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.

“ARE ORDINARY CITIZENS ENTITLED TO FREE ACCESS TO INFORMATION EVEN IF THE INFORMATION IS CONFIDENTIAL?”

TECHNOLOGY AND THE LAW

ATTY. BERNE GUERRERO

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

                                                             

REACTION PAPER

“ARE ORDINARY CITIZENS ENTITLED TO FREE ACCESS TO INFORMATION EVEN IF THE INFORMATION IS CONFIDENTIAL?”

Our law recognizes the right to information and freedom of expression. Freedom is a right or liberty guaranteed by a constitution or fundamental law (Webster 1971).  In this regard, Section 7 of the Bill of Rights of the 1987 Constitution reads: “The right of the 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 limitations as may be provided by law.”  In addition, Article II (Declaration of Principles and State Policies), Section 28 also states: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”  Hence, it is clear that access to information is a guaranteed right.

However, every right has its limitation.  It can be observed that the 1987 Constitutions also stated limitations to access information as may be provided by law.  Thus, an ordinary citizen may be denied to access certain information if it is confidential or the revelation of information requested will create a clear and present danger of war, invasion or any external threat to the State, or would unduly weaken the negotiating position of the government in an ongoing bilateral or multilateral negotiation or seriously jeopardize the diplomatic relations of the Philippines with one or more states with which it intends to keep friendly relations or the information requested pertains to the personal information of a natural person other than the requesting party, and its disclosure would constitute a clearly unwarranted invasion of his or her personal privacy (Senate Committee Report No. 534 2009).

On the other hand, ordinary citizens should be able to access the restricted or confidential information if public interest in the disclosure outweighs the harm to the interest sought to be protected by non-disclosure (ATIN 2009).  Thus, the paramount consideration of the accessibility of information is not the nature of information but the magnitude of benefits over its costs.  In this regard, ordinary citizens must be allowed to access confidential information if its disclosure will outweigh the harm of its non-disclosure.

In view of the above discussion, it is also worth to point out that our law also protects the right to privacy. An important part of that right is the protection of confidential information such as but not limited to financial, credit, insurance, medical and other records that are expected to be confidential most especially to private individuals.  Between the Right to Information and Right to Privacy, the latter prevails.  The limits of freedom of information and expression are reached when it touches upon matters of private concern. The improper access to confidential information, most especially on personal matters violates the constitutional right to privacy.   Section 3, Article III of the 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”. 

With regard to the record keeper of such confidential information, he also has the duty not to disclose the information in the record without the consent of the individual unless required to do so by legal process or government reporting requirements. Real protection demands that the individual have the means to prevent improper disclosures by a record keeper and secure redress against a record keeper who violates the basic expectation of confidentiality.

However, similar to the right to information, right to privacy also has limitations. A record keeper's duty not to disclose recorded information in which an individual has a legitimate expectation of confidentiality should not prohibit every disclosure. Obviously, there are circumstances in which the record keeper should have the discretion, or even the duty, to disclose. Protecting privacy does not mean completely insulating an individual. If a record keeper becomes aware from information generated in its relationship with an individual that he is engaged in illegal activity, then the record keeper should be under some obligation to disclose that information to proper authorities, as would any other citizen. For example, if a bank holds confidential documentary information which indicates that an individual is engaged in illegal transfers of funds to a foreign nation, the bank might be implicated as an accessory if one of its officers were aware of the transfer and the bank did not report it.

In summary, ordinary citizen are generally prohibited to access information in which a legitimate expectation of confidentiality should exist most especially if it is within the ambit of one’s privacy. However, if non-disclosure of the information will harm public interest such as national security, ordinary citizen who access such information should not be sanctioned.

References:

Access to Information Network (ATIN) 2009, Freedom of Information Bill, House Bill No. 3732, A presentation to CHAT.

Philippine Constitution 1987, Declaration of Principles and State Policies, Section 28

Philippine Constitution 1987, Bill of Rights, Section 7

Senate Committee Report No. 534 2009, Senate Bill No. 3308.

Webster Third New International Dictionary 1971

38 Burdeau v. McDowell, 256 U.S. 465 (1921)

http://aspe.hhs.gov/datacncl/1977privacy/c9.htm

Reaction Paper - Use of Social Network Service by Broadcast Media

AURE, LELILA G. (2007-0228)                                                              TECHNOLOGY AND THE LAW

ATTY. BERNE GUERRERO

REACTION PAPER

IS IT PROPER FOR THE BROADCASTING MEDIA NETWORKS TO USE “SOCIAL NETWORK SERVICES” OR SUGGEST TO USE “SOCIAL NETWORK SITES?

Social network sites are undeniably gaining a lot of popularity these days which according to PCPortal website, there are about 750 million users of Facebook followed by LinkedIn, MySpace and Twitter.  Social networks are services on the Internet which allow a person to build networks, nurture relationships and share media (Manovich, L 2003 in Quilinguing, K 2011).  It is also worth noting that social network sites are web-based services that allow individuals to create a public or semi-public profile within a bounded system; to articulate a list of other users with whom they share a connections and those made by others within the system; and view and traverse their list of connections and those made by others within the system (Boyd, D. M. and Ellison, N. B. 2007). 

Broadcast media on the other hand, “covers a wide spectrum of different communication methods such as television, radio, newspapers, magazines and any other materials supplied by the media and press” (http://www.lib.uct.ac.za/infolit/media.htm).  In todays broadcast media, it is not uncommon to hear, see or read request to their audiences to participate in any discussion, programs or activities using a prticular social network.  Thus, social networks have become a medium of communciation between the broadcast media and their audiences.  In addition, it’s utilization in the broadcast media is aimed at increasing its audience share and to solicit news stories from their followers. 

In this regard, an issue arose as to the approprietness of suggesting a particular social network by media broadcasting networks?

I think, the use of a social network by broadcast media is acceptable given its important role in the society.  Broadcast media especially its news and public affairs program were design to inform the public in general.  It is worth mentioning that in today’s highly competitive environment, broadcasters need to use every technology to reach the audience whenever and wherever they are (Grotticelli, M 2009).  However, extra-ordinary caution must be exercise by broadcast media in using reports, stories and other information provided by their followers in the social network especially if it entails public safety or individual’s privacy.

On the other hand, Article 2 Section 1 of the 2007 Broadcast Code of the Philippines encouraged the airing of public affairs program to give the public the opportunity to participate in the discussions of current issues, concerns and events.  As noted, social networks have become an avenue for broadcast media to encourage the people to participate in the common issues.  A good example would be the “Bayan Mo, iPatrol Mo” which maximized new media for reports on irregularities in government offices before, during and after the election (Quilinguing, K 2011).  Furthermore, Mirandilla-Santos stressed people are not only blogging to keep track of their thoughts but also inform people in their network of an event, to serve as political watchdogs and to give calls to action (Mirandilla-Santos, G 2011)

Moreover, thru social networks, broadcast media can receive feedback or comments about their programs that they can use to improve its design.  Thus, helping them to tailor fit their programs to the needs of their audience.  In this way, broadcast media can serve their primary purpose of existence.  It is also worth mentioning that the United States and the Philippines government have started using social media to engage the public and to promote greater transparency in governance (Quilinguing, K 2011).  Hence, both the Obama and the Aquino administrations have established social media accounts which allow online users to communicate more conveniently with administration officials.

Finally, the use of social network by broadcast media should be welcome as long as it promotes fairness and objectivity especially in disseminating news stories and information to the public.  It is worth to note that broadcast media is playing a siginifcant role in the society, thus, it is imperative for them to be more innovative in providing timely and useful information to the public and one way to do it is to use social networks as a medium to deliver or share timely news stories or information that are of interest to their audiences/public.  Hence, there are no significant rationales for broadcast media for not using social network.

References:

Boyd, D. M. and Ellison, N. B. 2007, Social Network Sites: Definition, history, and scholarsip, Journal of Computer-Mediated Communication, 13(1), Article 11.

 http://jcmc.indiana.edu/vol13/issue1/boyd.ellison.html, viewed on July 12, 2011.

Grotticelli, M 2009, Social Networkinghelps stations increase audience,

http://broadcastengineering.com/news/social-network-helps-station-0918/, viewed on July 13, 2011.

Kapisanan ng mga Brodkaster ng Pilipinas 2007, Broadcast code of the Philippines.

http://www.kbp.org.ph/wp-content/uploads/2008/04/Broadcast%20Code%20of%202007.pdf, viewed on July 12, 2011

Mirandilla-Santos, M. G. 2011, A-List Filipino Bloggers and Their Readers: Who they are, why they access blogs, and how they perceive and participatein politics?,

http://www.scribd.com/doc/49764715/A-List-Filipino-Political-Bloggers-Readers-Mirandilla-NCPAG-Feb-26-11, viewed on July 13, 2011.

PCPortal Philippines Premier Computer and Gadget Portal Site, Social Networking Sites Ranking,  July 10, 2011,

http://www.pcportal.ph/2011/07/social-networking-sites-ranking/, viewed on July 10, 2011.

Quilinguing, K 2011, New Media as Transparency Tools, UP Forum,

http://www.up.edu.ph/upforum.php?issue=41&i=361, viewed on July 10, 2011.