Paris, Reynaldo: Sexting and its Legal Implications

INTRODUCTION

Text messaging or otherwise known as “texting” here in our country has become one of the more popular way of long distance communication with another person due to its economical value and convenience compared to actual mobile phone calls or sending electronic mails through the use of a computer connected to the internet. This is true not only for the youth but is applicable to all ages among Filipinos as well. In fact, the Philippines has been branded as the Texting Capital of the World due to the overwhelming number of Short Message Service (SMS) or text messages it sends each day.

Aside from texting, the mobile phone has evolved from being just a simple telephone device into a miniature mobile computer which can now provide additional features or services such as chatting, voice-mail, news updates, e-mailing, internet browsing, and even creating, receiving and sending of image and audio files. This technological development has brought so many advantages to people around the world in terms of telecommunications. However, just like any technology, the mobile phone has its downsides and one of which is its being used as a medium for illegal activities such as pornography. Sex videos, scandals, clips through Multimedia Messaging Service or MMS and pornographic images have been propagated to mobile phones. Daily unsolicited text messages containing advertisements, solicitations, various offers coming from the cellular networks, its affiliates and even those unwanted messages such as text scams coming from unknown pre-paid mobile numbers have been very frustrating and annoying to mobile phone users. It is not surprising that mobile phones through text messages containing offensive languages or materials are also being used to sexually harass others especially women.

The above introductory statements therefore lead us to the following interesting questions involving SMS of mobile phones: Is sending obscene text messages or “sexting” illegal here in our country? If so, are there enacted laws defining and punishing such crime? If you were the recipient of an SMS with obscene or malicious contents or an MMS with pornographic materials, would you be able to prosecute such sender for any punishable offense under our laws? These are just some of the questions this research paper will try to answer.

WHAT IS SMS?

Short Message Service (SMS) is a communication service standardized in the GSM mobile communication system, using standardized communications protocols allowing the interchange of short text messages between mobile telephone devices. SMS text messaging is the most widely used data application on the planet, with 2.4 billion active users, or 74% of all mobile phone subscribers sending and receiving text messages on their phones. [1] The SMS technology has facilitated the development and growth of text messaging. The connection between the phenomenon of text messaging and the underlying technology is so great that in parts of the world the term “SMS” is used as a synonym for a text message or the act of sending a text message, even when a different protocol is being used. [2]

DEFINITION OF OBSCENITY

An outright and strict legal definition has yet to be provided. The Supreme Court, however, in the 1989 case of Pita v. Court of Appeals, laid down three conditions for a material to be considered obscene:

  1. Whether the average person, applying contemporary community standards, would find the material, taken as a whole, appealing to prurient interest.
  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. [3]

The above current legal definition of obscenity is found in the US Supreme Court case of Miller v. California in 1973 which was the basis of our Supreme Court in ruling the case of Pita vs. Court of Appeals, hence called the “Miller Test”.

PROBLEM AND RECOMMENDATION

Now that we have a legal definition of obscenity, the problem that has to be surmounted if text messages with obscene contents are sent to your mobile phone is how to pin down the message sender. First, it must be established that the mobile phone where the message complained of came from is actually owned by the person you are going to sue for any possible criminal offense. Then, it must be established that the owner of the mobile phone was the one who actually sent the message containing the obscene materials you are complaining of.

Text messages or SMS are now considered evidence under the Law on Electronic Evidence. The Electronic Commerce Act or Republic Act 8792 was passed on June 14, 2000 to make electronic data message part of the rules of evidence. This law now allows text messages to be admitted as evidence based on the following pertinent applicable provisions of the law:

Sec. 4. Sphere of Application. – This Act shall apply to any kind of data message and electronic document used in the context of commercial and non-commercial activities to include domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storage of information.

Sec. 5. Definition of Terms. – For the purposes of this Act, the following terms are defined, as follows:

c. “Electronic Data Message” refers to information generated, sent, received or stored by electronic, optical or similar means.

f. “Electronic Document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

Sec. 6. Legal Recognition of Data Messages. – Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the data message purporting to give rise to such legal effect, or that it is merely referred to in that electronic data message.

Sec. 7. Legal Recognition of Electronic Documents. – Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and –

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SEC. 12. Admissibility and Evidential Weight of Electronic Data Message and Electronic Documents. – In any legal proceedings, nothing in the application of the rules on evidence shall deny the admissibility of an electronic data message or electronic document in evidence –

a. On the sole ground that it is in electronic form; or

b. On the ground that it is not in the standard written form and electronic data message or electronic document meeting, and complying with the requirements under Sections 6 or 7 hereof shall be the best evidence of the agreement and transaction contained therein.

In assessing the evidential weight of an electronic data message or electronic document, the reliability of the manner in which it was generated, stored or communicated, the reliability of the manner in which its originator was identified, and other relevant factors shall be given due regard.

SEC. 14. Proof By Affidavit. – The matters referred to in Section 12, on admissibility and Section 9, on the presumption of integrity, may be presumed to have been established by an affidavit given to the best of the deponent’s knowledge subject to the rights of parties in interest as defined in the following section.

The Rules on Electronic Evidence at first was applicable only to civil, quasi-judicial and administrative proceedings. The law, however, was amended later to include criminal cases in its coverage under Section 2, Rule 1, of AM No. 01-7-01-SC as follows:

Section 2. Cases covered. – These Rules shall apply to the criminal and civil actions and proceeding, as well as quasi-judicial and administrative cases.

On a worst situation, if there would be no direct pieces of evidence, the complainant could resort to proving what is known as circumstantial evidence.

Circumstantial evidence is that pieces of evidence of things and incidents which, though not directly pointing to anyone as the criminal offender but when taken together would nevertheless establish a reasonable certainty that the accused could be guilty of the crime being imputed to him. This can be found under Section 4 of Rule 133 Rules on Evidence, Weight and Sufficiency of Evidence, under the Rules of Court:

Sec. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if:

(a)There is more than one circumstances;

(b)The facts from which the inferences are derived are proven; and

(c)The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

An example of circumstantial evidence could be statements made by the offender to other people admitting ownership of the obscene text messages. Hence, those people could be admitted as witnesses for the complainant.

APPLICABLE LAWS

It would appear that there are no specific laws punishing “sexting” as a criminal offense. However, there are existing laws which can be used as a basis to prosecute such offenders.

Act No. 3815, or the Revised Penal Code (RPC), was promulgated way back in 1930, decades before the advent of computers and the Internet and before the proliferation of cheap image capturing devices, such video recorders and cameras.[4] Article 200 of the Revised Penal Code provides:

Article 200. Grave scandal. – The penalties of arresto mayor and public censure shall be imposed upon any person who shall offend against decency or good customs by any highly scandalous conduct not expressly falling within any other article of this Code.

Thus, “sexting” may fall under the above provision of the law. Another provision under the Revised Penal Code which may be applicable is Article 287, 2nd paragraph:

“Any other coercions or unjust vexations shall be punished by arresto menor or a fine ranging from 5 pesos to 200 pesos, or both.”
However, due to its absence of definition, the crime of unjust vexation suffers from defects and maybe declared unconstitutional according to Senator Miriam Defensor Santiago for the following reasons:

a) Article 287, paragraph 2 of the Revised Penal Code condemns no specific or definite act or omission thus failing to define any crime or felony;

b) Said penal provision is so indefinite, vague and overbroad as not to enable it to be known what act is forbidden;

c) Such vagueness and overbreadth result to violation of the due process clause and the right to be informed of the nature of the offense charged; and

d) Such vagueness and overbreadth likewise amount to an invalid delegation by Congress of its legislative power to the courts to determine what acts should be held criminal and punishable.

The state having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what act or acts shall constitute a crime.

It is a well-established doctrine that a criminal or penal law must clearly define or specify the particular acts or omissions punished by such law. Hence, Senator Santiago has authored a bill, SB No. 3327, proposing the following amendment as follows:

SECTION 2. Defining the Crime of Unjust Vexation – A new Article 287-A defining the crime of Unjust Vexation and providing for its penalty shall be included in Act No. 3815 otherwise known as the Revised Penal Code, which read as follows:

Article. 287-A. Unjust Vexation – Any person who commits a course of conduct directed at a specific person that causes substantial emotional distress in such a person and serves no legitimate purpose shall suffer the penalty of arresto mayor in its minimum period or a fine ranging from 500 pesos to 5000 pesos, or both.

Another pending bill in the senate, this time authored by Senator Manny Villar, the Senate Bill No. 2464, which is called the ANTI-OBSCENITY AND PORNOGRAPHY ACT OF 2008, could also be used in prosecuting “sexting’ acts if it becomes a law. The pertinent provisions in the bill are as follows:

SEC. 2. Declaration of Policy. – It is the policy of the State to give special value to the dignity of every human person and to promote and safeguard its integrity and the moral, spiritual and social well-being of its citizenry, especially the youth in general and women in particular, from the pernicious effects of obscenity and pornography. To effectively enforce this policy, the government shall wage a relentless campaign against obscenity and pornography. Likewise, the government shall see to it that educational institutions are complying with their constitutional mandate to strengthen ethical and spiritual values and to develop moral character and personal discipline.

SEC. 3. Definition of Terms. – As used in this Act, the following terms shall mean:

(a) “Obscene” refers to anything that is indecent or offensive or contrary to good customs or religious beliefs, principles or doctrines, or tends to corrupt or deprave the human mind, or is calculated to excite impure thoughts or arouse prurient interest, or violates the proprieties of language and human behavior, regardless of the motive of the producer, printer, publisher, writer, importer, seller, distributor or exhibitor such as, but not limited to:

(1) showing, depicting or describing sexual acts;

(2) showing, depicting or describing human sexual organs or the

(3) showing, depicting or describing completely nude human

(4) describing erotic reactions, feelings or experiences on sexual female breasts; bodies; acts; or

(5) performing live sexual acts of whatever form.

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SEC. 4. Punishable Acts. – The following acts are declared illegal and punishable:

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(d) Writing any obscene or pornographic article in any print or electronic medium;

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SEC. 5. Penalties. – The following penalties shall be imposed upon any person found guilty of committing any of the prohibited acts under Section 4 of this Act:

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(d) For writing any obscene or pornographic article in any print or electronic medium, the penalty of imprisonment of not less than three (3) years nor more than six (6) years and a fine of not less than Two hundred thousand pesos (P200,000.00) nor more than Five hundred thousand pesos (P500,000.00) shall be imposed;

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Any person found guilty of committing any of the acts punishable under this Act shall not be entitled to the benefits of the Probation Law.

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SEC. 6. Witness Protection and Immunity from Prosecution. – Any person who provides material information, whether testimonial or documentary, necessary for the investigation or prosecution of any one committing any of the acts punishable under this Act and who testifies against such person shall be placed under the Witness Protection Program pursuant to Republic Act No. 6981 and shall be immune from any criminal prosecution, subject to the pertinent provisions of Presidential Decree No. 1732, otherwise known as the Decree Providing Immunity from Criminal Prosecution to Government Witnesses, and the pertinent provisions of the Rules of Court.

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SEC. 7. Duties of Government Agencies Concerned. – In addition to the law enforcement agencies responsible for monitoring and implementing the provisions of existing laws on pornography, the following government agencies are hereby mandated to provide assistance and support to ensure the effective implementation of this Act:

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(d) National Telecommunications Commission (NTC);

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The said agencies shall, in addition to their regular functions, exercise the following duties:

(1) Monitor all mass media that fall within their respective jurisdiction;

(2) Seek the assistance of local government units (LGUs) to identify the persons responsible for the proliferation of obscene and pornographic materials;

(3) Initiate the prosecution of all persons involved in violation of this Act, Article 201 of the Revised Penal Code, as amended, and other related laws;

(4) Receive complaints from the general public anent the proliferation of obscene materials within its jurisdiction and act accordingly on such complaints;

(5) Recommend the cancellation of business permits of those found violating this Act, Article 201 of the Revised Penal Code, as amended, and other related laws; and

(6) Perform such acts necessary to carry out the objectives of this Act.

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SEC. 9. lmplernenfing Rules and Regulations. – Within ninety (90) days from the effectivity of this Act, the DOJ, the Department of the Interior and Local Government (DILG), the PNP, the PIA, the MTRCB, the OMB, the NTC, the NYC, the MMDA, the DPWH and other concerned government agencies shall jointly promulgate the implementing rules and regulations as may be necessary to ensure the efficient and effective implementation of the provisions of this Act:

Provided, That the absence. of such implementing rules and regulations shall not prevent the arrest, prosecution and conviction of any person committing an offense under this Act.

A counterpart similar bill, HB 03305 has been filed filed by its principal author Rep. Manuel “Way Kurat” E. Zamora in the House of Representatives.

Senator Loren Legarda, on her part, also has a pending bill, Senate Bill No. 1098, TO INCLUDE SENDING OF TEXT MESSAGES, ELECTRONIC MAIL IN THE SEXUAL HARASSMENT LAW COVERAGE, the pertinent provisions of the bill are as follows:

This bill seeks to expand the medium of Communication by which demands and requests for sexual favor which constitute acts of sexual harassments as defined under Republic Act No. 7877, otherwise known as the “Sexual Harassment Law” Republic Act No. 7877, which was enacted in 1995, is a landmark law providing a comprehensive policy and legal framework for the recognition of the problem of sexual harassment and penalizing perpetrators of said crime. Since its enactment, there has been unprecedented expansion in electronic and telecommunications such x cellular phones, text messaging, internet and electronic mail. Data from the National Telecommunications Commission shows that as of 2005, there are around 1.4 million subscribers of internet service providers and 34.77 million subscribers of cellular phones. Such modern forms of communication are widely used today and have been a comriron medium of work-related and personal communication. Like traditional forms of communication, these new forms of communication can be used to convey messages that are vulgar, smutty, sexists and may also be used to push for demand or request for sexual advances to sexually harass the recipients of such messages. This bill amends Section 3 of R.A. No. 7877 by expanding the coverage of sexual harassment acts to iiiclude sending text messages, electronic mail, internet and similar means of communication that constitute sexual harassment under the said law.

SECTION 1. Section 3 Republic Act 7877 is hereby amended to read as follows:

“SECTION 3. Work education or Training-related Sexual Harassment Defined – Work, education or training sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act OR THE SENDING OF TEXT MESSAGE, ELECTRONIC MAIL OR SIMILAR OTHER MEANS, PUSHING SEXUAL ADVANCE OR LURID REMARKS, CAUSING EMBARRASSMENT TO THE RECEIVER OR BY THEIR NATURE MAY QUALIFY AS VULGAR, SMUTTY, SEXIST, APPEALS TO PRURIENT INTEREST OR MALICIOUS.

a) In a work-related or employment environment, sexual harassment is committed VERBALLY, IN WRITING OR. THROUGH THE USE OF TELEPHONE, CELLULAR PHONE, FAX MACHINE, ELECTRONIC MAIL OF SIMILAR MEANS when:

(1) The sexual favor is made as a condition in the hiring or in the employment, pre-employment or continued employment of said individual, or in granting said individual favorable compensation, term, condition, promotions, or privileges; or the refusal to grant the sexual favor result in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;

(2) The ‘above acts would impair the employee’s right’s or privileges under existing labor laws; or

(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.

(b) In an education or training environment, sexual harassment is committed THROUGH ORAL, WRITTEN OR WITH THE USE OF TELEPHONE, CELLULAR PHONE, FAX MACHINE, ELECTRONIC MAIL OR SIMILAR MEANS

(1) Against one who is under the care, custody or supervision of the offender;

(2) x x x

Unfortunately, no similar bill is pending in the lower house as of this date.

CONCLUSION

In conclusion, sending obscene text messages or “sexting” is not only immoral but illegal as well. Legal remedies are available which may be resorted to by any offended party. There are existing laws which may be used as basis for prosecuting such criminal offenders and hopefully in the near future, the pending bills mentioned in my research will be passed into law. As proposed by Atty. Michael Vernon M. Guerrero in his study mentioned in my report, further regulation must be made in the proper use of telecommunication networks, especially as to the transmission of objectionable content and there should be a central registry of all pre-paid mobile phone users to determine the identity of the person who used said SIM card in the perpetuation of such offensive acts and that said registry should also include transaction dates of transfer of SIM. The National Telecommunications Commission (NTC), the government agency in charge of the regulation of the mobile phone industry, should strongly consider such proposal for the protection of the public consumers.


Endnotes

[1] http://en.wikipedia.org/wiki/SMS

[2] ibid

[3] There Oughta Be a Law! By Delmar Cariño / Philippine Daily Inquirer / First Posted 01:51:00 11/02/2008 / http://showbizandstyle.inquirer.net/sim/sim/view/20081102-169774/There-Oughta-Be-a-Law

[4] http://berneguerrero.co-ph.com/2005/03/07/a-descriptive-study-on-cybersex-audio-visual-sex-scandals-and-child-pornography/

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