Child porn law may cover baby-themed sexy photos

Republic Act No. 9775, otherwise known as the Anti-Child Pornography Act of 2009, punishes "child pornography." Under said law, the following shall be unlawful: (a) to hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography; (b) to produce, direct, manufacture or create any form of child pornography; (c) to publish offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of child pornography; (d) to possess any form of child pornography with the intent to sell, distribute, publish, or broadcast: Provided. That possession of three (3) or more articles of child pornography of the same form shall be prima facie evidence of the intent to sell, distribute, publish or broadcast; (e) to knowingly, willfully and intentionally provide a venue for the commission of prohibited acts as, but not limited to, dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a legitimate business; (f) For film distributors, theaters and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of child pornography; (g) For a parent, legal guardian or person having custody or control of a child to knowingly permit the child to engage, participate or assist in any form of child pornography; (h) to engage in the luring or grooming of a child; (i) to engage in pandering of any form of child pornography; (j) to willfully access any form of child pornography; (k) to conspire to commit any of the prohibited acts stated in this section. Conspiracy to commit any form of child pornography shall be committed when two (2) or more persons come to an agreement concerning the commission of any of the said prohibited acts and decide to commit it; and (l) to possess any form of child pornography.
For a material to be considered child pornography under said law, it must depict an "explicit sexual activity" involving a "child." Both of these terms are defined under Section 3 of the law, which states:

Section 3. Definition of Terms. –

(a) “Child” refers to a person below eighteen (18) years of age or over, but is unable to fully take care of himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.

For the purpose of this Act, a child shall also refer to:

(1) a person regardless of age who is presented, depicted or portrayed as a child as defined herein; and

(2) computer-generated, digitally or manually crafted images or graphics of a person who is represented or who is made to appear to be a child as defined herein.

(b) “Child pornography” refers to any representation, whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activities.

(c) “Explicit Sexual Activity” includes actual or simulated –

(1) As to form:

(i) sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex;

(2) bestiality;

(3) masturbation;

(4) sadistic or masochistic abuse;

(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or

(6) use of any object or instrument for lascivious acts

(d) “Internet address” refers to a website, bulletin board service, internet chat room or news group, or any other internet or shared network protocol address.

(e) “Internet cafe or kiosk” refers to an establishment that offers or proposes to offer services to the public for the use of its computer/s or computer system for the purpose of accessing the internet, computer games or related services.

(f) “Internet content host” refers to a person who hosts or who proposes to host internet content in the Philippines.

(g) “Internet service provider (ISP)” refers to a person or entity that supplies or proposes to supply, an internet carriage service to the public.

(h) “Grooming” refers to the act of preparing a child or someone who the offender believes to be a child for sexual activity or sexual relationship by communicating any form of child pornography. It includes online enticement or enticement through any other means.

(i) “Luring” refers to the act of communicating, by means of a computer system, with a child or someone who the offender believes to be a child for the purpose of facilitating the commission of sexual activity or production of any form of child pornography.

(j) “Pandering” refers to the act of offering, advertising, promoting, representing or distributing through any means any material or purported material that is intended to cause another to believe that the material or purported material contains any form of child pornography, regardless of the actual content of the material or purported material.

(k) “Person” refers to any natural or juridical entity.

The discussion above finds relevance in the recent photos uploaded by Ms. Donnalyn Bartolome on Facebook, depicting her as a baby while exposing parts of her breasts. However, there is a view that, since she did not show her whole breast/s, the photos cannot fall under the definition of "child pornography" under the law.