Arce, Earl Anthony S.

March 08, 2018

Conde, Ryan Julius S. Bill Drafting Services
Malanog, Jason Vincent D.

Research on Privacy Laws and Cases Regarding a Private Person

According to Alan Westin in his book entitled Privacy and Freedom (1967), “the
individual's desire for privacy is never absolute, since participation in society is an equally
powerful desire. Thus each individual is continually engaged in a personal adjustment process
in which he balances the desire for privacy with the desire for disclosure and communication of
himself to others, in light of the environmental conditions and social norms set by the society in
which he lives.”

First Case: Parents of private students (petitioner) and St. Therese College (Respondent)

In a case dated September 29, 2014, with G.R. No. 202666, petitioners Rhonda Ave
Vivares, SPS. Margarita, and David Suzara all fight for the right of privacy of Nenita Julia Daluz
and Julienne Vida Suzara against the respondents, namely St. Theresa’s College as an
institution, Mylene Rheza Escudero, and John Does. The justice who gave the ruling of the case
was Justice Presbitero J. Velasco, Jr.

Julia and Julienne both minors, were, during the period material, graduating high school
students at St. Theresa's College (STC), Cebu City. Sometime in January 2012, while changing
into their swimsuits for a beach party they were about to attend, Julia and Julienne, along with
several others, took digital pictures of themselves clad only in their undergarments. These
pictures were then uploaded by Angela Lindsay Tan (Angela) on her Facebook profile.

Upon discovery, Ms. Escudero reported the matter and, through one of her student's
Facebook page, showed the photos to Kristine Rose Tigol (Tigol), STC's Discipline-in-Charge,
for appropriate action. Thereafter, following an investigation, STC found the identified students
to have deported themselves in a manner proscribed by the school's Student Handbook, to wit1:

1. Possession of alcoholic drinks outside the school campus;

2. Engaging in immoral, indecent, obscene or lewd acts;

3. Smoking and drinking alcoholic beverages in public places;

4. Apparel that exposes the underwear;

5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually

suggestive messages, language or symbols; and

6. Posing and uploading pictures on the Internet that entail ample body exposure.

1
Jurisprudence Department of Justice (2017 Release). Retrieved March 05, 2018 from Legislative Library
Service in the Senate of the Philippines, 3/F.
 On the other hand, the petitioners filed before the Regional Trial Court (RTC) a Petition
for the Issuance of a Writ of Habeas Data, docketed as SP. Proc. No. 19251-CEB 8 on the
basis of the following considerations2:

1. The photos of their children in their undergarments (e.g., bra) were taken for posterity before
they changed into their swimsuits on the occasion of a birthday beach party;

2. The privacy setting of their children's Facebook accounts was set at "Friends Only." They,
thus, have a reasonable expectation of privacy which must be respected.

3. Respondents, being involved in the field of education, knew or ought to have known of laws
that safeguard the right to privacy. Corollarily, respondents knew or ought to have known that
the girls, whose privacy has been invaded, are the victims in this case, and not the offenders.
Worse, after viewing the photos, the minors were called "immoral" and were punished outright;

4. The photos accessed belong to the girls and, thus, cannot be used and reproduced without
their consent. Escudero, however, violated their rights by saving digital copies of the photos and
by subsequently showing them to STC's officials. Thus, the Facebook accounts of petitioners'
children were intruded upon;

5. The intrusion into the Facebook accounts, as well as the copying of information, data, and
digital images happened at STC's Computer Laboratory; and

6. All the data and digital images that were extracted were boldly broadcasted by respondents
through their memorandum submitted to the RTC in connection with Civil Case No. CEB-38594.

However, on July 27, 2012, the RTC rendered a Decision dismissing the petition for
habeas data. The dispositive portion of the Decision pertinently states: “wherefore, in view of the
foregoing premises, the Petition is hereby dismissed. The parties and media must observe the
aforestated confidentiality. So ordered.”

The main issue to be threshed out in this case is whether or not a writ of habeas data
should be issued given the factual milieu. Crucial in resolving the controversy, however, is the
pivotal point of whether or not there was indeed an actual or threatened violation of the right to
privacy in the life, liberty, or security of the minors involved in this case.

Respondent STC is clearly aware of the importance of good cyber citizenship in its
curriculum to educate its students on proper online conduct. Moreover, a number of schools and
organizations have already deemed it important to include digital literacy and good cyber
citizenship in their respective programs and curricula in view of the risks that the children are
exposed to every time they participate in online activities. Furthermore, considering the dangers
that these children are exposed to in cyberspace often without supervision, the participation of
the parents in disciplining and educating their children about being a good digital citizen is
encouraged by these institutions and organizations. In fact, it is believed that "to limit such risks,
there is no substitute for parental involvement and supervision."

Second Case: Private Couple (Petitioner) v Private Company (Respondent)

2
Jurisprudence Department of Justice (2017 Release). Retrieved March 05, 2018 from Legislative
Library Service in the Senate of the Philippines, 3/F.
 In a case dated June 26, 2013, with G.R. No. 179736, petitioners Bill and Victoria Hing,
filed a complaint against the respondents Alexander Choachuy, Sr. and Allan Choachuy. On
August 23, 2005, petitioner-spouses Mr. and Mrs. Hing filed with the Regional Trial Court (RTC)
of Mandaue City a Complaint for Injunction and Damages with prayer for issuance of a Writ of
Preliminary Mandatory Injunction/Temporary Restraining Order (TRO), docketed as Civil Case
MAN-5223 and raffled to Branch 28, against respondents Alexander Choachuy, Sr. and Allan
Choachuy.

Petitioners alleged that they are the registered owners of a parcel of land (Lot 1900-B)
covered by Transfer Certificate of Title (TCT) No. 42817 situated in Barangay Basak, City of
Mandaue, Cebu while the respondents are the owners of Aldo Development & Resources, Inc.
(Aldo) located at Lots 1901 and 1900-C, adjacent to the property of petitioners. Aldo claimed
that petitioners were constructing a fence without a valid permit and that the said construction
would destroy the wall of its building, which is adjacent to petitioners property.

In order to get evidence to support the respondents’ application for preliminary injunction
, Aldo on June 13, 2005 illegally set-up and installed on the building of Aldo Goodyear Servitec
two video surveillance cameras facing petitioners property. Moreover, the employees of Aldo
allegedly took pictures of petitioners on-going construction without the consent of petitioners;
Because the acts of respondents violate their right to privacy, petitioners prayed that
respondents be ordered to remove the video surveillance cameras and enjoined from
conducting illegal surveillance.

On October 18, 2005, the RTC issued an Order granting the application for a TRO.
The dispositive portion of the said Order reads: “Wherefore, the application for a TRO or a Writ
of Preliminary Injunction is granted... Alexander Choachuy, Sr. and Allan Choachuy are hereby
directed to immediately remove the revolving camera overlooking the side of petitioners' lot and
to transfer and operate it elsewhere at the back where petitioners' property can no longer be
viewed within a distance of about 2-3 meters from the left corner of Aldo Servitec, facing the
road. It is so ordered.”

Respondents moved for a reconsideration but the RTC denied the same in its Order
dated February 6, 2006. Thus: “Wherefore, the Motion for Reconsideration is hereby denied for
lack of merit. Issue a Writ of Preliminary Injunction in consonance with the Order dated 18
October 2005. It is so ordered.” Aggrieved, respondents filed with the Court of Appeals a
petition for Certiorari under Rule 65 of the Rules of Court with application for a TRO and/or Writ
of Preliminary Injunction.

On July 10, 2007, the CA ruled that the Writ of Preliminary Injunction was issued with
grave abuse of discretion because petitioners failed to show a clear and unmistakable right to
an injunctive writ. The CA explained that the right to privacy of residence under Article 26(1) of
the Civil Code was not violated since the property subject of the controversy is not used as a
residence, and that the respondents, not being the owners of the building, could not have
installed video surveillance cameras. They are mere stockholders of Aldo, which has a separate
juridical personality. Thus, they are not the proper parties. The fallo reads: “Wherefore, in view
of the foregoing premises, judgment is hereby rendered by us granting the petition filed in this
case. The assailed orders dated October 18, 2005 and February 6, 2006 issued by the
respondent judge are hereby annulled and set aside. So ordered.

The Issues

The main issues are whether or not there is a violation of petitioners right to privacy and
whether or not respondents are the proper parties to this suit. On the issue of whether or not
there is a violation of petitioners right to privacy, the RTC evaluated and considered that the
petitioners have a "reasonable expectation of privacy" in their property, whether they use it as a
business office or as a residence and that the installation of video surveillance cameras directly
facing petitioners' property or covering a significant portion thereof, without their consent, is a
clear violation of their right to privacy. Hence, the CA made a mistake in finding that petitioners
are not entitled to an injunctive writ.

On the issue of whether or not respondents are the proper parties to this suit, the RTC
has ruled that just because the respondents are not the registered owners of the building does
not automatically mean that they did not cause the installation of the video surveillance
cameras. Moreover, although Aldo has a juridical personality separate and distinct from its
stockholders, records show that it is a family-owned corporation managed by the Choachuy
family.

Therefore, the RTC has lead to the inevitable conclusion that respondents are merely
using the corporate fiction of Aldo as a shield to protect themselves from this suit. In view of the
foregoing, we find that respondents are the proper parties to this suit. Therefore, Court of
Appeals (CA) decision is reversed3.

Third Case: Belo-Henares v. Guevarra

On a case dated on the 4th of January 2017, with case number A.C. No. 11394, the
Philippines Supreme Court upheld a ruling suspending the law license of an attorney for one
year following Facebook remarks he posted containing defamatory statements about a cosmetic
surgeon. The medical director of Belo Medical Group Inc., Maria Victoria G. Belo-Henares, had
applied to the Integrated Bar of the Philippines (IBP) to have Roberto Guevarra disbarred for the
insulting and threatening remarks he posted on Facebook about her and her company. The IBP
dismissed Guevarra’s defenses of privacy, fair criticism and freedom of speech.

Upholding the IBP’s findings, the Court reasoned that even if Guevarra had used
Facebook’s privacy tools to limit the dissemination of the remarks, this did not guarantee
absolute protection. The Court explained that in order to claim a reasonable expectation of
privacy on social media (i.e. Facebook), “it is first necessary that said user manifests the
intention to keep certain posts private, through the employment of measures to prevent access
thereto or to limit its visibility.” Here, the Court did not find any direct evidence that the
Respondent had utilized any of the privacy tools or features of Facebook that would ensure his

3
Jurisprudence Department of Justice (2017 Release). Retrieved March 05, 2018 from Legislative
Library Service in the Senate of the Philippines, 3/F.
remarks were only visible to himself and his circle of friends. The Court further mentioned that
“restricting the privacy of one’s Facebook posts to “Friends” does not guarantee absolute
protection from the prying eyes of another user who does not belong to one’s circle of friends4.”

First Law: The Writ of Habeas Data

The writ of habeas data is a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of the aggrieved
party. In developing the writ of habeas data, the Court aimed to protect an individual's right to
informational privacy, among others. A comparative law scholar has, in fact, defined habeas
data as "a procedure designed to safeguard individual freedom from abuse in the information
age."

Without an actionable entitlement in the first place to the right to informational privacy, a
habeas data petition will not prosper. Viewed from the perspective of the case at bar, this
requisite begs this question: given the nature of an online social network (OSN) — (1) that it
facilitates and promotes real-time interaction among millions, if not billions, of users, sans the
spatial barriers, 16 bridging the gap created by physical space; and (2) that any information
uploaded in OSNs leaves an indelible trace in the provider's databases, which are outside the
control of the end-users — is there a right to informational privacy in OSN activities of its users?
Before addressing this point, We must first resolve the procedural issues in this case.

a. The writ of habeas data is not only confined to cases of extralegal killings and enforced
disappearances
b. Meaning of "engaged" in the gathering, collecting or storing of data or information
STC did not violate petitioners' daughters' right to privacy

Without these privacy settings, respondents' contention that there is no reasonable

expectation of privacy in Facebook would, in context, be correct. However, such is not the case.
It is through the availability of said privacy tools that many OSN users are said to have a
subjective expectation that only those to whom they grant access to their profile will view the
information they post or upload thereto.

On Cyber Responsibility

It has been said that "the best filter is the one between your children's ears." This means
that self-regulation on the part of OSN users and internet consumers in general is the best
means of avoiding privacy rights violations. As a cyberspace community member, one has to be
proactive in protecting his or her own privacy. 55 It is in this regard that many OSN users,
especially minors, fail. Responsible social networking or observance of the "netiquettes" 56 on
the part of teenagers has been the concern of many due to the widespread notion that

4
Columbia University. (n.d.). Belo-Henares v. Guevarra – Global Freedom of Expression. Retrieved
March 06, 2018, from https://globalfreedomofexpression.columbia.edu/cases/belo-henares-v-guevarra
teenagers can sometimes go too far since they generally lack the people skills or general
wisdom to conduct themselves sensibly in a public forum.

Second Law: Data Privacy Act of 2012

The act is a comprehensive and strict privacy legislation “to protect the fundamental
human right of privacy, of communication while ensuring free flow of information to promote
innovation and growth.” (Republic Act. No. 10173, Ch. 1, Sec. 2). This comprehensive privacy
law also established a National Privacy Commission that enforces and oversees it and is
endowed with rulemaking power. On September 9, 2016, the final implementing rules and
regulations came into force, adding specificity to the Privacy Act (Wall, 2017).

The Philippines law takes the approach that “The processing of personal data shall be
allowed subject to adherence to the principles of transparency, legitimate purpose, and
proportionality.” The act states that the collection of personal data “must be a declared,
specified, and legitimate purpose” and further provides that consent is required prior to the
collection of all personal data. It requires that when obtaining consent, the data subject be
informed about the extent and purpose of processing, and it specifically mentions the
“automated processing of his or her personal data for profiling, or processing for direct
marketing, and data sharing.” Consent is further required for sharing information with affiliates or
even mother companies (Wall, 2017).

Consent must be “freely given, specific, informed,” and the definition further requires that
consent to collection and processing be evidenced by recorded means. However, processing
does not always require consent. Moreover, consent is not required for processing where the
data subject is party to a contractual agreement, for purposes of fulfilling that contract. The
exceptions of compliance with a legal obligation upon the data controller, protection of the vital
interests of the data subject, and response to a national emergency are also available. An
exception to consent is allowed where processing is necessary to pursue the legitimate interests
of the data controller, except where overridden by the fundamental rights and freedoms of the
data subject (Wall, 2017).

References:

● Case Digest: Spouses Hing v. Choachuy, Sr. (2013). Retrieved March 06, 2018, from
https://lawphil.blogspot.com/2013/06/case-digest-spouses-hing-v-choachuy-sr.html

● Columbia University. (n.d.). Belo-Henares v. Guevarra – Global Freedom of Expression.

Retrieved March 06, 2018, from
https://globalfreedomofexpression.columbia.edu/cases/belo-henares-v-guevarra

● Republic Act No. 10173 | GOVPH. (2012). Retrieved March 06, 2018, from
http://www.officialgazette.gov.ph/2012/08/15/republic-act-no-10173/
● Wall, A. (2017). Privacy Tracker | Summary: Philippines Data Privacy Act and
implementing regulations Related reading: The Belgian Facebook case: A ruling on the
merits. Retrieved March 06, 2018, from https://iapp.org/news/a/summary-philippines-
data-protection-act-and-implementing-regulations/