MANILA, Philippines - Is it pornographic or merely obscene? Is there a difference, in the first place?

The law says there is. Pornography, according to legal parlance, generally refers to any depiction of erotic behavior intended to cause sexual gratification. Obscenity, on the other hand, refers to any indecency that is calculated to promote the corruption of morals.

Republic Act 9208, the Anti-Trafficking in Persons Act of 2003 further refines the definition of pornography. The law now refers to it as any representation?through publication, exhibition, cinematography, indecent shows, information technology, or by whatever means?of a person engaged in real or simulated explicit sexual activities, or any representation of the sexual parts of a person for primarily sexual purposes. Note that the recent law now includes IT, or pornography found on the Net.

As for obscenity, an outright and strict legal definition has yet to be provided. The Supreme Court, however, in the 1989 case of Pita v. Court of Appeals, laid down three conditions for a material to be considered obscene:

1. Whether the average person, applying contemporary community standards, would find the material, taken as a whole, appealing to prurient interest.

2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Despite such distinctions set by the law, the Movie Theater Review and Classification Board (MTRCB), considers pornography and obscenity as being the same, following a United States Supreme Court decision that came out with the so-called ?Miller Test.?

Defines the MTRCB: ?Pornography, as here used, is synonymous with obscenity, the test of which is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. This includes: (a) patently offensive or demeaning representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, sexual intercourse; (b) patently offensive representations or scatological descriptions of masturbation, excretory functions and lewd exhibition of the genitals; and (c) explicit sexual exploitation of children.?

Today?s laws on anti-pornography, however, are criticized for being unable to cope with the challenge posed by the proliferation of easy and cheap devices to capture sexually exploitative acts. This refers, of course, to cybersex, video sex scandals, sex messages and sex videos disseminated through MMS that have victimized even children and caused uproar from concerned citizens who have demanded stricter regulations, particularly on Internet networks.

Lawyers agree that while there are general laws to punish lewd acts, there is a need to enact more special laws that would define and penalize cybersex, cyberporn and pornography spread on the Net through such links as YouTube.

Here are 10 more things you need to know about pornography:

1. There are several laws that govern pornography. The general law applicable to cybersex or video sex scandals is the Revised Penal Code (RPC). Under the RPC are other laws on porn, including Article 200 on grave scandal; Article 201 on immoral and obscene publications and exhibitions; Article 202 on prostitution; Article 341 on the white slavery trade; and Article 340 on corruption of minors.

2. Special laws also apply to pornography: Republic Act 7610 or the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, and Republic Act 9208, or the Anti-Trafficking in Persons Act of 2003.

3. Sex scandals propagated through DVDs, CDs or MMS clips are punishable by law. The persons liable are those who made the recording, those who spread the material and those who are the subject of the sexually explicit acts, provided they willingly participated in the act. Minors who are the subject of such acts are, however, exempted from legal sanctions.

4. Legal remedies are available to the innocent party. A person whose sexual acts, no matter how scandalous or explicit, were unlawfully recorded and taped for distribution, has no criminal liability and can file criminal charges against the guilty party.

5. The innocent party whose sex clips are leaked through MMS, CDs or DVDs, is entitled to damages since his or her right to dignity and privacy was violated. Article 100 of the RPC states that a person who is criminally liable is also civilly liable.

6. Independent civil action is allowed. Even if an offended party opts not to file criminal charges, he or she is allowed under the New Civil Code (NCC) to file a suit to recover damages from the criminal act. Article 26 and Article 32 of the NCC provide for relief on violations of one?s dignity, personality, privacy and peace of mind.

7. The distribution of a person?s private sex life through MMS, CDs and DVDs could fall under any or all of the following civil violations: (a) prying into the privacy of another?s residence; (b) meddling with or disturbing the private life or family relations of another; (c) intriguing to cause another to be alienated from his friends; (d) vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal conditions .

8. SMS are now considered evidence under the Law on Electronic Evidence. The Electronic Commerce Act or Republic Act 8792 was passed on June 14, 2000 to make electronic data message part of the rules of evidence. This law now allows text messages to be admitted as evidence.

9. It is still difficult to prove culpability in the spread of cybersex and pornography through YouTube. Many lawyers agree that the difficulty of identifying the party guilty of spreading cybersex through the Internet and YouTube makes the prosecution of the crime difficult. This remains a grey area in our criminal laws.

10. The best defense against cyber porn is discretion. Don?t record or tape your sex acts, even if you only intend the recording for private consumption. See to it that no other person/s can record such acts. ?

The author is a practicing lawyer and a Benguet correspondent of the Philippine Daily Inquirer.