03/02/2020 G.R. No. 203335 But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x between and among two private persons x x x although that may be a form of obscenity to some."23 The understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary to constitute the illegal cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam.25 The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography."26 The law defines prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit, or any other consideration.27 The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights of individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right, has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women. In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended. Section 4(c)(2) of the Cybercrime Law Section 4(c)(2) provides: Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act: xxxx (c) Content-related Offenses: xxxx (2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775. It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when prosecuting persons who commit child pornography using a computer system. Actually, ACPA’s definition of child pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means." Notably, no one has questioned this ACPA provision. Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded in the cyberspace is incalculable. Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct, manufacture or create any form of child pornography"33 clearly relates to the prosecution of persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be considered aiding and abetting a cybercrime. The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged. Section 4(c)(3) of the Cybercrime Law Section 4(c)(3) provides: Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act: xxxx (c) Content-related Offenses: xxxx (3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless: (i) There is prior affirmative consent from the recipient; or (ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or (iii) The following conditions are present: (aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source; (bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and (cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message. The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or comment was said to be making a "spam." The term referred to a Monty Python’s Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.35 The Government, represented by the Solicitor General, points out that unsolicited commercial communications or spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property. https://lawphil.net/judjuris/juri2014/feb2014/gr_203335_2014.html 6/19