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Serious leaks: When getting and sharing pornos is criminal

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The right to privacy is considered sacred. It is what allows people to sleep at night and feel secure in their communities, in their own homes, in their own skins.

Here is what the 1987 Constitution has to say about that under Article III, Section 3 (1): “The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.”

SCANDALS, REVENGE, SEX & CONSENT

Over the years, sex scandal videos involving Filipino celebrities and politicians have been uploaded to video sharing sites and social media. In the United States and elsewhere in the world, such non-consensual exposure of sex videos and sexually explicit photos of celebrities, politicians and private persons has been called “revenge porn,” and some parts of the world now have laws penalizing people who upload and share such explicit material without the consent of the subjects of this non-consensual pornography.

Consenting adults can and sometimes do decide to film or photograph their sexual intimacies or naked bodies for various reasons, none of which justify any breach of their privacy by giving the world at large access to these materials that are still deemed private under laws protecting the privacy of persons and their communications. They are adults, presumably consenting to such documentation of their bodies and sexual activity without necessarily intending to put these materials before an audience of strangers—and their consent to create such material for their personal use, and the use of a person or persons they allow to view such material does not mean they consent to other people having access to or use of the same.

Think of the pretty girlfriend who gives her erstwhile boyfriend some “boudoir photos” of herself as a present for his eyes only—before their ugly breakup. Or the celebrity who may have left a laptop on, lid open, within sight of his bed while he’s enjoying a carnal roll in the sheets unmindful of digital voyeurs who are filming him. Or the political figures who may keep video recordings of their sexual trysts to view in private, after said trysts.

Suspend your judgment for a few seconds and think of this: If these materials are not released by these people to the public, by whatever means (art exhibit, film showing, deliberate upload to the net included) or if they have not given express permission for these data to be broadcast to the world, then these materials are considered private. Like the rest of humanity, the privacy of these people is inviolate, risqué as their images in these photographs and recordings may be to those who view it without permission.

In a world where apps allowing real-time face-to-face video chats are free and easy to use, cybersex can and does happen. In a world where phones are handheld computers capable of recording these video chats, there are plenty of opportunities for people to record such chats.

Because of the ease of access to the internet that even the cheapest smartphone has, uploading cybersex video chat recordings to social media and video-sharing sites is easier than actually meeting up with someone for a sweaty bout of hide the salami. So is hijacking and streaming these images, thanks to all the connectivity.

There has been quite an explosion of sex scandal porn and revenge porn in recent years—thanks to bad decisions on the part of whoever is unfortunate enough to become a non-consensual porn star and to the malice or negligence on the part of whoever obtains such material and uploads it to the ether of the internet. Thanks to the digital tools now at any Tom, Dick and Harry’s disposal, sex scandal videos and revenge pornography are but a few screen-taps away from the rest of the world that cannot unsee them.

It may seem a good way to pass the time, watching and sharing videos of sex scandals, especially if schadenfreude and malicious glee are involved and can be proven. This still isn’t a good idea. There are laws that netizens break by doing this. If caught, prosecuted and convicted, offenders face jail time and hefty damages. That’s completely outside of the fact that watching and sharing non-consensual pornography is an extremely unkind thing to do, whatever the motive for this may be, or how contemptible the subject of the non-consent porn is.

WIRETAPPING

In the Philippines, the protection of privacy guaranteed to every person in the country is upheld by laws—some of which date back to 1965, and some of which are fairly recent.

Approved on June 19, 1965, Republic Act 4200, or the Anti-Wiretapping Law makes it “unlawful for any person, not being authorized by all parties to any private communication or spoken word, to tap any wire or cable, or by using any other device arrangement, to secretly overhear, intercept, or record such communication or spoken wordby using a device commonly known as a dictaphone or dictograph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.”

RA 4200 also makes it illegal “for any person” to “knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law.”

It is also illegal under RA 4200 “to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person.” You cannot, legally speaking, even talk about the sex scandal video you found or write home about it.

The only exceptions to this are records “or any copies thereof” that are considered evidence in “any civil, criminal investigation or trial of offenses.”

Provided that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses “in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security.” Plus the courts need to issue warrants before law enforcers are allowed to engage in wiretapping to gather such material—and it is unlikely that criminals engaged in wire-tappable activities have time to make the beast with two (or more) backs, or pleasure themselves, so porn is probably not a thing in cases where wiretapping is allowed.

The Anti-Wiretapping Law states any person who “aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings.”

Photo by: Berliner Verlag/Archiv/picture-alliance/dpa/AP Images

CYBERCRIME LAW

Much-criticized for its digital upgrade of and doubled penalties for libel committed digitally under a draconian, Spanish era libel law, Republic Act 10175, or the Cybercrime Prevention Act of 2012 penalizes several cybercrime offenses that may be made while uploading and sharing non-consensual pornography online.

The cybercrime offenses listed under RA 10175 includes illegal access, which is defined as “access to the whole or any part of a computer system without right,” and, in its implementing rules and regulations (IRR), “covers any type of computer device, including devices with data-processing capabilities like mobile phones, smart phones, computer networks and other devices connected to the internet” under the term “computer.”

Another cybercrime offense is illegal interception “made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic transmissions from a computer system carrying such computer data.”

There is also the offense of misusing devices, which includes the “use, production, sale, procurement, importation, distribution or otherwise making available without right of” software or devices with the intent to use these tools for violating RA 10175 and a “computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any of the offenses under this Act.” No, honey, your GoPro Hero wasn’t built for the extreme sport of spy-camming on your neighbor’s sultry and adulterous affair next door.

RA 10175 also penalizes computer-related identity theft, which it defines as the “intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right.”

Oh, and paying camgirls or camboys to entertain you, or accessing pay for cybersex websites is also a crime, by the way. Cybersex is defined under RA 10175 as: “The wilful engagement, maintenance, control or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.” But don’t try taking the vigilante route by recording or hijacking recordings of this if you aren’t in law enforcement and do not have a warrant to do this. You can still be held liable and punished for breaking the Cybercrime Law and the other laws that matter here. No badge, no service.

DATA PRIVACY

It used to be much easier to keep things like raunchy photographs and videos private: They were tangible things like film negatives, prints on photo paper, or magnetic video tapes or offline digital storage devices, like compact discs (CDs) and digital video discs (DVDs).

Now the world has thumb drives, external hard drives and hard drive storage embedded in computers and smartphones capable of recording these data, storing them, and, yes, uploading them to the internet. Ubiquitous internet connectivity, while mainly a blessing, can also be a curse, since the data stored on these devices is easy to access—and not always by the owners of the data. Hackers and skilled code-jockeys can (and will, if given enough incentive and opportunity) also gain unauthorized access to these sensitive files. Well, there’s a law for that.

According to the website of the Nicolas & De Vega Law Offices’ page on Data Privacy in the Philippines (https://ndvlaw.com/data-privacy-in-the-philippines/), Republic Act 10173, or the Data Privacy Act of 2012,“protects all forms of information that are personal, private or privileged. It covers all persons, whether natural or juridical, with particular emphasis to companies or juridical entities involved in the processing of protected information.”

The data deemed “personal and sensitive” under RA 10173 includes information about an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations, as well as information on an individual’s health, education, genetic or sexual life, or to any proceeding or any offense a person may have committed or be alleged to have committed.

So, yes, this law also covers data pertaining to someone’s sexual activities—including still photographs and video or audio recordings of that someone in the nude or having sex, solo, in pairs or in a group thing, while covered in liters and liters of chocolate-hazlenut spread.

This definition also covers information about an individual issued by government agencies that are “peculiar” or unique to each individual, such as social security numbers and data marked as classified by an executive order or act of Congress.

Under Section 25 of RA 10173, “the unauthorized processing of personal information” comes with “imprisonment ranging from one (1) year to three (3) years” and a fine of between P500,000 and P2,000,000” for “persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.”

Oh, and the “unauthorized processing of personal sensitive information”is punishable by “imprisonment ranging from three (3) years to six (6) years and a fine” of between P500,000 and P4,000,000.

If you’ve watched non-consensual pornography, you just broke the Data Privacy Law, particularly Section 26 which penalizes “any unauthorized accessing of personal information and sensitive personal information.”

When this unauthorized access happens due to negligence, such as say, allowing this data to be shared on your Facebook Timeline by a friend, the penalty is “imprisonment ranging from one (1) year to three (3) years and a fine” of between P500,000 and P2,000,000 that “will be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.”

“Accessing sensitive personal information due to negligence”comes with three to six years’ jail time and a fine of between P500,000 and P4,000,000” for persons who, “due to negligence, provided access to personal information without being authorized under this Act or any existing law.”

You may want to tighten your social media account settings to rule negligence out by making sure that nothing gets shared on those accounts without your approval—something you can do with a few clicks on your settings for each account.

You also do not want to be caught clipping or preparing a non-consensual porn video for upload, either, or even having it in your possession in the first place. Under Section 28 of the Data Privacy Act, the “processing of personal information for unauthorized purposes shall be penalized by imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine” of between P500,000 and P1,000,000Yep, think of the Cybercrime Law and the Anti-Wiretapping Law.

Hacking into someone’s smartphone or computer to obtain non-consensual porn comes with a heftier fine under the Data Privacy Act: “The penalty of imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored.”

Any combination or series of acts violating RA 10173 is punishable by imprisonment of three to six years,plus a fine ranging from a minimum of P1,000,000 to a maximum of P5,000,000.

RA 10173 provides that, if “the offender is a corporation, partnership or any juridical person, the penalty shall be imposed upon the responsible officers, as the case may be, who participated in, or by their gross negligence, allowed the commission of the crime. If the offender is a juridical person, the court may suspend or revoke any of its rights under this Act.”

The same provision in the Data Privacy Act adds deportation “without further proceedings” for offenderswho are aliens, “after serving the penalties prescribed.”

“If the offender is a public official or employee and he or she is found guilty of acts penalized under Sections 27 and 28 of this Act, he or she shall, in addition to the penalties prescribed herein, suffer perpetual or temporary absolute disqualification from office, as the case may be.”

Section 36 of the Data Privacy Act also places heavier penalties on offenders who are public officers: “When the offender or the person responsible for the offense is a public officer as defined in the Administrative Code of the Philippines in the exercise of his or her duties, an accessory penalty consisting [of] the disqualification to occupy public office for a term double the term of criminal penalty imposed shall be applied.”

If you are still tempted to watch and share non-consensual pornography over your social media accounts and polluting the newsfeeds of your friends and followers, then perhaps you need to have really good legal counsel on your speed dial and a hefty legal defense fund ready before you hit the “share” button. In this case, sharing is definitely not caring—for yourself or others.

These three laws bring the aphorism “judge not lest ye be judged” to a whole new level. G

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