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Cortes, Constitutional Foundations of Privacy, in Emerging Trends in Law

In the Philippine jurisdiction, we have laws covering the right of privacy in the private and public realm, whether constitutional or statutory. However, determination of the scope and content of this right is left to the courts. Introductory

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Legislate to prohibit the collection of certain classes of data Independent regulatory agency to regulate the nature of info that can be recorded and stored

The Development of Privacy as a Legal Concept (1890)

Brandeis: privacy is the most comprehensive of rights and the most valued of civilized men Westin in Privacy and Freedom: people have series of zones or regions of privacy leading to a core self Margaret Mead: in some primitive societies privacy is almost unknown Animals usually seek periods of seclusion or small group intimacy as manifested by their territoriality Philippine law recognizes the right to privacy but the concept is alien to majority of the Filipinos Carmen Nakpil: No precise word for privacy in Filipino. Filipinos believe that privacy is an unnecessary imposition, esoteric Western afterthought. Filipinos is accustomed to a public life Early settlers: Punishment for those who enter the house of a principalia Variety of concepts of privacy among Filipinos Technological developments that even the subconscious can be probed: polygraph, truth serums Polygraph used by employers and courts as evidence Possible harms of a computer (right to control the flow of info) o Deprivation of access control - Disseminating evidence to a wider audience than the subject consented o Deprivation of accuracy control - Introducing factual or contextual inaccuracies that create an erroneous impression Fear of a womb-to-tomb dossier in a computer (A collection of papers containing detailed information about a particular person or subject) Proposed legal safeguards o Make the computer a res (a thing, an object or a status which legal proceedings have been instituted)

Privacy and the Computer

Sam Warren and Louis Brandeis, The Right to Privacy o Development of the common law protection of the individuals right to person and property and of the recognition of mans spiritual nature, of his feelings and his intellect. o English and American cases involving the unauthorized publication of letters, or other intellectual properties which courts considered a violation of property right, of contract, or of trust and confidence or the inviolate personality or the right to be let alone. o Often cited on court decisions o Remedies against private individuals who violated the right o Right to life => right to enjoy life => right to be let alone in the constitutional law Roberson v. Rochester Folding Box Co.(1902) o US courts were concerned WON there was a right of privacy at all o Abigail Robersons picture was printed in the flour package with the flour product of the company without her consent o TC Granted, CA: would necessarily result, not only in a vast amount of litigation, but in litigation bordering the absurd. o Remedy should be provided by the legislature New York passed an act for a right of privacy law, but majority of other states recognized the right through judge-made law. Pavesich v. New England Life Insurance Co.(1905) o Use of a portrait for advertising purposes without consent o Opposite of Roberson case Four kinds of tort in the violation of privacy

Privacy as a Tort

Intrusion upon the plaintiffs seclusion or solitude or into his private affairs o Public disclosure of embarrassing private facts about the plaintiffs o Publicity which places the plaintiff in a false light in the public eye o Appropriation for the defendants advantage of the plaintiffs name or likeness Pope v. Curl (1741) o Curl, a bookseller, obtained and published, without consent of the authors, personal letters written by well known literary figures (Alexander Pope and Jonathan Swift.) o Pope sued Curl to have the books removed from the market. o Lord Chancellor upheld the privacy of Popes letters on the grounds that the writer of a letter has a property right in his words. o The receiver of a letter, has, at most, a joint property with the writer, and the possession does not give him a license to publish. Philippine Context (letters) o Ownership of letters belong to the recipient o Publication requires consent of the writer Except if the public good demands it o If the sender and retains the receiving copy, the laws is silent if the recepients consent is required Prince Albert v. Strange (1894 English Court) o Prince Consort sued to require the defendants to return all copies of the impression and to prohibit their exhibition and the publication of the catalogue describing the works o Includes couples verses and dabbles in paintings o SolGen: unpublished manuscript is a peculiar property o Right of privacy is asserted, but it is on the basis of property rights that it was decided Vassar College v. Loose Wills Biscuit Co. (1912 US) o Unauthorized use of the name and logo of Vassar College resulting in the humiliation of the alumni and the student body o Court decision o

Plaintiff could not invoke the right of privacy first because it was a public corporation depending upon publicity A corporation has no right of privacy because it is an injury to the feeling and sensibilities Brents v. Morgan (1927 US) o Brents announced in a placard that Dr. Morgan owed him money o Dr Morgan was awarded with $1000 even though the contents of the placard were true Trammel v. Citizens News Company, Inc. (1941 US) o Trammel wrote a request to the newspaper not to print the announcement of his debt with a grocery store o Court: Decided in favor of Trammel. A mans feelings are as much a part of his person as his limbs and are entitled to protection. Existence of the right of privacy in the Philippines o Constitution Privacy of correspondence and communication o Civil Code

The Right of Privacy in Philippine Courts

Chapter 2 Human Relations Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another's residence; (2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. Article 32. Any public officer or employee, or any private individual who violates the following rights shall be liable to the latter for damages: (11) The privacy of communication and correspondence; Article 723. Letters and other private communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However, the court may authorize their

Trademark law (RA 166), patterned from US, which prohibits Matters which may disparage or falsely suggest a connection with persons o Revised Penal Code Revelation of secrets Trespass to dwelling Discover and revelation of secrets by seizing papers and letters o Rules of Court Recognizes to maintain confidentiality between certain disclosures Privacy between Husband and wife Attorney and client Doctor and patient Priest and penitent Right of privacy is rarely invoked independent of other constitutional guarantees in the Philippines Arnault v. Nazareno o Invoked the right of privacy before the Senate Blue Ribbon Committee and SC but failed Material Distribution Inc. v. Natividad o Invoked the privacy of communication and correspondence o SC: Constitution provided that a court order is an exception Morfe v. Mutuc o Questioned the constitutionality of the SALN as a violation of due process and unlawful invasion of privacy o Statute requires disclosure of information that infringes the right to privacy o Private law => remedy against the violation of right between private parties Public law => constitutional limitations on the acts of government against our privacy Balance between o Right to privacy

publication or dissemination if the public good or the interest of justice so requires.

o Freedom of speech o Freedom of the press Warren and Brandeis: matters which has no connection with his fitness for a public office should be repressed Sidis v. FR Publishing Corp (1940 US) o Public figures must sacrifice their privacy and expose at least part of their lives to public scrutiny as the price of the power they attain o Sidis is a math child prodigy who grew up to work as clerk Cason v. Baskin (1946 US) o Marjorie Baskin published Cross Creek and used the actual names of her neighbors in the book. o Zelma Cascon filed a case for being portrayed as a villain in the book o Ruled in favor of Cascon. However, the court said there was no actual damages and awarded $1 and attorneys fees only. News reporting would be hampered if individuals will be allowed to recover damages for publication without their consent or for mere inaccuracies. Lack of malicious intent or bad faith may exculpate the news reporter

Privacy and the Mass Media