Republic Act No. 9775 (a.k.a. the Anti-Child Pornography Act of 2009), November 17, 2009

Document type

Legislation

Country

(1) On Internet Content Hosts

(i) Under the law, an internet content host is defined as any person who hosts or who proposes to host internet content in the Philippines Section 3(f). Each one is bound to observe and perform certain specific duties, thus:

“Duties of an Internet Content Host. – An internet content host shall:

(a) Not host any form of child pornography on its internet address;

(b) Within seven (7) days, report the presence of any form of child pornography, as well as the particulars of the person maintaining, hosting, distributing or in any manner contributing to such internet address, to the proper authorities; and

(c) Preserve such evidence for purposes of investigation and prosecution by relevant authorities.

An internet content host shall, upon the request of proper authorities, furnish the particulars of users who gained access to an internet address that contains any form of child pornography.

An internet content host who shall knowingly, willfully and intentionally violate this provision shall be subject to the penalty provided under Section 15(j) of this Act: Provided, That the failure of the internet content host to remove any form of child pornography is hitting its server shall be conclusive evidence of willful and intentional violation thereof.” (Section 11)

(ii) For this purpose, Section 15(j) reads:

“Any person found guilty of violating Section 11 of this Act shall suffer the penalty of prison correccional in its medium period and a fine of not less than one million pesos (Php1,000,000.00) but not more than two million pesos (Php2,000,000.00) for the first offense. In the case of a subsequent offense, the penalty shall be a fine not less than Two million pesos (Php2,000,000.00) but not more than Three million pesos (Php3,000,000.00) and revocation of its license to operate and immediate closure of the establishment;”

(2) On Internet Service Providers

(i) On the other hand, an internet service provider (ISP) is defined as a “person or entity that supplies or proposes to supply, an internet carriage service to the public” Section 3(g). Its duties under the law are, as follows:

“Duties of an Internet Service Provider (ISP). All internet service providers (ISPs) shall notify the Philippine National Police (PNP) or the National Bureau of Investigation (NBI) within seven (7) days from obtaining facts and circumstances that any form of child pornography is being committed using its server or facility. Nothing in this section may be construed to require an ISP to engage in the monitoring of any user, subscriber or customer, or the content of any communication of any such person: Provided, That no ISP shall be held liable for damages on account of any notice given in good faith in compliance with this section.

Furthermore, an ISP shall preserve such evidence for purpose of investigation and prosecution by relevant authorities.

An ISP shall, upon the request of proper authorities, furnish the particulars of users who gained or attempted to gain access to an internet address which contains any form of child pornography.

All ISPs shall install available technology, program or software to ensure that access to or transmittal of any form of child pornography will be blocked or filtered.

An ISP who shall knowingly, willfully and intentionally violate this provision shall be subject to the penalty provided under Section 15(k) of this Act.

The National Telecommunications Commission (NTC) shall promulgate within ninety (90) days from the effectivity of this Act the necessary rules and regulations for the implementation of this provision which shall include, among others, the installation of filtering software that will block access to or transmission of any form of the child pornography.” (Section 9)

(ii) Section 15(k) of the law reads:

“Any ISP found guilty of willfully and knowingly failing to comply with the notice and installation requirements under Section 9 of this Act shall suffer the penalty of a fine not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00) for the first offense. In case of subsequent offense, the penalty shall be a fine of not less than One million pesos (Php1,000,000.00) but not more than Two million pesos (Php2,000,000.00) and revocation of its license to operate.”

(3) On Telecommunications Companies

(i) Inasmuch as some telecommunications companies already operate as ISPs, and may therefore be held liable as such under the applicable provisions of the law, there is nevertheless a separate provision directed specifically at such entities. Section 4(f) of the law declares:

“Unlawful or Prohibited Acts. – It shall be unlawful for any person:

(f) For film distributors, theaters and telecommunications companies, by themselves or in cooperation with other entities, to distribute any form of child pornography;”

(ii) The imposable penalty for such violation may be found in Section 15(c) of the law:

“Any person found guilty of violating Section (d), (e), and (f) of this Act shall suffer the penalty of reclusion temporal in its medium period and a fine of not less than seven hundred fifty thousand pesos (Php750,000.00) but not more than One million pesos (Php1,000,000.00);”

(iii) It is unclear how else telecommunications companies may be expected to distribute child pornography other than by operating as ISPs.

(4) Miscellaneous Provisions

(i) Where the offender involved is a juridical person, the penalty shall be imposed upon the “owner, partner, member of the board of directors and/or any responsible officer who participated in the commission of the crime or shall have knowingly permitted or failed to prevent its commissions” (Section 16).

(ii) The law also mandates the confiscation and forfeiture of equipment used in child pornography. However, it is unclear if and how this applies to intermediaries who are held liable for violating the provisions of the law (Section 17).

(iii) It is also worth noting that under Section 6 of the more recently enacted law of Republic Act No. 10175 (Cybercrime Prevention Act of 2012) (see above), the imposable penalty for crimes defined and made punishable by the Revised Penal Code or a special law like Republic Act No. 9775, shall be one (1) degree higher than that provided by the RPC or special law concerned, if committed “by, through and with the use of information and communications technologies”.

Country

Year

2009

Topic, claim, or defense

Child Protection (Includes Child Pornography)

Document type

Legislation

Issuing entity

Legislative Branch

Type of service provider

Internet Access Provider (Including Mobile)

OSP obligation considered

Block or Remove

Data Retention or Disclosure

Monitor or Filter

Type of law

Civil

General effect on immunity

Weakens Immunity

General intermediary liability model

Takedown/Act Upon Knowledge (Includes Notice and Takedown)