My original post on boy bastos being shut down is just part of the interesting discussion over the whole issue.

The Warrior Lawyer has been earning links for his post on freedom of expression balanced with the anti-porn section of the revised penal code of the Philippines. It condemns

“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.”

Who sets the standards of obscenity and immorality? An American judge saying “I know it when I see it”? What about magazines like FHM and even Men’s Health, which, no matter how you look at it, contains content that many people would find offensive. Why do they escape scrutiny, or at the very least continue to operate unchecked? Is it because they stay just a hair below explicitness?

So Many Questions, So Little Answers

There’s no doubt that the content of boybastos.com was published with the knowledge of Mark Verzo. After all, he regularly wrote new articles for the site, organized as a blog according to certain sources. Then again, we return to the question of standards, and add a new one. As J Angelo points out, boybastos.com’s “in all likelihood, web host is located off-shore (in US soil, perhaps?)”.

Doesn’t the revised penal code generally have jurisdiction over activities happening within the Philippines? Do you determine the location of online activity by the point of access, or by the physical location of the site’s data?

What about the user-driven nature of the website? To what degree is the owner of a website responsible for the content uploaded by his users? What about the privacy concerns I outlined in the original post, as well as potential copyright violations? It’s not unreasonable to expect that much of the visual content boybasts.com hosted was culled from other porn websites, and that they were done so without their owners’ permissions. Does the revised penal code even answer these questions fully?

There are so many questions, because we’re actually on a legal frontier. If this case ever goes to court, there may be a number of precedents set here, and it’s quite possible that it may attract the attention of legal experts in other countries, if and when they get wind of it.

A Call for Consistency

A quick analysis of Senator Legarda’s press release shows that it commits a logical bait and switch. First, you declare your intention to have a pornographic website shut down. Then you imply that it’s a cause for a widespread problem. You even cite a bill which makes it illegal for:

“any remote computer facility operator, electronic service provider or electronic bulletin board service provider to knowingly transmit, offer or attempt to send any communication that contains indecent material, to a person under 18 years of age.” [emphasis mine]

That means that there should be an active element involved in the alleged violation. How would the act apply to Mark Verzo’s case, if he relied on word-of-mouth (passive) marketing to promote his site, as many other “obscene” websites have successfully done?

In any case, locally-managed sex websites should look into verifying the age of their visitors (which is very possible by asking for credit card details). Aside from possibly protecting them from legal liability, it could possibly limit the free access of minors to porn. We should also take note of Noemi’s call for education.

At the same time though, the authorities should publicize their side and the legal basis behind it. Not through sound bites meant for easy consumption, but as a comprehensive summary that lists the pertinent laws and how the apply to the case. Granted, publicizing their side could limit their chances to successfully prosecute Mark (which is what they want apparently). But the local online community would be less skeptical of what’s happening if they see that the authorities are taking a consistent approach.

I don’t consider myself a prude and I’m not rejoicing over what Mark Verzo is going through. All I’m interested is seeing the rule of law being followed. It’s a dangerous government that does things on a whim, and it’s a blissfully ignorant populace that doesn’t read up on local legal procedure. Which is why I’m going to talk to an experienced lawyer as soon as I can.