Freedom of Expression & boybastos.com

DISCLAIMER : This entry is just my personal opinion and I do not represent or espouse the positions of any party involved in this controversy. It is just my take on the matter based on my limited knowledge of obscenity laws as they relate to the constitutionally guaranteed freedom of speech and expression. My statement should not be taken as legal advice by any of the parties involved.

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Boybastos.com , a website offering “adult material”, got busted recently, to the probable consternation of its loyal clientele.

“Boy Bastos” literally means “rude, offensive or obscene boy” in Tagalog. “Boy” is a common Filipino nickname and is often affixed to descriptive terms to make for a more colorful colloquial designation (for example, Boy Bawang – a popular snack; Boy Negro — a crime figure etc.). But this bad boy is about to get a spanking.

The actual home of the randy lad behind the site, a certain Mark Verzo, located at the exclusive Ayala Alabang subdivision, was raided by operatives of the National Bureau of Investigation for allegedly maintaining a porn site. Not just a porn site, but an alleged portal providing links to various “adult” services. This move was prompted by a complaint from Sen. Loren Legarda, who fretted that this dude may have run afoul of laws affording protection to women.

Mr. Verzo was invited for “questioning” at the NBI offices but it remains unclear whether he was charged with anything. He was later released. When asked by reporters why he did it, Verzo predictably sought refuge in the Constitutional guarantee closest to the hearts of alleged porners everywhere, the fundamental freedom of expression.


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There has been speculation that the country does not have laws to cover offensive internet content. Not so.

To be sure, the advent of the internet has created some confusion as to whether established obscenity laws are applicable to this new medium. For one, there is the question of jurisdiction. Material published in the net can be read anywhere in the world. Which country’s laws should now apply ? And according to what standards ?

First, lets tackle boybastos’ beloved freedom of expression. The Bill of Rights of the Philippine Constitution provides that :

“No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

The above finds support in the “International Bill of Human Rights” which provides in part:

“Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive and impart information ideas through any media and regardless of frontier.”

Article 29.

(1) x x x

(2) In the exercise of his right and freedom everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedom of others and of the just requirements of morality, public order and the general welfare in a democratic society. ”

Likewise, the “International Covenant on Civil and Political Rights” emphasizes a similar grant of freedom, to wit:

“(1) x x x

(2) Everyone shall have the right to freedom of expression. This right shall include freedom to seek, receive and impart information and ideas of all kinds , regardless of frontier, either orally, in writing or in print, in the form of art or through any other media of his choice.”

Will Mr. Bastos’ reliance on this constitutional guarantee save his sorry ass ? I don’t think so. For one, the constitutional freedom of speech and expression does not extend to obscene material. Thus, these freedoms must give way to the “just requirements of morality, public order and the general welfare”. For another, our boy Boy may be guilty of transgressing other laws, particularly that relating to the trafficking of women, as will be subsequently explained in detail.

Since the alleged crimes were committed in the Philippines, the supposed perpetrator would be subject to our criminal laws.

Thus, Article 201 of the Revised Penal Code of the Philippines provides:

“Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows. – The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:

(1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
(2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are proscribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;
(3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (As amended by PD Nos. 960 and 969).”

The law is broadly defined and leaves a lot of room for prosecution of those “who shall publicly expound or proclaim doctrines openly contrary to public morals”. The authors and publishers of obscene material who publish the same are liable under the law. Publication, as it is currently understood, includes material uploaded on the internet. Anything, in short, that is “contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts” would be fair game to state authorities seeking to enforce obscenity laws.

What are the parameters for determining whether or not material is obscene, indecent or immoral ? The law does not provide specific definitions, and, in the absence of pertinent Philippine jurisprudence, our judiciary has traditionally been guided by the rulings of the U.S. Supreme Court.

In 1957, Justice Brennan crafted the first U.S. Supreme Court legal definition of obscenity in the case of Roth v. United States, which has been quoted extensively in subsequent Philippine cases. It was held in held in Roth that the freedom of expression did not protect obscene materials.

The definition of obscenity set forth in Roth was:

Speech which

” . . . to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest” and which is “utterly without redeeming social importance…”

In the 1973 case of Miller vs. California, likewise quoted in later Philippine decisions, a three-part test was prescribed, as follows:

– Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
– Whether the work depicts/describes, in a patently offensive way, sexual conduct, and;
– Whether the work, taken as a whole, lacks serious literary, artistic, political and scientific value.

Thus, the application of “contemporary community standards” in determining obscenity.

In the case Gonzalez vs. Kalaw Katigbak (G.R. No. L-59500, July 22, 1985) and later quoted in Pita vs. Court of Appeals , (G.R. No. 80806 October 5, 1989), the Philippine Supreme Court, following trends in the United States, adopted the test:

“Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest.”

But what are “contemporary community standards” ? Simply put, these are the prevalent norms within a given community. A legal determination of what is “prurient”, “patently offensive”, or lacking in “social, literary, artistic, political or scientific value” and what the local community standards are – rests squarely in the hands of Philippine courts. And Philippine courts are bound to be conservative, particularly if it concerns the internet, where few of the magistrates are familiar or comfortable with. Thus, if we apply contemporary Filipino cultural values as standard, I am sure the courts will err on the side of upholding traditional norms. In the Pita ruling, the court emphasized that

“there is no challenge on the right of the State, in the legitimate exercise of police power, to suppress smut provided it is smut.”

What then is the proper definition of smut ? The question of what is obscene has bedeviled jurists for decades. In the end, I suspect we will end up with the phrase made famous by Justice Potter Stewart in Jacobellis vs. Ohio, wherein, being unable to define obscenity, he exclaimed as a working definition:

“I know it when I see it”.

It is therefore safe to say that the community knows obscenity when it sees it. Hence, the actions taken to shut Boy Bastos down.

What is in store for Mr. Bastos will be the subject of later postings.

Continue reading… The Legal Perils of Boy Bastos

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DISCLAIMER

The foregoing is just my personal opinion and I do not represent or espouse the positions of any party involved in this controversy. It is just my take on the matter based on my limited knowledge of obscenity laws as they relate to the constitutionally guaranteed freedom of speech and expression. My statement should not be taken as legal advice by any of the parties involved.

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24 thoughts on “Freedom of Expression & boybastos.com”

  1. I look forward to your continued legal analysis of this issue.

    The only problem I have with the legal definition of basis is that it’s too subjective. What’s the legal barometer for the standard of the community? Majority? What the voters want? What politicians think the voters want?

  2. It’s pathetic that these Filipino politicians focus on a friggin’ porn website. Ms. Legarda is simply trying to steal some limelight because she is useless as a politician, anyway. Geez, Philippines is a total trash! From the most common citizen to the President! A nation of basket cases.

  3. What can be considered as offensive and what is not? I may find FHM, Maxim, Red, 10 Magazines very offensive but has Loren even tried complaining about them first? I also find the local newspaper “Sagad” extremely offensive because it displays uncensored images of individuals engaged in sexual acts. How about the porn movies produced and shot here in the Philippines? I guess Loren and the NBI has to investigate the producers of Manila Exposed 1 to 6, Manila X, Manila X 2, Teen Philippines, Teen Philippines 2, Teen Philippines Threesomes, Filipina Pussy Lickers, Wreck My Asian Virgin Ass, Trike Patrol, Manila Milkshake, and many other porn movies created here in the Philippines. Loren and the NBI are blinded by the fact that there are too many porn sites out there that are created by Filipinos for trafficking women abroad. Instead of shutting down small communities such as the website boybastos.com, I suggest the government focus its attention to websites such as teenfilipina.com, manilaexposed.com, trikepatrol.com, go2phil.com, asianamateurs4you.com/filipina and get into their operations within the Philippines. I’m just puzzled why Loren focused all her attention – together with the dumb NBI – with boybastos.com when in fact, there are probably a thousand other Pinoy porn sites available that directly sell Filipina flesh to the world. Is it because the sites are maintained or owned by Americans residing in the US that’s why Loren cannot “touch” them? If this is the reason, then the NBI cannot sue Mark Verzo because his website boybastos.com is hosted in the US and registered with Godaddy.com, another website registered in the US.

    I believe we should have updated and realistic laws regarding pornography. We are not in China or other communist countries that suppress the freedom of their people by filtering the Internet. If the government really wants to ban pornography in the Philippines, they should start first with the local producers of porn in the local entertainment industry. I recently watched Asia Agcaoli’s “Bedtime Stories” and I consider it a soft porn. The only difference is they did not show the sex organs of the actors and actresses in the said smut video. The MTRCB should start to clean first the local entertainment industry if they really want to get rid of all “indecent” materials in our country. Loren should be wise enough to think about this first before raising her publicity in exchange for boybastos.com’s sad plight.

    Next in line should be the cleaning of pornographic newspapers proliferating within Metro Manila and nearby provinces. They should also consider raiding the offices of Maxim, FHM, Uno, Red, 10, Amateurs, 18, and other gay magazines that can be easily bought from a nearby Mini Stop or 7/11 store if they are really serious in uplifting the morals of the Filipino people.

    What is so sad about this incident is that Loren and the NBI is only riding with the popularity of the issue. They just want to be the “good guys” when in fact they do nothing. I personally believe that Pinoy porn sites hosted in the United States or other countries cannot be held liable here in the Philippines as long as they do not violate the laws of the country hosting their content. The jurisdiction here is still not clear and we have no law governing materials transmitted via electronic means. If the government will arrest individuals owning porn sites, then they should begin arresting all porn sites owned by foreigners in all countries worldwide because they can be viewed here in the Philippines.

    Or maybe the government can just shut up and create more liberal laws allowing LEGAL pornography. Why do nations such as United States, Japan and Europe allow pornography? Does it mean they are evil? The Philippines is just a small country with obsolete and outdated laws that needs to be repealed. I guess Loren just have to start doing her job as an ordinary citizen by returning her ABS-CBN and start criticizing all horny Pinoys.

  4. Agree with many of your insights. But I guess we need to start somewhere. It may be a political strategy on the part of Loren, but I believe one complaint started the snowball. You are very correct when you point out the other obscene sites. Yes, it has proliferated today and a lot of people are making money out of this. It’s a different story when you’re in dire need of money and would be willing to sell your soul for a piece of bread. But for the “rich” people, like Verzo who hails from the plush Ayala Alabang (and note that his vehicles run in the millions), the entrepreneur in him – selling porn – is a bipolar mentally unstable individual who asserts his sexually insatiable urges in the form of “democracy and freedom of expression”. There are many problems this country has. Instead of just looking the other way and castigating the senator, let’s look at it as a first step towards combating pornography.

  5. in the most controversial case of People v. Larry Flint, it gave manifest to the essence of the ‘freedom of expression’..it may be simply said as.. “i may be a bad boy but that does not make me a non-citizen, therefore, with equal right to be respected as an individual.”

    the freedom and rights of the constitution is not a guarantee only to the majority but to all citizens.

    the US is the biggest producer of ‘porn’, every 36 minutes or so, a new video is produced. there are some 200M adult web pages ..followed closely by Germany.
    it is a big business. we still have to hear of a controversy from that side.

    here comes ‘boybastos’, who did not even make a business out of it. it was a collective effort by it members. the ordinary citizen who had found new freedom in the latest gadgets, the cellphone and the digital camera was his means to socialize and to have fun. fun which found its expression in the internet.

  6. you know what. i wrote a blog on my multiply site to express my feelings on whats going on in our department. i wrote a blog on why our dean was transferred to another department. i was so happy then that the admin finally realized that she is not a competent dean to our department. i was so happy then and created a blog saying all the things on how happy i am. i wrote everything i know on whats the real reason on why she was transferred to the other department.

    just this week her constituents had read my blog. yah they printed it out and i was called to see her before i enroll this semester. well. she’s so kawawa. her last term will be this october 31, 2008 na and sorry xa. enrollment is from october 20 – november 5,2008 haha. and by november she’ll not be signing my enrollment form na. hay. losers nga naman.

    while talking to my teacher to have some advices, i saw her walking in our school corridor. she was acting like “e post kaya natin ito dito” luckily i have my friend sa labas. nakita niya picture ko which is the actual pic that is on my multiply blog. so yah, honestly na harassed ako. pero. does she really need to act like that? i mean she’s a dean with doctoral degree and she’s acting like that. i mean.omg. what a shame.

    anyways, my advisers told me that i don’t have to worry because it is my personal blog and no one can ever dictate me on what to post. well. as Ive read the content on this site. nakatulong talaga xa. salamat. ehehe
    God Bless.

  7. Why only mark?? he just maintains the website. All of its members contributed the other stuff found in that site.

    What’s wrong with s3x?? Everybody is doing IT since from the past. It really depends on how you Look at it. It’s a common thing. Yes, its for adults. But its an adult responsibility also to watch their Young not to go to a such Website. But sooner or later as they Grow they will Know what s3x or obscene is.

    Does Legarda doesn’t love a passionate s3x? I don’t think so. LOVE and S3x are pairs. “synonyms” almost.

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