution, and publication of said material regardless of whether or not the persons featured consented to the recording.

Prohibited Acts

The Anti-Photo and Video Voyeurism Act prohibits the following acts:

1. The unconsented taking of a photo or video of a person or group of persons engaged in a sexual act or any similar activity, or capturing an image of the private area of a person, under circumstances in which the said person has a reasonable expectation of privacy;
2. The copying or reproduction of such photo or video recording of the sexual act;
3. The selling or distribution of such photo or video recording;
4. The publication or broadcasting, whether in print or broadcast media, or the showing of such sexual act or any similar activity through VCD/DVD, the internet, cellular phones, and other similar means or devices without the written consent of the persons featured.[2]

Prohibitions numbered 2, 3, and 4 will still apply even if the person or persons featured in the photo or video consented to the taking of the photo or recording of the sexual act.

Penalties

The penalties for any person found guilty of violating any of the prohibitions enumerated under Section 4 of R.A. 9995 range from an imprisonment of 3 to 7 years and a fine of P100,000.00 up to P500,000.00 at the discretion of the court. Additional penalties are meted for the following violators: juridical persons, public officers or employees, and aliens.[3]

Juridical Persons such as Corporations and Partnerships who violate this law will have their licenses or franchises automatically revoked and their officers held liable, including the editor and reporter in the case of print media, and the station manager, editor, and broadcaster in the case of broadcast media. Public officers or employees who violate this law shall also be held administratively liable, whereas aliens who violate the law shall be subject to deportation proceedings after they serve their sentence and pay the fines imposed.[4]

Important Questions

1. What does the “private area of a person” include?

The “private area of a person” includes naked or undergarment-clad genitals, pubic area, buttocks, or the female breast.[5]

2. What does it mean to have a reasonable expectation of privacy?

            R.A. 9995 contemplates two situations where a person can have a reasonable expectation of privacy:

1. When the person believes that one could undress in privacy without being concerned that an image of him or her is being taken; and,
2. When a reasonable person would believe that one’s private area would not be visible regardless of whether the person is in a public or private place.[6]

3. Will one be liable for the non-commercial copying or reproduction of said photo or video?

Yes. The mere copying or reproduction of said material will make one liable under the law regardless of the reason or whether one profits or not from such act.[7] Indeed, the mere showing of the material on one’s cellphone would violate the law. [8]

4. The persons in the photo knew and consented to the video recording or taking of the photo; can I reproduce, distribute, or broadcast it?

If the person or persons in the photo or video gave written consent for the reproduction, distribution, or broadcasting of said material, then one will not be held liable under the Anti-Photo and Video Voyeurism Act. However, if the person merely consented to the taking of the photo or the video recording and did not give written consent for its reproduction, distribution, and broadcasting, then anyone committing the said acts shall be held liable under R.A. 9995.[9]

Read more about the Data Privacy practice at Disini & Disini Law Office

 

[1] Charisse Mae V. Mendoza, Balancing of Interest in the Digital Age: Protection of Rights of Offended Parties and the Constitutional Rights of the Accused in the Context of Sex Scandals, 86 PHIL. L.J. (2012)

[2] Rep. Act No. 9995 (2009), §4, Anti-Photo and Video Voyeurism Act of 2009.

[3] §5.

[4] Id.

[5] § 3(e).

[6] § 3(f).

[7] § 4(b).

[8] § 4.

[9] § 3(d); § 4.

Image courtesy of imagerymajestic at FreeDigitalPhotos.net