Anti-Photo and Video Voyeurism Law

(Katrina Halili and Hayden Kho Case)

A Research Paper

By: Amara Gayle B. Yulo

Ll.B- 1F

Instructor:

Atty. Kchyrziahshayne Dynelle V. Dinopol

 In May 2009, the old song Careless Whisper became a hit again not because
the people loved the it but because it was associated with the sex scandal of famous
celebrity, Katrina Halili and celebrity plastic surgeon, Dr. Hayden Kho. Because of the
development of technology, the sex scandal of the two celebrities had surfaced the
internet, mobile phones, and DVD’s rapidly. The said video brought too much attention that
it even became a subject on international news.
After the release of the sex video, the Department of Justice tried to sue Dr.
Hayden Kho in the Pasig Regional Trial Court. They contended that the release of the sex
video is a violation under RA 9262 or anti-violence against women and their children law.
After a series of trial, the court came out with a decision in December 2010.

Judge Rodolfo Bonifacio of the Pasig City regional trial court (RTC) branch
159, dismissed the criminal case due to insufficiency of evidence. He also dismissed for lack
of merit the P100-million civil damages claimed by Halili against Kho. Bonifacio pointed out
in his decision that Halili’s admission during the Senate hearing last May 8, 2009 that she
consented to the taking by the accused of three prior video recordings showing her and the
accused together performing salacious acts “clearly indicates that she agreed to the taking,
or at the very least knew, of the subject sex video recording”. The judge also noted that
during an ocular inspection at the hotel where the sex act was committed, the camera used
in video recording must have been placed where it was not hidden from Halili. Citing facts
and circumstances, Bonifacio concluded that the video recording cannot be possible without
the private complainant’s knowledge because the camera was situated in an open and
unconcealed place. The court found the evidence insufficient to prove that the sex video
was taken without Halili’s knowledge. Bonifacio noted that Kho’s mere taking of the sex
video without Halili’s knowledge and consent is not yet a violation of Republic Act 9262
otherwise known as Anti-Violence against Women and their Children Act of 2004. It
becomes a crime only when the said act “alarms or causes substantial emotional or
psychological distress to the woman”. The trial court said it was the uploading of the video
that caused Halili's mental and emotional anguish but added that the actress failed to
substantiate her claim that Kho was responsible for disseminating and uploading the video.
(Alquitran, 2010).

Halili appealed to reverse the decision of the Pasig Regional Trial Court. The
Court of Appeals (CA) junked with finality the motion filed by the actress seeking
reconsideration of its earlier ruling. The second division of the appellate court affirmed its
decision last August upholding the dismissal by Pasig City regional trial court of Halili’s
charges of violation of the provisions of Republic Act 9262 (Anti-Violence Against Women
and Children Act) against Kho (ABS-CBN News, 2012).
 Halili failed to make Dr. Kho criminally liable because no law prohibits such
act of recording of sexual activities. The issue resulted to public clamor which urged the
senate to have its own inquiry regarding the matter.

The senators agreed to conduct a public hearing on the sex video probe
involving cosmetic surgeon Hayden Kho. Senate President Juan Ponce Enrile said that the
joint Senate committee probe will focus on passing new legislation that will impose heavy
penalties on video voyeurs to prevent a repeat of the Hayden Kho sex video scandal (ABS-
CBN News, 2009).

A nationwide survey conducted in 2013 found that among young adults,

there is a heightened, bolder and wider range of sexual behaviour because of
technology. One in 10 has recorded him/herself having sexual activity; four in 100 have had
sex with someone they met online or through text messages; six in 100 have engaged in
phone sex; one in four has sent or received sex videos through mobile phone or internet
(Garcia, 2015). In another survey, Filipinos ranked 15th in the world when it comes to
watching porn using mobile devices.

With the statistics shown above, it is very evident that a number of Filipinos
record themselves while having sexual activities. Having a recorded sex video gives them
the risk of having it uploaded or shared through internet or elsewhere. Also, a number of
Filipinos possesses copies of pornographic materials in their mobile phones.

In the Philippines, there are a lot of cases wherein a sexual video was leaked
online; Several cases are celebrities and minors. Sharing of links of sex scandals through
social media is now common to the point that there is a Facebook group intended for such
activity. Moreover, when you walk the streets of Metro Manila, you would see sidewalk
vendors selling DVD’s of X-rated materials.

There are a lot of cases wherein a party blackmails the other party to release
scandalous images online if they would not submit to their requests. Before the enactment
of RA 9995 or the anti-photo and video voyeurism act of 2009, the mere recording of
sexual activities especially with consent of the other party is not punishable by law. This is
the very reason why cases against Kho were dismissed. Moreover, mere possession of a
sexual photo and video is also not punishable by law. To address the problem, the senate
came up with such law to prevent similar events in the future.

Under section 4 of RA 9995, the following acts are prohibited:

 (a) To take photo or video coverage of a person or group of persons
performing sexual act or any similar activity or to capture an image
of the private area of a person/s such as the naked or
undergarment clad genitals, public area, buttocks or female breast
without the consent of the person/s involved and under
circumstances in which the person/s has/have a reasonable
expectation of privacy;

(b) To copy or reproduce, or to cause to be copied or reproduced, such photo

or video or recording of sexual act or any similar activity with or without
consideration;

(c) To sell or distribute, or cause to be sold or distributed, such photo or

video or recording of sexual act, whether it be the original copy or reproduction
thereof; or

(d) To publish or broadcast, or cause to be published or broadcast, whether

in print or broadcast media, or show or exhibit the photo or video coverage or
recordings of such sexual act or any similar activity through VCD/DVD, internet,
cellular phones and other similar means or device.

Section 4 paragraph (a) prohibits taking intimate photos without consent in

places where privacy is expected. Examples of these places are restrooms, fitting rooms,
bedroom, inside one’s house and the like. This provision also explains why CCTV cameras
are not allowed inside the restroom or fitting rooms.

Under paragraph (b), it is stated that to copy or reproduce, or to cause to be

copied or reproduced, such photo or video or recording of sexual act or any similar activity
with or without consideration is prohibited. This paragraph explains that mere possession or
copying of such photos or videos is punishable by law. Moreover, even if the person is not
the one who took the footage but he/she participated in the reproduction of such material,
he shall be held liable.

Moreover, under paragraph (c), distributing, selling or buying such materials

is also prohibited by this law. Paragraph (d) prohibits the publication or cause to be
published in any media platform and devices.

The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding
that consent to record or take photo or video coverage of the same was given by such
person/s. Any person who violates this provision shall be liable for photo or video voyeurism
as defined herein.

The prohibition states that consent is immaterial under paragraphs b, c, and,

d. Whether or not the party consented in the recording of sexual activities, the mere
copying or reproduction, selling of such item makes the person liable under anti-photo and
video voyeurism act of 2009.

For example, A and B had a sexual relationship and both of them consented
in the recording of their sexual activities. B, being a proud man, showed and allowed his
friend to copy those footages. Even if A gave consent in the recording of those videos, B
shall still be held liable under RA 9995. Moreover, B’s friend shall also be liable for copying
the prohibited materials.

Making consent material in paragraphs b, c, and d, would make this law

toothless because all of the accused would just use the defense that there is no injury
obtained since the victim consented the recording of such acts.

Furthermore, intent is also immaterial in this law. Even if a person has no

intention to distribute such materials but in any way caused the distribution of those,
he/she shall be held liable.

A person found guilty of violating any of the provisions in paragraph 4,

he/she shall be imposed of a penalty of imprisonment of not less than three (3) years but
not more than seven (7) years and a fine of not less than One hundred thousand pesos
(P100,000.00) but not more than Five hundred thousand pesos (P500,000.00), or both.

Moreover, If the violator is a juridical person, its license or franchise shall be

automatically be deemed revoked and the persons liable shall be the officers thereof
including the editor and reporter in the case of print media, and the station manager, editor
and broadcaster in the case of a broadcast media.

For example, a news telecast accidentally broadcasted a sensitive video of a

private person exposing her breasts or other private parts, the reporter, editor, and station
manager shall be held liable. Furthermore, the license or the franchise of the television
station shall be automatically deemed revoked.
 If the offender is a public officer or employee, or a professional, he/she shall be
administratively liable. If the offender is an alien, he/she shall be subject to deportation
proceedings after serving his/her sentence and payment of fines.

The only possible defense under this law is that both of the parties in the video or
photo gave a written consent to reproduce or distribute such materials.

Although there is a still high number of sextortion cases or sex videos leaked online,
this law has helped victims attain justice as they can ask for damages or file criminal cases
even if they consented the recording of such materials.

Footnotes:
https://www.philstar.com/headlines/2010/12/15/639016/court-dismisses-case-vs-hayden

https://news.abs-cbn.com/entertainment/10/28/12/ca-dismisses-criminal-raps-vs-hayden-kho

https://news.abs-cbn.com/nation/05/28/09/water-throwing-incident-mars-hayden-sex-video-probe

https://www.giswatch.org/en/country-report/sexual-rights/philippines#sdfootnote29sym

https://globalnation.inquirer.net/97567/filipinos-rank-15th-in-global-porn-watching
https://news.abs-cbn.com/nation/05/28/09/water-throwing-incident-mars-hayden-sex-video-probe