Even Demata y Garzon vs. People of the Philippines

A person charged under Article 201(3) of the Revised Penal Code for selling or circulating obscene materials cannot be convicted solely by reason of his position as editor-in-chief absent proof that he personally engaged in the acts of sale or circulation; whether material is obscene and thus unprotected speech is determined by the three-prong Miller test—the average Filipino applying contemporary community standards must find the work, taken as a whole, appeals to prurient interest, depicts or describes sexual conduct in a patently offensive way as specifically defined by law, and lacks serious literary, artistic, political, or scientific value; and violation of Section 10(a) of Republic Act No. 7610 is not mala prohibita but requires proof that the accused willfully intended to create conditions prejudicial to the child’s development, not merely that the publication of a minor’s photo without consent caused psychological harm.

The National Bureau of Investigation filed two criminal informations against Even Demata y Garzon, one of two editors-in-chief of the nationally circulated tabloid Bagong Toro, following a complaint by the father of AAA, a 17-year-old Muslim student at the University of the East. The June 21, 2012 issue included AAA’s fully clothed photograph in a column titled “facebook sexy and beauties,” alongside pictures of women in skimpy swimwear, blurred images from a celebrity sex tape, and serialized erotic novellas. Demata was charged with selling and circulating obscene materials under Article 201(3) of the Revised Penal Code and with causing psychological injury to a minor under Section 10(a) of R.A. 7610. He pleaded not guilty.

• The Publication: Bagong Toro is a tabloid newspaper published by Remate News Central, owned by Baby Antiporda. Its Circulation Department, headed by Berna Paredes, handled sale and distribution independently of the editorial staff. Demata was one of two editors-in-chief. The June 21, 2012 issue comprised 12 pages containing news, showbiz gossip, health articles, commentary, comics, puzzles, photographs of women in skimpy swimwear, blurred stills from a celebrity sex tape, and serialized Filipino-language erotic novellas that used euphemisms for genitalia and sexual acts.
• The Photograph: AAA, a 17-year-old Accounting Technology student at the University of the East and raised in a conservative Muslim family, appeared fully clothed (shorts and t-shirt) in a seated position under the column “facebook sexy and beauties.” Her name was not published. The original photo, taken by AAA’s mother on a condominium rooftop with two cousins, had been cropped to show only AAA. AAA had lost her cellphone in February 2012, which was logged into her Facebook account; she could no longer access the account after losing the phone and was forbidden by her father from using Facebook. AAA did not consent to the publication.
• Discovery and Aftermath: On August 22, 2012, AAA’s brother BBB saw the tabloid in a barbershop and informed their father CCC. CCC and his wife confronted AAA, who cried and denied knowledge. AAA lost self-confidence, could not finish her calculus exam and failed the course, and suffered bullying from classmates and false rumors from a professor. Relatives were angered; an uncle who had financed her studies withdrew support, forcing CCC to take on credit. AAA was psychologically examined by Dr. Jayson Bascos, who diagnosed Acute Stress Disorder with depressed features in October 2012 and, after further counseling, Chronic Post-Traumatic Stress Disorder (PTSD) requiring anti-depressants.
• Defense Evidence: Demata testified that AAA’s photo alone was not obscene; the publication was not obscene as a whole; layout artists were tasked to verify contributor identities but the verification records had been deleted; he had no participation in the sale or circulation of the newspaper because editorial and circulation functions were separate; the publisher directed what stories to include; he was merely a nominal editor-in-chief who reviewed articles subject to the publisher’s preferences; after his termination by Antiporda, the company-provided lawyer withdrew, leaving him represented by the Public Attorney’s Office, suggesting he was a scapegoat.

• Variance and Lack of Acts of Sale or Circulation: Petitioner argued that he was charged under Article 201(3) for selling or circulating obscene materials, yet no evidence whatsoever showed he personally sold, gave away, or exhibited the newspaper. The RTC and CA attributed liability solely based on his title as editor-in-chief, analogizing to libel under Article 360 of the Revised Penal Code where editors are expressly made liable, but Article 201(3) contains no such express inclusion of editors.
• Obscenity Not Established: Petitioner maintained that AAA’s photograph, as the RTC itself conceded, was not obscene; the photograph had already been uploaded to Facebook by a cousin, constituting prior publication. He further contended that the photographs of women in swimwear and the erotic stories were not obscene and that the CA’s ruling amounted to censorship or prior restraint on protected speech.
• Absence of Intent for Child Abuse: Citing Bongalon v. People, petitioner asserted that conviction under Section 10(a) of R.A. 7610 requires proof that the accused intended to debase, degrade, or demean the intrinsic worth and dignity of the child. The evidence showed that the photo was submitted by a person who misrepresented ownership after AAA lost her phone; Demata believed in good faith that consent had been given, and he had no intent to cause harm.

• Editor’s Ultimate Responsibility: The Office of the Solicitor General (OSG) countered that as editor-in-chief, Demata had ultimate discretion over publication content and could have prevented the photo’s publication; even if a third party illegally accessed AAA’s Facebook account, that person’s liability was separate.
• Absence of Other Accused Immaterial: The OSG argued that the failure to charge the publisher, circulation manager, or layout artists did not absolve Demata of criminal liability.
• Child Abuse is Mala Prohibita: The OSG maintained that Section 10(a) of R.A. 7610 is a malum prohibitum offense; therefore, the prosecution need not prove mens rea or intent to cause psychological injury—the mere publication of a minor’s photo without consent, causing harm, sufficed.
• Deference to Lower Courts’ Obscenity Finding: Relying on Fernando v. Court of Appeals, the OSG argued that the lower courts’ factual determination that the material was obscene was entitled to great respect and could no longer be disturbed.

• Proper Charge and Conviction: Whether Demata was properly charged and convicted under Article 201(3) of the Revised Penal Code for selling and circulating obscene materials based solely on his position as editor-in-chief, absent evidence that he personally engaged in those acts.
• Obscenity of the Publication: Whether the photographs of women and erotic stories in the June 21, 2012 issue of Bagong Toro are obscene under the constitutional guarantee of freedom of speech and press.
• Child Abuse: Whether Demata is guilty of violating Section 10(a) of R.A. 7610 by creating conditions prejudicial to AAA’s development through the publication of her photograph without consent, and whether the offense is mala prohibita.

• Proper Charge and Conviction: The conviction under Article 201(3) was reversed because there was a fatal variance between the offense charged—selling or circulating obscene materials—and the offense proved. The prosecution adduced no evidence that Demata sold, gave away, or exhibited the tabloid. The RTC and CA erroneously attributed liability based on Demata’s editorial position, but Article 201 distinguishes between editors who publish obscene literature (paragraph 2(a)) and those who sell, give away, or exhibit obscene materials (paragraph 3). Under Sections 4 and 5 of Rule 120 of the Rules of Court, conviction for an offense not charged is permissible only if it is necessarily included in the offense alleged; selling is not necessarily included in publishing, as the two acts require different evidence. Uncontroverted testimony established that Bagong Toro had a separate Circulation Department over which Demata had no control. The prosecution’s case amounted to scapegoating of the “patsy” type, overstating Demata’s responsibility while ignoring other persons with greater control over publication and sale.
• Obscenity of the Publication: The Bagong Toro issue was not obscene and is constitutionally protected speech. After reviewing the inconsistent standards applied in Philippine obscenity jurisprudence from People v. Kottinger to Soriano v. Laguardia, the Court definitively adopted the three-prong test of Miller v. California, as refined by Pope v. Illinois: (a) whether the average Filipino, applying contemporary community standards, would find the material, taken as a whole, appeals to prurient interest; (b) whether the material depicts or describes sexual conduct in a patently offensive way as specifically defined by applicable state law; and (c) whether the average Filipino would find the material, taken as a whole, as seriously lacking literary, artistic, political, or scientific value. The prosecution failed on all prongs. First, the RTC improperly relied on AAA’s conservative Muslim upbringing; no evidence identified who the “average Filipino” is or established the relevant community standards, making the finding of prurient appeal baseless. Second, the depictions did not constitute “hard core” pornography: women in low-cut swimwear, stories laden with innuendo, and blurred sex-tape images are not patently offensive representations of ultimate sexual acts, masturbation, excretory functions, or lewd exhibition of genitals as required by Miller and Fernando. Third, the RTC and CA evaluated only the pages with photographs and stories, ignoring the issue’s 12 pages that included news, comics, and other non-sexual content; as a whole, the publication was not proven to lack serious value from the perspective of the average Filipino.
• Child Abuse: Demata was not guilty of violating Section 10(a) of R.A. 7610. The offense is not mala prohibita but requires proof of willful intent to debase, degrade, or demean the intrinsic worth and dignity of the child; mere harmful result is insufficient, consistent with rulings distinguishing child abuse from slight physical injuries when the act lacks the specific intent. Here, the prosecution did not prove Demata knew AAA was a minor, nor that he intentionally sought to create prejudicial conditions. Demata and the layout artists believed, albeit erroneously, that consent had been obtained; both the newspaper and AAA were victims of an identity thief. Moreover, Demata’s nominal editorial role was too remote a cause to be the proximate cause of AAA’s PTSD. Intervening independent factors—the family confrontation, bullying, a teacher’s remarks, the uncle’s withdrawal of support—constituted distinct, successive, and efficient causes of the psychological injury. The four-month gap between the publication and the first psychological consultation further weakened causation.

• Obscenity Test (Miller Test Adopted) — For purposes of Article 201 of the Revised Penal Code and the constitutional protection of speech and press, material is obscene only if the prosecution proves: (a) the average Filipino, applying contemporary community standards, would find the work, taken as a whole, appeals to prurient interest; (b) the material depicts or describes sexual conduct in a patently offensive way—specifically “hard core” pornography, such as patently offensive representations of ultimate sexual acts, masturbation, excretory functions, or lewd exhibition of the genitals—as defined by applicable law; and (c) the average Filipino would find the material, taken as a whole, seriously lacking literary, artistic, political, or scientific value. The first two prongs are determined by reference to community standards; the third employs a reasonable-person standard. The prosecution must identify the relevant community and its standards; a court may not base its obscenity determination on the standards of a particular religious community absent proof that those standards apply nationally.
• Variance Doctrine (Rule 120, Sections 4 and 5) — Conviction for an offense not charged is permitted only when it is necessarily included in the offense alleged. The offense of “selling or giving away” obscene materials under Article 201(3) is not necessarily included in “publishing” obscene literature under Article 201(2)(a); they are distinct acts provable by different evidence.
• Proximate Cause in Criminal Cases — A remote cause cannot sustain criminal liability if a distinct, successive, unrelated, and efficient cause intervenes and directly produces the injury, even where the harm would not have occurred but for the remote condition. An editor’s role in publication that merely furnishes the occasion for subsequent psychological harm caused by independent family and community reactions does not constitute proximate cause.
• Intent Requirement for Section 10(a), R.A. 7610 — The offense of creating conditions prejudicial to a child’s development is not malum prohibitum. Conviction requires proof that the accused willfully intended to debase, degrade, or demean the intrinsic worth and dignity of the child. The absence of the victim’s consent or the mere occurrence of psychological harm is insufficient.
• Scapegoating and Criminal Liability — Criminal liability predicated on scapegoating, where the accused’s responsibility is overstated relative to other culpable parties (the “patsy” type), is inconsistent with the principle of proximate cause and may warrant acquittal when the prosecution fails to establish the accused’s direct, personal causal role in the offense.

• “Whether a given material is obscene or constitutionally protected speech shall be decided on the following three-prong test adopted from Miller v. California and as clarified in Pope v. Illinois: a) whether the average Filipino, applying contemporary community standards, would find the material as appealing to prurient interests; b) whether, applying contemporary community standards, the material describes or depicts sexual conduct in a patently offensive way; and c) whether the average Filipino would find the material, taken as a whole, as seriously lacking literary, artistic, political, or scientific value.”
• “A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion.”
• “The offense of creating ‘conditions prejudicial to the child’s development’ is not mala prohibita, for there may be instances where the child finds himself/herself in that situation without the willful intent of the adults around him or her. … [T]here is a burden upon the prosecution to prove how and why the act was intended to result in the conditions prejudicial to the child’s development.”

• Miller v. California, 413 U.S. 15 (1973) — The controlling United States precedent whose three-prong test was definitively adopted as the Philippine standard for determining obscenity; the Court relied on Miller’s requirement that material must depict “hard core” sexual conduct to be patently offensive.
• Pope v. Illinois, 481 U.S. 497 (1987) — Clarified that the first two prongs of the Miller test are governed by community standards, while the third (value) is judged by a reasonable person standard; followed to refine the Philippine test.
• Fernando v. Court of Appeals, 539 Phil. 407 (2006) — Distinguished; while Fernando referenced Miller, it decided the obscenity issue based on the factual findings of the lower courts and the “commercial purpose” test of People v. Go Pin. The Court in Demata clarified that Fernando did not foreclose a full application of the Miller prongs and emphasized that lower courts’ discretion is not unbridled.
• People v. Go Pin, 97 Phil. 418 (1955) — The artistic purpose versus commercial purpose standard discussed but deemed insufficient as a sole standard; the Court noted it had been mixed with other tests in lower court rulings, underscoring the need for a unified Miller framework.
• Gonzales v. Kalaw Katigbak, 222 Phil. 225 (1985) — Cited for the “dominant theme” test derived from Roth v. United States, which influenced the RTC’s reasoning but was subsumed under the newly adopted Miller test.
• Bongalon v. People, 703 Phil. 578 (2013) — Relied upon for the principle that conviction under Section 10(a) of R.A. 7610 requires proof of intent to debase, degrade, or demean the child’s dignity.
• Dungo v. People, 762 Phil. 630 (2015) — Applied for the distinction between mala in se and mala prohibita offenses, confirming that an offense under a special law may be mala in se if the act is inherently immoral and requires criminal intent.
• Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003 — Invoked for the doctrine of benevolent neutrality in church-state relations, which barred the RTC from imposing the standards of a conservative Muslim community as the national standard for obscenity.

• Article 201, Revised Penal Code (as amended by P.D. No. 969) — Construed to delineate separate offenses: paragraph 2(a) punishes editors who publish obscene literature; paragraph 3 punishes those who sell, give away, or exhibit morally offensive films, prints, engravings, sculptures, or literature. The Court held that conviction under paragraph 3 cannot be sustained absent proof of the specific acts enumerated therein.
• Section 10(a), Republic Act No. 7610 — Interpreted to require proof of intentional creation of conditions prejudicial to the child’s development; the Court rejected the prosecution’s argument that the offense is mala prohibita.
• Sections 4 and 5, Rule 120, Rules of Court — Applied to bar conviction for an offense not necessarily included in the charge; selling is not necessarily included in publishing obscene materials.
• Sections 4 and 5, Article III, 1987 Constitution — Freedom of speech, expression, and press, and the non-establishment of religion clause, respectively; invoked as the constitutional foundation for the obscenity test and as prohibiting the uncritical adoption of a single religious community’s standards as the national standard for obscenity.

Leonen (Chairperson), Lazaro-Javier (designated additional Member), Zalameda, and Rosario, JJ., concur.