Whether websites such as Chan Robles, LawPhil and other repository of laws and jurisprudence be compelled by a private party whose name is mentioned in the decision to remove the decision or jurisprudence in their repository on the claim that this violate his right to privacy?

TECHNOLOGY AND THE LAW

ATTY. BERNE GUERRERO

AURE, LELILA G. (2007-0228)                                                             2 September 2011

                                                             

REACTION PAPER

DEMAND OF PRIVATE INVIDUAL TO REMOVE A DECIDED CASE POSTED ON WEBSITES INVOKING HIS RIGHT TO PRIVACY

I.        Background

The modern technological advancement today have been effective in reducing the time, cost and effort to access or retrieve any kind of information through the use of computer and internet as compared to several decades ago which requires the individual seeking for information to visit the nearest library to consult books or any other reading materials or different government and private offices just to gather the needed information or data.  Indeed, computer and internet made the access and retrieval of information faster, easier and cheaper.  Simply put, information nowadays is just a click away.

Moreover, computer and internet dramatically enhance the exchanges of informations to practically a fraction of a second.  Thus, it is easier to gather or disseminate information from anywhere in the world, especially now that most government and private offices have put up websites that keeps different kinds of information or data in various digital formats that can be access free of charge or for a fee by every internet users.  Specifically, there are countless websites that are devoted to news, entertainment, general information, etc.. 

However, there are some disadvantages with these technological advancements such as the spread of rumors and other fictitious information/data that can be offensive to a certain individuals that can be regarded as intrusion to privacy which is defined as “the quality or state of being apart from the company or observation of others” (Webster 1971:1804).  But what if the informations posted in the internet were jurisprudence and court decision?  Can it be regarded as intrusion to an individual’s right to privacy?  It is worth to note that Jurisprudence is defined as the course of court decisions as distinguished from legislation or doctrine (Webster 1971:1227) while Moreno (1972:257) puts it as “the groundwork of the written law; the particular science of giving a wise interpretation to the laws and making a just application of them to all cases as they arise”.

A good example is the posting of some Philippine Supreme Court decisions in its official website.  In addition, there are other private firms or organizations like Chan Robles and LawPhil that has a wide collection of foreign and local juriprudence.  As a consequence, some private individuals named in the decision posted on-line have found it as violating their right to privacy especially those individuals who are named in rape and other sensitive cases involving disputes between married couple or family members.

II.      The Issue 

Whether websites such as Chan Robles, LawPhil and other repository of laws and jurisprudence be compelled by a private party whose name is mentioned in the decision to remove the decision or jurisprudence in their repository on the claim that this violate his right to privacy?

III.    Pertinent Regulations

According to Bocobo (2005), the most basic human right in a democratic society is to be secure in our persons, homes and possessions which include all the physical and mental aspects of private personhood and citizenship in the private sector.  He also stressed that the Right to Privacy is the foundation of most if not all of the human rights and duties that are granted to individual citizens under a Constitutional Democracy.  Thus, the Right to Privacy is the Mother of all democratic rights.

Hence, the 1987 Philippine Constitution expressly provided in Article II, Section 2 that:

[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable…

In this regard, there are legislations that are specifically design to address the right to privacy such as the Bank secrecy and Anti-wiretapping law.  Also, to protect the victims and the accused in rape cases, RA No. 8505 otherwise known as Rape Victim Assistance and Protection Act of 1998 was enacted which provided that:

[a]t any stage of the investigation, prosecution and trial of a complaint for rape, the police officer, the prosecutor, the court and its officers, as well as the parties to the complaint shall recognize the right to privacy of the offended party and the accused.  Towards this end, the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best of interest of the parties, order a closed-door investigation, prosecution or trial and that the name and personal circumstances of the offended party and/or the accused, or any otherinformation tending to establish their identities, and such circumstances or information on the complaint shall not be disclosed to the public.

Moreover, Section 44 of Republic Act (RA) No. 9262 otherwise known as the Anti-Violence Against Women and their Children Act of 2004 expressly prohibits the disclosure and publication in any forms the identities of the victims to protect their privacy, viz: 

Sec.  44. Confidentiality. – All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics to hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter's consent, shall be liable to the contempt power of the court.

Accordingly, based on the said legislation, the Supreme Court has “resolved to withhold the real name of the victim-survivor and to use fictitious initials instead to represent her in its decisions.  Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well as those of their immediate family or household members, shall not be disclosed” (People vs.Garcia, G.R. No. 177740).

On the other hand, the 1987 Philippine Constitution also expressly provided in Article II, Section 7 that:

[t]he right of people to information on matters of public concern shall be recognized.  Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Also, it is important to note that, Chapter 6, Section 24 of Executive Order (s1987) No. 292 or the Administrative Code of 1987 states that:

[t]here shall be published in the Official Gazette all legislative acts and resoclutions of a public nature; all excutive and administratve issuances of general application; decisions or abstracts of decisions of the Supreme Court and the Court of Appeals, or other courts of similar rank, as may be deemed by said courts of sufficient importance to be so published; such documents of classes of documents as may as may be required so to be published by law; and such documents or classes of documents as the President shall determine from time to time to have general application or which he may authorize or which he may authorize to be published.

The publication of any law, resolution or other official documents in the Official Gazette shall be prima facie evidence of its authority. 

It also observed that the publication in the Official Gazette of any law, resoulution or other official documents is a prima facie evidence of its authority.

IV.    Arguments/Conclusions

Based on the above observations, we are now faced with an important question of which of the two constitutional guaranteed rights prevail, the “Right to Information” or “Right to Privacy”?

As noted above, the right to privacy is the mother of all democratic rights.  Thus, it is important to note that in the long line of cases decided by the Supreme Court, the right to privacy prevails over the right to information.  The limits of freedom of information and expression are reached when it touches upon matters of private concern.  However, as every guaranteed right, right to privacy has its limitation.  According to Warren and Brandeis (1890), “[t]he right to privacy does not prohibit any publication of matter which is of public or general interest”.  In this regard, jurisprudence which is sometimes referred to as case law can be afforded as concerning the public or general interest. 

Based on these observations, except for an express provision of the law that prohibits such publication or disclosure of identities such as R.A. No. 9262 (Anti-VAWCI) & R.A. No. 8505 (Rape Victim Assistance and Protection Act), a private individual cannot compel the administrators or owners of websites such as Chan Robles and PhilLaw to remove the posted decision contaning his or her identities because there is a law requiring its publication.

However, it is worth to note that withholding the names of the parties will not affect the substance of the juriprudence.  Thus, it is recommended that a law be enacted to protect the identities of every individuals named in the jurisprudence by using fictitious initials or by assigning numbers. 

References:

1987 Philippine Constitution, Article 2, Sections 2 and 7

Bocobo, J 2005 The right to privacy and the public’s right to know, Philippine Commentary V3.0,

http://philippinecommentary.blogspot.com/2005/12/right-to-privacy-and-publics-right-to.html, viewed on Spetember 13, 2011.

Executive Order No. 292 otherwise known as the Administrative Code of 1987, Chapter 6, Section 24.

Moreno, F 1972 Philippine Law Dictionary, p.257.

Republic Act No. 8505 Otherwise Known as Rape Victim Assistance and Protection Act of 1998

Republic Act No. 9262 An Act Defining Violence Against Women and their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefore, and for Other Purposes Otherwise Known as the Anti-Violence Against Women and their Children Act of 2004.

Supreme Court of the Philippines, People of the Philippines vs. Romulo Garcia y Maceda, G.R. No. 177740, Promulgated on April 5, 2010.

Warren, S and Brandeis, L 1890, The right to privacy, Harvard Law Review, Vol. IV, No. 5, Boston, United States of America,

http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html, viewed on September 12, 2011.

Webster Third International New Dictionary 1971, pp.1227 and 1804.