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E. Privacy of communications and correspondence

1. CONCEPT

The right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional right. (Gamboa v. Chan, En Banc, G.R. No. 193636, 24 July 2012)

a. The three (3) strands of the right to privacy

The following are the three (3) strands of the right to privacy:

1) Locational or situational privacy;

2) Informational privacy; and,

3) Decisional privacy. (Vivares v. St. Theresa’s College, G.R. No. 202666, 29 September 2014)

1) Locational or situational privacy

Locational or situational privacy – refers to the privacy that is felt in physicalspace, such as that which may be violated by trespass and unwarranted search and seizure. (Ibid at Footnote 21)

2) Informational privacy

Informational privacy is usually defined as the right of individuals to control information about themselves. (Vivares v. St. Theresa’s College, supra.)

a) Online social network (OSN) and privact settings/tools

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.” (Vivares v. St. Theresa’s College, supra.)

To address concerns about privacy, but without defeating its purpose, Facebook was armed with different privacy tools designed to regulate the accessibility of a user’s profile as well as information uploaded by the user. In H v. W, 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 foolproof.” (Ibid.)

It is through the availability of said privacy tools that many OSN users are said to have a subjective expectation that only those to whomthey grant access to their profile will view the information they post or upload thereto… This, however, does not mean that any Facebook user automatically has a protected expectation of privacy inall of his or her Facebook activities. (Ibid.)

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. 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. (Ibid.)

(1) Public

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 suchwere the case, they cannot invoke the protection attached to the right to informational privacy. (Ibid.)

(2) Friends only

The cyber community is agreed that the digital images under the “friends only” 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;”

2) A good number of Facebook users “befriend” other users who are total strangers;

3) The sheer number of “Friends” one user has, usually by the hundreds; and

4) A user’s Facebook friend can “share” the former’s post, or “tag” others who are not Facebook friends with the former, despite its being visible only tohis or her own Facebook friends. (Ibid.)

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.” (Ibid.)

3) Decisional privacy

Decisional privacy – is usually defined as the right of individuals to make certain kinds of fundamental choices with respect to their personal and reproductive autonomy. (Ibid at Footnote 22)

2. TEST: REASONABLE EXPECTATION OF PRIVACY

In ascertaining whether there is a violation of the right to privacy, courts use the “reasonable expectation of privacy” test. This test determines whether a person has a reasonable expectation of privacy and whether the expectation has been violated. (Sps. Hing v. Choachuy, Sr., G.R. No. 179736, 26 June 2013)

a. Two-Part Test

The reasonableness of a person’s expectation of privacy depends on a two-part test:

1) Whether by his conduct, the individual has exhibited an expectation of privacy; and,

2) Whether this expectation is one that society recognizes as reasonable. (Ople v. Torres, En Banc, G.R. No. 127685, 23 July 1998)

Customs, community norms, and practices may, therefore, limit or extend an individual’s “reasonable expectation of privacy.” Hence, the reasonableness of a person’s expectation of privacy must be determined on a case-to-case basis since it depends on the factual circumstances surrounding the case. (Sps. Hing v. Choachuy, Sr., supra.)

The factual circumstances of the case determines the reasonableness of the expectation. However, other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this expectation. (Ople v. Torres, supra.)

1. Concept of communications, correspondence

a. CONCEPT

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. (Section 3[1], Article III, 1987 Constitution)

b. ZONES OF PRIVACY

Zones of privacy are likewise recognized and protected in our laws. (Gamboa v. Chan, En Banc, G.R. No. 193636, 24 July 2012)

1) Civil Code

The Civil Code provides that “every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. (Ibid.)

2) Revised Penal Code

The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. (Ibid.)

3) Special Laws

Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual Property Code. (Ibid.)

4) Rules of Court

The Rules of Court on privileged communication likewise recognize the privacy of certain information. (Ibid.)

2. Intrusion, when and how allowed

a. LIMITATION OF RIGHT TO PRIVACY

The right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. (Ople v. Torres, supra.)

a. Narrowly focused, compelling interest

The right to privacy merely requires that the law be narrowly focused and a compelling interest justify such intrusions. Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. (Ibid.)

b. Strict scrutiny

Any law or order that invades individual privacy will be subjected by this Court to strict scrutiny. (Ibid.)

3. Exclusionary rule

a. CONCEPT

Any evidence obtained in violation of the privacy of communication and correspondence shall be inadmissible for any purpose in any proceeding. (Section 3[2], Article III, 1987 Constitution)

b. PRIVILEGED COMMUNICATION

Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:

1) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants (Section 24[a], Rule 130, Rules of Court)

2) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity (Section 24[b], Rule 130, Ibid.);

3) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient (Section 24[c], Rule 130, Ibid.);

4) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs (Section 24[d], Rule 130, Ibid.);

5) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure (Section 24[e], Rule 130, Ibid.);

6) Parental and filial privilege: No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. (Section 25, Rule 130, Ibid.)

Case Law

1) The constitutional injunction declaring “the privacy of communication and correspondence [to be] inviolable” is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband’s infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a “lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law.” Any violation of this provision renders the evidence obtained inadmissible “for any purpose in any proceeding.” (Zulueta v. CA, G.R. No. 107383, 20 February 1996)

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