Article III, Section 3, of the
Philippine Constitution provides that:
The privacy of communication and
correspondence shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as prescribed by law.
Any evidence obtained in violation
of this or the preceding section shall be inadmissible for any purpose in any
proceeding.
This refers to our guaranteed right to express
ourselves without any intrusion by the public or even by the government except
in cases provided for by law. With multiple
Online Social Networks available in cyberspace, is our constitutional right for
privacy protected? A relevant jurisprudence is completely reproduced hereunder
for better appreciation and our guidance too:
RHONDA
AVE S. VIVARES AND SPS. MARGARITA AND DAVID SUZARA, vs.
ST.
THERESA’S COLLEGE, MYLENE RHEZA T. ESCUDERO, AND JOHN DOES, (G.R. No. 202666, September 29,
2014)
D E C I S I O N
VELASCO
JR., J.:
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.
~
Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, in relation to Section 19 of A.M. No. 08-1-16-SC,1 otherwise
known as the “Rule on the Writ of Habeas Data.” Petitioners herein assail the
July 27, 2012 Decision2 of the Regional Trial Court, Branch 14
in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which dismissed their habeas
data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (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 Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at
STC’s high school department, learned from her students that some seniors at
STC posted pictures online, depicting themselves from the waist up, dressed
only in brassieres. Escudero then asked her students if they knew who the girls
in the photos are. In turn, they readily identified Julia, Julienne, and Chloe
Lourdes Taboada (Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their respective
personal Facebook accounts and showed her photos of the identified students,
which include: (a) Julia and Julienne drinking hard liquor and smoking
cigarettes inside a bar; and (b) Julia and Julienne along the streets of Cebu
wearing articles of clothing that show virtually the entirety of their black
brassieres. What is more, Escudero’s students claimed that there were times
when access to or the availability of the identified students’ photos was not
confined to the girls’ Facebook friends,4 but were, in fact,
viewable by any Facebook user.5
Upon discovery, 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 wit:
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.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the
pictures in question, reported, as required, to the office of Sr. Celeste Ma.
Purisima Pe (Sr. Purisima), STC’s high school principal and ICM6 Directress.
They claimed that during the meeting, they were castigated and verbally abused
by the STC officials present in the conference, including Assistant Principal
Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is more, Sr.
Purisima informed their parents the following day that, as part of their
penalty, they are barred from joining the commencement exercises scheduled on
March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M.
Tan (Tan), filed a Petition for Injunction and Damages before the RTC of Cebu
City against STC, et al., docketed as Civil Case No. CEB-38594.7
In it, Tan prayed that defendants therein be enjoined from implementing the
sanction that precluded Angela from joining the commencement exercises. On
March 25, 2012, petitioner Rhonda Ave Vivares (Vivares), the mother of Julia,
joined the fray as an intervenor.
On March 28, 2012, defendants in Civil Case No. CEB-38594 filed their
memorandum, containing printed copies of the photographs in issue as annexes.
That same day, the RTC issued a temporary restraining order (TRO) allowing the
students to attend the graduation ceremony, to which STC filed a motion for
reconsideration.
Despite the issuance of the TRO, STC, nevertheless, barred the sanctioned
students from participating in the graduation rites, arguing that, on the date
of the commencement exercises, its adverted motion for reconsideration on the
issuance of the TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a
Writ of Habeas Data, docketed as SP. Proc. No. 19251-CEB8 on
the basis of the following considerations:
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.
To petitioners, the interplay of the foregoing constitutes an invasion of their
children’s privacy and, thus, prayed that: (a) a writ of habeas data be
issued; (b) respondents be ordered to surrender and deposit with the court all
soft and printed copies of the subject data before or at the preliminary
hearing; and (c) after trial, judgment be rendered declaring all information,
data, and digital images accessed, saved or stored, reproduced, spread and
used, to have been illegally obtained in violation of the children’s right to
privacy.
Finding the petition sufficient in form and substance, the RTC, through an
Order dated July 5, 2012, issued the writ of habeas data. Through
the same Order, herein respondents were directed to file their verified written
return, together with the supporting affidavits, within five (5) working days
from service of the writ.
In time, respondents complied with the RTC’s directive and filed their verified
written return, laying down the following grounds for the denial of the petition,
viz: (a) petitioners are not the proper parties to file the petition; (b)
petitioners are engaging in forum shopping; (c) the instant case is not one
where a writ of habeas data may issue; and (d) there can be no
violation of their right to privacy as there is no reasonable expectation of
privacy on Facebook.
Ruling
of the Regional Trial Court
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.
x x x x
SO ORDERED.9
To the trial court, petitioners failed to prove the existence of an actual or
threatened violation of the minors’ right to privacy, one of the preconditions
for the issuance of the writ of habeas data. Moreover, the court a quo held
that the photos, having been uploaded on Facebook without restrictions as to
who may view them, lost their privacy in some way. Besides, the RTC noted, STC
gathered the photographs through legal means and for a legal purpose, that is,
the implementation of the school’s policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant
to Section 19 of the Rule on Habeas Data.10
The Issues
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.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of 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.11 It is an independent and summary remedy
designed to protect the image, privacy, honor, information, and freedom of
information of an individual, and to provide a forum to enforce one’s right to
the truth and to informational privacy. It seeks to protect a person’s right to
control information regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to achieve
unlawful ends.12
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.”13 The
writ, however, will not issue on the basis merely of an alleged unauthorized
access to information about a person. Availment of the writ requires the
existence of a nexus between the right to privacy on the one hand, and the
right to life, liberty or security on the other.14 Thus, the
existence of a person’s right to informational privacy and a showing, at least
by substantial evidence, of an actual or threatened violation of the right to
privacy in life, liberty or security of the victim are indispensable before the
privilege of the writ may be extended.15
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.
The writ of habeas data is not only confined to
cases of extralegal killings and enforced disappearances
Contrary
to respondents’ submission, the Writ of Habeas Data was not
enacted solely for the purpose of complementing the Writ ofAmparo in
cases of extralegal killings and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec.
2. Who May File. – Any aggrieved party may file a petition for
the writ of habeas data. However, in cases of
extralegal killings and enforced disappearances, the petition may be
filed by:
(a)
|
Any member of the immediate family
of the aggrieved party, namely: the spouse, children and parents; or
|
(b)
|
Any ascendant, descendant or
collateral relative of the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in the preceding
paragraph. (emphasis supplied)
|
Had the framers of the Rule intended to narrow the operation of the writ only
to cases of extralegal killings or enforced disappearances, the above
underscored portion of Section 2, reflecting a variance of habeas data situations,
would not have been made.
Habeas data, to stress, was designed “to safeguard individual freedom from
abuse in the information age.”17 As such, it is erroneous
to limit its applicability to extralegal killings and enforced disappearances
only. In fact, the annotations to the Rule prepared by the Committee on the
Revision of the Rules of Court, after explaining that the Writ of Habeas
Data complements the Writ of Amparo, pointed out that:
The
writ of habeas data, however, can be availed of as an independent
remedy to enforce one’s right to privacy, more specifically the right to
informational privacy. The
remedies against the violation of such right can include the updating,
rectification, suppression or destruction of the database or information or
files in possession or in control of respondents.18 (emphasis
Ours)
Clearly then, the privilege of the Writ of Habeas Data may
also be availed of in cases outside of extralegal killings and enforced
disappearances.
Meaning of “engaged” in the gathering,
collecting or storing of data or information.
Respondents’
contention that the habeas data writ may not issue against
STC, it not being an entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of
the aggrieved party, while valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data protection
shall be available only against abuses of a person or entity engaged in
the business of gathering, storing, and collecting of data. As
provided under Section 1 of the Rule:
Section
1. 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. (emphasis
Ours)
The provision, when taken in its proper context, as a whole, irresistibly
conveys the idea that habeas data is a protection against
unlawful acts or omissions of public officials and of private individuals or
entities engaged in gathering, collecting, or storing data about the aggrieved
party and his or her correspondences, or about his or her family. Such
individual or entity need not be in the business of collecting or storing data.
To “engage” in something is different from undertaking a business endeavour. To
“engage” means “to do or take part in something.”19 It
does not necessarily mean that the activity must be done in pursuit of a
business. What matters is that the person or entity must be gathering,
collecting or storing said data or information about the aggrieved party or his
or her family. Whether such undertaking carries the element of regularity, as
when one pursues a business, and is in the nature of a personal endeavour, for
any other reason or even for no reason at all, is immaterial and such will not
prevent the writ from getting to said person or entity.
To agree with respondents’ above argument, would mean unduly limiting the reach
of the writ to a very small group, i.e., private persons and entities whose
business is data gathering and storage, and in the process decreasing the
effectiveness of the writ as an instrument designed to protect a right which is
easily violated in view of rapid advancements in the information and
communications technology––a right which a great majority of the users of
technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now proceed to the core
of the controversy.
The right to informational privacy on Facebook
The
Right to Informational Privacy
The concept of privacy has, through time, greatly evolved,
with technological advancements having an influential part therein. This
evolution was briefly recounted in former Chief Justice Reynato S. Puno’s
speech, The Common Right to
Privacy,20 where he explained the three strands of
the right to privacy, viz: (1) locational or situational privacy;21 (2)
informational privacy; and (3) decisional privacy.22 Of the
three, what is relevant to the case at bar is the right to informational privacy––usually defined as the right of
individuals to control information
about themselves.23
With the availability of numerous avenues for information gathering and data
sharing nowadays, not to mention each system’s inherent vulnerability to
attacks and intrusions, there is more reason that every individual’s right to
control said flow of information should be protected and that each individual
should have at least a reasonable expectation of privacy in cyberspace. Several
commentators regarding privacy and social networking sites, however, all agree
that given the millions of OSN users, “[i]n this [Social Networking]
environment, privacy is no longer grounded in reasonable expectations, but
rather in some theoretical protocol better known as wishful thinking.”24
It is due to this notion that the Court saw the pressing need to provide for
judicial remedies that would allow a summary hearing of the unlawful use of
data or information and to remedy possible violations of the right to privacy.25 In
the same vein, the South African High Court, in its Decision in the landmark
case, H v. W,26 promulgated on January 30, 2013,
recognized that “[t]he law has to take into account the changing realities not
only technologically but also socially or else it will lose credibility in the
eyes of the people. x x x It is imperative that the courts respond
appropriately to changing times, acting cautiously and with wisdom.” Consistent
with this, the Court, by developing what may be viewed as the Philippine model
of the writ of habeas data, in effect, recognized that, generally
speaking, having an expectation of informational privacy is not
necessarily incompatible with engaging in cyberspace activities, including
those that occur in OSNs.
The question now though is up to what extent is the right to privacy protected
in OSNs? Bear in mind that informational privacy involves personal information.
At the same time, the very purpose of OSNs is socializing––sharing a myriad of
information,27 some of which would have otherwise remained
personal.
Facebook’s Privacy Tools: a
response to
the clamor for privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to
interact and to stay connected to other members of the same or different social
media platform through the sharing of statuses, photos, videos, among others,
depending on the services provided by the site. It is akin to having a room
filled with millions of personal bulletin boards or “walls,” the contents of
which are under the control of each and every user. In his or her bulletin
board, a user/owner can post anything––from text, to pictures, to music and
videos––access to which would depend on whether he or she allows one, some or
all of the other users to see his or her posts. Since gaining popularity, the
OSN phenomenon has paved the way to the creation of various social networking
sites, including the one involved in the case at bar, www.facebook.com
(Facebook), which, according to its developers, people use “to stay connected
with friends and family, to discover what’s going on in the world, and to share
and express what matters to them.”28
Facebook connections are established through the process of “friending” another
user. By sending a “friend request,” the user invites another to connect their
accounts so that they can view any and all “Public” and “Friends Only” posts of
the other. Once the request is accepted, the link is established and both users
are permitted to view the other user’s “Public” or “Friends Only” posts, among
others. “Friending,” therefore, allows the user to form or maintain one-to-one
relationships with other users, whereby the user gives his or her “Facebook
friend” access to his or her profile and shares certain information to the
latter.29
To address concerns about privacy,30 but without defeating its
purpose, Facebook was armed with different privacy tools designed to regulate
the accessibility of a user’s profile31 as well as information
uploaded by the user. In H v. W,32 the
South Gauteng High Court recognized this ability of the users to “customize
their privacy settings,” but did so with this caveat: “Facebook states in its
policies that, although it makes every effort to protect a user’s information,
these privacy settings are not fool-proof.”33
For instance, a Facebook user can regulate the visibility and accessibility of digital images (photos), posted
on his or her personal bulletin or “wall,” except for the user’s profile
picture and ID, by selecting his or her desired privacy setting:
(a)
Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the user’s Facebook friends and their friends can
view the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or
networks of the Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set
up barriers to broaden or limit the visibility of his or her specific profile
content, statuses, and photos, among others, from another user’s point of view.
In other words, Facebook extends its users an avenue to make the availability
of their Facebook activities reflect their choice as to “when and to what extent
to disclose facts about [themselves] – and to put others in the position of
receiving such confidences.”34 Ideally, the selected setting
will be based on one’s desire to interact with others, coupled with the
opposing need to withhold certain information as well as to regulate the
spreading of his or her personal information. Needless to say, as the privacy
setting becomes more limiting, fewer Facebook users can view that user’s
particular post.
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.35
This, however, does not mean that any Facebook user automatically has a
protected expectation of privacy in all of his or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN activity, it
is first necessary that said user, in this case the children of
petitioners, manifest the intention to keep certain posts
private, through the employment of measures to prevent access thereto or to
limit its visibility.36 And this intention can materialize
in cyberspace through the utilization of the OSN’s privacy tools. In
other words, utilization of these privacy tools is the manifestation, in cyber
world, of the user’s invocation of his or her right to informational privacy.37
Therefore, a Facebook user who opts to make use of a privacy tool to grant or
deny access to his or her post or profile detail should not be denied the
informational privacy right which necessarily accompanies said choice.38
Otherwise, using these privacy tools would be a feckless exercise, such that
if, for instance, a user uploads a photo or any personal information to his or
her Facebook page and sets its privacy level at “Only Me” or a custom list so
that only the user or a chosen few can view it, said photo would still be
deemed public by the courts as if the user never chose to limit the photo’s
visibility and accessibility. Such position, if adopted, will not only strip
these privacy tools of their function but it would also disregard the very
intention of the user to keep said photo or information within the confines of
his or her private space.
We must now determine the extent that the images in question were visible to
other Facebook users and whether the disclosure was confidential in nature. In
other words, did the minors limit the disclosure of the photos such that the
images were kept within their zones of privacy? This determination is necessary
in resolving the issue of whether the minors carved out a zone of privacy when
the photos were uploaded to Facebook so that the images will be protected
against unauthorized access and disclosure.
Petitioners, in support of their thesis about their children’s privacy right
being violated, insist that Escudero intruded upon their children’s Facebook
accounts, downloaded copies of the pictures and showed said photos to Tigol. To
them, this was a breach of the minors’ privacy since their Facebook accounts,
allegedly, were under “very private” or “Only Friends” setting safeguarded with
a password.39 Ultimately, they posit that their children’s
disclosure was only limited since their profiles were not open to public
viewing. Therefore, according to them, people who are not their Facebook
friends, including respondents, are barred from accessing said post without
their knowledge and consent. As petitioner’s children testified, it was Angela
who uploaded the subject photos which were only viewable by the five of
them,40 although who these five are do not appear on the
records.
Escudero, on the other hand, stated in her affidavit41 that “my
students showed me some pictures of girls clad in brassieres. This student [sic]
of mine informed me that these are senior high school [students] of STC, who
are their friends in [F]acebook. x x x They then said [that] there are still
many other photos posted on the Facebook accounts of these girls. At the
computer lab, these students then logged into their Facebook account [sic], and
accessed from there the various photographs x x x. They even told me that there
had been times when these photos were ‘public’ i.e., not confined to their
friends in Facebook.”
In this regard, We cannot give much weight to the minors’ testimonies for one
key reason: failure to question the students’ act of showing the photos to
Tigol disproves their allegation that the photos were viewable only by the five
of them. Without any evidence to corroborate their statement that the images
were visible only to the five of them, and without their challenging Escudero’s
claim that the other students were able to view the photos, their statements
are, at best, self-serving, thus deserving scant consideration.42c
It
is well to note that not one of petitioners disputed Escudero’s sworn account
that her students, who are the minors’ Facebook “friends,” showed her the
photos using their own Facebook accounts. This only goes to show that no
special means to be able to view the allegedly private posts were ever resorted
to by Escudero’s students,43 and that it is reasonable to
assume, therefore, that the photos were, in reality, viewable either by (1)
their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is “Public,” it can be
surmised that the photographs in question were viewable to everyone on
Facebook, absent any proof that petitioners’ children positively limited the
disclosure of the photograph. If such were the case, they cannot invoke the
protection attached to the right to informational privacy. The ensuing
pronouncement in US v.
Gines-Perez44 is
most instructive:
[A]
person who places a photograph on the Internet precisely intends to forsake and
renounce all privacy rights to such imagery, particularly under circumstances
such as here, where the Defendant did not employ protective measures or devices
that would have controlled access to the Web page or the photograph itself.45
Also, United States v. Maxwell46 held
that “[t]he more open the method of transmission is, the less privacy one can
reasonably expect. Messages sent to the public at large in the chat room or
e-mail that is forwarded from correspondent to correspondent loses any
semblance of privacy.”
That the photos are viewable by “friends only” does not necessarily bolster the
petitioners’ contention. In this regard, the cyber community is
agreed that the digital images under this setting still remain to be outside
the confines of the zones of privacy in view of the following:
(1)
|
Facebook
“allows the world to be more open and connected by giving its users the tools
to interact and share in any conceivable way;”47
|
(2)
|
A
good number of Facebook users “befriend” other users who are total strangers;48
|
(3)
|
The
sheer number of “Friends” one user has, usually by the hundreds; and
|
(4)
|
A
user’s Facebook friend can “share”49 the former’s post, or
“tag”50 others who are not Facebook friends with the former,
despite its being visible only to his or her own Facebook friends.
|
It is well to emphasize at this point that setting a post’s or profile detail’s
privacy to “Friends” is no assurance that it can no longer be viewed by another
user who is not Facebook friends with the source of the content. The user’s own
Facebook friend can share said content or tag his or her own Facebook friend
thereto, regardless of whether the user tagged by the latter is Facebook
friends or not with the former. Also, when the post is shared or when a person
is tagged, the respective Facebook friends of the person who shared the post or
who was tagged can view the post, the privacy setting of which was set at
“Friends.”
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are
not Facebook friends. If C, A’s Facebook friend, tags B in A’s post, which is
set at “Friends,” the initial audience of 100 (A’s own Facebook friends) is
dramatically increased to 300 (A’s 100 friends plus B’s 200 friends or the
public, depending upon B’s privacy setting). As a result, the audience who can
view the post is effectively expanded––and to a very large extent.
This, along with its other features and uses, is confirmation of Facebook’s
proclivity towards user interaction and socialization rather than seclusion or
privacy, as it encourages broadcasting of individual user posts. In fact, it
has been said that OSNs have facilitated their users’ self-tribute, thereby
resulting into the “democratization of fame.”51 Thus, it is
suggested, that a profile, or even a post, with visibility set at “Friends
Only” cannot easily, more so automatically, be said to be “very private,”
contrary to petitioners’ argument.
As applied, even assuming that the photos in issue are visible only to the
sanctioned students’ Facebook friends, respondent STC can hardly be taken to
task for the perceived privacy invasion since it was the minors’ Facebook
friends who showed the pictures to Tigol. Respondents were mere recipients of
what were posted. They did not resort to any unlawful means of gathering the
information as it was voluntarily given to them by persons who had legitimate
access to the said posts. Clearly, the fault, if any, lies with the friends of the
minors. Curiously enough, however, neither the minors nor their parents imputed
any violation of privacy against the students who showed the images to
Escudero.
Furthermore, petitioners failed to prove their contention that respondents
reproduced and broadcasted the photographs. In fact, what petitioners
attributed to respondents as an act of offensive disclosure was no more than
the actuality that respondents appended said photographs in their memorandum
submitted to the trial court in connection with Civil Case No. CEB-38594.52 These
are not tantamount to a violation of the minor’s informational privacy rights,
contrary to petitioners’ assertion.
In sum, there can be no quibbling that the images in question, or to be more
precise, the photos of minor students scantily clad, are personal in nature,
likely to affect, if indiscriminately circulated, the reputation of the minors
enrolled in a conservative institution. However, the records are bereft of any
evidence, other than bare assertions that they utilized Facebook’s privacy
settings to make the photos visible only to them or to a select few. Without
proof that they placed the photographs subject of this case within the ambit of
their protected zone of privacy, they cannot now insist that they have an
expectation of privacy with respect to the photographs in question.
Had it been proved that the access to the pictures posted were limited to the
original uploader, through the “Me Only” privacy setting, or that the user’s
contact list has been screened to limit access to a select few, through the
“Custom” setting, the result may have been different, for in such instances,
the intention to limit access to the particular post, instead of being
broadcasted to the public at large or all the user’s friends en masse, becomes
more manifest and palpable.
On
Cyber Responsibility
It
has been said that “the best
filter is the one between your children’s ears.”53 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.54 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 teenagers can sometimes go too far
since they generally lack the people skills or general wisdom to conduct
themselves sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons
on good cyber citizenship in its curriculum to educate its students on proper
online conduct may be most timely. Too, it is not only STC but 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.58 Furthermore, considering
the complexity of the cyber world and its pervasiveness, as well as the dangers
that these children are wittingly or unwittingly exposed to in view of their
unsupervised activities in cyberspace, 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’s no substitute for parental involvement and
supervision.”59
As such, STC cannot be faulted for being steadfast in its duty of teaching its
students to be responsible in their dealings and activities in cyberspace,
particularly in OSNs, when it enforced the disciplinary actions specified in
the Student Handbook, absent a showing that, in the process, it violated the
students’ rights.
OSN users should be aware of the risks that they expose themselves to whenever
they engage in cyberspace activities. Accordingly, they should be cautious
enough to control their privacy and to exercise sound discretion regarding how
much information about themselves they are willing to give up. Internet
consumers ought to be aware that, by entering or uploading any kind of data or
information online, they are automatically and inevitably making it permanently
available online, the perpetuation of which is outside the ambit of their
control. Furthermore, and more importantly, information, otherwise private,
voluntarily surrendered by them can be opened, read, or copied by third parties
who may or may not be allowed access to such.
It
is, thus, incumbent upon internet users to exercise due diligence in their
online dealings and activities and must not be negligent in protecting their
rights. Equity serves the vigilant. Demanding relief from the courts, as here,
requires that claimants themselves take utmost care in safeguarding a right
which they allege to have been violated. These are indispensable. We cannot
afford protection to persons if they themselves did nothing to place the matter
within the confines of their private zone. OSN users must be mindful enough to
learn the use of privacy tools, to use them if they desire to keep the
information private, and to keep track of changes in the available privacy
settings, such as those of Facebook, especially because Facebook is notorious
for changing these settings and the site’s layout often.
In finding that respondent STC and its officials did not violate the minors’
privacy rights, We find no cogent reason to disturb the findings and case
disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other assigned
errors.
WHEREFORE, premises considered, the petition is hereby DENIED.
The Decision dated July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu
City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.c
Peralta, Villarama, Jr., Reyes, and Jardeleza, JJ.,
concur.
*(Bold,
italic and underline statements were underscored by the publisher for emphasis)
