SC justice wants free porn sites banned, penalized

MANILA, Philippines - Supreme Court (SC) Senior Associate Justice Antonio Carpio believes the Cybercrime Law should have banned and penalized free and open porn websites accessible to minors, not fee-based porn websites accessible only to adults holding credit cards.

In a separate opinion, Carpio said the provision of Republic Act 10175 criminalizing cybersex or “any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration” has “worrisome and absurd effect.”

“What Section 4(c)(1) should have prohibited and penalized are free and open porn websites which are accessible by minors, and not fee-based porn websites which are accessible only by credit card-owning adults, unless such fee-based websites cater to child pornography, in which case they should also be prohibited and penalized,” he said.

Carpio believes Section 4(c)(1) is “under-inclusive” in the sense that “it leaves outside its scope and unpunished non-fee based porn websites, such as those generating income through display advertisements.”

“The absence of regulation under Section 4(c)(1) of undeniably unprotected online speech in free and open porn websites defeats the advancement of the state interests behind the enactment of Section 4(c)(1) because unlike fee-based online porn websites where the pool of viewers is narrowed down to credit card-owning subscribers who affirm they are adults, free and open porn websites are accessible to all, minors and adults alike,” he said.

Carpio said this flaw is a  common byproduct of loosely crafted legislation.

“(It would only) trigger the proliferation of free and open porn websites which, unlike their fee-based counterparts, are not subject to criminal regulation under Section 4(c)(1),” he said.

Carpio said the cybersex provision in RA 10175 is also “over-inclusive” when it covered “works of art that depict sexual activities” made accessible to the public for a fee or “commercially available cinematic films which feature adult subject matter and artistic, literary or scientific material and instructional material for married couples.”

“There are many fee-based online medical publications that illustrate sexual organs and even sexual acts. Section 4(c)(1) will now outlaw all these online medical publications, which are needed by doctors in practicing their profession,” he said.

Carpio said the ban must only cover sexual acts shown in a “patently offensive way” and that “lack serious literary, artistic, political, or scientific value.”

“Section 4(c)(1) does not advance such state interest narrowly because it is broadly drawn to cover both minors and adults,” he said.

The cybersex provision of the Cybercrime Law is in violation of the free speech clause in the Constitution, he added.

‘Strip them of right to file libel cases’

Carpio said public officers and public figures must be stripped of their right to file libel cases.

The libel provision in the Revised Penal Code is unconstitutional insofar as it applies to public officers and public figures, he added.

Carpio said Article 354 penalizing libel and used as basis for online libel in the Cybercrime Law contravenes the actual malice rule enshrined in the  Constitution.

“The actual malice rule and Article 354 of the Code impose contradictory rules on the necessity of proof of malice in defamatory imputations involving public proceedings or conduct of a public officer or public figure; and the availability of truth as a defense in defamatory imputations against public officials or public figures. The former requires proof of malice and allows truth as a defense unqualifiedly, while the latter presumes malice and allows truth as a defense selectively,” he said.