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.
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.
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.”
(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:
” . . . 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
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.