Photo or video “voyeurism” means the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter’s consent, under circumstances in which such person/s has or have a reasonable expectation of privacy, or the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved, notwithstanding that consent to record or take photo or video coverage of the same was given by such persons.
Section 3(f) of Republic Act No. 9995 states that “Under circumstances in which a person has a reasonable expectation of privacy” means believe that he or she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured; or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place.
Section 4 of the said law, on the other hand, provides that it is hereby prohibited and declared unlawful for any person: (a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy; (b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration; (c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or (d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.
The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. Any person who violates this provision shall be liable for photo or video voyeurism as defined herein.
In the case of XXX261049 vs People of the Philippines (G.R. No. 261049, June 26, 2023), the Supreme Court further discuss the elements of photo or video voyeurism, to wit:
Parsed from this provision, “photo or video voyeurism” is committed when: 1. The accused takes a photo or video coverage of a person or group of persons performing sexual act or any similar activity or captures an image of the private area of a person or persons such as the naked or undergarment-clad genitals, pubic area, buttocks or female breast; 2. The photo or video was taken without the consent of the person/s involved; and 3. The photo or video was taken under circumstances in which the person/s has/have a reasonable expectation of privacy.
The penalty of imprisonment of not less than three (3) years but not more than seven (7) years and a fine of not less than One Hundred Thousand Pesos (P100,000.00) but not more than Five Hundred Thousand Pesos (P500,000.00), or both, at the discretion of the court shall be imposed upon any person found guilty of violating Section 4 of RA 9995. Also as enshrined in Section 7 thereof, “any record, photo or video, or copy thereof, obtained or secured by any person in violation of the preceding sections shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.”
Section 6 of RA 9995 provide for an exemption, viz: Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the court, to use the record or any copy thereof as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he/she may produce, and upon showing that there are reasonable grounds to believe that photo or video voyeurism has been committed or is about to be committed, and that the evidence to be obtained is essential to the conviction of any person for, or to the solution or prevention of such, crime.