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[OPINION | Dash of SAS] Porn in your pocket: What the law says about your naked selfies and sex videos

Ana P. Santos
What does the law say about that naked selfie that, in the throes of virtual passion you sent to your paramour? There are existing Philippine laws that protect your right to privacy, but there is big but.

Jeff Bezos may be the richest man in the world but there is at least one way he is just like many of us. Bezos has taken and sent his share of racy intimate photos or – to use direct street parlance – dick pics.

His girlfriend reportedly reciprocated in kind by sending him similar photos of herself. Tucked in between vacation photos and screenshots of Amazon stock shares or whatever Bezos takes snapshots of is a personal pocket collection of porn. Bezos dealt with the matter in a manner that only he can: by giving a small army of lawyers and investigators “whatever budget needed to pursue the facts in this matter.

I could argue that dick pics and sexting are the great equalizers of humanity because well, in a way, they are. Whether you’re the richest man  in the world running a global empire or a Filipino music legend like Jim Paredes, or an average person, we are all likely to indulge in some form of technologically enabled sexual activity and keep souvenirs of it in our phones or laptops. As seen in the case of Bezos and Paredes, no one is immune from having their photos and videos of their sexual exploits leaked, hacked, shared, and used against them.

But not everyone has the resources of a business mogul to deal with that kind of privacy breach, so I set out to know what existing laws say about our privacy when it comes to our right to make sexually explicit content for our personal pleasure.

What does the law say?

What does the law say about that naked selfie that, in the throes of virtual passion you sent to your paramour? There are existing Philippine laws that protect your right to privacy, but there is big but.

“According to case law, once a photo is posted or shared online, the person who posted it intends to forsake and renounce all privacy rights to that photo. This is specially applicable in cases wherein the user posted a photo viewable to the public or to his friends en masse,” said Aica Palce, a lawyer with a background in computer science and cyber security.

However, these persons are not to be denied the right to control information about themselves. In the context of social media, this would be the right to choose which personal information or photos would be disclosed to the public or certain friends.

The jurisprudence or legal basis for this is the Supreme Court decision on the St Theresa’s College Cebu (STC) “bikini” case. STC high school students reportedly posted pictures of themselves in their undergarments and in bikinis on Facebook with their privacy settings set to “friends only.” However, the images were shown to a STC teacher who filed a case of disciplinary action against the students for violating provisions on proper and moral behavior in the student handbook.

The High Court ruled that STC did not violate the students’s privacy by accessing and viewing the photos, saying, “It is well to emphasize at this point that setting a post’s or profile’s details privacy to “friends” is no assurance that it can no longer be viewed by another user who is not Facebook friends with the source of the content.”

The decision was issued in 2014 and uses the term “OSNs” or online social networks to refer to social media platforms where photos, videos, and status updates may be posted. It did not yet consider the photo, video and chat capabilities of private messaging options of these platforms like Facebook Messenger, WhatsApp, Viber, to name a few. The decision also came out before the introduction of temporary sharing platforms like Instagram/Facebook Stories where posts are visible for 24 hours and then automatically taken down. Instagram Stories came out in 2016 and Facebook Stories in 2017. Technology changes at lightning speed and along with it the concept of privacy. The law cannot keep up.

Currently, there is no Supreme Court ruling touching on informational privacy on private messaging apps. The closest is still the STC case which discusses online privacy or informational privacy in OSNs.

Unlike e-mails where settings allow sender to classify a message as confidential. there is no such feature available on private messaging apps. For photos or videos sent through private messaging functions, Palce suggests familiarizing yourself with the Terms of Use and the Privacy Policy of these apps.

“The issue of having a subjective expectation of privacy – which is objectively reasonable – in the sphere of private messaging apps is something that must be addressed by the Supreme Court or Congress. Most of these apps have file sharing and forwarding features which make it easy to grant access to photos, videos, documents to a wider audience beyond one’s contact list,” said Palce.

While some private messaging apps claim to have end-to-end encryption features, meaning only the sender and intended recipient can access the message and files sent, the recipient is not prevented from forwarding or sharing the message or files sent to other persons.

Privacy laws

Now, there are laws that protect your right to privacy.

For purposes of simplifying the exercise of wading through the muck of various online sex crimes, I will focus on intimate photos, videos, or messages shared between two consenting adults but for one reason or another, were shared with a wider audience.

1. Data Privacy Law – There are penal provisions in the Data Privacy Act that allow you to prosecute someone for processing personal data. 

“This includes your own pornographic videos where you can be identified. Even if the video doesn’t show your face, but contains enough details for you to be identified, then that information is classified as personal information, and you are within the protection of the Data Privacy Act,” said Francis Euston Acero, who heads the Complaints and Investigations Division of the National Privacy Commission.

Unauthorized processing, processing for an unauthorized purpose, and malicious disclosure are some of offenses that you can file against someone whom you suspect leaked your personal content.

“The Data Privacy Act requires that you process information for a legitimate purpose. Exacting revenge (in the case of revenge porn), or committing a violation of RA 9262, the Violence Against Women and their Children Act, does not fall within that legitimate purpose,”  explained Acero. 

In cases where someone else acquires access to your sensitive files without your consent such as when you send your device to a repair shop and the repairman gets the information, is also prohibited under the Data Privacy Act.

2. Anti-Cybercrime Prevention Act – In cases of revenge porn where sexual images and videos are disseminated, uploaded on a website, or shared through social media, the person who shared it is liable under the Anti-Photo and Video Voyeurism Act.

“The law requires the written consent of the person in the photo or video before it can be shared or broadcasted to others regardless if the person in the photo to video consented to the taking of the video or photo,” said Palce.

3. Revised Penal Code & Anti-Photo and Video Voyeurism Act – If your intimate content is shared and it falls into the hands of someone who threatens to make you the next online sex scandal unless you pay, is also known as sextortion. Alejandra Silvio Chief of the Philippine National Police Women and Children Cybercrime Protection Center said that a number of cases can be filed in such a situation.

“This includes violation of the Anti-Photo and Video Voyeurism Act, robbery with intimidation and extortion, and grave threat,” she said.

Where do you go?

Depending on the circumstances surrounding your complaint and the evidence you have, you can file a case with the National Privacy Commission, the National Bureau of Investigation Cybercrime Unit, the Philippine National Police Anti-CyberCrime Group, or the Department of Justice.

However, if your love interest/the suspect (sometimes can be the same person) is not based in the Philippines like in the case of a long distance relationship, the courts will not have the jurisdiction to prosecute even if you file a case.

Take note, this refers to geographical location, not nationality. So it doesn’t matter if your honey bunny is Filipino or foreign, if they are not living in the Philippines, the court will not have jurisdiction over the case. 

Protecting yourself

If you really want to do videos or photos that are sexual in nature, experts say that you should keep and store them using offline equipment. 

“Keep this equipment separate – do not connect it to the Internet. Find other ways to share or view these videos or photos with your partner. Don’t send these intimate photos or videos over a network, even to someone you trust. If you open the door to someone, they can do what they want with that door, including calling all their friends over. It is harder to delete traces of anything on the Internet,” NPC’s Acero advised. 

PNP’s Silvio also added that you should not be too complacent about deleted files. “You think you may have deleted the file, but it remains stored in other parts of your hard drive that you cannot see.”

I have to admit, I felt dejected after my conversation with these experts. It seemed like an uphill battle. Even if you file a case against your jilted lover and their accomplices, the incriminating content will still remain online.

“Your best safeguard is not to post or share incriminating photos,” Palce cautioned, echoing the same prudence Acero and Silvio called for.

I protested, invoking the right of two consenting adults to indulge in an online sexual romance. This is the age of long distance relationships, of transnational families where foreign workers want to stay connected to their beloved back home, of digital meet-ups and hook-ups. The world’s digital trajectory all point to sexting and sharing racy content becoming a romantic norm.

“Our rights are not infinite,” Palce gently reminded me. “Our legal advice will always be: do not share intimate content that may be used to incriminate or shame you. If they are leaked or become public, the remedies are extremely tedious,” she added.

We turned the conversation around and around but kept going back to the starting line: the law states that once photos are posted, the one who shares it renounces their rights to privacy. There are redress mechanisms but they are incredibly cumbersome and time consuming.

As stated by the Highest Court in the land: “…self-regulation on the part of OSN users and internet consumers in general is the best means of avoiding privacy rights violations.”

As concluded by Acero, “There are existing tools and mechanisms to penalize the spread of your intimate content. However, at that time, the damage is done and no matter what legal repercussions exist, you can’t really put the toothpaste back in the tube, as it were.” – Rappler.com

The Philippine National Police Anti-CyberCrime (PNP-ACG) Women and Children Cybercrime Protection Center may be reached through the following number: 7230401 loc 5354. Click on this link for the contact numbers of PNP Anti-CyberCrime Provincial Units.

Click on this link for information on how to file a complaint with the National Privacy Commission.