Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 110662 August 4, 1994
TERESITA SALCEDO-ORTANEZ, petitioner, 
vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of
Quezon City and RAFAEL S. ORTANEZ, respondents.

Oscar A. Inocentes & Associates Law Office for petitioner.

Efren A. Santos for private respondent.

PADILLA, J.:

This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the decision * of
respondent Court of Appeals in CA-G. R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon.
Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez".

The relevant facts of the case are as follows:

On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City
a complaint for annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez, on
grounds of lack of marriage license and/or psychological incapacity of the petitioner. The complaint
was docketed as Civil Case No. Q-90-5360 and raffled to Branch 94, RTC of Quezon City presided over
by respondent Judge Romeo F. Zamora.

Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to
"M".

Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone
conversations between petitioner and unidentified persons.

Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June
1992; on the same day, the trial court admitted all of private respondent's offered evidence.

A motion for reconsideration from petitioner was denied on 23 June 1992.

A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in
evidence of the aforementioned cassette tapes.

On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present petition,
which in part reads:

It is much too obvious that the petition will have to fail, for two basic reasons:

(1) Tape recordings are not inadmissible per se. They and any other variant thereof can
be admitted in evidence for certain purposes, depending on how they are presented and
 offered and on how the trial judge utilizes them in the interest of truth and fairness and
the even handed administration of justice.

(2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in

admitting evidence adduced during trial. The ruling on admissibility is interlocutory;
neither does it impinge on jurisdiction. If it is erroneous, the ruling should be questioned
in the appeal from the judgment on the merits and not through the special civil action
of certiorari. The error, assuming gratuitously that it exists, cannot be anymore than an
error of law, properly correctible by appeal and not by certiorari. Otherwise, we will
have the sorry spectacle of a case being subject of a counterproductive "ping-pong" to
and from the appellate court as often as a trial court is perceived to have made an error
in any of its rulings with respect to evidentiary matters in the course of trial. This we
cannot sanction.

WHEREFORE, the petition for certiorari being devoid of merit, is hereby DISMISSED. 1

From this adverse judgment, petitioner filed the present petition for review, stating:

Grounds for Allowance of the Petition

10. The decision of respondent [Court of Appeals] has no basis in law nor previous
decision of the Supreme Court.

10.1 In affirming the questioned order of respondent judge, the Court of

Appeals has decided a question of substance not theretofore determined
by the Supreme Court as the question of admissibility in evidence of tape
recordings has not, thus far, been addressed and decided squarely by the
Supreme Court.

11. In affirming the questioned order of respondent judge, the Court of Appeals has
likewise rendered a decision in a way not in accord with law and with applicable
decisions of the Supreme Court.

11.1 Although the questioned order is interlocutory in nature, the same

can still be [the] subject of a petition for certiorari. 2

The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules of
Court was properly availed of by the petitioner in the Court of Appeals.

The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a
trial court. The proper remedy in such cases is an ordinary appeal from an adverse judgment,
incorporating in said appeal the grounds for assailing the interlocutory order.

However, where the assailed interlocutory order is patently erroneous and the remedy of appeal
would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of
redress. 3

In the present case, the trial court issued the assailed order admitting all of the evidence offered by
private respondent, including tape recordings of telephone conversations of petitioner with
unidentified persons. These tape recordings were made and obtained when private respondent
allowed his friends from the military to wire tap his home telephone. 4

Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations
of the Privacy of Communication, and for other purposes" expressly makes such tape recordings
inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as follows:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties
to any private communication or spoken word, to tap any wire or cable, or by
using any other device or arrangement, to secretly overhear, intercept, or record
such communication or spoken word by using a device commonly known as a
dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or
however otherwise described. . . .

Sec. 4. Any communication or spoken word, or the existence, contents,

substance, purport, or meaning of the same or any part thereof, or any
information therein contained, obtained or secured by any person in violation of
the preceding sections of this Act shall not be admissible in evidence in any
judicial, quasi-judicial, legislative or administrative hearing or investigation.

Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of
the law in admitting in evidence the cassette tapes in question. Absent a clear showing that both
parties to the telephone conversations allowed the recording of the same, the inadmissibility of the
subject tapes is mandatory under Rep. Act No. 4200.

Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof
imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for violation
of said Act. 5

We need not address the other arguments raised by the parties, involving the applicability of American
jurisprudence, having arrived at the conclusion that the subject cassette tapes are inadmissible in
evidence under Philippine law.

WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET ASIDE. The
subject cassette tapes are declared inadmissible in evidence.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 107383             February 20, 1996

CECILIA ZULUETA, petitioner, 
vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional
Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her
from private respondent's clinic without the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a
driver and private respondent's secretary, forcibly opened the drawers and cabinet in her husband's
clinic and took 157 documents consisting of private correspondence between Dr. Martin and his
alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and photographs.
The documents and papers were seized for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages
against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after
trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the
capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those
further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and any person
acting in her behalf to a immediately return the properties to Dr. Martin and to pay him P5,000.00, as
nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the suit.
The writ of preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her
attorneys and representatives were enjoined from "using or submitting/admitting as evidence" the
documents and papers in question. On appeal, the Court of Appeals affirmed the decision of the
Regional Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and papers to be properties of private
respondent, ordered petitioner to return them to private respondent and enjoined her from using
them in evidence. In appealing from the decision of the Court of Appeals affirming the trial court's
decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr., 1 this Court ruled that the
documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that case) were
admissible in evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did not
constitute malpractice or gross misconduct, For this reason it is contended that the Court of Appeals
erred in affirming the decision of the trial court instead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other
things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the
documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the
injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took
note of the following defense of Atty. Felix; Jr. which it found to be "impressed with merit:" 2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains
that:
....
4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial
Court, there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from
using the documents Annex "A-1 to J-7." On September 6, 1983, however having appealed the
said order to this Court on a petition for certiorari, this Court issued a restraining order on
aforesaid date which order temporarily set aside the order of the trial court. Hence, during the
enforceability of this Court's order, respondent's request for petitioner to admit the
genuineness and authenticity of the subject annexes cannot be looked upon as malpractice.
Notably, petitioner Dr. Martin finally admitted the truth and authenticity of the questioned
annexes, At that point in time, would it have been malpractice for respondent to use
petitioner's admission as evidence against him in the legal separation case pending in the
Regional Trial Court of Makati? Respondent submits it is not malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself
under oath, Such verified admission constitutes an affidavit, and, therefore, receivable in
evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself of
her husband's admission and use the same in her action for legal separation cannot be treated
as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration
that his use of the documents and papers for the purpose of securing Dr. Martin's admission as to their
genuiness and authenticity did not constitute a violation of the injunctive order of the trial court. By no
means does the decision in that case establish the admissibility of the documents and papers in
question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the documents
and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The
TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against
the trial court's order was dismissed and, therefore, the prohibition against the further use of the
documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence [to be] inviolable" 3 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." 4 Any violation of this provision renders the evidence
obtained inadmissible "for any purpose in any proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged.
Neither husband nor wife may testify for or against the other without the consent of the affected
spouse while the marriage subsists.6Neither may be examined without the consent of the other as to
any communication received in confidence by one from the other during the marriage, save for
specified exceptions.7 But one thing is freedom of communication; quite another is a compulsion for
each one to share what one knows with the other. And this has nothing to do with the duty of fidelity
that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
 
G.R. No. 127685 July 23, 1998

BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT BARBERS,
CARMENCITA REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE
NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

PUNO, J.:

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking
of the right to privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive
of rights and the right most valued by civilized men." 1 Petitioner Ople prays that we invalidate
Administrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference
System" on two important constitutional grounds, viz: one, it is a usurpation of the power of Congress
to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of privacy. We grant
the petition for the rights sought to be vindicated by the petitioner need stronger barriers against
further erosion.

A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows:
 ADOPTION OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic service and social security providers
and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services on social security and reduce, if not totally eradicate
fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and
social security providing agencies and other government intrumentalities is required to
achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by

virtue of the powers vested in me by law, do hereby direct the following:

Sec. 1. Establishment of a National Compoterized Identification Reference System. A

decentralized Identification Reference System among the key basic services and social
security providers is hereby established.

Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee

(IACC) to draw-up the implementing guidelines and oversee the implementation of the
System is hereby created, chaired by the Executive Secretary, with the following as
members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and Local Government

Secretary, Department of Health

Administrator, Government Service Insurance System,

Administrator, Social Security System,

Administrator, National Statistics Office

Managing Director, National Computer Center.

Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as

secretariat to the IACC and as such shall provide administrative and technical support to
the IACC.
 Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by
the NSO shall serve as the common reference number to establish a linkage among
concerned agencies. The IACC Secretariat shall coordinate with the different Social
Security and Services Agencies to establish the standards in the use of Biometrics
Technology and in computer application designs of their respective systems.

Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press

Secretary, in coordination with the National Statistics Office, the GSIS and SSS as lead
agencies and other concerned agencies shall undertake a massive tri-media information
dissemination campaign to educate and raise public awareness on the importance and
use of the PRN and the Social Security Identification Reference.

Sec. 6. Funding. The funds necessary for the implementation of the system shall be
sourced from the respective budgets of the concerned agencies.

Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular
reports to the Office of the President through the IACC, on the status of implementation
of this undertaking.

Sec. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen
Hundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January
23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents, then Executive
Secretary Ruben Torres and the heads of the government agencies, who as members of the Inter-
Agency Coordinating Committee, are charged with the implementation of A.O. No. 308. On April 8,
1997, we issued a temporary restraining order enjoining its implementation.

Petitioner contends:

A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE

SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF
THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE

IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE
EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A
SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION. 2
Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL

REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE
POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF
CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION

REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED
AGENCIES;

D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. 3

We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to
sue of the petitioner and the justiciability of the case at bar. More specifically, respondents aver that
petitioner has no legal interest to uphold and that the implementing rules of A.O. No. 308 have yet to
be promulgated.

These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of
our Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue
that the issuance of A.O. No. 308 is a usurpation of legislative power. 4 As taxpayer and member of the
Government Service Insurance System (GSIS), petitioner can also impugn the legality of the
misalignment of public funds and the misuse of GSIS funds to implement A.O. No. 308. 5

The ripeness for adjudication of the Petition at bar is not affected by the fact that the implementing
rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per
se and as infirmed on its face. His action is not premature for the rules yet to be promulgated cannot
cure its fatal defects. Moreover, the respondents themselves have started the implementation of A.O.
No. 308 without waiting for the rules. As early as January 19, 1997, respondent Social Security System
(SSS) caused the publication of a notice to bid for the manufacture of the National Identification (ID)
card. 6 Respondent Executive Secretary Torres has publicly announced that representatives from the
GSIS and the SSS have completed the guidelines for the national identification system. 7 All signals from
the respondents show their unswerving will to implement A.O. No. 308 and we need not wait for the
formality of the rules to pass judgment on its constitutionality. In this light, the dissenters insistence
that we tighten the rule on standing is not a commendable stance as its result would be to throttle an
important constitutional principle and a fundamental right.

II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order
but a law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308
establishes a system of identification that is all-encompassing in scope, affects the life and liberty of
every Filipino citizen and foreign resident, and more particularly, violates their right to privacy.

Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is
understandable. The blurring of the demarcation line between the power of the Legislature to make
laws and the power of the Executive to execute laws will disturb their delicate balance of power and
cannot be allowed. Hence, the exercise by one branch of government of power belonging to another
will be given a stricter scrutiny by this Court.

The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the
authority, under the Constitution, to make laws, and to alter and repeal them." 8 The Constitution, as
the will of the people in their original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines. 9 The grant of legislative power to Congress is broad, general and
comprehensive. 10 The legislative body possesses plenary power for all purposes of civil
government. 11 Any power, deemed to be legislative by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it elsewhere. 12 In fine, except as limited by the
Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to
matters of general concern or common interest. 13

While Congress is vested with the power to enact laws, the President executes the laws. 14 The
executive power is vested in the Presidents. 15 It is generally defined as the power to enforce and
administer the laws. 16 It is the power of carrying the laws into practical operation and enforcing their
due observance. 17

As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of his
department. 18 He has control over the executive department, bureaus and offices. This means that he
has the authority to assume directly the functions of the executive department, bureau and office or
interfere with the discretion of its officials.19 Corollary to the power of control, the President also has
the duty of supervising the enforcement of laws for the maintenance of general peace and public
order. Thus, he is granted administrative power over bureaus and offices under his control to enable
him to discharge his duties effectively. 20

Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. 21 It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents. 22 To this end, he can issue
administrative orders, rules and regulations.

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to
be covered by an administrative order. An administrative order is:

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspects
of governmental operation in pursuance of his duties as administrative head shall be
promulgated in administrative orders. 23

An administrative order is an ordinance issued by the President which relates to specific aspects
in the administrative operation of government. It must be in harmony with the law and should
be for the sole purpose of implementing the law and carrying out the legislative policy. 24 We
reject the argument that A.O. No. 308 implements the legislative policy of the Administrative
Code of 1987. The Code is a general law and "incorporates in a unified document the major
structural, functional and procedural principles of governance." 25 and "embodies changes in
administrative structure and procedures designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals with Sovereignty and General
Administration, Book II with the Distribution of Powers of the three branches of Government,
 Book III on the Office of the President, Book IV on the Executive Branch, Book V on
Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on
Administrative Procedure. These Books contain provisions on the organization, powers and
general administration of the executive, legislative and judicial branches of government, the
organization and administration of departments, bureaus and offices under the executive
branch, the organization and functions of the Constitutional Commissions and other
constitutional bodies, the rules on the national government budget, as well as guideline for the
exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code
covers both the internal administration of government, i.e, internal organization, personnel and
recruitment, supervision and discipline, and the effects of the functions performed by
administrative officials on private individuals or parties outside government. 27

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of
1987. It establishes for the first time a National Computerized Identification Reference System. Such a
System requires a delicate adjustment of various contending state policies — the primacy of national
security, the extent of privacy interest against dossier-gathering by government, the choice of policies,
etc. Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the all-important
freedom of thought. As said administrative order redefines the parameters of some basic rights of our
citizenry vis-a-vis the State as well as the line that separates the administrative power of the President
to make rules and the legislative power of Congress, it ought to be evident that it deals with a subject
that should be covered by law.

Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers no right,
imposes no duty, affords no proctection, and creates no office. Under A.O. No. 308, a citizen cannot
transact business with government agencies delivering basic services to the people without the
contemplated identification card. No citizen will refuse to get this identification card for no one can
avoid dealing with government. It is thus clear as daylight that without the ID, a citizen will have
difficulty exercising his rights and enjoying his privileges. Given this reality, the contention that A.O. No.
308 gives no right and imposes no duty cannot stand.

Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation
and consequently erodes the plenary power of Congress to make laws. This is contrary to the
established approach defining the traditional limits of administrative legislation. As well stated by
Fisher: ". . . Many regulations however, bear directly on the public. It is here that administrative
legislation must he restricted in its scope and application. Regulations are not supposed to be a
substitute for the general policy-making that Congress enacts in the form of a public law. Although
administrative regulations are entitled to respect, the authority to prescribe rules and regulations is
not an independent source of power to make laws." 28

III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass
constitutional muster as an administrative legislation because facially it violates the right to privacy.
The essence of privacy is the "right to be let alone." 29 In the 1965 case of Griswold v.
Connecticut, 30 the United States Supreme Court gave more substance to the right of privacy when it
ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be
found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, 31 viz:

Specific guarantees in the Bill of Rights have penumbras formed by emanations from
these guarantees that help give them life and substance . . . various guarantees create
 zones of privacy. The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in its prohibition against
the quartering of soldiers "in any house" in time of peace without the consent of the
owner is another facet of that privacy. The Fourth Amendment explicitly affirms the
''right of the people to be secure in their persons, houses and effects, against
unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which government may not force
him to surrender to his detriment. The Ninth Amendment provides: "The enumeration
in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people."

In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando,
we held:

x x x           x x x          x x x

The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offence on the ground of its amounting to an unconstitutional
invasion of the right of privacy of married persons; rightfully it stressed "a relationship
lying within the zone of privacy created by several fundamental constitutional
guarantees." It has wider implications though. The constitutional right to privacy has
come into its own.

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition

independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof. Emerson is particularly apt: "The
concept of limited government has always included the idea that governmental powers
stop short of certain intrusions into the personal life of the citizen. This is indeed one of
the basic distinctions between absolute and limited government. Ultimate and pervasive
control of the individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government safeguards a private sector, which belongs to
the individual, firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector — protection, in other words, of the dignity and
integrity of the individual — has become increasingly important as modern society has
developed. All the forces of a technological age — industrialization, urbanization, and
organization — operate to narrow the area of privacy and facilitate intrusion into it. In
modern terms, the capacity to maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian society."

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined
in several provisions of our Constitution. 33 It is expressly recognized in section 3 (1) of the Bill of Rights:

Sec. 3. (1) 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.

Other facets of the right to privacy are protectad in various provisions of the Bill of Rights, viz: 34
 Sec. 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.

Sec. 2. The 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, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

x x x           x x x          x x x

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public
health as may be provided by law.

x x x           x x x          x x x

Sec. 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law shall
not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that
"[e]very 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. 35 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, 36 and recognizes the privacy of
letters and other private communications. 37 The Revised Penal Code makes a crime the violation of
secrets by an officer, 38the revelation of trade and industrial secrets, 39 and trespass to
dwelling. 40 Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, 41 the Secrecy
of Bank Deposits Act 42 and the Intellectual Property Code. 43 The Rules of Court on privileged
communication likewise recognize the privacy of certain information. 44

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated on
two considerations: (1) the need to provides our citizens and foreigners with the facility to
conveniently transact business with basic service and social security providers and other government
instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and
misrepresentations by persons seeking basic services. It is debatable whether these interests are
compelling enough to warrant the issuance of A.O. No. 308. But what is not arguable is the broadness,
the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people's right to
privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN)
as a "common reference number to establish a linkage among concerned agencies" through the use of
"Biometrics Technology" and "computer application designs."

Biometry or biometrics is "the science of the applicatin of statistical methods to biological facts; a
mathematical analysis of biological data." 45 The term "biometrics" has evolved into a broad category of
technologies which provide precise confirmation of an individual's identity through the use of the
individual's own physiological and behavioral characteristics. 46 A physiological characteristic is a
relatively stable physical characteristic such as a fingerprint, retinal scan, hand geometry or facial
features. A behavioral characteristic is influenced by the individual's personality and includes voice
print, signature and keystroke. 47 Most biometric idenfication systems use a card or personal
identificatin number (PIN) for initial identification. The biometric measurement is used to verify that
the individual holding the card or entering the PIN is the legitimate owner of the card or PIN. 48

A most common form of biological encoding is finger-scanning where technology scans a fingertip and
turns the unique pattern therein into an individual number which is called a biocrypt. The biocrypt is
stored in computer data banks 49 and becomes a means of identifying an individual using a service. This
technology requires one's fingertip to be scanned every time service or access is provided. 50 Another
method is the retinal scan. Retinal scan technology employs optical technology to map the capillary
pattern of the retina of the eye. This technology produces a unique print similar to a finger
print. 51 Another biometric method is known as the "artificial nose." This device chemically analyzes the
unique combination of substances excreted from the skin of people. 52 The latest on the list of
biometric achievements is the thermogram. Scientists have found that by taking pictures of a face
using infra-red cameras, a unique heat distribution pattern is seen. The different densities of bone,
skin, fat and blood vessels all contribute to the individual's personal "heat signature." 53

In the last few decades, technology has progressed at a galloping rate. Some science fictions are now
science facts. Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It
is a new science that uses various technologies in encoding any and all biological characteristics of an
individual for identification. It is noteworthy that A.O. No. 308 does not state what specific biological
characteristics and what particular biometrics technology shall be used to identify people who will seek
its coverage. Considering the banquest of options available to the implementors of A.O. No. 308, the
fear that it threatens the right to privacy of our people is not groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether
encoding of data is limited to biological information alone for identification purposes. In fact, the
Solicitor General claims that the adoption of the Identification Reference System will contribute to the
"generation of population data for development planning." 54 This is an admission that the PRN will not
be used solely for identification but the generation of other data with remote relation to the avowed
purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government the
roving authority to store and retrieve information for a purpose other than the identification of the
individual through his PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed as the
dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime he
deals with a government agency to avail of basic services and security. His transactions with the
government agency will necessarily be recorded — whether it be in the computer or in the
documentary file of the agency. The individual's file may include his transactions for loan availments,
income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization,
etc. The more frequent the use of the PRN, the better the chance of building a huge formidable
informatin base through the electronic linkage of the files. 55 The data may be gathered for gainful and
useful government purposes; but the existence of this vast reservoir of personal information
constitutes a covert invitation to misuse, a temptation that may be too great for some of our
authorities to resist. 56

We can even grant, arguendo, that the computer data file will be limited to the name, address and
other basic personal infomation about the individual. 57 Even that hospitable assumption will not save
A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and categorical
terms how these information gathered shall he handled. It does not provide who shall control and
access the data, under what circumstances and for what purpose. These factors are essential to
safeguard the privacy and guaranty the integrity of the information. 58 Well to note, the computer
linkage gives other government agencies access to the information. Yet, there are no controls to guard
against leakage of information. When the access code of the control programs of the particular
computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data
for whatever purpose, or worse, manipulate the data stored within the system. 59

It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be
gathered about our people will only be processed for unequivocally specified purposes. 60 The lack of
proper safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode
and travel by enabling authorities to track down his movement; it may also enable unscrupulous
persons to access confidential information and circumvent the right against self-incrimination; it may
pave the way for "fishing expeditions" by government authorities and evade the right against
unreasonable searches and seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics and
computer technology are accentuated when we consider that the individual lacks control over what
can be read or placed on his ID, much less verify the correctness of the data encoded. 62 They threaten
the very abuses that the Bill of Rights seeks to prevent. 63

The ability of sophisticated data center to generate a comprehensive cradle-to-grave dossier on an

individual and transmit it over a national network is one of the most graphic threats of the computer
revolution. 64 The computer is capable of producing a comprehensive dossier on individuals out of
information given at different times and for varied purposes. 65 It can continue adding to the stored
data and keeping the information up to date. Retrieval of stored date is simple. When information of a
privileged character finds its way into the computer, it can be extracted together with other data on
the subject. 66Once extracted, the information is putty in the hands of any person. The end of privacy
begins.

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its
danger to the right to privacy as speculative and hypothetical. Again, we cannot countenance such a
laidback posture. The Court will not be true to its role as the ultimate guardian of the people's liberty if
it would not immediately smother the sparks that endanger their rights but would rather wait for the
fire that could consume them.

We reject the argument of the Solicitor General that an individual has a reasonable expectation of
privacy with regard to the Natioal ID and the use of biometrics technology as it stands on quicksand.
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. 67 The factual circumstances of the case determines the
reasonableness of the expectation. 68 However, other factors, such as customs, physical surroundings
and practices of a particular activity, may serve to create or diminish this expectation. 69 The use of
biometrics and computer technology in A.O. No. 308 does not assure the individual of a reasonable
expectation of privacy. 70 As technology advances, the level of reasonably expected privacy
decreases. 71 The measure of protection granted by the reasonable expectation diminishes as relevant
technology becomes more widely accepted. 72 The security of the computer data file depends not only
on the physical inaccessibility of the file but also on the advances in hardware and software computer
technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable expectation of
privacy, regardless of technology used, cannot be inferred from its provisions.

The rules and regulations to be by the IACC cannot remedy this fatal defect. Rules and regulations
merely implement the policy of the law or order. On its face, A.O. No. gives the IACC virtually infettered
discretion to determine the metes and bounds of the ID System.

Nor do your present laws prvide adequate safeguards for a reasonable expectation of privacy.
Commonwealth Act. No. 591 penalizes the disclosure by any person of data furnished by the individual
to the NSO with imprisonment and fine. 73 Republic Act. No. 1161 prohibits public disclosure of SSS
employment records and reports. 74 These laws, however, apply to records and data with the NSO and
the SSS. It is not clear whether they may be applied to data with the other government agencies
forming part of the National ID System. The need to clarify the penal aspect of A.O. No. 308 is another
reason why its enactment should be given to Congress.

Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by
using the rational relationship test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to
streamline and speed up the implementation of basic government services, (2) eradicate fraud by
avoiding duplication of services, and (3) generate population data for development planning. He
cocludes that these purposes justify the incursions into the right to privacy for the means are rationally
related to the end. 76

We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the constitutionality of R.A.
3019, the Anti-Graft and Corrupt Practices Act, as a valid police power measure. We declared that the
law, in compelling a public officer to make an annual report disclosing his assets and liabilities, his
sources of income and expenses, did not infringe on the individual's right to privacy. The law was
enacted to promote morality in public administration by curtailing and minimizing the opportunities for
official corruption and maintaining a standard of honesty in the public service. 78

The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an
administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what
practices were prohibited and penalized, and it was narrowly drawn to avoid abuses. IN the case at bar,
A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot pass constitutional scrutiny
for it is not narrowly drawn. And we now hod that when the integrity of a fundamental right is at stake,
this court will give the challenged law, administrative order, rule or regulation a stricter scrutiny. It will
not do for the authorities to invoke the presumption of regularity in the performance of official duties.
Nor is it enough for the authorities to prove that their act is not irrational for a basic right can be
diminished, if not defeated, even when the government does not act irrationally. They must
satisfactorily show the presence of compelling state interests and that the law, rule or regulation is
narrowly drawn to preclude abuses. This approach is demanded by the 1987 Constitution whose entire
matrix is designed to protect human rights and to prevent authoritarianism. In case of doubt, the least
we can do is to lean towards the stance that will not put in danger the rights protected by the
Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In Whalen, the United States
Supreme Court was presented with the question of whether the State of New York could keep a
centralized computer record of the names and addresses of all persons who obtained certain drugs
pursuant to a doctor's prescription. The New York State Controlled Substance Act of 1972 required
physicians to identify parties obtaining prescription drugs enumerated in the statute, i.e., drugs with a
recognized medical use but with a potential for abuse, so that the names and addresses of the patients
can be recorded in a centralized computer file of the State Department of Health. The plaintiffs, who
were patients and doctors, claimed that some people might decline necessary medication because of
their fear that the computerized data may be readily available and open to public disclosure; and that
once disclosed, it may stigmatize them as drug addicts. 80 The plaintiffs alleged that the statute invaded
a constitutionally protected zone of privacy, i.e., the individual interest in avoiding disclosure of
personal matters, and the interest in independence in making certain kinds of important decisions. The
U.S. Supreme Court held that while an individual's interest in avoiding disclosuer of personal matter is
an aspect of the right to privacy, the statute did not pose a grievous threat to establish a constitutional
violation. The Court found that the statute was necessary to aid in the enforcement of laws designed to
minimize the misuse of dangerous drugs. The patient-identification requirement was a product of an
orderly and rational legislative decision made upon recommmendation by a specially appointed
commission which held extensive hearings on the matter. Moreover, the statute was narrowly drawn
and contained numerous safeguards against indiscriminate disclosure. The statute laid down the
procedure and requirements for the gathering, storage and retrieval of the informatin. It ebumerated
who were authorized to access the data. It also prohibited public disclosure of the data by imposing
penalties for its violation. In view of these safeguards, the infringement of the patients' right to privacy
was justified by a valid exercise of police power. As we discussed above, A.O. No. 308 lacks these vital
safeguards.

Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se agains the use
of computers to accumulate, store, process, retvieve and transmit data to improve our bureaucracy.
Computers work wonders to achieve the efficiency which both government and private industry seek.
Many information system in different countries make use of the computer to facilitate important social
objective, such as better law enforcement, faster delivery of public services, more efficient
management of credit and insurance programs, improvement of telecommunications and streamlining
of financial activities. 81 Used wisely, data stored in the computer could help good administration by
making accurate and comprehensive information for those who have to frame policy and make key
decisions. 82 The benefits of the computer has revolutionized information technology. It developed the
internet, 83 introduced the concept of cyberspace 84 and the information superhighway where the
individual, armed only with his personal computer, may surf and search all kinds and classes of
information from libraries and databases connected to the net.

In no uncertain terms, we also underscore that 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. It merely requires that the law be narrowly
focused 85 and a compelling interest justify such intrusions. 86 Intrusions into the right must be
accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions.
We reiterate that any law or order that invades individual privacy will be subjected by this Court to
strict scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to wit:

The concept of limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the citizen. This is indeed
one of the basic disctinctions between absolute and limited government. Ultimate and
 pervasive control of the individual, in all aspects of his life, is the hallmark of the
absolute state. In contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector — protection, in other words, of the
dignity and integrity of the individual — has become increasingly important as modern
society has developed. All the forces of a technological age — industrialization,
urbanization, and organization — operate to narrow the area of privacy and facilitate
intrusion into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society. 87

IV
The right to privacy is one of the most threatened rights of man living in a mass society. The threats
emanate from various sources — governments, journalists, employers, social scientists, etc. 88 In th
case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308
pressures the people to surrender their privacy by giving information about themselves on the pretext
that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only
the indifferent fail to perceive the danger that A.O. No. 308 gives the government the power to
compile a devastating dossier against unsuspecting citizens. It is timely to take note of the well-worded
warning of Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an unerasable
record of his past and his limitations. In a way, the threat is that because of its record-keeping, the
society will have lost its benign capacity to forget." 89 Oblivious to this counsel, the dissents still say we
should not be too quick in labelling the right to privacy as a fundamental right. We close with the
statement that the right to privacy was not engraved in our Constitution for flattery.

IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference System" declared null and void for being
unconstitutional.

SO ORDERED.

EN BANC

G.R. No. 167798             April 19, 2006

KILUSANG MAYO UNO, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-
KMU), JOSELITO V. USTAREZ, EMILIA P. DAPULANG, SALVADOR T. CARRANZA, MARTIN T. CUSTODIO,
JR. and ROQUE M. TAN, Petitioners, 
vs.
THE DIRECTOR-GENERAL, NATIONAL ECONOMIC DEVELOPMENT AUTHORITY, and THE SECRETARY,
DEPARTMENT OF BUDGET and MANAGEMENT, Respondents.

x-----------------------------------x
G.R. No. 167930             April 19, 2006

BAYAN MUNA Representatives SATUR C. OCAMPO, TEODORO A. CASIÑO, and JOEL G. VIRADOR,
GABRIELA WOMEN’S PARTY Representative LIZA L. MAZA, ANAKPAWIS Representatives RAFAEL V.
MARIANO and CRISPIN B. BELTRAN, Rep. FRANCIS G. ESCUDERO, Rep. EDUARDO C. ZIALCITA, Rep.
LORENZO R. TAÑADA III, DR. CAROL PAGADUAN-ARAULLO and RENATO M. REYES, JR. of BAYAN,
MARIE HILAO-ENRIQUEZ of KARAPATAN, ANTONIO L. TINIO of ACT, FERDINAND GAITE of COURAGE,
GIOVANNI A. TAPANG of AGHAM, WILFREDO MARBELLA GARCIA, of KMP, LANA LINABAN of
GABRIELA, AMADO GAT INCIONG, RENATO CONSTANTINO, JR., DEAN PACIFICO H. AGABIN, SHARON
R. DUREMDES of the NATIONAL COUNCIL OF CHURCHES IN THE PHILIPPINES, and BRO. EDMUNDO L.
FERNANDEZ (FSC) of the ASSOCIATION OF MAJOR RELIGIOUS SUPERIORS OF THE PHILIPPINES
(AMRSP), Petitioners, 
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, ROMULO NERI, in his capacity as Director-
General of the NATIONAL ECONOMIC and DEVELOPMENT AUTHORITY (NEDA) and the Administrator
of the NATIONAL STATISTICS OFFICE (NSO), Respondents.

DECISION
CARPIO, J.:

This case involves two consolidated petitions for certiorari, prohibition, and mandamus under Rule 65
of the Rules of Court, seeking the nullification of Executive Order No. 420 (EO 420) on the ground that
it is unconstitutional.

EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005, reads:

REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND CONTROLLED

CORPORATIONS TO STREAMLINE AND HARMONIZE THEIR IDENTIFICATION (ID) SYSTEMS, AND
AUTHORIZING FOR SUCH PURPOSE THE DIRECTOR-GENERAL, NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY TO IMPLEMENT THE SAME, AND FOR OTHER PURPOSES

WHEREAS, good governance is a major thrust of this Administration;

WHEREAS, the existing multiple identification systems in government have created unnecessary and
costly redundancies and higher costs to government, while making it inconvenient for individuals to be
holding several identification cards;

WHEREAS, there is urgent need to streamline and integrate the processes and issuance of
identification cards in government to reduce costs and to provide greater convenience for those
transacting business with government;

WHEREAS, a unified identification system will facilitate private businesses, enhance the integrity and
reliability of government-issued identification cards in private transactions, and prevent violations of
laws involving false names and identities.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines by

virtue of the powers vested in me by law, do hereby direct the following:
Section 1. Adoption of a unified multi-purpose identification (ID) system for
government.1avvphil.net – All government agencies, including government-owned and controlled
corporations, are hereby directed to adopt a unified multi-purpose ID system to ensure the attainment
of the following objectives:

a. To reduce costs and thereby lessen the financial burden on both the government and the
public brought about by the use of multiple ID cards and the maintenance of redundant
database containing the same or related information;

b. To ensure greater convenience for those transacting business with the government and
those availing of government services;

c. To facilitate private businesses and promote the wider use of the unified ID card as provided
under this executive order;

d. To enhance the integrity and reliability of government-issued ID cards; and

e. To facilitate access to and delivery of quality and effective government service.

Section 2. Coverage – All government agencies and government-owned and controlled corporations
issuing ID cards to their members or constituents shall be covered by this executive order.

Section 3. Data requirement for the unified ID system – The data to be collected and recorded by the
participating agencies shall be limited to the following:

Name
Home Address
Sex
Picture
Signature
Date of Birth
Place of Birth
Marital Status
Names of Parents
Height
Weight
Two index fingers and two thumbmarks
Any prominent distinguishing features like moles and others
Tax Identification Number (TIN)

Provided that a corresponding ID number issued by the participating agency and a common reference
number shall form part of the stored ID data and, together with at least the first five items listed
above, including the print of the right thumbmark, or any of the fingerprints as collected and stored,
shall appear on the face or back of the ID card for visual verification purposes.

Section 4. Authorizing the Director-General, National Economic and Development Authority, to

Harmonize All Government Identification Systems. – The Director-General, National Economic
Development Authority, is hereby authorized to streamline and harmonize all government ID systems.
Section 5. Functions and responsibilities of the Director-General, National Economic and
Development Authority. – In addition to his organic functions and responsibilities, the Director-
General, National Economic and Development Authority, shall have the following functions and
responsibilities:

a. Adopt within sixty (60) days from the effectivity of this executive order a unified government
ID system containing only such data and features, as indicated in Section 3 above, to validly
establish the identity of the card holder:

b. Enter into agreements with local governments, through their respective leagues of governors
or mayors, the Commission on Elections (COMELEC), and with other branches or
instrumentalities of the government, for the purpose of ensuring government-wide adoption of
and support to this effort to streamline the ID systems in government;

b. Call on any other government agency or institution, or create sub–committees or technical

working groups, to provide such assistance as may be necessary or required for the effective
performance of its functions; and

d. Promulgate such rules or regulations as may be necessary in pursuance of the objectives of

this executive order.

Section 6. Safeguards. – The Director-General, National Economic and Development Authority, and the
pertinent agencies shall adopt such safeguard as may be necessary and adequate to ensure that the
right to privacy of an individual takes precedence over efficient public service delivery. Such safeguards
shall, as a minimum, include the following:

a. The data to be recorded and stored, which shall be used only for purposes of establishing the
identity of a person, shall be limited to those specified in Section 3 of this executive order;

b. In no case shall the collection or compilation of other data in violation of a person’s right to
privacy shall be allowed or tolerated under this order;

c. Stringent systems of access control to data in the identification system shall be instituted;

d. Data collected and stored for this purpose shall be kept and treated as strictly confidential
and a personal or written authorization of the Owner shall be required for access and disclosure
of data;

e. The identification card to be issued shall be protected by advanced security features and
cryptographic technology; and

f. A written request by the Owner of the identification card shall be required for any correction
or revision of relevant data, or under such conditions as the participating agency issuing the
identification card shall prescribe.

Section 7. Funding. – Such funds as may be recommended by the Department of Budget and
Management shall be provided to carry out the objectives of this executive order.
Section 8. Repealing clause. – All executive orders or issuances, or portions thereof, which are
inconsistent with this executive order, are hereby revoked, amended or modified accordingly.

Section 9. Effectivity. – This executive order shall take effect fifteen (15) days after its publication in
two (2) newspapers of general circulation.

DONE in the City of Manila, this 13th day of April, in the year of Our Lord, Two Thousand and Five.

Thus, under EO 420, the President directs all government agencies and government-owned and
controlled corporations to adopt a uniform data collection and format for their existing identification
(ID) systems.

Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional because it constitutes usurpation
of legislative functions by the executive branch of the government. Furthermore, they allege that EO
420 infringes on the citizen’s right to privacy.1

Petitioners in G.R. No. 167930 allege that EO 420 is void based on the following grounds:

1. EO 420 is contrary to law. It completely disregards and violates the decision of this Honorable
Court in Ople v. Torres et al., G.R. No. 127685, July 23, 1998. It also violates RA 8282 otherwise
known as the Social Security Act of 1997.

2. The Executive has usurped the legislative power of Congress as she has no power to issue EO
420. Furthermore, the implementation of the EO will use public funds not appropriated by
Congress for that purpose.

3. EO 420 violates the constitutional provisions on the right to privacy

(i) It allows access to personal confidential data without the owner’s consent.
(ii) EO 420 is vague and without adequate safeguards or penalties for any violation of its
provisions.
(iii) There are no compelling reasons that will legitimize the necessity of EO 420.

4. Granting without conceding that the President may issue EO 420, the Executive Order was
issued without public hearing.

5. EO 420 violates the Constitutional provision on equal protection of laws and results in the
discriminatory treatment of and penalizes those without ID.2

Issues

Essentially, the petitions raise two issues. First, petitioners claim that EO 420 is a usurpation of
legislative power by the President. Second, petitioners claim that EO 420 infringes on the citizen’s right
to privacy.

Respondents question the legal standing of petitioners and the ripeness of the petitions. Even
assuming that petitioners are bereft of legal standing, the Court considers the issues raised under the
circumstances of paramount public concern or of transcendental significance to the people. The
petitions also present a justiciable controversy ripe for judicial determination because all government
entities currently issuing identification cards are mandated to implement EO 420, which petitioners
claim is patently unconstitutional. Hence, the Court takes cognizance of the petitions.

The Court’s Ruling

The petitions are without merit.

On the Alleged Usurpation of Legislative Power

Section 2 of EO 420 provides, "Coverage. – All government agencies and government-owned and
controlled corporations issuing ID cards to their members or constituents shall be covered by this
executive order." EO 420 applies only to government entities that issue ID cards as part of their
functions under existing laws. These government entities have already been issuing ID cards even prior
to EO 420. Examples of these government entities are the GSIS, 3 SSS,4 Philhealth,5 Mayor’s
Office,6 LTO,7 PRC,8 and similar government entities.

Section 1 of EO 420 directs these government entities to "adopt a unified multi-purpose ID system."
Thus, all government entities that issue IDs as part of their functions under existing laws are required
to adopt a uniform data collection and format for their IDs. Section 1 of EO 420 enumerates the
purposes of the uniform data collection and format, namely:

a. To reduce costs and thereby lessen the financial burden on both the government and the
public brought about by the use of multiple ID cards and the maintenance of redundant
database containing the same or related information;

b. To ensure greater convenience for those transacting business with the government and
those availing of government services;

c. To facilitate private businesses and promote the wider use of the unified ID card as provided
under this executive order;

d. To enhance the integrity and reliability of government-issued ID cards; and

e. To facilitate access to and delivery of quality and effective government service.

In short, the purposes of the uniform ID data collection and ID format are to reduce costs, achieve
efficiency and reliability, insure compatibility, and provide convenience to the people served by
government entities.

Section 3 of EO 420 limits the data to be collected and recorded under the uniform ID system to only
14 specific items, namely: (1) Name; (2) Home Address; (3) Sex; (4) Picture; (5) Signature; (6) Date of
Birth; (7) Place of Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11) Weight; (12) Two
index fingers and two thumbmarks; (13) Any prominent distinguishing features like moles or others;
and (14) Tax Identification Number.

These limited and specific data are the usual data required for personal identification by government
entities, and even by the private sector. Any one who applies for or renews a driver’s license provides
to the LTO all these 14 specific data.
At present, government entities like LTO require considerably more data from applicants for
identification purposes. EO 420 will reduce the data required to be collected and recorded in the ID
databases of the government entities. Government entities cannot collect or record data, for
identification purposes, other than the 14 specific data.

Various laws allow several government entities to collect and record data for their ID systems, either
expressly or impliedly by the nature of the functions of these government entities. Under their existing
ID systems, some government entities collect and record more data than what EO 420 allows. At
present, the data collected and recorded by government entities are disparate, and the IDs they issue
are dissimilar.

In the case of the Supreme Court,9 the IDs that the Court issues to all its employees, including the
Justices, contain 15 specific data, namely: (1) Name; (2) Picture; (3) Position; (4) Office Code Number;
(5) ID Number; (6) Height; (7) Weight; (8) Complexion; (9) Color of Hair; (10) Blood Type; (11) Right
Thumbmark; (12) Tax Identification Number; (13) GSIS Policy Number; (14) Name and Address of
Person to be Notified in Case of Emergency; and (15) Signature. If we consider that the picture in the ID
can generally also show the sex of the employee, the Court’s ID actually contains 16 data.

In contrast, the uniform ID format under Section 3 of EO 420 requires only "the first five items listed" in
Section 3, plus the fingerprint, agency number and the common reference number, or only eight
specific data. Thus, at present, the Supreme Court’s ID contains far more data than the proposed
uniform ID for government entities under EO 420. The nature of the data contained in the Supreme
Court ID is also far more financially sensitive, specifically the Tax Identification Number.

Making the data collection and recording of government entities unified, and making their ID formats
uniform, will admittedly achieve substantial benefits. These benefits are savings in terms of
procurement of equipment and supplies, compatibility in systems as to hardware and software, ease of
verification and thus increased reliability of data, and the user-friendliness of a single ID format for all
government entities.

There is no dispute that government entities can individually limit the collection and recording of their
data to the 14 specific items in Section 3 of EO 420. There is also no dispute that these government
entities can individually adopt the ID format as specified in Section 3 of EO 420. Such an act is certainly
within the authority of the heads or governing boards of the government entities that are already
authorized under existing laws to issue IDs.

A unified ID system for all these government entities can be achieved in either of two ways. First, the
heads of these existing government entities can enter into a memorandum of agreement making their
systems uniform. If the government entities can individually adopt a format for their own ID pursuant
to their regular functions under existing laws, they can also adopt by mutual agreement a uniform ID
format, especially if the uniform format will result in substantial savings, greater efficiency, and
optimum compatibility. This is purely an administrative matter, and does not involve the exercise of
legislative power.

Second, the President may by executive or administrative order direct the government entities under
the Executive department to adopt a uniform ID data collection and format. Section 17, Article VII of
the 1987 Constitution provides that the "President shall have control of all executive departments,
bureaus and offices." The same Section also mandates the President to "ensure that the laws be
faithfully executed."
Certainly, under this constitutional power of control the President can direct all government entities, in
the exercise of their functions under existing laws, to adopt a uniform ID data collection and ID format
to achieve savings, efficiency, reliability, compatibility, and convenience to the public. The President’s
constitutional power of control is self-executing and does not need any implementing legislation.

Of course, the President’s power of control is limited to the Executive branch of government and does
not extend to the Judiciary or to the independent constitutional commissions. Thus, EO 420 does not
apply to the Judiciary, or to the COMELEC which under existing laws is also authorized to issue voter’s
ID cards.10 This only shows that EO 420 does not establish a national ID system because legislation is
needed to establish a single ID system that is compulsory for all branches of government.

The Constitution also mandates the President to ensure that the laws are faithfully executed. There are
several laws mandating government entities to reduce costs, increase efficiency, and in general,
improve public services.11 The adoption of a uniform ID data collection and format under EO 420 is
designed to reduce costs, increase efficiency, and in general, improve public services. Thus, in issuing
EO 420, the President is simply performing the constitutional duty to ensure that the laws are faithfully
executed.

Clearly, EO 420 is well within the constitutional power of the President to promulgate. The President
has not usurped legislative power in issuing EO 420. EO 420 is an exercise of Executive power – the
President’s constitutional power of control over the Executive department. EO 420 is also compliance
by the President of the constitutional duty to ensure that the laws are faithfully executed.

Legislative power is the authority to make laws and to alter or repeal them. In issuing EO 420, the
President did not make, alter or repeal any law but merely implemented and executed existing laws.
EO 420 reduces costs, as well as insures efficiency, reliability, compatibility and user-friendliness in the
implementation of current ID systems of government entities under existing laws. Thus, EO 420 is
simply an executive issuance and not an act of legislation.

The act of issuing ID cards and collecting the necessary personal data for imprinting on the ID card does
not require legislation. Private employers routinely issue ID cards to their employees. Private and
public schools also routinely issue ID cards to their students. Even private clubs and associations issue
ID cards to their members. The purpose of all these ID cards is simply to insure the proper
identification of a person as an employee, student, or member of a club. These ID cards, although
imposed as a condition for exercising a privilege, are voluntary because a person is not compelled to be
an employee, student or member of a club.

What require legislation are three aspects of a government maintained ID card system. First, when the
implementation of an ID card system requires a special appropriation because there is no existing
appropriation for such purpose. Second, when the ID card system is compulsory on all branches of
government, including the independent constitutional commissions, as well as compulsory on all
citizens whether they have a use for the ID card or not. Third, when the ID card system requires the
collection and recording of personal data beyond what is routinely or usually required for such
purpose, such that the citizen’s right to privacy is infringed.

In the present case, EO 420 does not require any special appropriation because the existing ID card
systems of government entities covered by EO 420 have the proper appropriation or funding. EO 420 is
not compulsory on all branches of government and is not compulsory on all citizens. EO 420 requires a
very narrow and focused collection and recording of personal data while safeguarding the
confidentiality of such data. In fact, the data collected and recorded under EO 420 are far less than the
data collected and recorded under the ID systems existing prior to EO 420.

EO 420 does not establish a national ID card system. EO 420 does not compel all citizens to have an ID
card. EO 420 applies only to government entities that under existing laws are already collecting data
and issuing ID cards as part of their governmental functions. Every government entity that presently
issues an ID card will still issue its own ID card under its own name. The only difference is that the ID
card will contain only the five data specified in Section 3 of EO 420, plus the fingerprint, the agency ID
number, and the common reference number which is needed for cross-verification to ensure integrity
and reliability of identification.

This Court should not interfere how government entities under the Executive department should
undertake cost savings, achieve efficiency in operations, insure compatibility of equipment and
systems, and provide user-friendly service to the public. The collection of ID data and issuance of ID
cards are day-to-day functions of many government entities under existing laws. Even the Supreme
Court has its own ID system for employees of the Court and all first and second level courts. The Court
is even trying to unify its ID system with those of the appellate courts, namely the Court of Appeals,
Sandiganbayan and Court of Tax Appeals.

There is nothing legislative about unifying existing ID systems of all courts within the Judiciary. The
same is true for government entities under the Executive department. If government entities under the
Executive department decide to unify their existing ID data collection and ID card issuance systems to
achieve savings, efficiency, compatibility and convenience, such act does not involve the exercise of
any legislative power. Thus, the issuance of EO 420 does not constitute usurpation of legislative power.

On the Alleged Infringement of the Right to Privacy

All these years, the GSIS, SSS, LTO, Philhealth and other government entities have been issuing ID cards
in the performance of their governmental functions. There have been no complaints from citizens that
the ID cards of these government entities violate their right to privacy. There have also been no
complaints of abuse by these government entities in the collection and recording of personal
identification data.

In fact, petitioners in the present cases do not claim that the ID systems of government entities prior to
EO 420 violate their right to privacy. Since petitioners do not make such claim, they even have less
basis to complain against the unified ID system under EO 420. The data collected and stored for the
unified ID system under EO 420 will be limited to only 14 specific data, and the ID card itself will show
only eight specific data. The data collection, recording and ID card system under EO 420 will even
require less data collected, stored and revealed than under the disparate systems prior to EO 420.

Prior to EO 420, government entities had a free hand in determining the kind, nature and extent of
data to be collected and stored for their ID systems. Under EO 420, government entities can collect and
record only the 14 specific data mentioned in Section 3 of EO 420. In addition, government entities can
show in their ID cards only eight of these specific data, seven less data than what the Supreme Court’s
ID shows.

Also, prior to EO 420, there was no executive issuance to government entities prescribing safeguards
on the collection, recording, and disclosure of personal identification data to protect the right to
privacy. Now, under Section 5 of EO 420, the following safeguards are instituted:
 a. The data to be recorded and stored, which shall be used only for purposes of establishing the
identity of a person, shall be limited to those specified in Section 3 of this executive order;

b. In no case shall the collection or compilation of other data in violation of a person’s right to
privacy be allowed or tolerated under this order;

c. Stringent systems of access control to data in the identification system shall be instituted;

d. Data collected and stored for this purpose shall be kept and treated as strictly confidential
and a personal or written authorization of the Owner shall be required for access and disclosure
of data;

e. The identification card to be issued shall be protected by advanced security features and
cryptographic technology;

f. A written request by the Owner of the identification card shall be required for any correction
or revision of relevant data, or under such conditions as the participating agency issuing the
identification card shall prescribe.

On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the data that can
be collected, recorded and shown compared to the existing ID systems of government entities. EO 420
further provides strict safeguards to protect the confidentiality of the data collected, in contrast to the
prior ID systems which are bereft of strict administrative safeguards.

The right to privacy does not bar the adoption of reasonable ID systems by government entities. Some
one hundred countries have compulsory national ID systems, including democracies such as Spain,
France, Germany, Belgium, Greece, Luxembourg, and Portugal. Other countries which do not have
national ID systems, like the United States, Canada, Australia, New Zealand, Ireland, the Nordic
Countries and Sweden, have sectoral cards for health, social or other public services. 12 Even with EO
420, the Philippines will still fall under the countries that do not have compulsory national ID systems
but allow only sectoral cards for social security, health services, and other specific purposes.

Without a reliable ID system, government entities like GSIS, SSS, Philhealth, and LTO cannot perform
effectively and efficiently their mandated functions under existing laws. Without a reliable ID system,
GSIS, SSS, Philhealth and similar government entities stand to suffer substantial losses arising from
false names and identities. The integrity of the LTO’s licensing system will suffer in the absence of a
reliable ID system.

The dissenting opinion cites three American decisions on the right to privacy, namely, Griswold v.
Connecticut,13U.S. Justice Department v. Reporters Committee for Freedom of the Press, 14 and Whalen
v. Roe.15 The last two decisions actually support the validity of EO 420, while the first is inapplicable to
the present case.

In Griswold, the U.S. Supreme Court declared unconstitutional a state law that prohibited the use and
distribution of contraceptives because enforcement of the law would allow the police entry into the
bedrooms of married couples. Declared the U.S. Supreme Court: "Would we allow the police to search
the sacred precincts of the marital bedrooms for telltale signs of the use of contraceptives? The very
idea is repulsive to the notions of privacy surrounding the marriage relationship." Because the facts
and the issue involved in Griswold are materially different from the present case, Griswold has no
persuasive bearing on the present case.

In U.S. Justice Department, the issue was not whether the State could collect and store information on
individuals from public records nationwide but whether the State could withhold such information
from the press. The premise of the issue in U.S. Justice Department is that the State can collect and
store in a central database information on citizens gathered from public records across the country. In
fact, the law authorized the Department of Justice to collect and preserve fingerprints and other
criminal identification records nationwide. The law also authorized the Department of Justice to
exchange such information with "officials of States, cities and other institutions." The Department of
Justice treated such information as confidential. A CBS news correspondent and the Reporters
Committee demanded the criminal records of four members of a family pursuant to the Freedom of
Information Act. The U.S. Supreme Court ruled that the Freedom of Information Act expressly exempts
release of information that would "constitute an unwarranted invasion of personal privacy," and the
information demanded falls under that category of exempt information.

With the exception of the 8 specific data shown on the ID card, the personal data collected and
recorded under EO 420 are treated as "strictly confidential" under Section 6(d) of EO 420. These data
are not only strictly confidential but also personal matters. Section 7, Article III of the 1987 Constitution
grants the "right of the people to information on matters of public concern." Personal matters are
exempt or outside the coverage of the people’s right to information on matters of public concern. The
data treated as "strictly confidential" under EO 420 being private matters and not matters of public
concern, these data cannot be released to the public or the press. Thus, the ruling in U.S. Justice
Department does not collide with EO 420 but actually supports the validity EO 420.

Whalen v. Roe is the leading American case on the constitutional protection for control over
information. In Whalen, the U.S. Supreme Court upheld the validity of a New York law that required
doctors to furnish the government reports identifying patients who received prescription drugs that
have a potential for abuse. The government maintained a central computerized database containing
the names and addresses of the patients, as well as the identity of the prescribing doctors. The law was
assailed because the database allegedly infringed the right to privacy of individuals who want to keep
their personal matters confidential. The U.S. Supreme Court rejected the privacy claim, and declared:

Disclosures of private medical information to doctors, to hospital personnel, to insurance companies,

and to public health agencies are often an essential part of modern medical practice even when the
disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to
representatives of the State having responsibility for the health of the community does not
automatically amount to an impermissible invasion of privacy. (Emphasis supplied)

Compared to the personal medical data required for disclosure to the New York State in Whalen, the
14 specific data required for disclosure to the Philippine government under EO 420 are far less
sensitive and far less personal. In fact, the 14 specific data required under EO 420 are routine data for
ID systems, unlike the sensitive and potentially embarrassing medical records of patients taking
prescription drugs. Whalen, therefore, carries persuasive force for upholding the constitutionality of
EO 420 as non-violative of the right to privacy.

Subsequent U.S. Supreme Court decisions have reiterated Whalen. In Planned Parenthood of Central
Missouri v. Danforth,16 the U.S. Supreme Court upheld the validity of a law that required doctors
performing abortions to fill up forms, maintain records for seven years, and allow the inspection of
such records by public health officials. The U.S. Supreme Court ruled that "recordkeeping and reporting
requirements that are reasonably directed to the preservation of maternal health and that properly
respect a patient’s confidentiality and privacy are permissible."

Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey, 17 the U.S. Supreme Court upheld
a law that required doctors performing an abortion to file a report to the government that included the
doctor’s name, the woman’s age, the number of prior pregnancies and abortions that the woman had,
the medical complications from the abortion, the weight of the fetus, and the marital status of the
woman. In case of state-funded institutions, the law made such information publicly available. In
Casey, the U.S. Supreme Court stated: "The collection of information with respect to actual patients is a
vital element of medical research, and so it cannot be said that the requirements serve no purpose
other than to make abortion more difficult."

Compared to the disclosure requirements of personal data that the U.S. Supreme Court have upheld in
Whalen, Danforth and Casey as not violative of the right to privacy, the disclosure requirements under
EO 420 are far benign and cannot therefore constitute violation of the right to privacy. EO 420 requires
disclosure of 14 personal data that are routine for ID purposes, data that cannot possibly embarrass or
humiliate anyone.

Petitioners have not shown how EO 420 will violate their right to privacy. Petitioners cannot show such
violation by a mere facial examination of EO 420 because EO 420 narrowly draws the data collection,
recording and exhibition while prescribing comprehensive safeguards. Ople v. Torres 18 is not authority
to hold that EO 420 violates the right to privacy because in that case the assailed executive issuance,
broadly drawn and devoid of safeguards, was annulled solely on the ground that the subject matter
required legislation. As then Associate Justice, now Chief Justice Artemio V. Panganiban noted in his
concurring opinion in Ople v. Torres, "The voting is decisive only on the need for appropriate
legislation, and it is only on this ground that the petition is granted by this Court."

EO 420 applies only to government entities that already maintain ID systems and issue ID cards
pursuant to their regular functions under existing laws. EO 420 does not grant such government
entities any power that they do not already possess under existing laws. In contrast, the assailed
executive issuance in Ople v. Torres sought to establish a "National Computerized Identification
Reference System,"19 a national ID system that did not exist prior to the assailed executive issuance.
Obviously, a national ID card system requires legislation because it creates a new national data
collection and card issuance system where none existed before.

In the present case, EO 420 does not establish a national ID system but makes the existing sectoral card
systems of government entities like GSIS, SSS, Philhealth and LTO less costly, more efficient, reliable
and user-friendly to the public. Hence, EO 420 is a proper subject of executive issuance under the
President’s constitutional power of control over government entities in the Executive department, as
well as under the President’s constitutional duty to ensure that laws are faithfully executed.

WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is declared VALID.

SO ORDERED.
 FIRST DIVISION

G.R. No. 203254, October 08, 2014

DR. JOY MARGATE LEE, Petitioner, v. P/SUPT. NERI A. ILAGAN, Respondent.

DECISION

PERLAS-BERNABE, J.:

Before the Court is a petition for review on certiorari1 assailing the Decision2 dated August 30, 2012 of
the Regional Trial Court of Quezon City, Branch 224 (RTC) in SP No. 12-71527, which extended the
privilege of the writ of habeas data in favor of respondent Police Superintendent Neri A. Ilagan (Ilagan).

The Facts
In his Petition for Issuance of the Writ of Habeas Data3 dated June 22, 2012, Ilagan alleged that he and
petitioner Dr. Joy Margate Lee (Lee) were former common law partners. Sometime in July 2011, he
visited Lee at the latter’s condominium, rested for a while and thereafter,proceeded to his office. Upon
arrival, Ilagan noticed that his digital camera was missing. 4 On August 23, 2011, Lee confronted Ilagan
at the latter’s office regarding a purported sex video (subject video) she discovered from the aforesaid
camera involving Ilagan and another woman.  Ilagan denied the video and demanded Lee to return the
camera, but to no avail.5  During the confrontation, Ilagan allegedly slammed Lee’s head against a wall
inside his office and walked away.6Subsequently, Lee utilized the said video as evidence in filing various
complaints against Ilagan, namely: (a) a criminal complaint for violation of Republic Act No.
9262,7otherwise known as the “Anti-Violence Against Women and Their Children Act of 2004,” before
the Office of the City Prosecutor of Makati; and (b) an administrative complaint for grave misconduct
before the National Police Commission (NAPOLCOM). 8  Ilagan claimed that Lee’s acts of reproducing
the subject video and threatening to distribute the same to the upper echelons of the NAPOLCOM and
uploading it to the internet violated not only his right to life, liberty, security, and privacy but also that
of the other woman, and thus, the issuance of a writ of habeas data in his favor is warranted.9

Finding the petition prima facie meritorious, the RTC issued a Writ of Habeas Data10 dated June 25,
2012, directing Lee to appear before the court a quo, and to produce Ilagan’s digital camera, as well as
the negative and/or original of the subject video and copies thereof, and to file a verified written return
within five (5) working days from date of receipt thereof.

In her Verified Return11 dated July 2, 2012, Lee admitted that she indeed kept the memory card of the
digital camera and reproduced the aforesaid video but averred that she only did so to utilize the same
as evidence in the cases she filed against Ilagan. She also admitted that her relationship with Ilagan
started sometime in 2003 and ended under disturbing circumstances in August 2011, and that she only
happened to discover the subject video when Ilagan left his camera in her condominium. Accordingly,
Lee contended that Ilagan’s petition for the issuance of the writ of habeas data should be dismissed
because: (a) its filing was only aimed at suppressing the evidence against Ilagan in the cases she filed;
and (b) she is not engaged in the gathering, collecting, or storing of data regarding the person of
Ilagan.12

The RTC Ruling

13
In a Decision  dated August 30, 2012, the RTC granted the privilege of the writ of habeas data in
Ilagan’s favor, and accordingly, ordered the implementing officer to turn-over copies of the subject
video to him, and enjoined Lee from further reproducing the same.14

The RTC did not give credence to Lee’s defense that she is not engaged in the gathering, collecting or
storing of data regarding the person of Ilagan, finding that her acts of reproducing the subject video
and showing it to other people, i.e., the NAPOLCOM officers, violated the latter’s right to privacy in life
and caused him to suffer humiliation and mental anguish. In this relation, the RTC opined that Lee’s use
of the subject video as evidence in the various cases she filed against Ilagan is not enough justification
for its reproduction. Nevertheless, the RTC clarified that it is only ruling on the return of the aforesaid
video and not on its admissibility before other tribunals. 15

Dissatisfied, Lee filed this petition.

The Issue Before the Court

The essential issue for the Court’s resolution is whether or not the RTC correctly extended the privilege
of the writ of habeas data in favor of Ilagan.

The Court’s Ruling

The petition is meritorious.

A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas Data (Habeas Data Rule), was conceived as a
response, given the lack of effective and available remedies, to address the extraordinary rise in the
number of killings and enforced disappearances.16 It was conceptualized as a judicial remedy enforcing
the right to privacy, most especially the right to informational privacy of individuals,17 which is defined
as “the right to control the collection, maintenance, use, and dissemination of data about oneself.” 18

As defined in Section 1 of the Habeas Data Rule, the writ of habeas data now stands as “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.”  Thus, in order to support a petition for the issuance of such
writ, Section 6 of the Habeas Data Rule essentially requires that the petition sufficiently alleges, among
others, “[t]he manner the right to privacy is violated or threatened and how it affects the right to life,
liberty or security of the aggrieved party.” In other words, the petition must adequately show
that there exists a nexus between the right to privacy on the one hand, and the right to life, liberty or
security on the other .19 Corollarily, the allegations in the petition must be supported by substantial
evidence showing an actual or threatened violation of the right to privacy in life, liberty or security of
the victim.20 In this relation, it bears pointing out that the writ of habeas data will not issue to protect
purely property or commercial concerns nor when the grounds invoked in support of the petitions
therefor are vague and doubtful.21

In this case, the Court finds that Ilagan was not able to sufficiently allege that his right to privacy in life,
liberty or security was or would be violated through the supposed reproduction and threatened
dissemination of the subject sex video. While Ilagan purports a privacy interest in the suppression of
this video – which he fears would somehow find its way to Quiapo or be uploaded in the internet for
public consumption – he failed to explain the connection between such interest and any violation of his
right to life, liberty or security. Indeed, courts cannot speculate or contrive versions of possible
transgressions. As the rules and existing jurisprudence on the matter evoke, alleging and eventually
proving the nexus between one’s privacy right to the cogent rights to life, liberty or security are crucial
in habeas datacases, so much so that a failure on either account certainly renders a habeas
data petition dismissible, as in this case.

In fact, even discounting the insufficiency of the allegations, the petition would equally be dismissible
due to the inadequacy of the evidence presented. As the records show, all that Ilagan submitted in
support of his petition was his self-serving testimony which hardly meets the substantial evidence
requirement as prescribed by the Habeas Data Rule. This is because nothing therein would indicate
that Lee actually proceeded to commit any overt act towards the end of violating Ilagan’s right to
privacy in life, liberty or security. Nor would anything on record even lead a reasonable mind to
conclude22 that Lee was going to use the subject video in order to achieve unlawful ends – say for
instance, to spread it to the public so as to ruin Ilagan’s reputation.  Contrastingly, Lee even made it
clear in her testimony that the only reason why she reproduced the subject video was to legitimately
utilize the same as evidence in the criminal and administrative cases that she filed against Ilagan. 23 
Hence, due to the insufficiency of the allegations as well as the glaring absence of substantial evidence,
the Court finds it proper to reverse the RTC Decision and dismiss the habeas data petition.

WHEREFORE, the petition is GRANTED. The Decision dated August 30, 2012 of the Regional Trial Court
of Quezon City, Branch 224 in SP No. 12-71527is hereby REVERSED and SET ASIDE. Accordingly, the
Petition for Issuance of the Writ of Habeas Data filed by respondent P/Supt. Neri A. Ilagan
is DISMISSED for lack of merit.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 82380 April 29, 1988

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners, 
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.

G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner, 
vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of
Makati, Branch 134 and JUAN PONCE ENRILE, respondents.

FELICIANO, J.:

Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer
Productions pty Ltd. (Ayer Productions), 1 envisioned, sometime in 1987, the for commercial viewing
and for Philippine and international release, the histolic peaceful struggle of the Filipinos at EDSA
(Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope V.
Juban who suggested th they consult with the appropriate government agencies and also with General
Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed to
be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television
Review and Classification Board as wel as the other government agencies consulted. General Fidel
Ramos also signified his approval of the intended film production.

In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce
Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out
below:

The Four Day Revolution is a six hour mini-series about People Power—a unique event
in modern history that-made possible the Peaceful revolution in the Philippines in 1986.

Faced with the task of dramatising these rerkble events, screenwriter David Williamson
and history Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious
characters to trace the revolution from the death of Senator Aquino, to the Feb
revolution and the fleeing of Marcos from the country.

These character stories have been woven through the real events to help our huge
international audience understand this ordinary period inFilipino history.

First, there's Tony O'Neil, an American television journalist working for major network.
Tony reflects the average American attitude to the Phihppinence —once a colony, now
the home of crucially important military bases. Although Tony is aware of the corruption
and of Marcos' megalomania, for him, there appears to be no alternative to Marcos
except the Communists.

Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly
caught up in the events as it becomes dear that the time has come for a change.
Through Angle and her relationship with one of the Reform Army Movement Colonels (a
fictitious character), we follow the developing discontent in the armed forces. Their
dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately
their defection from Marcos.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila

newspaper who despises the Marcos regime and is a supporter an promoter of Cory
Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of the
New People's Army, and Eva--a -P.R. girl, politically moderate and very much in love with
Tony. Ultimately, she must choose between her love and the revolution.

Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and thintertwining series of events and characters
that triggered these remarkable changes. Through them also, we meet all of the
principal characters and experience directly dramatic recreation of the revolution. The
story incorporates actual documentary footage filmed during the period which we hope
 will capture the unique atmosphere and forces that combined to overthrow President
Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful plays
to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of
Living Dangerously,' Gallipoli,' 'Phar Lap').

Professor McCoy (University of New South Wales) is an American historian with a deep
understanding of the Philippines, who has worked on the research for this project for
some 18 months. Together with Davi Wilhamgon they have developed a script we
believe accurately depicts the complex issues and events that occurred during th period.

The six hour series is a McElroy and McElroy co-production with Home Box Office in
American, the Australian Broadcast Corporation in Australia and Zenith Productions in
the United Kingdom

The proposed motion picture would be essentially a re-enact. ment of the events that made possible
the EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a
"docu-drama" style, creating four (4) fictional characters interwoven with real events, and utilizing
actual documentary footage as background.

On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of
the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member
of his family in any cinema or television production, film or other medium for advertising or
commercial exploitation" and further advised petitioners that 'in the production, airing, showing,
distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or
visual) should not be made to [him] or any member of his family, much less to any matter purely
personal to them.

It appears that petitioners acceded to this demand and the name of private respondent Enrile was
deleted from the movie script, and petitioners proceeded to film the projected motion picture.

On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining
Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in
Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day Revolution".
The complaint alleged that petitioners' production of the mini-series without private respondent's
consent and over his objection, constitutes an obvious violation of his right of privacy. On 24 February
1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the application
for preliminary injunction.

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary
Injunction contending that the mini-series fim would not involve the private life of Juan Ponce Enrile
nor that of his family and that a preliminary injunction would amount to a prior restraint on their right
of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack of
cause of action as the mini-series had not yet been completed.

In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the
petitioners, the dispositive portion of which reads thus:
 WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all
persons and entities employed or under contract with them, including actors, actresses
and members of the production staff and crew as well as all persons and entities acting
on defendants' behalf, to cease and desist from producing and filming the mini-series
entitled 'The Four Day Revolution" and from making any reference whatsoever to
plaintiff or his family and from creating any fictitious character in lieu of plaintiff which
nevertheless is based on, or bears rent substantial or marked resemblance or similarity
to, or is otherwise Identifiable with, plaintiff in the production and any similar film or
photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the
amount of P 2,000,000.00, to answer for whatever damages defendants may suffer by
reason of the injunction if the Court should finally decide that plaintiff was not entitled
thereto.

xxx xxx xxx

(Emphasis supplied)

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21
March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was
docketed as G.R. No. L-82380.

A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with
Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R.
No. L-82398.

By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was
required to file a consolidated Answer. Further, in the same Resolution, the Court granted a Temporary
Restraining Order partially enjoining the implementation of the respondent Judge's Order of 16 March
1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to resume
producing and filming those portions of the projected mini-series which do not make any reference to
private respondent or his family or to any fictitious character based on or respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a
right of privacy.

I
The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim
that in producing and "The Four Day Revolution," they are exercising their freedom of speech and of
expression protected under our Constitution. Private respondent, upon the other hand, asserts a right
of privacy and claims that the production and filming of the projected mini-series would constitute an
unlawful intrusion into his privacy which he is entitled to enjoy.

Considering first petitioners' claim to freedom of speech and of expression the Court would once more
stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such
motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures
are a univesally utilized vehicle of communication and medium Of expression. Along with the press,
radio and television, motion pictures constitute a principal medium of mass communication for
information, education and entertainment. In Gonzales v. Katigbak, 3former Chief Justice Fernando,
speaking for the Court, explained:
 1. Motion pictures are important both as a medium for the communication of Ideas and
the expression of the artistic impulse. Their effect on the perception by our people of
issues and public officials or public figures as well as the pre cultural traits is
considerable. Nor as pointed out in Burstyn v. Wilson(343 US 495 [19421) is the
Importance of motion pictures as an organ of public opinion lessened by the fact that
they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing
line between what involves knowledge and what affords pleasure. If such a distinction
were sustained, there is a diminution of the basic right to free expression. ... 4

This freedom is available in our country both to locally-owned and to foreign-owned motion picture
companies. Furthermore the circumstance that the production of motion picture films is a commercial
activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech
and of expression. In our community as in many other countries, media facilities are owned either by
the government or the private sector but the private sector-owned media facilities commonly require
to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed,
commercial media constitute the bulk of such facilities available in our country and hence to exclude
commercially owned and operated media from the exerciseof constitutionally protected om of speech
and of expression can only result in the drastic contraction of such constitutional liberties in our
country.

The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime

ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of
privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in
differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right
of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been
regarded as permissible where that person is a public figure and the information sought to be elicited
from him or to be published about him constitute of apublic character. 7 Succinctly put, the right of
privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The
interest sought to be protected by the right of privacy is the right to be free
from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an
individual which are outside the realm of legitimate public concern. 9

Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to
privacy in a context which included a claim to freedom of speech and of expression. Lagunzad involved
a suit fortion picture producer as licensee and the widow and family of the late Moises Padilla as
licensors. This agreement gave the licensee the right to produce a motion Picture Portraying the life of
Moises Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon,
Negros Occidental during the November 1951 elections and for whose murder, Governor Rafael
Lacson, a member of the Liberal Party then in power and his men were tried and convicted. 11 In the
judgment of the lower court enforcing the licensing agreement against the licensee who had produced
the motion picture and exhibited it but refused to pay the stipulated royalties, the Court, through
Justice Melencio-Herrera, said:

Neither do we agree with petitioner's subon that the Licensing Agreement is null and
void for lack of, or for having an illegal cause or consideration, while it is true that
petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did
not dispense with the need for prior consent and authority from the deceased heirs to
portray publicly episodes in said deceased's life and in that of his mother and the
member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA
 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to
protect his memory, but the privilege wts for the benefit of the living, to protect their
feelings and to preventa violation of their own rights in the character and memory of
the deceased.'

Petitioners averment that private respondent did not have any property right over the
life of Moises Padilla since the latter was a public figure, is neither well taken. Being a
public figure ipso facto does not automatically destroy in toto a person's right to privacy.
The right to invade a person's privacy to disseminate public information does not extend
to a fictional or novelized representation of a person, no matter how public a he or she
may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at
bar, while it is true that petitioner exerted efforts to present a true-to-life Story Of
Moises Padilla, petitioner admits that he included a little romance in the film because
without it, it would be a drab story of torture and brutality. 12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to
freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the
name of freedom of speech and expression, a right to produce a motion picture biography at least
partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties
to the widow and family of Padilla. In rejecting the licensee's claim, the Court said:

Lastly, neither do we find merit in petitioners contention that the Licensing Agreement
infringes on the constitutional right of freedom of speech and of the press, in that, as a
citizen and as a newspaperman, he had the right to express his thoughts in film on the
public life of Moises Padilla without prior restraint.The right freedom of expression,
indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine
Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA
191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission
on Elections, 27 SCRA 835, 858 [1960]:

xxx xxx xxx

The prevailing doctine is that the clear and present danger rule is such a limitation.
Another criterion for permissible limitation on freedom of speech and the press, which
includes such vehicles of the mass media as radio, television and the movies, is the
"balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970
ed. p. 79). The principle "requires a court to take conscious and detailed consideration
of the interplay of interests observable in given situation or type of situation"
(Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by
respondent and the right of freedom of expression invoked by petitioner. taking into
account the interplay of those interests, we hold that under the particular circumstances
presented, and considering the obligations assumed in the Licensing Agreement entered
into by petitioner, the validity of such agreement will have to be upheld particularly
because the limits of freedom of expression are reached when expression touches upon
matters of essentially private concern." 13
Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of
the instant Petitions, the Court believes that a different conclusion must here be reached: The
production and filming by petitioners of the projected motion picture "The Four Day Revolution" does
not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's "right
of privacy."

1. It may be observed at the outset that what is involved in the instant case is a prior and direct
restraint on the part of the respondent Judge upon the exercise of speech and of expression by
petitioners. The respondent Judge has restrained petitioners from filming and producing the entire
proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any
kind imposed upon the movie producer who in fact completed and exhibited the film biography of
Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity
vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent
liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The
respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining
Order one day after filing of a complaint by the private respondent and issuing a Preliminary Injunction
twenty (20) days later; for the projected motion picture was as yet uncompleted and hence not
exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the
completed film would precisely look like. There was, in other words, no "clear and present danger" of
any violation of any right to privacy that private respondent could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government
that took place at Epifanio de los Santos Avenue in February 1986, and the trian of events which led up
to that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it is,
petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the
history of this countryand as such, must be regarded as having passed into the public domain and as an
appropriate subject for speech and expression and coverage by any form of mass media. The subject
mater, as set out in the synopsis provided by the petitioners and quoted above, does not relate to the
individual life and certainly not to the private life of private respondent Ponce Enrile. Unlike in
Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his immediate
family, what we have here is not a film biography, more or less fictionalized, of private respondent
Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan
Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile
in the precipitating and the constituent events of the change of government in February 1986.

3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be
entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in
character. The extent of that intrusion, as this Court understands the synopsis of the proposed film,
may be generally described as such intrusion as is reasonably necessary to keep that film a truthful
historical account. Private respondent does not claim that petitioners threatened to depict in "The Four
Day Revolution" any part of the private life of private respondent or that of any member of his family.

4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners
propose to film were taking place, private respondent was what Profs. Prosser and Keeton have
referred to as a "public figure:"

A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a legitimate
interest in his doings, his affairs, and his character, has become a 'public personage.' He
 is, in other words, a celebrity. Obviously to be included in this category are those who
have achieved some degree of reputation by appearing before the public, as in the case
of an actor, a professional baseball player, a pugilist, or any other entertainment. The
list is, however, broader than this. It includes public officers, famous inventors and
explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has
arrived at a position where public attention is focused upon him as a person.

Such public figures were held to have lost, to some extent at least, their tight to
privacy. Three reasons were given, more or less indiscrimately, in the decisions" that
they had sought publicity and consented to it, and so could not complaint when they
received it; that their personalities and their affairs has already public, and could no
longer be regarded as their own private business; and that the press had a privilege,
under the Constitution, to inform the public about those who have become legitimate
matters of public interest. On one or another of these grounds, and sometimes all, it was
held that there was no liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to
arise out of the desire and the right of the public to know what is going on in the world,
and the freedom of the press and other agencies of information to tell it. "News"
includes all events and items of information which are out of the ordinary hum-drum
routine, and which have 'that indefinable quality of information which arouses public
attention.' To a very great extent the press, with its experience or instinct as to what its
readers will want, has succeeded in making its own definination of news, as a glance at
any morning newspaper will sufficiently indicate. It includes homicide and othe crimes,
arrests and police raides, suicides, marriages and divorces, accidents, a death from the
use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old
girl, the reappearance of one supposed to have been murdered years ago, and
undoubtedly many other similar matters of genuine, if more or less deplorable, popular
appeal.

The privilege of enlightening the public was not, however, limited, to the dissemination
of news in the scene of current events. It extended also to information or education, or
even entertainment and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well as the reproduction
of the public scene in newsreels and travelogues. In determining where to draw the line,
the courts were invited to exercise a species of censorship over what the public may be
permitted to read; and they were understandably liberal in allowing the benefit of the
doubt. 15

Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal
actor in the culminating events of the change of government in February 1986. Because his
participation therein was major in character, a film reenactment of the peaceful revolution that fails to
make reference to the role played by private respondent would be grossly unhistorical. The right of
privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private respondent
has not retired into the seclusion of simple private citizenship. he continues to be a "public figure."
After a successful political campaign during which his participation in the EDSA Revolution was directly
or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of
the Philippines.

5. The line of equilibrium in the specific context of the instant case between the constitutional freedom
of speech and of expression and the right of privacy, may be marked out in terms of a requirement that
the proposed motion picture must be fairly truthful and historical in its presentation of events. There
must, in other words, be no knowing or reckless disregard of truth in depicting the participation of
private respondent in the EDSA Revolution. 16 There must, further, be no presentation of the private
life of the unwilling private respondent and certainly no revelation of intimate or embarrassing
personal facts. 17 The proposed motion picture should not enter into what Mme. Justice Melencio-
Herrera in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The
Four Day Revolution" limits itself in portraying the participation of private respondent in the EDSA
Revolution to those events which are directly and reasonably related to the public facts of the EDSA
Revolution, the intrusion into private respondent's privacy cannot be regarded as unreasonable and
actionable. Such portrayal may be carried out even without a license from private respondent.

II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary
Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court
of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty.
Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production"
enjoining him and his production company from further filimg any scene of the projected mini-series
film. Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading, cut out straight
grom the complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer
Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the Court the
same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B.
Honasan was substantially identical to that filed by private respondent herein and stating that in
refusing to join Honasan in Civil Case No. 88-151, counsel for private respondent, with whom counsel
for Gregorio Honasan are apparently associated, deliberately engaged in "forum shopping."

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity"
between private respondent's complaint and that on Honasan in the construction of their legal basis of
the right to privacy as a component of the cause of action is understandable considering that court
pleadings are public records; that private respondent's cause of action for invasion of privacy is
separate and distinct from that of Honasan's although they arose from the same tortious act of
petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases on
"forum shopping" were not in point because the parties here and those in Civil Case No. 88-413 are not
identical.

For reasons that by now have become clear, it is not necessary for the Court to deal with the question
of whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It
is, however, important to dispose to the complaint filed by former Colonel Honasan who, having
refused to subject himself to the legal processes of the Republic and having become once again in
fugitive from justice, must be deemed to have forfeited any right the might have had to protect his
privacy through court processes.

WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of
respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited
Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining
unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made
PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate
Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the
exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly
to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary
Injunction that may have been issued by him.

No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
EN BANC
G.R. No. 160792 August 25, 2005

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY ALEJANO, PN (MARINES)
CAPT. NICANOR FAELDON, PN (MARINES) CAPT. GERARDO GAMBALA, PA LT. SG JAMES LAYUG, PN
CAPT. MILO MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV, PN HOMOBONO ADAZA, and
ROBERTO RAFAEL (ROEL) PULIDO, Petitioners, 
vs.
GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and SEC. ROILO
GOLEZ,Respondents.

DECISION
CARPIO, J.:

The Case

This petition for review1 seeks to nullify the Decision2 of the Court of Appeals dated 17 September 2003
and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The Court of Appeals’ Decision and
Resolution dismissed the petition for habeas corpus filed by lawyers Homobono Adaza and Roberto
Rafael Pulido ("petitioners") on behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt.
Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo
Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees").

Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"), Chief of the Intelligence Service
of the Armed Forces of the Philippines ("ISAFP"), who has custody of the detainees. Petitioners
impleaded Gen. Narciso Abaya ("Gen. Abaya"), Sec. Angelo Reyes and Roilo Golez, who are respectively
the Chief of Staff of the Armed Forces of the Philippines ("AFP"), Secretary of National Defense and
National Security Adviser, because they have command responsibility over Gen. Cabuay.
 Antecedent Facts

Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers,
entered and took control of the Oakwood Premier Luxury Apartments ("Oakwood"), an upscale
apartment complex, located in the business district of Makati City. The soldiers disarmed the security
officers of Oakwood and planted explosive devices in its immediate surroundings. The junior officers
publicly renounced their support for the administration and called for the resignation of President
Gloria Macapagal-Arroyo and several cabinet members.

Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after several
negotiations with government emissaries. The soldiers later defused the explosive devices they had
earlier planted. The soldiers then returned to their barracks.

On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service
Commanders to turn over custody of ten junior officers to the ISAFP Detention Center. The transfer
took place while military and civilian authorities were investigating the soldiers’ involvement in the
Oakwood incident.

On 1 August 2003, government prosecutors filed an Information for coup d’etat with the Regional Trial
Court of Makati City, Branch 61, against the soldiers involved in the 27 July 2003 Oakwood incident.
The government prosecutors accused the soldiers of coup d’etat as defined and penalized under Article
134-A of the Revised Penal Code of the Philippines, as amended. The case was docketed as Criminal
Case No. 03-2784. The trial court later issued the Commitment Orders giving custody of junior officers
Lt. SG Antonio Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the Commanding Officers of
ISAFP.

On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into custody
the military personnel under their command who took part in the Oakwood incident except the
detained junior officers who were to remain under the custody of ISAFP.

On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On 12
August 2003, the Court issued a Resolution, which resolved to:

(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the writ on
Monday, 18 August 2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case to the Court of
Appeals for RAFFLE among the Justices thereof for hearing, further proceedings and decision thereon,
after which a REPORT shall be made to this Court within ten (10) days from promulgation of the
decision.3

Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to make a
return of the writ and to appear and produce the persons of the detainees before the Court of Appeals
on the scheduled date for hearing and further proceedings.

On the same date, the detainees and their other co-accused filed with the Regional Trial Court of
Makati City a Motion for Preliminary Investigation, which the trial court granted.

On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of the
Writ and Answer to the petition and produced the detainees before the Court of Appeals during the
scheduled hearing. After the parties filed their memoranda on 28 August 2003, the appellate court
considered the petition submitted for decision.

On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition.
Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of implementing the
regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in accordance
with Standing Operations Procedure No. 0263-04. The appellate court directed Gen. Cabuay to adhere
to his commitment made in court regarding visiting hours and the detainees’ right to exercise for two
hours a day.

The Ruling of the Court of Appeals

The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the
detainees are already charged of coup d’etat before the Regional Trial Court of Makati. Habeas
corpus is unavailing in this case as the detainees’ confinement is under a valid indictment, the legality
of which the detainees and petitioners do not even question.

The Court of Appeals recognized that habeas corpus may also be the appropriate remedy to assail the
legality of detention if there is a deprivation of a constitutional right. However, the appellate court held
that the constitutional rights alleged to have been violated in this case do not directly affect the
detainees’ liberty. The appellate court ruled that the regulation of the detainees’ right to confer with
their counsels is reasonable under the circumstances.

The appellate court declared that while the opening and reading of Trillanes’ letter is an abhorrent
violation of his right to privacy of communication, this does not justify the issuance of a writ of habeas
corpus. The violation does not amount to illegal restraint, which is the proper subject of habeas
corpus proceedings.

The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the promise he
made in open court to uphold the visiting hours and the right of the detainees to exercise for two
hours a day. The dispositive portion of the appellate court’s decision reads:

WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED. Respondent Cabuay
is hereby ORDERED to faithfully adhere to his commitment to uphold the constitutional rights of the
detainees in accordance with the Standing Operations Procedure No. 0263-04 regarding visiting hours
and the right of the detainees to exercise for two (2) hours a day.

SO ORDERED.4

The Issues

Petitioners raise the following issues for resolution:

A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION OF THE SUPREME
COURT;

B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE APPROPRIATENESS OF THE REMEDY
PETITIONERS SEEK; and
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE CONDITIONS OF THE DETAINED
JUNIOR OFFICERS’ DETENTION.5

The Ruling of the Court

The petition lacks merit.

Petitioners claim that the Court’s 12 August 2003 Order granted the petition and the Court remanded
the case to the Court of Appeals only for a factual hearing. Petitioners thus argue that the Court’s
Order had already foreclosed any question on the propriety and merits of their petition.

Petitioners’ claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court
referred to the Court of Appeals the duty to inquire into the cause of the junior officers’ detention. Had
the Court ruled for the detainees’ release, the Court would not have referred the hearing of the
petition to the Court of Appeals. The Court would have forthwith released the detainees had the Court
upheld petitioners’ cause.

In a habeas corpus petition, the order to present an individual before the court is a preliminary step in
the hearing of the petition.6 The respondent must produce the person and explain the cause of his
detention.7 However, this order is not a ruling on the propriety of the remedy or on the substantive
matters covered by the remedy. Thus, the Court’s order to the Court of Appeals to conduct a factual
hearing was not an affirmation of the propriety of the remedy of habeas corpus.

For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the
determination of the propriety of the remedy. If a court finds the alleged cause of the detention
unlawful, then it should issue the writ and release the detainees. In the present case, after hearing the
case, the Court of Appeals found that habeas corpus is inapplicable. After actively participating in the
hearing before the Court of Appeals, petitioners are estopped from claiming that the appellate court
had no jurisdiction to inquire into the merits of their petition.

The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to
address the detainees’ complaint against the regulations and conditions in the ISAFP Detention Center.
The remedy of habeas corpus has one objective: to inquire into the cause of detention of a
person.8 The purpose of the writ is to determine whether a person is being illegally deprived of his
liberty.9 If the inquiry reveals that the detention is illegal, the court orders the release of the person. If,
however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use
of habeas corpus is thus very limited. It is not a writ of error.10 Neither can it substitute for an appeal.11

Nonetheless, case law has expanded the writ’s application to circumstances where there is deprivation
of a person’s constitutional rights. The writ is available where a person continues to be unlawfully
denied of one or more of his constitutional freedoms, where there is denial of due process, where the
restraints are not merely involuntary but are also unnecessary, and where a deprivation of freedom
originally valid has later become arbitrary.12

However, a mere allegation of a violation of one’s constitutional right is not sufficient. The courts will
extend the scope of the writ only if any of the following circumstances is present: (a) there is a
deprivation of a constitutional right resulting in the unlawful restraint of a person; (b) the court had no
jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such sentence is void as
to the excess.13 Whatever situation the petitioner invokes, the threshold remains high. The violation of
constitutional right must be sufficient to void the entire proceedings. 14

Petitioners admit that they do not question the legality of the detention of the detainees. Neither do
they dispute the lawful indictment of the detainees for criminal and military offenses. What petitioners
bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention Center preventing petitioners
as lawyers from seeing the detainees – their clients – any time of the day or night. The regulation
allegedly curtails the detainees’ right to counsel and violates Republic Act No. 7438 ("RA
7438").15 Petitioners claim that the regulated visits made it difficult for them to prepare for the
important hearings before the Senate and the Feliciano Commission.

Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees’ right
to privacy of communication when the ISAFP officials opened and read the personal letters of Trillanes
and Capt. Milo Maestrecampo ("Maestrecampo"). Petitioners further claim that the ISAFP officials
violated the detainees’ right against cruel and unusual punishment when the ISAFP officials prevented
the detainees from having contact with their visitors. Moreover, the ISAFP officials boarded up with
iron bars and plywood slabs the iron grills of the detention cells, limiting the already poor light and
ventilation in the detainees’ cells.

Pre-trial detainees do not forfeit their constitutional rights upon confinement. 16 However, the fact that
the detainees are confined makes their rights more limited than those of the public. 17 RA 7438, which
specifies the rights of detainees and the duties of detention officers, expressly recognizes the power of
the detention officer to adopt and implement reasonable measures to secure the safety of the
detainee and prevent his escape. Section 4(b) of RA 7438 provides:

Section 4. Penalty Clause. – a) x x x

b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of
a person arrested, detained or under custodial investigation, or any medical doctor or priest or
religious minister or by his counsel, from visiting and conferring privately chosen by him or by any
member of his immediate family with him, or from examining and treating him, or from ministering to
his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand
pesos (₱4,000.00).

The provisions of the above Section notwithstanding, any security officer with custodial responsibility
over any detainee or prisoner may undertake such reasonable measures as may be necessary to
secure his safety and prevent his escape. (Emphasis supplied)

True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee client "at
any hour of the day or, in urgent cases, of the night." However, the last paragraph of the same Section
4(b) makes the express qualification that "notwithstanding" the provisions of Section 4(b), the
detention officer has the power to undertake such reasonable measures as may be necessary to secure
the safety of the detainee and prevent his escape.

The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations governing a
detainee’s confinement must be "reasonable measures x x x to secure his safety and prevent his
escape." Thus, the regulations must be reasonably connected to the government’s objective of
securing the safety and preventing the escape of the detainee. The law grants the detention officer the
authority to "undertake such reasonable measures" or regulations.

Petitioners contend that there was an actual prohibition of the detainees’ right to effective
representation when petitioners’ visits were limited by the schedule of visiting hours. Petitioners assert
that the violation of the detainees’ rights entitle them to be released from detention.

Petitioners’ contention does not persuade us. The schedule of visiting hours does not render void the
detainees’ indictment for criminal and military offenses to warrant the detainees’ release from
detention. The ISAFP officials did not deny, but merely regulated, the detainees’ right to counsel. The
purpose of the regulation is not to render ineffective the right to counsel, but to secure the safety and
security of all detainees. American cases are instructive on the standards to determine whether
regulations on pre-trial confinement are permissible.

In Bell v. Wolfish,18 the United States (U.S.) Supreme Court held that regulations must be reasonably
related to maintaining security and must not be excessive in achieving that purpose. Courts will strike
down a restriction that is arbitrary and purposeless. 19 However, Bell v. Wolfish expressly discouraged
courts from skeptically questioning challenged restrictions in detention and prison facilities. 20 The U.S.
Supreme Court commanded the courts to afford administrators "wide-ranging deference" in
implementing policies to maintain institutional security. 21

In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to make
regulations in detention centers allowable: "such reasonable measures as may be necessary to secure
the detainee’s safety and prevent his escape." In the present case, the visiting hours accorded to the
lawyers of the detainees are reasonably connected to the legitimate purpose of securing the safety and
preventing the escape of all detainees.

While petitioners may not visit the detainees any time they want, the fact that the detainees still have
face-to-face meetings with their lawyers on a daily basis clearly shows that there is no impairment of
detainees’ right to counsel. Petitioners as counsels could visit their clients between 8:00 a.m. and 5:00
p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the same hours
when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass the
standard of reasonableness. Moreover, in urgent cases, petitioners could always seek permission from
the ISAFP officials to confer with their clients beyond the visiting hours.

The scheduled visiting hours provide reasonable access to the detainees, giving petitioners sufficient
time to confer with the detainees. The detainees’ right to counsel is not undermined by the scheduled
visits. Even in the hearings before the Senate and the Feliciano Commission, 22 petitioners were given
time to confer with the detainees, a fact that petitioners themselves admit. 23 Thus, at no point were
the detainees denied their right to counsel.

Petitioners further argue that the bars separating the detainees from their visitors and the boarding of
the iron grills in their cells with plywood amount to unusual and excessive punishment. This argument
fails to impress us. Bell v. Wolfish pointed out that while a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law, detention inevitably interferes with a
detainee’s desire to live comfortably.24 The fact that the restrictions inherent in detention intrude into
the detainees’ desire to live comfortably does not convert those restrictions into punishment. 25 It is
when the restrictions are arbitrary and purposeless that courts will infer intent to punish. 26 Courts will
also infer intent to punish even if the restriction seems to be related rationally to the alternative
purpose if the restriction appears excessive in relation to that purpose.27 Jail officials are thus not
required to use the least restrictive security measure.28 They must only refrain from implementing a
restriction that appears excessive to the purpose it serves. 29

We quote Bell v. Wolfish:

One further point requires discussion. The petitioners assert, and respondents concede, that the
"essential objective of pretrial confinement is to insure the detainees’ presence at trial." While this
interest undoubtedly justifies the original decision to confine an individual in some manner, we do not
accept respondents’ argument that the Government’s interest in ensuring a detainee’s presence at
trial is the only objective that may justify restraints and conditions once the decision is lawfully made to
confine a person. "If the government could confine or otherwise infringe the liberty of detainees only
to the extent necessary to ensure their presence at trial, house arrest would in the end be the only
constitutionally justified form of detention." The Government also has legitimate interests that stem
from its need to manage the facility in which the individual is detained. These legitimate operational
concerns may require administrative measures that go beyond those that are, strictly speaking,
necessary to ensure that the detainee shows up at trial. For example, the Government must be able to
take steps to maintain security and order at the institution and make certain no weapons or illicit drugs
reach detainees. Restraints that are reasonably related to the institution’s interest in maintaining jail
security do not, without more, constitute unconstitutional punishment, even if they are discomforting
and are restrictions that the detainee would not have experienced had he been released while
awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental
interests that may justify conditions or restrictions of pretrial detention. It is enough simply to
recognize that in addition to ensuring the detainees’ presence at trial, the effective management of the
detention facility once the individual is confined is a valid objective that may justify imposition of
conditions and restrictions of pretrial detention and dispel any inference that such restrictions are
intended as punishment.30

An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or
"disability," and (2) the purpose of the action is to punish the inmate.31 Punishment also requires that
the harm or disability be significantly greater than, or be independent of, the inherent discomforts of
confinement.32

Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits
as this practice was reasonably related to maintaining security. The safety of innocent individuals will
be jeopardized if they are exposed to detainees who while not yet convicted are awaiting trial for
serious, violent offenses and may have prior criminal conviction.34 Contact visits make it possible for the
detainees to hold visitors and jail staff hostage to effect escapes. 35 Contact visits also leave the jail
vulnerable to visitors smuggling in weapons, drugs, and other contraband. 36 The restriction on contact
visits was imposed even on low-risk detainees as they could also potentially be enlisted to help obtain
contraband and weapons.37 The security consideration in the imposition of blanket restriction on
contact visits was ruled to outweigh the sentiments of the detainees.38

Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the
legitimate goal of internal security.39 This case reaffirmed the "hands-off" doctrine enunciated in Bell v.
Wolfish, a form of judicial self-restraint, based on the premise that courts should decline jurisdiction
over prison matters in deference to administrative expertise.40
In the present case, we cannot infer punishment from the separation of the detainees from their
visitors by iron bars, which is merely a limitation on contact visits. The iron bars separating the
detainees from their visitors prevent direct physical contact but still allow the detainees to have visual,
verbal, non-verbal and limited physical contact with their visitors. The arrangement is not unduly
restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v. Rutherford.
The limitation on the detainees’ physical contacts with visitors is a reasonable, non-punitive response
to valid security concerns.

The boarding of the iron grills is for the furtherance of security within the ISAFP Detention Center. This
measure intends to fortify the individual cells and to prevent the detainees from passing on
contraband and weapons from one cell to another. The boarded grills ensure security and prevent
disorder and crime within the facility. The diminished illumination and ventilation are but discomforts
inherent in the fact of detention, and do not constitute punishments on the detainees.

We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP Detention
Center are not inhuman, degrading and cruel. Each detainee, except for Capt. Nicanor Faeldon and
Capt. Gerardo Gambala, is confined in separate cells, unlike ordinary cramped detention cells. The
detainees are treated well and given regular meals. The Court of Appeals noted that the cells are
relatively clean and livable compared to the conditions now prevailing in the city and provincial jails,
which are congested with detainees. The Court of Appeals found the assailed measures to be
reasonable considering that the ISAFP Detention Center is a high-risk detention facility. Apart from the
soldiers, a suspected New People’s Army ("NPA") member and two suspected Abu Sayyaf members are
detained in the ISAFP Detention Center.

We now pass upon petitioners’ argument that the officials of the ISAFP Detention Center violated the
detainees’ right to privacy when the ISAFP officials opened and read the letters handed by detainees
Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners point out that the letters
were not in a sealed envelope but simply folded because there were no envelopes in the ISAFP
Detention Center. Petitioners contend that the Constitution prohibits the infringement of a citizen’s
privacy rights unless authorized by law. The Solicitor General does not deny that the ISAFP officials
opened the letters.

Courts in the U.S. have generally permitted prison officials to open and read all incoming and outgoing
mail of convicted prisoners to prevent the smuggling of contraband into the prison facility and to avert
coordinated escapes.41 Even in the absence of statutes specifically allowing prison authorities from
opening and inspecting mail, such practice was upheld based on the principle of "civil
deaths."42 Inmates were deemed to have no right to correspond confidentially with anyone. The only
restriction placed upon prison authorities was that the right of inspection should not be used to delay
unreasonably the communications between the inmate and his lawyer.43

Eventually, the inmates’ outgoing mail to licensed attorneys, courts, and court officials received
respect.44 The confidential correspondences could not be censored.45 The infringement of such
privileged communication was held to be a violation of the inmates’ First Amendment rights. 46 A
prisoner has a right to consult with his attorney in absolute privacy, which right is not abrogated by the
legitimate interests of prison authorities in the administration of the institution. 47 Moreover, the risk is
small that attorneys will conspire in plots that threaten prison security. 48

American jurisprudence initially made a distinction between the privacy rights enjoyed by convicted
inmates and pre-trial detainees. The case of Palmigiano v. Travisono49 recognized that pre-trial
detainees, unlike convicted prisoners, enjoy a limited right of privacy in communication. Censorship of
pre-trial detainees’ mail addressed to public officials, courts and counsel was held impermissible. While
incoming mail may be inspected for contraband and read in certain instances, outgoing mail of pre-trial
detainees could not be inspected or read at all.

In the subsequent case of Wolff v. McDonnell,50 involving convicted prisoners, the U.S. Supreme Court
held that prison officials could open in the presence of the inmates incoming mail from attorneys to
inmates. However, prison officials could not read such mail from attorneys. Explained the U.S. Supreme
Court:

The issue of the extent to which prison authorities can open and inspect incoming mail from attorneys
to inmates, has been considerably narrowed in the course of this litigation. The prison regulation under
challenge provided that ‘(a)ll incoming and outgoing mail will be read and inspected,’ and no exception
was made for attorney-prisoner mail. x x x

Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend
that they may open all letters from attorneys as long as it is done in the presence of the prisoners. The
narrow issue thus presented is whether letters determined or found to be from attorneys may be
opened by prison authorities in the presence of the inmate or whether such mail must be delivered
unopened if normal detection techniques fail to indicate contraband.

xxx

x x x If prison officials had to check in each case whether a communication was from an attorney before
opening it for inspection, a near impossible task of administration would be imposed. We think it
entirely appropriate that the State require any such communications to be specially marked as
originating from an attorney, with his name and address being given, if they are to receive special
treatment. It would also certainly be permissible that prison authorities require that a lawyer desiring
to correspond with a prisoner, first identify himself and his client to the prison officials, to assure that
the letters marked privileged are actually from members of the bar. As to the ability to open the mail in
the presence of inmates, this could in no way constitute censorship, since the mail would not be read.
Neither could it chill such communications, since the inmate’s presence insures that prison officials will
not read the mail. The possibility that contraband will be enclosed in letters, even those from apparent
attorneys, surely warrants prison officials’ opening the letters. We disagree with the Court of Appeals
that this should only be done in ‘appropriate circumstances.’ Since a flexible test, besides being
unworkable, serves no arguable purpose in protecting any of the possible constitutional rights
enumerated by respondent, we think that petitioners, by acceding to a rule whereby the inmate is
present when mail from attorneys is inspected, have done all, and perhaps even more, than the
Constitution requires.51

In Hudson v. Palmer,52 the U.S. Supreme Court ruled that an inmate has no reasonable expectation of
privacy inside his cell. The U.S. Supreme Court explained that prisoners necessarily lose many
protections of the Constitution, thus:

However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also
clear that imprisonment carries with it the circumscription or loss of many significant rights. These
constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by
the considerations underlying our penal system." The curtailment of certain rights is necessary, as a
practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities,
chief among which is internal security. Of course, these restrictions or retractions also serve,
incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in
addition to correction.53

The later case of State v. Dunn,54 citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and

made no distinction as to the detainees’ limited right to privacy. State v. Dunn noted the considerable
jurisprudence in the United States holding that inmate mail may be censored for the furtherance of a
substantial government interest such as security or discipline. State v. Dunn declared that if complete
censorship is permissible, then the lesser act of opening the mail and reading it is also permissible. We
quote State v. Dunn:

[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the
close and continual surveillance of inmates and their cells required to ensure institutional security and
internal order. We are satisfied that society would insist that the prisoner’s expectation of privacy
always yield to what must be considered a paramount interest in institutional security. We believe that
it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of
confinement."

The distinction between the limited privacy rights of a pre-trial detainee and a convicted inmate has
been blurred as courts in the U.S. ruled that pre-trial detainees might occasionally pose an even
greater security risk than convicted inmates. Bell v. Wolfish reasoned that those who are detained
prior to trial may in many cases be individuals who are charged with serious crimes or who have prior
records and may therefore pose a greater risk of escape than convicted inmates. 55 Valencia v.
Wiggins56 further held that "it is impractical to draw a line between convicted prisoners and pre-trial
detainees for the purpose of maintaining jail security."

American cases recognize that the unmonitored use of pre-trial detainees’ non-privileged mail poses a
genuine threat to jail security.57 Hence, when a detainee places his letter in an envelope for non-
privileged mail, the detainee knowingly exposes his letter to possible inspection by jail officials. 58 A pre-
trial detainee has no reasonable expectation of privacy for his incoming mail. 59 However, incoming mail
from lawyers of inmates enjoys limited protection such that prison officials can open and inspect the
mail for contraband but could not read the contents without violating the inmates’ right to correspond
with his lawyer.60 The inspection of privileged mail is limited to physical contraband and not to verbal
contraband.61

Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees’ letters
in the present case violated the detainees’ right to privacy of communication. The letters were not in a
sealed envelope. The inspection of the folded letters is a valid measure as it serves the same purpose
as the opening of sealed letters for the inspection of contraband.

The letters alleged to have been read by the ISAFP authorities were not confidential letters between
the detainees and their lawyers. The petitioner who received the letters from detainees Trillanes and
Maestrecampo was merely acting as the detainees’ personal courier and not as their counsel when he
received the letters for mailing. In the present case, since the letters were not confidential
communication between the detainees and their lawyers, the officials of the ISAFP Detention
Center could read the letters. If the letters are marked confidential communication between the
detainees and their lawyers, the detention officials should not read the letters but only open the
envelopes for inspection in the presence of the detainees.
That a law is required before an executive officer could intrude on a citizen’s privacy rights 62 is a
guarantee that is available only to the public at large but not to persons who are detained or
imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as to the
limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-trial
detainees and convicted prisoners have a diminished expectation of privacy rights.

In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on
the constitutional rights of the detainees and convicted prisoners, U.S. courts "balance the guarantees
of the Constitution with the legitimate concerns of prison administrators." 63 The deferential review of
such regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would
seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration.64

The detainees in the present case are junior officers accused of leading 300 soldiers in committing coup
d’etat, a crime punishable with reclusion perpetua.65 The junior officers are not ordinary detainees but
visible leaders of the Oakwood incident involving an armed takeover of a civilian building in the heart
of the financial district of the country. As members of the military armed forces, the detainees are
subject to the Articles of War.66

Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf and the
NPA. Thus, we must give the military custodian a wider range of deference in implementing the
regulations in the ISAFP Detention Center. The military custodian is in a better position to know the
security risks involved in detaining the junior officers, together with the suspected Abu Sayyaf and NPA
members. Since the appropriate regulations depend largely on the security risks involved, we should
defer to the regulations adopted by the military custodian in the absence of patent arbitrariness.

The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners from
petitioning the courts for the redress of grievances. Regulations and conditions in detention and prison
facilities that violate the Constitutional rights of the detainees and prisoners will be reviewed by the
courts on a case-by-case basis. The courts could afford injunctive relief or damages to the detainees
and prisoners subjected to arbitrary and inhumane conditions. However, habeas corpus is not the
proper mode to question conditions of confinement.67 The writ of habeas corpus will only lie if what is
challenged is the fact or duration of confinement.68

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals in CA-G.R. SP

No. 78545.

No pronouncement as to costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 181881               October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner, 

vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,
DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL
SERVICE COMMISSION, Respondents.

DECISION
VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged
administratively and eventually dismissed from the service. The employee’s personal files stored in the
computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the
Decision1dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals
(CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio
"Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found
him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and
violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the
Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna
Hindi Mamaya Na" program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC
Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier
service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the
Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in
which documents marked "Confidential" are left unopened and instead sent to the addressee, the
aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright
for an employee of your agency to be a lawyer of an accused gov’t employee having a pending case in
the csc. I honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the
chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have
pending cases in the Csc. The justice in our govt system will not be served if this will continue. Please
investigate this anomaly because our perception of your clean and good office is being tainted.

Concerned Govt employee3 

Chairperson David immediately formed a team of four personnel with background in information
technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back
up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions." 4 After
some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon
their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents
Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of
Chairperson David’s directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD)
was witnessed by several employees, together with Directors Castillo and Unite who closely monitored
said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD,
who were both out of the office at the time, informing them of the ongoing copying of computer files
in their divisions upon orders of the CSC Chair. The text messages received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per
instruction of the Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about this.

"We can’t do anything about … it … it’s a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo
via mms"5

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he
will just get a lawyer. Another text message received by petitioner from PALD staff also reported the
presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin." 6 At around
10:00 p.m. of the same day, the investigating team finished their task. The next day, all the computers
in the PALD were sealed and secured for the purpose of preserving all the files stored therein. Several
diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were
turned over to Chairperson David. The contents of the diskettes were examined by the CSC’s Office for
Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from
the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents,
were draft pleadings or letters7 in connection with administrative cases in the CSC and other tribunals.
On the basis of this finding, Chairperson David issued the Show-Cause Order 8 dated January 11, 2007,
requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-
affidavit within five days from notice.
Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David made
the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected
with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-
NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are
for and on behalves of parties, who are facing charges as respondents in administrative cases. This
gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully
aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel
agency of the government tasked to discipline misfeasance and malfeasance in the government
service. The number of pleadings so prepared further demonstrates that such person is not merely
engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of
naivete or credulity, and certainly against common human experience, to believe that the person
concerned had engaged in this customary practice without any consideration, and in fact, one of the
retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings
were obtained from the computer assigned to Pollo invariably raises the presumption that he was the
one responsible or had a hand in their drafting or preparation since the computer of origin was within
his direct control and disposition.9

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-
complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for
people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they
unlawfully copied and printed personal files in his computer, and subsequently asking him to submit
his comment which violated his right against self-incrimination. He asserted that he had protested the
unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in
which he informed Director Castillo that the files in his computer were his personal files and those of
his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying,
duplicating and printing as these would violate his constitutional right to privacy and protection against
self-incrimination and warrantless search and seizure. He pointed out that though government
property, the temporary use and ownership of the computer issued under a Memorandum of Receipt
(MR) is ceded to the employee who may exercise all attributes of ownership, including its use for
personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to
comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases
in the Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer
without his consent is thus inadmissible as evidence, being "fruits of a poisonous tree." 10

On February 26, 2007, the CSC issued Resolution No. 070382 11 finding prima facie case against the
petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public
Officials and Employees). Petitioner was directed to submit his answer under oath within five days
from notice and indicate whether he elects a formal investigation. Since the charges fall under Section
19 of the URACC, petitioner was likewise placed under 90 days preventive suspension effective
immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on
March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the
formal charge as without basis having proceeded from an illegal search which is beyond the authority
of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never
aided any people with pending cases at the CSC and alleged that those files found in his computer were
prepared not by him but by certain persons whom he permitted, at one time or another, to make use
of his computer out of close association or friendship. Attached to the motion were the affidavit of
Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioner’s CPU and Atty. Eric N.
Estrellado, the latter being Atty. Solosa’s client who attested that petitioner had nothing to do with the
pleadings or bill for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner.
Petitioner contended that the case should be deferred in view of the prejudicial question raised in the
criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner
believes had instigated this administrative case. He also prayed for the lifting of the preventive
suspension imposed on him. In its Resolution No. 07051912 dated March 19, 2007, the CSC denied the
omnibus motion. The CSC resolved to treat the said motion as petitioner’s answer.

On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court, docketed
as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No.
070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to
excess or total absence of jurisdiction. Prior to this, however, petitioner lodged an
administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of
Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the
Ombudsman, and a separate complaint for disbarment against Director Buensalida. 14

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation
of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of
TRO and preliminary injunction.15 Since he failed to attend the pre-hearing conference scheduled on
April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner
and/or his counsel to appear in the said pre-hearing conference shall entitle the prosecution to
proceed with the formal investigation ex-parte.16 Petitioner moved to defer or to reset the pre-hearing
conference, claiming that the investigation proceedings should be held in abeyance pending the
resolution of his petition by the CA. The CSC denied his request and again scheduled the pre-hearing
conference on May 18, 2007 with similar warning on the consequences of petitioner and/or his
counsel’s non-appearance.17 This prompted petitioner to file another motion in the CA, to cite the
respondents, including the hearing officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set aside the
denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty.
Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with
dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution,
petitioner was deemed to have waived his right to the formal investigation which then proceeded ex
parte.

On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky
A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the
Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE
with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement
benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations. 21
On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC
noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as
employer invades the private files of an employee stored in the computer assigned to him for his
official use, in the course of initial investigation of possible misconduct committed by said employee
and without the latter’s consent or participation. The CSC thus turned to relevant rulings of the United
States Supreme Court, and cited the leading case of O’Connor v. Ortega 22as authority for the view that
government agencies, in their capacity as employers, rather than law enforcers, could validly conduct
search and seizure in the governmental workplace without meeting the "probable cause" or warrant
requirement for search and seizure. Another ruling cited by the CSC is the more recent case of United
States v. Mark L. Simons23 which declared that the federal agency’s computer use policy foreclosed any
inference of reasonable expectation of privacy on the part of its employees. Though the Court therein
recognized that such policy did not, at the same time, erode the respondent’s legitimate expectation of
privacy in the office in which the computer was installed, still, the warrantless search of the employee’s
office was upheld as valid because a government employer is entitled to conduct a warrantless search
pursuant to an investigation of work-related misconduct provided the search is reasonable in its
inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no
reasonable expectation of privacy with regard to the computer he was using in the regional office in
view of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert
any privacy right to a computer assigned to him. Even assuming that there was no such administrative
policy, the CSC was of the view that the search of petitioner’s computer successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities.
The CSC stressed that it pursued the search in its capacity as government employer and that it was
undertaken in connection with an investigation involving work-related misconduct, which exempts it
from the warrant requirement under the Constitution. With the matter of admissibility of the evidence
having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges
of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of
R.A. No. 6713 against the petitioner. These grave infractions justified petitioner’s dismissal from the
service with all its accessory penalties.

In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing
him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a
subsequent motion, he likewise prayed for the inclusion of Resolution No. 071800 25 which denied his
motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave
abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not
charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding
investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could
not be said that in ordering the back-up of files in petitioner’s computer and later confiscating the
same, Chairperson David had encroached on the authority of a judge in view of the CSC computer
policy declaring the computers as government property and that employee-users thereof have no
reasonable expectation of privacy in anything they create, store, send, or receive on the computer
system; and (3) there is nothing contemptuous in CSC’s act of proceeding with the formal investigation
as there was no restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing
that –
 I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS
IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN
TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF
SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL
RULES PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT
INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-
INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL
MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE
COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO
PROCEDURAL AND ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF
DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF
DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING
AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED
IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL
FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND
GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10
DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III,
SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS,
ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND
TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-
1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID
NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR
TRO.26

Squarely raised by the petitioner is the legality of the search conducted on his office computer and the
copying of his personal files without his knowledge and consent, alleged as a transgression on his
constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected
by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987
Constitution,27 which provides:

Sec. 2. The 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, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.
The constitutional guarantee is not a prohibition of all searches and seizures but only of
"unreasonable" searches and seizures.28 But to fully understand this concept and application for the
purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of
pronouncements in another jurisdiction. As the Court declared in People v. Marti 29 :

Our present constitutional provision on the guarantee against unreasonable search and seizure had its
origin in the 1935 Charter which, worded as follows:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched, and the persons or
things to be seized." (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As
such, the Court may turn to the pronouncements of the United States Federal Supreme Court and
State Appellate Courts which are considered doctrinal in this jurisdiction. 30

In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in
electronically recording a conversation made by petitioner in an enclosed public telephone booth
violated his right to privacy and constituted a "search and seizure". Because the petitioner had a
reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the
protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice
Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-
fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and
second, that the expectation be one that society is prepared to recognize as reasonable (objective). 32

In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the

workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with
regard to an office at union headquarters that he shared with other union officials, even as the latter or
their guests could enter the office. The Court thus "recognized that employees may have a reasonable
expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987
case of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state
hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating
charges of mismanagement of the psychiatric residency program, sexual harassment of female hospital
employees and other irregularities involving his private patients under the state medical aid program,
searched his office and seized personal items from his desk and filing cabinets. In that case, the Court
categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they
work for the government instead of a private employer." 35 A plurality of four Justices concurred that
the correct analysis has two steps: first, because "some government offices may be so open to fellow
employees or the public that no expectation of privacy is reasonable", a court must consider "[t]he
operational realities of the workplace" in order to determine whether an employee’s Fourth
Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation,
an employer’s intrusion on that expectation "for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by the standard of reasonableness
under all the circumstances."36
On the matter of government employees’ reasonable expectations of privacy in their workplace,
O’Connor teaches:

x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by virtue of actual office practices and
procedures, or by legitimate regulation. x x x The employee’s expectation of privacy must be assessed
in the context of the employment relation. An office is seldom a private enclave free from entry by
supervisors, other employees, and business and personal invitees. Instead, in many cases offices are
continually entered by fellow employees and other visitors during the workday for conferences,
consultations, and other work-related visits. Simply put, it is the nature of government offices that
others – such as fellow employees, supervisors, consensual visitors, and the general public – may have
frequent access to an individual’s office. We agree with JUSTICE SCALIA that "[c]onstitutional
protection against unreasonable searches by the government does not disappear merely because the
government has the right to make reasonable intrusions in its capacity as employer," x x x but some
government offices may be so open to fellow employees or the public that no expectation of privacy
is reasonable. x x x Given the great variety of work environments in the public sector, the question of
whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case
basis.37 (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortega’s
Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an
expectation of privacy that society is prepared to consider as reasonable." Given the undisputed
evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other employees,
kept personal correspondence and other private items in his own office while those work-related files
(on physicians in residency training) were stored outside his office, and there being no evidence that
the hospital had established any reasonable regulation or policy discouraging employees from storing
personal papers and effects in their desks or file cabinets (although the absence of such a policy does
not create any expectation of privacy where it would not otherwise exist), the Court concluded that Dr.
Ortega has a reasonable expectation of privacy at least in his desk and file cabinets. 38

Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable,
the O’Connor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of
Appeals simply concluded without discussion that the "search…was not a reasonable search under the
fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by
[public employers] is only to begin the inquiry into the standards governing such searches…[W]hat is
reasonable depends on the context within which a search takes place. x x x Thus, we must determine
the appropriate standard of reasonableness applicable to the search. A determination of the standard
of reasonableness applicable to a particular class of searches requires "balanc[ing] the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion." x x x In the case of searches conducted by a
public employer, we must balance the invasion of the employees’ legitimate expectations of privacy
against the government’s need for supervision, control, and the efficient operation of the workplace.

xxxx

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine
conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such
cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is
simply unreasonable. In contrast to other circumstances in which we have required warrants,
supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of
criminal laws. Rather, work-related searches are merely incident to the primary business of the agency.
Under these circumstances, the imposition of a warrant requirement would conflict with the
"common-sense realization that government offices could not function if every employment decision
became a constitutional matter." x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is the efficient and
proper operation of the workplace. Government agencies provide myriad services to the public, and
the work of these agencies would suffer if employers were required to have probable cause before
they entered an employee’s desk for the purpose of finding a file or piece of office correspondence.
Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory
context, much meaning when the purpose of a search is to retrieve a file for work-related reasons.
Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public
employers for the purpose of securing state property. x x x To ensure the efficient and proper
operation of the agency, therefore, public employers must be given wide latitude to enter employee
offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-related

employee misconduct. Even when employers conduct an investigation, they have an interest
substantially different from "the normal need for law enforcement." x x x Public employers have an
interest in ensuring that their agencies operate in an effective and efficient manner, and the work of
these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-
related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with
tremendous responsibility, and the consequences of their misconduct or incompetence to both the
agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public
employers are not enforcers of the criminal law; instead, public employers have a direct and overriding
interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our
view, therefore, a probable cause requirement for searches of the type at issue here would impose
intolerable burdens on public employers. The delay in correcting the employee misconduct caused
by the need for probable cause rather than reasonable suspicion will be translated into tangible and
often irreparable damage to the agency’s work, and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the "special needs, beyond the normal need for law enforcement make
the…probable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory
intrusions as well as investigations of work-related misconduct. A standard of reasonableness will
neither unduly burden the efforts of government employers to ensure the efficient and proper
operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees.
We hold, therefore, that public employer intrusions on the constitutionally protected privacy
interests of government employees for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by the standard of reasonableness
under all the circumstances. Under this reasonableness standard, both the inception and the scope of
the intrusion must be reasonable:
"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider
‘whether the…action was justified at its inception,’ x x x ; second, one must determine whether the
search as actually conducted ‘was reasonably related in scope to the circumstances which justified the
interference in the first place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception" when
there are reasonable grounds for suspecting that the search will turn up evidence that the employee
is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-
related purpose such as to retrieve a needed file. x x x The search will be permissible in its scope
when "the measures adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of …the nature of the [misconduct]." x x x39 (Citations omitted; emphasis
supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the
character of the search and neither was there any finding made as to the scope of the search that was
undertaken, the case was remanded to said court for the determination of the justification for the
search and seizure, and evaluation of the reasonableness of both the inception of the search and its
scope.

In O’Connor the Court recognized that "special needs" authorize warrantless searches involving public
employees for work-related reasons. The Court thus laid down a balancing test under which
government interests are weighed against the employee’s reasonable expectation of privacy. This
reasonableness test implicates neither probable cause nor the warrant requirement, which are related
to law enforcement.40

O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the workplace.
One of these cases involved a government employer’s search of an office computer, United States v.
Mark L. Simons41where the defendant Simons, an employee of a division of the Central Intelligence
Agency (CIA), was convicted of receiving and possessing materials containing child pornography.
Simons was provided with an office which he did not share with anyone, and a computer with Internet
access. The agency had instituted a policy on computer use stating that employees were to use the
Internet for official government business only and that accessing unlawful material was specifically
prohibited. The policy also stated that users shall understand that the agency will periodically audit,
inspect, and/or monitor the user’s Internet access as deemed appropriate. CIA agents instructed its
contractor for the management of the agency’s computer network, upon initial discovery of prohibited
internet activity originating from Simons’ computer, to conduct a remote monitoring and examination
of Simons’ computer. After confirming that Simons had indeed downloaded pictures that were
pornographic in nature, all the files on the hard drive of Simon’s computer were copied from a remote
work station. Days later, the contractor’s representative finally entered Simon’s office, removed the
original hard drive on Simon’s computer, replaced it with a copy, and gave the original to the agency
security officer. Thereafter, the agency secured warrants and searched Simons’ office in the evening
when Simons was not around. The search team copied the contents of Simons’ computer; computer
diskettes found in Simons’ desk drawer; computer files stored on the zip drive or on zip drive diskettes;
videotapes; and various documents, including personal correspondence. At his trial, Simons moved to
suppress these evidence, arguing that the searches of his office and computer violated his Fourth
Amendment rights. After a hearing, the district court denied the motion and Simons was found guilty
as charged.
Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’ computer
and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held
that the search remains valid under the O’Connor exception to the warrant requirement because
evidence of the crime was discovered in the course of an otherwise proper administrative inspection.
Simons’ violation of the agency’s Internet policy happened also to be a violation of criminal law; this
does not mean that said employer lost the capacity and interests of an employer. The warrantless
entry into Simons’ office was reasonable under the Fourth Amendment standard announced in
O’Connor because at the inception of the search, the employer had "reasonable grounds for
suspecting" that the hard drive would yield evidence of misconduct, as the employer was already
aware that Simons had misused his Internet access to download over a thousand pornographic images.
The retrieval of the hard drive was reasonably related to the objective of the search, and the search
was not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office,
he did not have such legitimate expectation of privacy with regard to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he
had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to
prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy
is one that society is prepared to accept as objectively reasonable. x x x

xxxx

x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth
Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet. Additionally, we conclude that Simons’ Fourth
Amendment rights were not violated by FBIS’ retrieval of Simons’ hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his
Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit,
inspect, and/or monitor" employees’ use of the Internet, including all file transfers, all websites
visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees on
notice that they could not reasonably expect that their Internet activity would be private. Therefore,
regardless of whether Simons subjectively believed that the files he transferred from the Internet were
private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing
his Internet use. x x x Accordingly, FBIS’ actions in remotely searching and seizing the computer files
Simons downloaded from the Internet did not violate the Fourth Amendment.

xxxx

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x
Here, Simons has shown that he had an office that he did not share. As noted above, the operational
realities of Simons’ workplace may have diminished his legitimate privacy expectations. However,
there is no evidence in the record of any workplace practices, procedures, or regulations that had such
an effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of
privacy in his office.

xxxx

In the final analysis, this case involves an employee’s supervisor entering the employee’s government
office and retrieving a piece of government equipment in which the employee had absolutely no
expectation of privacy – equipment that the employer knew contained evidence of crimes committed
by the employee in the employee’s office. This situation may be contrasted with one in which the
criminal acts of a government employee were unrelated to his employment. Here, there was a
conjunction of the conduct that violated the employer’s policy and the conduct that violated the
criminal law. We consider that FBIS’ intrusion into Simons’ office to retrieve the hard drive is one in
which a reasonable employer might engage. x x x42 (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the
constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for
public office, students of secondary and tertiary schools, officers and employees of public and private
offices, and persons charged before the prosecutor’s office with certain offenses, have also recognized
the fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution,
intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy
expectation of the employees and the reasonableness of drug testing requirement. The employees’
privacy interest in an office is to a large extent circumscribed by the company’s work policies, the
collective bargaining agreement, if any, entered into by management and the bargaining unit, and the
inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon
such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now
address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his
office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the
contents of the hard drive on petitioner’s computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s
relationship to the item seized; (2) whether the item was in the immediate control of the employee
when it was seized; and (3) whether the employee took actions to maintain his privacy in the item."
These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry,
and we consider the two questions together.44 Thus, where the employee used a password on his
computer, did not share his office with co-workers and kept the same locked, he had a legitimate
expectation of privacy and any search of that space and items located therein must comply with the
Fourth Amendment.45

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government-issued computer which contained his personal
files. Petitioner did not allege that he had a separate enclosed office which he did not share with
anyone, or that his office was always locked and not open to other employees or visitors. Neither did
he allege that he used passwords or adopted any means to prevent other employees from accessing
his computer files. On the contrary, he submits that being in the public assistance office of the CSC-
ROIV, he normally would have visitors in his office like friends, associates and even unknown people,
whom he even allowed to use his computer which to him seemed a trivial request. He described his
office as "full of people, his friends, unknown people" and that in the past 22 years he had been
discharging his functions at the PALD, he is "personally assisting incoming clients, receiving documents,
drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public
Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself
alone, that in fact he stays in the office as a paying customer."46 Under this scenario, it can hardly be
deduced that petitioner had such expectation of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned
factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer
as he claims, such is negated by the presence of policy regulating the use of office computers, as in
Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:

POLICY
1. The Computer Resources are the property of the Civil Service Commission and may be used
only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the performance of
their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an
expectation of privacy in anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign
Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create,
store, send, or receive on the computer through the Internet or any other computer
network. Users understand that the CSC may use human or automated means to monitor the
use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or

for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can
be shared or operated by other users. However, he is accountable therefor and must insure its
care and maintenance.

xxxx

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for
access to the computer system. Individual passwords shall not be printed, stored online, or
given to others. Users shall be responsible for all transactions made using their passwords. No
User may access the computer system with another User’s password or account.
 13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or
to encode particular files or messages does not imply that Users have an expectation of privacy
in the material they create or receive on the computer system. The Civil Service Commission
has global passwords that permit access to all materials stored on its networked computer
system regardless of whether those materials have been encoded with a particular User’s
password. Only members of the Commission shall authorize the application of the said global
passwords.

x x x x47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no
expectation of privacy in anything they create, store, send or receive on the office computers, and that
the CSC may monitor the use of the computer resources using both automated or human means. This
implies that on-the-spot inspections may be done to ensure that the computer resources were used
only for such legitimate business purposes.

One of the factors stated in O’Connor which are relevant in determining whether an employee’s
expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy. 48 In
one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown
that he had a reasonable expectation of privacy in his computer files where the university’s computer
policy, the computer user is informed not to expect privacy if the university has a legitimate reason to
conduct a search. The user is specifically told that computer files, including e-mail, can be searched
when the university is responding to a discovery request in the course of litigation. Petitioner
employee thus cannot claim a violation of Fourth Amendment rights when university officials
conducted a warrantless search of his computer for work-related materials. 49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s
computer, we answer in the affirmative.

The search of petitioner’s computer files was conducted in connection with investigation of work-
related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David
regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na
division is supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David
stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from
unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO
IV) such as, staff working in another government agency, "selling" cases and aiding parties with
pending cases, all done during office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to
warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions
involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its
effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up
the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;
x x x x50

A search by a government employer of an employee’s office is justified at inception when there are
reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-
related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was
held that where a government agency’s computer use policy prohibited electronic messages with
pornographic content and in addition expressly provided that employees do not have any personal
privacy rights regarding their use of the agency information systems and technology, the government
employee had no legitimate expectation of privacy as to the use and contents of his office computer,
and therefore evidence found during warrantless search of the computer was admissible in
prosecution for child pornography. In that case, the defendant employee’s computer hard drive was
first remotely examined by a computer information technician after his supervisor received complaints
that he was inaccessible and had copied and distributed non-work-related e-mail messages throughout
the office. When the supervisor confirmed that defendant had used his computer to access the
prohibited websites, in contravention of the express policy of the agency, his computer tower and
floppy disks were taken and examined. A formal administrative investigation ensued and later search
warrants were secured by the police department. The initial remote search of the hard drive of
petitioner’s computer, as well as the subsequent warrantless searches was held as valid under the
O’Connor ruling that a public employer can investigate work-related misconduct so long as any search
is justified at inception and is reasonably related in scope to the circumstances that justified it in the
first place.52

Under the facts obtaining, the search conducted on petitioner’s computer was justified at its inception
and scope. We quote with approval the CSC’s discussion on the reasonableness of its actions,
consistent as it were with the guidelines established by O’Connor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind
of the Commission that the search of Pollo’s computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the Commission pursued the search in its capacity as a
government employer and that it was undertaken in connection with an investigation involving a
work-related misconduct, one of the circumstances exempted from the warrant requirement. At the
inception of the search, a complaint was received recounting that a certain division chief in the CSCRO
No. IV was "lawyering" for parties having pending cases with the said regional office or in the
Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a
CSC employee was found to be furtively engaged in the practice of "lawyering" for parties with pending
cases before the Commission would be a highly repugnant scenario, then such a case would have
shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of
the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its
mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an
administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the
general public would not have any trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest
or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was
received, a search was forthwith conducted involving the computer resources in the concerned
regional office. That it was the computers that were subjected to the search was justified since these
furnished the easiest means for an employee to encode and store documents. Indeed, the computers
would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the
ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button,
necessitated drastic and immediate action. Pointedly, to impose the need to comply with the
probable cause requirement would invariably defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open
and transparent manner. Officials and some employees of the regional office, who happened to be in
the vicinity, were on hand to observe the process until its completion. In addition, the respondent
himself was duly notified, through text messaging, of the search and the concomitant retrieval of files
from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo
was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial
prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and
efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence
derived from the questioned search are deemed admissible.53

Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other
argument invoking the privacy of communication and correspondence under Section 3(1), Article III of
the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate
intrusions into the privacy of employees in the government workplace under the aforecited authorities.
We likewise find no merit in his contention that O’Connor and Simons are not relevant because the
present case does not involve a criminal offense like child pornography. As already mentioned, the
search of petitioner’s computer was justified there being reasonable ground for suspecting that the
files stored therein would yield incriminating evidence relevant to the investigation being conducted by
CSC as government employer of such misconduct subject of the anonymous complaint. This situation
clearly falls under the exception to the warrantless requirement in administrative searches defined in
O’Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales,
Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was
investigated on the basis of an anonymous letter alleging that he was consuming his working hours
filing and attending to personal cases, using office supplies, equipment and utilities. The OCA
conducted a spot investigation aided by NBI agents. The team was able to access Atty. Morales’
personal computer and print two documents stored in its hard drive, which turned out to be two
pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer.
Atty. Morales’ computer was seized and taken in custody of the OCA but was later ordered released on
his motion, but with order to the MISO to first retrieve the files stored therein. The OCA disagreed with
the report of the Investigating Judge that there was no evidence to support the charge against Atty.
Morales as no one from the OCC personnel who were interviewed would give a categorical and
positive statement affirming the charges against Atty. Morales, along with other court personnel also
charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross
misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the exacting
standards required of every court employee, the Court cannot use the evidence obtained from his
personal computer against him for it violated his constitutional right against unreasonable searches
and seizures. The Court found no evidence to support the claim of OCA that they were able to obtain
the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an
administrative case against the persons who conducted the spot investigation, questioning the validity
of the investigation and specifically invoking his constitutional right against unreasonable search and
seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly
confiscated personal computer of Atty. Morales, to hold him administratively liable, the Court had no
choice but to dismiss the charges against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which involved a
personal computer of a court employee, the computer from which the personal files of herein
petitioner were retrieved is a government-issued computer, hence government property the use of
which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner with the
item seized (office computer) and other relevant factors and circumstances under American Fourth
Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy,
failed to establish that petitioner had a reasonable expectation of privacy in the office computer
assigned to him.

Having determined that the personal files copied from the office computer of petitioner are admissible
in the administrative case against him, we now proceed to the issue of whether the CSC was correct in
finding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not
only respect but even finality if such findings are supported by substantial evidence. Substantial
evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to
support a conclusion, even if other equally reasonable minds might conceivably opine otherwise. 55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings
and documents stored in his office computer, as well as the sworn affidavits and testimonies of the
witnesses it presented during the formal investigation. According to the CSC, these documents were
confirmed to be similar or exactly the same content-wise with those on the case records of some cases
pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially
similar copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC
found the explanation given by petitioner, to the effect that those files retrieved from his computer
hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his
computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the
circumstances. We hold that the CSC’s factual finding regarding the authorship of the subject pleadings
and misuse of the office computer is well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings responding to
the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition
for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof
knowingly and willingly participated in the promotion or advancement of the interests of parties
contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents
the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the
preparation or drafting of the legal pleadings was pursued with less than a laudable motivation.
Whoever was responsible for these documents was simply doing the same for the money – a "legal
mercenary" selling or purveying his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the
presumption that he was the author thereof. This is because he had a control of the said computer.
More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy
of one of the pleadings found in the case records lying on the table of the respondent. This was the
Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances
indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very
own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents
were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally
served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself
executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly
rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she
never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated
that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she
personally knows, was using the computer in question. Further, Atty. Solosa himself was never
presented during the formal investigation to confirm his sworn statement such that the same
constitutes self-serving evidence unworthy of weight and credence. The same is true with the other
supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact
that he was unlawfully authorizing private persons to use the computer assigned to him for official
purpose, not only once but several times gauging by the number of pleadings, for ends not in
conformity with the interests of the Commission. He was, in effect, acting as a principal by
indispensable cooperation…Or at the very least, he should be responsible for serious misconduct for
repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes
other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line
appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke
between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not
indicative of anything more sinister. The same is too preposterous to be believed. Why would such a
statement appear in a legal pleading stored in the computer assigned to the respondent, unless he had
something to do with it?56

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous
complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II – Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due
course unless it is in writing and subscribed and sworn to by the complainant. However, in cases
initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation
therein or supported by documentary or direct evidence, in which case the person complained of may
be required to comment.

xxxx

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have
been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files
stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as
part of the disciplining authority’s own fact-finding investigation and information-gathering -- found a
prima facie case against the petitioner who was then directed to file his comment. As this Court held in
Civil Service Commission v. Court of Appeals 57 --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of
Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil
service officer or employee by the appropriate disciplining authority, even without being subscribed
and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint,
jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said memorandum order having been issued solely by
the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner
Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the
Addendum to Commissioner Buenaflor’s previous memo expressing his dissent to the actions and
disposition of the Commission in this case. According to Chairperson David, said memorandum order
was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting,
attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En
Banc at the time saw no need to issue a Resolution for the purpose and further because the CUP being
for internal use of the Commission, the practice had been to issue a memorandum order. 58 Moreover,
being an administrative rule that is merely internal in nature, or which regulates only the personnel of
the CSC and not the public, the CUP need not be published prior to its effectivity.59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s ruling that
petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the
service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on
petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules
and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and
Resolutiondated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 203335               February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners, 
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner, 

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

x-----------------------x
G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners, 
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x
G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner, 

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x
G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,

JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners, 
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT
OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU
OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND
TECHNOLOGY, Respondents.

x-----------------------x
G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN,
MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners, 
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno
Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.

x-----------------------x
G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis
Party-List, LANA R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners, 
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA,
JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN
PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR.,
LEILA DE LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive
Director of the Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS,
Director of the National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the
Philippine National Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and
Local Government, Respondents.

x-----------------------x
G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center),Petitioners, 
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in
her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The
DIRECTOR of the National Bureau of Investigation (all of the Executive Department of
Government), Respondents.

x-----------------------x
G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-
PETITION http://www.nujp.org/no-to-ra10175/, Petitioners, 
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.

x-----------------------x
G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners, 

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.

x-----------------------x
G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD
ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and
PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners, 
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity
as Senate President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in
his capacity as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON.
LOUIS NAPOLEON C. CASAMBRE, in his capacity as Executive Director, Information and
Communications Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director,
National Bureau of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief,
Philippine National Police, Respondents.

x-----------------------x
G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner, 

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA
M. DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his
official capacity as Executive Director, Information and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official capacity as Director of the National Bureau of
Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of
the Philippine National Police,Respondents.

x-----------------------x
G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner, 

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

x-----------------------x
G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his
capacity as President and in his personal capacity, Petitioner, 
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR
IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.

x-----------------------x
G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR

MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A.
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO
VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO,
ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners, 
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer,
a person can connect to the internet, a system that links him to other computers and enable him,
among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public
or for special audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;
 4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to
unjustly ruin the reputation of another or bully the latter by posting defamatory statements against
him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-
motivated can use the cyberspace for committing theft by hacking into or surreptitiously accessing his
bank account or credit card or defrauding him through false representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who have
access to the internet. For this reason, the government has a legitimate right to regulate the use of
cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer
systems and networks of indispensable or highly useful institutions as well as to the laptop or
computer programs and memories of innocent individuals. They accomplish this by sending electronic
viruses or virtual dynamites that destroy those computer systems, networks, programs, and memories.
The government certainly has the duty and the right to prevent these tomfooleries from happening
and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable
cyberspace activities violate certain of their constitutional rights. The government of course asserts
that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings, and
prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court
extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9,
2012, enjoining respondent government agencies from implementing the cybercrime law until further
orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard
certain acts as crimes and impose penalties for their commission as well as provisions that would
enable the government to track down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

 d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC
on the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct, 1 useful
in determining the constitutionality of laws that tend to target a class of things or persons. According
to this standard, a legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect class is presumed
unconstitutional. The burden is on the government to prove that the classification is necessary to
achieve a compelling state interest and that it is the least restrictive means to protect such
interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlier
applications to equal protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is
essentially a condemnable act – accessing the computer system of another without right. It is a
universally condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals
who employ tools and techniques used by criminal hackers but would neither damage the target
systems nor steal information. Ethical hackers evaluate the target system’s security and report back to
the owners the vulnerabilities they found in it and give instructions for how these can be remedied.
Ethical hackers are the equivalent of independent auditors who come into an organization to verify its
bookkeeping records.5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the
extent of the search, the methods to be used, and the systems to be tested. This is referred to as the
"get out of jail free card."6Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and
deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at
all. It simply punishes what essentially is a form of vandalism, 8 the act of willfully destroying without
right the things that belong to others, in this case their computer data, electronic document, or
electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom to
destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem
effect9 or the fear of possible prosecution that hangs on the heads of citizens who are minded to step
beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws
because they instill such kind of fear is to render the state powerless in addressing and penalizing
socially harmful conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the free
exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no
set of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead,
destroy the reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of
a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause 12 in that,
not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the
law would punish for cyber-squatting both the person who registers such name because he claims it to
be his pseudo-name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law should
recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or
use it as a pseudo-name for it is the evil purpose for which he uses the name that the law condemns.
The law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead,
destroy reputation, or deprive others who are not ill-motivated of the rightful opportunity of
registering the same. The challenge to the constitutionality of Section 4(a)(6) on ground of denial of
equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1)
degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy
and correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet
of the right protected by the guarantee against unreasonable searches and seizures. 13 But the Court
acknowledged its existence as early as 1968 in Morfe v. Mutuc, 14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The
Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v.
Senator Gordon"15 the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also from our adherence to the
Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the protection of the law against such
interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his residence
address, his contact number, his place and date of birth, the name of his spouse if any, his occupation,
and similar data.19 The law punishes those who acquire or use such identifying information without
right, implicitly to cause damage. Petitioners simply fail to show how government effort to curb
computer-related identity theft violates the right to privacy and correspondence as well as the right to
due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since
the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what
this section regulates are specific actions: the acquisition, use, misuse or deletion of personal
identifying data of another. There is no fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would
be hindered from accessing the unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the essence of identity theft that the law
seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating information made public by the user
himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts
of the offender, and it may be presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on the part of the perpetrator. 20 As such,
the press, whether in quest of news reporting or social investigation, has nothing to fear since a special
circumstance is present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution. 21 They
express fear that private communications of sexual character between husband and wife or consenting
adults, which are not regarded as crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the term "favor" includes "gracious kindness,"
"a special privilege or right granted or conceded," or "a token of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term "favor" embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the bedrooms of married couples or consenting
individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may be a
form of obscenity to some."23 The understanding of those who drew up the cybercrime law is that the
element of "engaging in a business" is necessary to constitute the illegal cybersex. 24 The Act actually
seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration.
This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel.
Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-
Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to engage in
prostitution or pornography."26 The law defines prostitution as any act, transaction, scheme, or design
involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for
money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve
no other purpose than satisfy the market for violence, lust, or pornography. 29 The Court weighed the
property rights of individuals against the public welfare. Private property, if containing pornographic
materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet
connection, perceived by some as a right, has to be balanced with the mandate of the State to
eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction
that makes it apply only to persons engaged in the business of maintaining, controlling, or operating,
directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a
computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided,
That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act
No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 2009 31 (ACPA)
to cover identical activities in cyberspace. In theory, nothing prevents the government from invoking
the ACPA when prosecuting persons who commit child pornography using a computer system.
Actually, ACPA’s definition of child pornography already embraces the use of "electronic, mechanical,
digital, optical, magnetic or any other means." Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in
cyberspace. But no one can complain since the intensity or duration of penalty is a legislative
prerogative and there is rational basis for such higher penalty. 32 The potential for uncontrolled
proliferation of a particular piece of child pornography when uploaded in the cyberspace is
incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child pornography" 33 clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who formulates the idea on his laptop would be.
Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed
elsewhere below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. – The transmission of commercial electronic
communication with the use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way
for the recipient to reject receipt of further commercial electronic messages (opt-out)
from the same source;

(bb) The commercial electronic communication does not purposely disguise the source
of the electronic message; and
 (cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.

The above penalizes the transmission of unsolicited commercial communications, also known as
"spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and Spam"
when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the owner’s
peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s privacy since the
person sending out spams enters the recipient’s domain without prior permission. The OSG contends
that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people
might have interest in such ads. What matters is that the recipient has the option of not opening or
reading these mail ads. That is true with spams. Their recipients always have the option to delete or
not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech
which is not accorded the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.36 The State cannot rob him of this right
without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements
are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who
is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even
if it be true, if no good intention and justifiable motive for making it is shown, except in the following
cases:
 1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition,
or any similar means, shall be punished by prision correccional in its minimum and medium periods or
a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by
the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code,
as amended, committed through a computer system or any other similar means which may be devised
in the future.

Petitioners lament that libel provisions of the penal code 37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed
freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be overturned
as the Court has done in Fermin v. People39 even where the offended parties happened to be public
figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice. 40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with
the knowledge that it is false or with reckless disregard of whether it was false or not. 42 The reckless
disregard standard used here requires a high degree of awareness of probable falsity. There must be
sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to
the truth of the statement he published. Gross or even extreme negligence is not sufficient to establish
actual malice.43
The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the
statement turns out to be false, is available where the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National
Conference on Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly
target libel against private persons, the Court recognizes that these laws imply a stricter standard of
"malice" to convict the author of a defamatory statement where the offended party is a public figure.
Society’s interest and the maintenance of good government demand a full discussion of public affairs. 44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the
higher standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing
libel against complainants who were public figures. Actually, the Court found the presence of malice in
fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that
there was no malice on her part. Verily, not only was there malice in law, the article being malicious in
itself, but there was also malice in fact, as there was motive to talk ill against complainants during the
electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public
figures in the above case, cinema and television personalities, when it modified the penalty of
imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the
assailed statement.45 For his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They point
out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the
defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an
all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the
condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in
evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that
it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted,
unless the imputation shall have been made against Government employees with respect to facts
related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It
simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom
of expression.48Indeed, the ICCPR states that although everyone should enjoy freedom of expression,
its exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to
certain restrictions, as may be necessary and as may be provided by law. 49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that
the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is
actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes
it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes "similar means" for
committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture associated with internet media is distinct from that
of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style. 50 In a sense,
they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted
in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the
speed with which such reactions are disseminated down the line to other internet users. Whether
these reactions to defamatory statement posted on the internet constitute aiding and abetting libel,
acts that Section 5 of the cybercrime law punishes, is another matter that the Court will deal with next
in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids
in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit
any of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who
willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as
cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected
expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The legislature is not required to define every single word
contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws. When a person
aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or interfering
in the peaceful picketing of laborers,54 his action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of
common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users. 55 Based on a recent survey, the Philippines
ranks 6th in the top 10 most engaged countries for social networking. 56 Social networking sites build
social relations among people who, for example, share interests, activities, backgrounds, or real-life
connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people
with shared interests use Facebook to get in touch.58 Users register at this site, create a personal profile
or an open book of who they are, add other users as friends, and exchange messages, including
automatic notifications when they update their profile.59 A user can post a statement, a photo, or a
video on Facebook, which can be made visible to anyone, depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of several buttons of preferences on the program’s
screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same, such as "This is great!"
When a Facebook user "Shares" a posting, the original "posting" will appear on his own Facebook
profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of digital content—which could be in
the form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a
Twitter user has "Followers," those who subscribe to this particular user’s posts, enabling them to read
the same, and "Following," those whom this particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or to the
general public. If a post is available to the public, any Twitter user can "Retweet" a given posting.
Retweeting is just reposting or republishing another person’s tweet without the need of copying and
pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the
blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the
internet café that may have provided the computer used for posting the blog; e) the person who
makes a favorable comment on the blog; and f) the person who posts a link to the blog site. 60 Now,
suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider). She needs the
internet to access her blog so she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has
an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online,
"Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and
the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger
to both Maria and Linda, comes across this blog, finds it interesting and so shares the link to this
apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to that
blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts
this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making
Comments on the assailed posting. A lot of them even press the Share button, resulting in the further
spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting"
on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if
Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a
crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of
thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment
and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their
response to the original posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the
criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak
of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account
its unique circumstances and culture, such law will tend to create a chilling effect on the millions that
use this new medium of communication in violation of their constitutionally-guaranteed right to
freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a
case involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1)
the knowing transmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use
of an interactive computer service to send to a specific person or persons under 18 years of age or to
display in a manner available to a person under 18 years of age communications that, in context, depict
or describe, in terms "patently offensive" as measured by contemporary community standards, sexual
or excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom
of speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of
special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness
of such a regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on
free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a
criminal conviction, the CDA threatens violators with penalties including up to two years in prison for
each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather
than communicate even arguably unlawful words, ideas, and images. As a practical matter, this
increased deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations,
poses greater U.S. Const. amend. I concerns than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring
speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the
statute, it unquestionably silences some speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that the statute not be overly broad. The
CDA’s burden on protected speech cannot be justified if it could be avoided by a more carefully drafted
statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous
statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes
hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild
to disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this
cyberspace communication technology to protect a person’s reputation and peace of mind, cannot
adopt means that will unnecessarily and broadly sweep, invading the area of protected freedoms. 62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials
and triers of facts to prevent arbitrary and discriminatory enforcement. 63 The terms "aiding or
abetting" constitute broad sweep that generates chilling effect on those who express themselves
through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime law
that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to mount
‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise
any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards,
overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts
a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based
solely on the violation of the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from
statutes violating free speech. A person who does not know whether his speech constitutes a crime
under an overbroad or vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into silence. 67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is

inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media websites would give law
enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is
lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether
new defamatory story against Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the penal code and the cybercrime law
clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that
society values. Allowed to cascade in the internet, it will destroy relationships and, under certain
circumstances, will generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider and cannot be held civilly liable for
any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is constitutionally protected. 69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain information is forwarded to third parties and
unsolicited commercial communication could be disseminated on the basis of this information. 70 As the
source of this information, is the user aiding the distribution of this communication? The legislature
needs to address this clearly to relieve users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the
part of internet users because of its obvious chilling effect on the freedom of expression, especially
since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way.
What is more, as the petitioners point out, formal crimes such as libel are not punishable unless
consummated.71 In the absence of legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3)
on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand
scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted
to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on
Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-
related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex.
None of these offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not
objectionable. A hacker may for instance have done all that is necessary to illegally access another
party’s computer system but the security employed by the system’s lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and passwords of others but fail to use
these because the system supervisor is alerted.72 If Section 5 that punishes any person who willfully
attempts to commit this specific offense is not upheld, the owner of the username and password could
not file a complaint against him for attempted hacking. But this is not right. The hacker should not be
freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent. 73 While this
may be true with respect to cybercrimes that tend to sneak past the area of free expression, any
attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section
4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)
(1) as well as the actors aiding and abetting the commission of such acts can be identified with some
reasonable certainty through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as
the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance.
As the Solicitor General points out, there exists a substantial distinction between crimes committed
through the use of information and communications technology and similar crimes committed using
other means. In using the technology in question, the offender often evades identification and is able
to reach far more victims or cause greater harm. The distinction, therefore, creates a basis for higher
penalties for cybercrimes.
Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of
acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised
Penal Code. When two different laws define two crimes, prior jeopardy as to one does not bar
prosecution of the other although both offenses arise from the same fact, if each crime involves some
important act which is not an essential element of the other.74 With the exception of the crimes of
online libel and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact
one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a
new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes the
computer system as another means of publication.75 Charging the offender under both laws would be a
blatant violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s
scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s definition of
child pornography in fact already covers the use of "electronic, mechanical, digital, optical, magnetic or
any other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a)
and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the damage
incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos
(Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion
temporal or a fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be
punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be
punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography
Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished
with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not
exceeding Two hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with
imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at
least One hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos
(Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission of
Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes.
They appear proportionate to the evil sought to be punished. The power to determine penalties for
offenses is not diluted or improperly wielded simply because at some prior time the act or omission
was but an element of another offense or might just have been connected with another crime. 77 Judges
and magistrates can only interpret and apply them and have no authority to modify or revise their
range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body. 78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be
authorized to collect or record by technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or
type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the collection or
recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce and
the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there
are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of
any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no
other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in
real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim that
data showing where digital messages come from, what kind they are, and where they are destined
need not be incriminating to their senders or recipients before they are to be protected. Petitioners
invoke the right of every individual to privacy and to be protected from government snooping into the
messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,79 that there is a compelling State interest
behind the law, and that the provision itself is narrowly drawn. 80 In assessing regulations affecting
privacy rights, courts should balance the legitimate concerns of the State against constitutional
guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to
put order to the tremendous activities in cyberspace for public good. 82 To do this, it is within the realm
of reason that the government should be able to monitor traffic data to enhance its ability to combat
all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to
adopt legislative measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12 does. It empowers
law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that purpose?
Evidently, it is not. Those who commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed addresses
and can neither be located nor identified. There are many ways the cyber criminals can quickly erase
their tracks. Those who peddle child pornography could use relays of computers to mislead law
enforcement authorities regarding their places of operations. Evidently, it is only real-time traffic data
collection or recording and a subsequent recourse to court-issued search and seizure warrant that can
succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide
ample safeguards against crossing legal boundaries and invading the people’s right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc 88 that certain constitutional
guarantees work together to create zones of privacy wherein governmental powers may not intrude,
and that there exists an independent constitutional right of privacy. Such right to be left alone has
been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy
into two categories: decisional privacy and informational privacy. Decisional privacy involves the right
to independence in making certain important decisions, while informational privacy refers to the
interest in avoiding disclosure of personal matters. It is the latter right—the right to informational
privacy—that those who oppose government collection or recording of traffic data in real-time seek to
protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion. 91 In determining whether or not a matter is
entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy must be one society is
prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners’ challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all sorts
of electronic devices to communicate with one another. Consequently, the expectation of privacy is to
be measured from the general public’s point of view. Without reasonable expectation of privacy, the
right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message intended
for another ICT user must furnish his service provider with his cellphone number and the cellphone
number of his recipient, accompanying the message sent. It is this information that creates the traffic
data. Transmitting communications is akin to putting a letter in an envelope properly addressed,
sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be
likened to parcels of letters or things that are sent through the posts. When data is sent from any one
source, the content is broken up into packets and around each of these packets is a wrapper or header.
This header contains the traffic data: information that tells computers where the packet originated,
what kind of data is in the packet (SMS, voice call, video, internet chat messages, email, online
browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across the ocean do not
disclose the actual names and addresses (residential or office) of the sender and the recipient, only
their coded internet protocol (IP) addresses. The packets travel from one computer system to another
where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and
uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s
communication’s system will put his voice message into packets and send them to the other person’s
cellphone where they are refitted together and heard. The latter’s spoken reply is sent to the caller in
the same way. To be connected by the service provider, the sender reveals his cellphone number to
the service provider when he puts his call through. He also reveals the cellphone number to the person
he calls. The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that
telephone users in the ‘70s must realize that they necessarily convey phone numbers to the telephone
company in order to complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that society is prepared to
recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one
another over cyberspace except through some service providers to whom they must submit certain
traffic data that are needed for a successful cyberspace communication. The conveyance of this data
takes them out of the private sphere, making the expectation to privacy in regard to them an
expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic
data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can
then be used to create profiles of the persons under surveillance. With enough traffic data, analysts
may be able to determine a person’s close associations, religious views, political affiliations, even
sexual preferences. Such information is likely beyond what the public may expect to be disclosed, and
clearly falls within matters protected by the right to privacy. But has the procedure that Section 12 of
the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical
or electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion of
the police. Replying to this, the Solicitor General asserts that Congress is not required to define the
meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase
"due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12 does not
even bother to relate the collection of data to the probable commission of a particular crime. It just
says, "with due cause," thus justifying a general gathering of data. It is akin to the use of a general
search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be
used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes
from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
While it says that traffic data collection should not disclose identities or content data, such restraint is
but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their
hands from looking into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad
elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real
time" because it is not possible to get a court warrant that would authorize the search of what is akin
to a "moving vehicle." But warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity for getting a warrant,
and that unless the search is immediately carried out, the thing to be searched stands to be removed.
These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to
internet users and that the procedure envisioned by the law could be better served by providing for
more robust safeguards. His bare assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must be narrowly drawn to
preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness
doctrine and the overbreadth doctrine. These doctrines however, have been consistently held by this
Court to apply only to free speech cases. But Section 12 on its own neither regulates nor punishes any
type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical or
even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy and
facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society." 96 The Court must
ensure that laws seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data shall be similarly preserved for
six (6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided,
That once computer data preserved, transmitted or stored by a service provider is used as evidence in
a case, the mere furnishing to such service provider of the transmittal document to the Office of the
Prosecutor shall be deemed a notification to preserve the computer data until the termination of the
case.

The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a
form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider
has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of
users. By virtue of Section 13, however, the law now requires service providers to keep traffic data and
subscriber information relating to communication services for at least six months from the date of the
transaction and those relating to content data for at least six months from receipt of the order for their
preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its
keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance of
such orders. The process of preserving data will not unduly hamper the normal transmission or use of
the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant,
shall issue an order requiring any person or service provider to disclose or submit subscriber’s
information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours
from receipt of the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power to
issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function
usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The
prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it
violate the privacy of communications and correspondence. Disclosure can be made only after judicial
intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is
properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about
the functioning of the computer system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the
computer data storage medium and to make a return thereon but in no case for a period longer than
thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure
procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement
authorities that would ensure the proper collection, preservation, and use of computer system or data
that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat
on the rights of the person from whom they were taken. Section 15 does not appear to supersede
existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination, destroyed
or deleted upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to
clear up the service provider’s storage systems and prevent overload. It would also ensure that
investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or
examination violates the user’s right against deprivation of property without due process of law. But,
as already stated, it is unclear that the user has a demandable right to require the service provider to
have that copy of the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the data or received it. He
could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found
to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to
such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the service
provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the computer
data under its control and disposition without a warrant. The Department of Justice order cannot
substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a
restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it
is not enough for him to be of the opinion that such content violates some law, for to do so would
make him judge, jury, and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech are
generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima facie in violation of any provision of the
cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to
any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be punished as a violation of Presidential Decree No.
1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by
law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had to
make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully."
There must still be a judicial determination of guilt, during which, as the Solicitor General assumes,
defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation
and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and enforcement of the
national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time
commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted
two tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.1avvphi1 The second test mandates
adequate guidelines or limitations in the law to determine the boundaries of the delegate’s authority
and prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a
national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training,
best practices, assurance and technologies that can be used to protect cyber environment and
organization and user’s assets.104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both
the domestic and international levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order, which has been
considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

 c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or
sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the
Revised Penal Code are committed with the use of information and communications
technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to

preserve traffic data and subscriber information as well as specified content data for six
months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued

warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after
the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime

investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center

(CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the
original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as
VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)
(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1)
on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL
with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial
Communications, and 4(c)(4) on online Libel.1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to
actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009
also constitutes a violation of the same proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 202666               September 29, 2014

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners, 

vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents.

DECISION
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 Decision 2 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,4but 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 photosto 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 alcoholicbeverages 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-38594.7In 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 inCivil 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 ofthe 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 databe issued; (b) respondents be ordered to
surrender and deposit with the court all soft and printed copies of the subjectdata 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 inviolation 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.

xxxx
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 quoheld 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 inthis case is whether or not a writ of habeas datashould 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 datais 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 dataas "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
datapetition 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 leavesan 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

Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for the purpose
of complementing the Writ of Amparoin 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 degreeof 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 preparedby 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 Datamay also be availed of in cases outside of extralegal killings and
enforced disappearances.

b. 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 businessof gathering, storing, and collecting of
data. As provided under Section 1 of the Rule:

Section 1. Habeas Data. – The writ of habeas datais 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 asan 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

a. The Right to Informational Privacy

The concept of privacyhas, 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,26promulgated on January30, 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 whatextent 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.

b. 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, includingthe 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 profile 31 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
foolproof."33

For instance, a Facebook user canregulate the visibility and accessibility of digital images(photos),
posted on his or her personal bulletin or "wall," except for the user’sprofile 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 whomthey grant access to their profile will view the information they post or upload thereto. 35

This, however, does not mean thatany Facebook user automatically has a protected expectation of
privacy inall 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 keepcertain 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 orprofile detail should not be denied the informational privacy right which necessarily
accompanies said choice.38Otherwise, 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 ofthe 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. Aspetitioner’s children testified, it was Angelawho uploaded the subjectphotos 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 cladin 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 muchweight 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.42
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 viewthe 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 suchwere 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 suchas 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 inthe 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 tohis 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."51Thus, 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 tothe 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 ingeneral is the best means of avoiding
privacy rights violations.54 As a cyberspace communitymember, 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 widespreadnotion 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 mosttimely. 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 citizenshipin 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 beresponsible
in their dealings and activities in cyberspace, particularly in OSNs, whenit enforced the disciplinary
actions specified in the Student Handbook, absenta 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
incyberspace activities.1âwphi1 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.
 SECOND DIVISION

G.R. No. 179736, June 26, 2013

SPOUSES BILL AND VICTORIA HING, Petitioners, v. ALEXANDER CHOACHUY, SR. AND ALLAN

CHOACHUY, Respondents.

DECISION

DEL CASTILLO, J.:

“The concept of liberty would be emasculated if it does not likewise compel respect for [one’s]
personality as a unique individual whose claim to privacy and [non]-interference demands respect.” 1

This Petition for Review on Certiorari2 under Rule 45 of the Rules of Court assails the July 10, 2007
Decision3 and the September 11, 2007 Resolution4 of the Court of Appeals (CA) in CA-G.R. CEB-SP No.
01473.

Factual Antecedents
On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the Regional Trial Court (RTC) of
Mandaue City a Complaint5 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; 6 that
respondents are the owners of Aldo Development & Resources, Inc. (Aldo) located at Lots 1901 and
1900-C, adjacent to the property of petitioners;7 that respondents constructed an auto-repair shop
building (Aldo Goodyear Servitec) on Lot 1900-C; that in April 2005, Aldo filed a case against petitioners
for Injunction and Damages with Writ of Preliminary Injunction/TRO, docketed as Civil Case No. MAN-
5125;8 that in that case, 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;9 that the court, in that case, denied Aldo’s application for preliminary injunction for failure to
substantiate its allegations;10 that, in order to get evidence to support the said case, respondents on
June 13, 2005 illegally set-up and installed on the building of Aldo Goodyear Servitec two video
surveillance cameras facing petitioners’ property;11 that respondents, through their employees and
without the consent of petitioners, also took pictures of petitioners’ on-going construction; 12 and that
the acts of respondents violate petitioners’ right to privacy. 13  Thus, petitioners prayed that
respondents be ordered to remove the video surveillance cameras and enjoined from conducting
illegal surveillance.14

In their Answer with Counterclaim,15 respondents claimed that they did not install the video
surveillance cameras,16 nor did they order their employees to take pictures of petitioners’
construction.17 They also clarified that they are not the owners of Aldo but are mere stockholders. 18
Ruling of the Regional Trial Court
On  October 18, 2005,  the RTC issued an Order19  granting the application for a TRO.  The dispositive
portion of the said Order reads:cralavvonlinelawlibrary

WHEREFORE, the application for a [T]emporary [R]estraining [O]rder or a [W]rit of [P]reliminary

[I]njunction is granted.  Upon the filing and approval of a bond by [petitioners], which the Court sets at
P50,000.00, let a [W]rit of [P]reliminary [I]njunction issue against the [respondents] Alexander
Choachuy, Sr. and Allan Choachuy. They are hereby directed to immediately remove the revolving
camera that they installed at the left side of their building 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.20

Respondents moved for a reconsideration21 but the RTC denied the same in its Order22 dated February
6, 2006.23  Thus:cralavvonlinelawlibrary
WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of merit.  Issue a [W]rit of
[P]reliminary [I]njunction in consonance with the Order dated 18 October 2005.

IT IS SO ORDERED.24nadcralavvonlinelawlibrary

Aggrieved, respondents filed with the CA a Petition for Certiorari25 under Rule 65 of the Rules of Court
with application for a TRO and/or Writ of Preliminary Injunction.

Ruling of the Court of Appeals

On July 10, 2007, the CA issued its Decision 26 granting the Petition for Certiorari.  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.27  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.28  The CA also said that since respondents are not the owners of
the building, they could not have installed video surveillance cameras. 29  They are mere stockholders of
Aldo, which has a separate juridical personality.30  Thus, they are not the proper parties.31 
The falloreads:cralavvonlinelawlibrary

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.32nadcralavvonlinelawlibrary

Issues
Hence, this recourse by petitioners arguing that:cralavvonlinelawlibrary

I.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT ANNULLED AND SET ASIDE THE ORDERS OF
THE [RTC] DATED 18 OCTOBER 2005 AND 6 FEBRUARY 2006 HOLDING THAT THEY WERE ISSUED WITH
GRAVE ABUSE OF DISCRETION.
 II.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT PETITIONER SPOUSES HING
ARE NOT ENTITLED TO THE WRIT OF PRELIMINARY INJUNCTION ON THE GROUND THAT THERE IS NO
VIOLATION OF THEIR CONSTITUTIONAL AND CIVIL RIGHT TO PRIVACY DESPITE THE FACTUAL FINDINGS
[OF] THE RTC, WHICH RESPONDENTS CHOACHUY FAILED TO REFUTE, THAT THE ILLEGALLY INSTALLED
SURVEILLANCE CAMERAS OF RESPONDENTS CHOACH[U]Y WOULD CAPTURE THE PRIVATE ACTIVITIES
OF PETITIONER SPOUSES HING, THEIR CHILDREN AND EMPLOYEES.
III.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT SINCE THE OWNER OF THE
BUILDING IS ALDO DEVELOPMENT AND RESOURCES, INC. THEN TO SUE RESPONDENTS CHOACHUY
CONSTITUTE[S] A PURPORTEDLY UNWARRANTED PIERCING OF THE CORPORATE VEIL.
IV. 
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT IGNORED THE SERIOUS FORMAL
DEFICIENCIES OF BOTH THE PETITION AND THE MOTION FOR RECONSIDERATION DATED 15 MARCH
2006 OF RESPONDENT[S] CHOACH[U]Y AND GAVE X X X THEM DUE COURSE AND CONSIDERATION. 33

Essentially, the issues boil down to (1) whether there is a violation of petitioners’ right to privacy, and
(2) whether respondents are the proper parties to this suit.

Petitioners’ Arguments
Petitioners insist that they are entitled to the issuance of a Writ of Preliminary Injunction because
respondents’ installation of a stationary camera directly facing petitioners’ property and a revolving
camera covering a significant portion of the same property constitutes a violation of petitioners’ right
to privacy.34  Petitioners cite Article 26(1) of the Civil Code, which enjoins persons from prying into the
private lives of others.35 Although the said provision pertains to the privacy of another’s residence,
petitioners opine that it includes business offices, citing Professor Arturo M. Tolentino. 36  Thus, even
assuming arguendo that petitioners’ property is used for business, it is still covered by the said
provision.37

As to whether respondents are the proper parties to implead in this case, petitioners claim that
respondents and Aldo are one and the same, and that respondents only want to hide behind Aldo’s
corporate fiction.38  They point out that if respondents are not the real owners of the building, where
the video surveillance cameras were installed, then they had no business consenting to the ocular
inspection conducted by the court.39

Respondents’ Arguments
Respondents, on the other hand, echo the ruling of the CA that petitioners cannot invoke their right to
privacy since the property involved is not used as a residence. 40 Respondents maintain that they had
nothing to do with the installation of the video surveillance cameras as these were installed by Aldo,
the registered owner of the building,41 as additional security for its building. 42 Hence, they were
wrongfully impleaded in this case.43

Our Ruling
The Petition is meritorious.

The right to privacy is the right to be let alone.  

The right to privacy is enshrined in our Constitution44 and in our laws.  It is defined as “the right to be
free from unwarranted exploitation of one’s person or from intrusion into one’s private activities in
such a way as to cause humiliation to a person’s ordinary sensibilities.” 45  It is the right of an individual
“to be free from unwarranted publicity, or to live without unwarranted interference by the public in
matters in which the public is not necessarily concerned.”46  Simply put, the right to privacy is “the right
to be let alone.”47

The Bill of Rights guarantees the people’s right to privacy and protects them against the State’s abuse
of power.  In this regard, the State recognizes the right of the people to be secure in their houses.  No
one, not even the State, except “in case of overriding social need and then only under the stringent
procedural safeguards,” can disturb them in the privacy of their homes. 48

The right to privacy under Article 26(1)  of the Civil Code covers business offices  where the public are
excluded therefrom and only certain individuals are allowed  to enter.

Article 26(1) of the Civil Code, on the other hand, protects an individual’s right to privacy and provides
a legal remedy against abuses that may be committed against him by other individuals.  It
states:cralavvonlinelawlibrary
Art. 26.  Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors
and other persons.  The following and similar acts, though they may not constitute a criminal offense,
shall produce a cause of action for damages, prevention and other relief:cralavvonlinelawlibrary

(1)  Prying into the privacy of another’s residence;chanroblesvirtualawlibrary

xxxx

This provision recognizes that a man’s house is his castle, where his right to privacy cannot be denied
or even restricted by others. It includes “any act of intrusion into, peeping or peering inquisitively into
the residence of another without the consent of the latter.” 49  The phrase “prying into the privacy of
another’s residence,” however, does not mean that only the residence is entitled to privacy.  As
elucidated by Civil law expert Arturo M. Tolentino:cralavvonlinelawlibrary
Our Code specifically mentions “prying into the privacy of another’s residence.”  This does not mean,
however, that only the residence is entitled to privacy, because the law covers also “similar acts.”  A
business office is entitled to the same privacy when the public is excluded therefrom and only such
individuals as are allowed to enter may come in.  x x x50  (Emphasis supplied)

Thus, an individual’s right to privacy under Article 26(1) of the Civil Code should not be confined to his
house or residence as it may extend to places where he has the right to exclude the public or deny
them access.  The phrase “prying into the privacy of another’s residence,” therefore, covers places,
locations, or even situations which an individual considers as private.  And as long as his right is
recognized by society, other individuals may not infringe on his right to privacy.  The CA, therefore,
erred in limiting the application of Article 26(1) of the Civil Code only to residences.

The “reasonable expectation of privacy” test is used to determine whether there is a violation of the
right to 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.51  In Ople v. Torres,52 we enunciated that “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) this expectation is one that
society recognizes as reasonable.”  Customs, community norms, and practices may, therefore, limit or
extend an individual’s “reasonable expectation of privacy.” 53  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.54

In this day and age, video surveillance cameras are installed practically everywhere for the protection
and safety of everyone.  The installation of these cameras, however, should not cover places where
there is reasonable expectation of privacy, unless the consent of the individual, whose right to privacy
would be affected, was obtained.  Nor should these cameras be used to pry into the privacy of
another’s residence or business office as it would be no different from eavesdropping, which is a crime
under Republic Act No. 4200 or the Anti-Wiretapping Law.

In this case, the RTC, in granting the application for Preliminary Injunction, ruled
that:cralavvonlinelawlibrary

After careful consideration, there is basis to grant the application for a temporary restraining order.
The operation by [respondents] of a revolving camera, even if it were mounted on their building,
violated the right of privacy of [petitioners], who are the owners of the adjacent lot.  The camera does
not only focus on [respondents’] property or the roof of the factory at the back (Aldo Development and
Resources, Inc.) but it actually spans through a good portion of [the] land of [petitioners].

Based on the ocular inspection, the Court understands why [petitioner] Hing was so unyielding in
asserting that the revolving camera was set up deliberately to monitor the on[-]going construction in
his property.  The monitor showed only a portion of the roof of the factory of [Aldo].  If the purpose of
[respondents] in setting up a camera at the back is to secure the building and factory premises, then
the camera should revolve only towards their properties at the back. [Respondents’] camera cannot be
made to extend the view to [petitioners’] lot.  To allow the [respondents] to do that over the objection
of the [petitioners] would violate the right of [petitioners] as property owners.  “The owner of a thing
cannot make use thereof in such a manner as to injure the rights of a third person.” 55

The RTC, thus, considered that 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.  As we see then, the issuance of a preliminary
injunction was justified.  We need not belabor that the issuance of a preliminary injunction is
discretionary on the part of the court taking cognizance of the case and should not be interfered with,
unless there is grave abuse of discretion committed by the court.56  Here, there is no indication of any
grave abuse of discretion.  Hence, the CA erred in finding that petitioners are not entitled to an
injunctive writ.

This brings us to the next question: whether respondents are the proper parties to this suit.

A real party defendant is one who has a correlative legal obligation to redress a wrong done to the
plaintiff by reason of the defendant's act or omission which had violated the legal right of the former.

Section 2, Rule 3 of the Rules of Court provides:cralavvonlinelawlibrary

SEC. 2. Parties-in-interest. — A real party-in-interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real party-in-
interest.

A real party defendant is “one who has a correlative legal obligation to redress a wrong done to the
plaintiff by reason of the defendant’s act or omission which had violated the legal right of the
former.”57

In ruling that respondents are not the proper parties, the CA reasoned that since they do not own the
building, they could not have installed the video surveillance cameras. 58  Such reasoning, however, is
erroneous.  The fact that 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.

In their Complaint, petitioners claimed that respondents installed the video surveillance cameras in
order to fish for evidence, which could be used against petitioners in another case. 59  During the
hearing of the application for Preliminary Injunction, petitioner Bill testified that when respondents
installed the video surveillance cameras, he immediately broached his concerns but they did not seem
to care,60 and thus, he reported the matter to the barangay for mediation, and eventually, filed a
Complaint against respondents before the RTC.61  He also admitted that as early as 1998 there has
already been a dispute between his family and the Choachuy family concerning the boundaries of their
respective properties.62  With these factual circumstances in mind, we believe that respondents are the
proper parties to be impleaded.

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.63

Also quite telling is the fact that respondents, notwithstanding their claim that they are not owners of
the building, allowed the court to enter the compound of Aldo and conduct an ocular inspection. The
counsel for respondents even toured Judge Marilyn Lagura-Yap inside the building and answered all
her questions regarding the set-up and installation of the video surveillance cameras. 64 And when
respondents moved for reconsideration of the Order dated October 18, 2005 of the RTC, one of the
arguments they raised is that Aldo would suffer damages if the video surveillance cameras are
removed and transferred.65  Noticeably, in these instances, the personalities of respondents and Aldo
seem to merge.

All these taken together lead us 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.

WHEREFORE, the Petition is hereby GRANTED.  The Decision dated July 10, 2007 and the Resolution
dated September 11, 2007 of the Court of Appeals in CA-G.R. CEB-SP No. 01473 are
hereby REVERSEDand SET ASIDE. The Orders dated October 18, 2005 and February 6, 200[6] of Branch
28 of the Regional Trial Court of Mandaue City in Civil Case No. MAN-5223 are
hereby REINSTATED and AFFIRMED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION 
G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner, 
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon
City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office,
allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive
to petitioner's dignity and personality," contrary to morals, good customs and public policy." 1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral
damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to
costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the
civil case was based was culled from a tape recording of the confrontation made by petitioner. 2 The
transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot

ka na kung paano ka napunta rito, porke member ka na, magsumbong ka
kung ano ang gagawin ko sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing
ganoon —

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka,
kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako
ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo,
kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa
akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to

10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa

hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung
paano ka nakapasok dito "Do you think that on your own makakapasok
ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).
 CHUCHI — Itutuloy ko na M'am sana ang duty ko.

ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on

your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami
ang nag-aaply alam kong hindi ka papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak.

Akala mo ba makukuha ka dito kung hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung

paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng
nanay at tatay mo ang mga magulang ko.

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka

puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.

CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.

ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka

makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa
akin, dahil tapos ka na.

CHUCHI — Ina-ano ko m'am na utang na loob.

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no,
nilapastangan mo ako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo.

Lumabas ka na. Magsumbong ka.3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the
confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of
Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and
other related violations of private communication, and other purposes." An information charging
petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of

Republic Act No. 4200, committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro
Manila, Philippines, and within the jurisdiction of this honorable court,
the above-named accused, Socorro D. Ramirez not being authorized by
Ester S. Garcia to record the latter's conversation with said accused, did
then and there willfully, unlawfully and feloniously, with the use of a tape
recorder secretly record the said conversation and thereafter
communicate in writing the contents of the said recording to other
person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA
Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground
that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order
May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts
charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200
refers to a the taping of a communication by a person other than a participant to the communication.4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this
Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division)
of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial
court's order of May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A.

4200. In thus quashing the information based on the ground that the facts alleged do
not constitute an offense, the respondent judge acted in grave abuse of discretion
correctible by certiorari.5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent
Court of Appeals denied in its Resolution6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision of
Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the
conversation. She contends that the provision merely refers to the unauthorized taping of a private
conversation by a party other than those involved in the communication. 8 In relation to this, petitioner
avers that the substance or content of the conversation must be alleged in the Information, otherwise
the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200
penalizes the taping of a "private communication," not a "private conversation" and that consequently,
her act of secretly taping her conversation with private respondent was not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of
a statute is clear and unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where a literal interpretation would be either impossible 11 or
absurb or would lead to an injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related
Violations of Private Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable, or by using any other
device or arrangement, to secretly overhear, intercept, or record such communication
or spoken word by using a device commonly known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by
all the parties to any private communication to secretly record such communication by means of a tape
recorder. The law makes no distinction as to whether the party sought to be penalized by the statute
ought to be a party other than or different from those involved in the private communication. The
statute's intent to penalize all persons unauthorized to make such recording is underscored by the use
of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a
(person) privy to a communication who records his private conversation with another without the
knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion
that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape
recording of private conversations or communications taken either by the parties themselves or by
third persons. Thus:
xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy

would not appear to be material. Now, suppose, Your Honor, the recording is not made
by all the parties but by some parties and involved not criminal cases that would be
mentioned under section 3 but would cover, for example civil cases or special
proceedings whereby a recording is made not necessarily by all the parties but perhaps
by some in an effort to show the intent of the parties because the actuation of the
parties prior, simultaneous even subsequent to the contract or the act may be indicative
of their intention. Suppose there is such a recording, would you say, Your Honor, that
the intention is to cover it within the purview of this bill or outside?

Senator Tañada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of offense but
as evidence to be used in Civil Cases or special proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded conversations
taken without the authorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to record the

observation of one without his knowing it and then using it against him. It is not fair, it is
not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I
believe that all the parties should know that the observations are being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of the board of
directors where a tape recording is taken, there is no objection to this if all the parties
know. It is but fair that the people whose remarks and observations are being made
should know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we say: "Please be
informed that whatever you say here may be used against you." That is fairness and that
is what we demand. Now, in spite of that warning, he makes damaging statements
against his own interest, well, he cannot complain any more. But if you are going to take
a recording of the observations and remarks of a person without him knowing that it is
being taped or recorded, without him knowing that what is being recorded may be used
against him, I think it is unfair.

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now
worded, if a party secretly records a public speech, he would be penalized under Section
1? Because the speech is public, but the recording is done secretly.

Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the
communication between one person and another person — not between a speaker and a
public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted
deliberations from the Congressional Record, therefore plainly supports the view held by the
respondent court that the provision seeks to penalize even those privy to the private communications.
Where the law makes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the
same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of
secretly overhearing, intercepting or recording private communications by means of the devices
enumerated therein. The mere allegation that an individual made a secret recording of a private
communication by means of a tape recorder would suffice to constitute an offense under Section 1 of
R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court:
"Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of
the conversation, as well as its communication to a third person should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does
not include "private conversations" narrows the ordinary meaning of the word "communication" to a
point of absurdity. The word communicate comes from the latin word communicare, meaning "to
share or to impart." In its ordinary signification, communication connotes the act of sharing or
imparting signification, communication connotes the act of sharing or imparting, as in
a conversation, 15 or signifies the "process by which meanings or thoughts are shared between
individuals through a common system of symbols (as language signs or gestures)" 16 These definitions
are broad enough to include verbal or non-verbal, written or expressive communications of "meanings
or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988,
between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the
legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the
fact that the terms "conversation" and "communication" were interchangeably used by Senator
Tañada in his Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from
their conversations being overheard. But this statement ignores the usual nature
of conversations as well the undeniable fact that most, if not all, civilized people have
some aspects of their lives they do not wish to expose. Free conversationsare often
characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of
anti-social desires of views not intended to be taken seriously. The right to the privacy of
communication, among others, has expressly been assured by our Constitution.
Needless to state here, the framers of our Constitution must have recognized the nature
of conversations between individuals and the significance of man's spiritual nature, of
his feelings and of his intellect. They must have known that part of the pleasures and
satisfactions of life are to be found in the unaudited, and free exchange
of communication between individuals — free from every unjustifiable intrusion by
whatever means.17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone
wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private
conversation without authorization did not violate R.A. 4200 because a telephone extension devise
was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle
that "penal statutes must be construed strictly in favor of the accused."20 The instant case turns on a
different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200
suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of
private communications with the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us
with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED.
Costs against petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 168338             February 15, 2008

FRANCISCO CHAVEZ, petitioner, 
vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL
TELECOMMUNICATIONS COMMISSION (NTC), respondents.

DECISION
PUNO, C.J.:

A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into
the right to free speech and free expression, that any attempt to restrict it must be met with an
examination so critical that only a danger that is clear and present would be allowed to curtail it.

Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws
and issuances meant to curtail this right, as in Adiong v. COMELEC,1 Burgos v. Chief of Staff,2 Social
Weather Stations v. COMELEC,3 and Bayan v. Executive Secretary Ermita.4 When on its face, it is clear
that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it
must be nullified.

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local elections. On
June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to
destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly
between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the
Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-
tapping.5 Later, in a Malacañang press briefing, Secretary Bunye produced two versions of the tape,
one supposedly the complete version, and the other, a spliced, "doctored" or altered version, which
would suggest that the President had instructed the COMELEC official to manipulate the election
results in the President’s favor. 6 It seems that Secretary Bunye admitted that the voice was that of
President Arroyo, but subsequently made a retraction. 7
2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia,
subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were
purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC
Commissioner Garcillano, and the late Senator Barbers.8

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters
that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents
could be held liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty.
Paguia. He also stated that persons possessing or airing said tapes were committing a continuing
offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was
being committed in their presence.9

4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of
Investigation (NBI) to go after media organizations "found to have caused the spread, the playing and
the printing of the contents of a tape" of an alleged wiretapped conversation involving the President
about fixing votes in the 2004 national elections. Gonzales said that he was going to start
with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network,
because by the very nature of the Internet medium, it was able to disseminate the contents of the tape
more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and
GMA7 to a probe, and supposedly declared, "I [have] asked the NBI to conduct a tactical interrogation
of all concerned." 10

5. On June 11, 2005, the NTC issued this press release: 11

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE

ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS

xxx xxx xxx

Taking into consideration the country’s unusual situation, and in order not to unnecessarily
aggravate the same, the NTC warns all radio stations and television network owners/operators
that the conditions of the authorization and permits issued to them by Government like the
Provisional Authority and/or Certificate of Authority explicitly provides that said companies
shall not use [their] stations for the broadcasting or telecasting of false information or willful
misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain
personalities are in possession of alleged taped conversations which they claim involve the
President of the Philippines and a Commissioner of the COMELEC regarding supposed violation
of election laws.

These personalities have admitted that the taped conversations are products of illegal
wiretapping operations.

Considering that these taped conversations have not been duly authenticated nor could it be
said at this time that the tapes contain an accurate or truthful representation of what was
recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the
said taped conversations by radio and television stations is a continuing violation of the Anti-
Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority
issued to these radio and television stations. It has been subsequently established that the said
tapes are false and/or fraudulent after a prosecution or appropriate investigation, the
 concerned radio and television companies are hereby warned that their broadcast/airing of
such false information and/or willful misrepresentation shall be just cause for the suspension,
revocation and/or cancellation of the licenses or authorizations issued to the said companies.

In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards
to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly
states, among others, that "all radio broadcasting and television stations shall, during any
broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being
broadcast or telecast the tendency thereof is to disseminate false information or such other
willful misrepresentation, or to propose and/or incite treason, rebellion or sedition." The
foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in
addition thereto, prohibited radio, broadcasting and television stations from using their stations
to broadcast or telecast any speech, language or scene disseminating false information or
willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts.

The [NTC] will not hesitate, after observing the requirements of due process, to apply with
full force the provisions of said Circulars and their accompanying sanctions on erring radio
and television stations and their owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga
Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the
constitutional freedom of speech, of expression, and of the press, and the right to information.
Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: 12

 NTC respects and will not hinder freedom of the press and the right to information on matters
of public concern. KBP & its members have always been committed to the exercise of press
freedom with high sense of responsibility and discerning judgment of fairness and honesty.
 NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press
freedom or censorship. The NTC further denies and does not intend to limit or restrict the
interview of members of the opposition or free expression of views.
 What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
 KBP has program standards that KBP members will observe in the treatment of news and public
affairs programs. These include verification of sources, non-airing of materials that would
constitute inciting to sedition and/or rebellion.
 The KBP Codes also require that no false statement or willful misrepresentation is made in the
treatment of news or commentaries.
 The supposed wiretapped tapes should be treated with sensitivity and handled responsibly
giving due consideration to the process being undertaken to verify and validate the authenticity
and actual content of the same."

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary
Gonzales and the NTC, "praying for the issuance of the writs of certiorari and prohibition, as
extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional
and oppressive exercise of authority by the respondents."13
Alleging that the acts of respondents are violations of the freedom on expression and of the press, and
the right of the people to information on matters of public concern, 14 petitioner specifically asked this
Court:

[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since
June 6, 2005 until the present that curtail the public’s rights to freedom of expression and of
the press, and to information on matters of public concern specifically in relation to information
regarding the controversial taped conversion of President Arroyo and for prohibition of the
further commission of such acts, and making of such issuances, and orders by respondents. 15

Respondents16 denied that the acts transgress the Constitution, and questioned petitioner’s legal
standing to file the petition. Among the arguments they raised as to the validity of the "fair warning"
issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to
print media, and the warning was issued pursuant to the NTC’s mandate to regulate the
telecommunications industry. 17 It was also stressed that "most of the [television] and radio stations
continue, even to this date, to air the tapes, but of late within the parameters agreed upon between
the NTC and KBP." 18

D. The Procedural Threshold: Legal Standing

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is
not a member of the broadcast media, prays that we strike down the acts and statements made by
respondents as violations of the right to free speech, free expression and a free press. For another, the
recipients of the press statements have not come forward—neither intervening nor joining petitioner
in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does not
complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege
"such a personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the Court so largely depends for illumination of
difficult constitutional questions." 19

But as early as half a century ago, we have already held that where serious constitutional questions are
involved, "the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside if we must, technicalities of procedure." 20 Subsequently, this
Court has repeatedly and consistently refused to wield procedural barriers as impediments to its
addressing and resolving serious legal questions that greatly impact on public interest, 21 in keeping
with the Court's duty under the 1987 Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution and the laws and that they have
not abused the discretion given to them.

Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of
overarching significance to our society,22 we therefore brush aside technicalities of procedure and take
cognizance of this petition,23 seeing as it involves a challenge to the most exalted of all the civil rights,
the freedom of expression. The petition raises other issues like the extent of the right to information
of the public. It is fundamental, however, that we need not address all issues but only the most
decisive one which in the case at bar is whether the acts of the respondents abridge freedom of
speech and of the press.
But aside from the primordial issue of determining whether free speech and freedom of the press
have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of
freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2)
to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core
concepts of prior restraint, content-neutral and content-based regulations and their constitutional
standard of review; (4) to examine the historical difference in the treatment of restraints between
print and broadcast media and stress the standard of review governing both; and (5) to call attention
to the ongoing blurring of the lines of distinction between print and broadcast media.

E. Re-examining The law on freedom of speech, 

of expression and of the press

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of
grievances.24

Freedom of expression has gained recognition as a fundamental principle of every democratic

government, and given a preferred right that stands on a higher level than substantive economic
freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution,
copied almost verbatim from the First Amendment of the U.S. Bill of Rights, 25 were considered the
necessary consequence of republican institutions and the complement of free speech. 26 This preferred
status of free speech has also been codified at the international level, its recognition now enshrined in
international law as a customary norm that binds all nations. 27

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental
postulate of our constitutional system. 28 This right was elevated to constitutional status in the 1935,
the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that
freedom of speech is an indispensable condition for nearly every other form of freedom. 29 Moreover,
our history shows that the struggle to protect the freedom of speech, expression and the press was, at
bottom, the struggle for the indispensable preconditions for the exercise of other freedoms. 30 For it is
only when the people have unbridled access to information and the press that they will be capable of
rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be
free and ignorant.

E.1. Abstraction of Free Speech

Surrounding the freedom of speech clause are various concepts that we have adopted as part and
parcel of our own Bill of Rights provision on this basic freedom.31 What is embraced under this
provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, 32 in which it
was held:

…At the very least, free speech and free press may be identified with the liberty to discuss
publicly and truthfully any matter of public interest without censorship and punishment. There
is to be no previous restraint on the communication of views or subsequent liability whether in
libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless
there be a clear and present danger of substantive evil that Congress has a right to prevent. 33

Gonzales further explained that the vital need of a constitutional democracy for freedom of expression
is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of
assuring participation by the people in social, including political, decision-making; and of maintaining
the balance between stability and change.34As early as the 1920s, the trend as reflected in Philippine
and American decisions was to recognize the broadest scope and assure the widest latitude for this
constitutional guarantee. The trend represents a profound commitment to the principle that debate on
public issue should be uninhibited, robust, and wide-open. 35

Freedom of speech and of the press means something more than the right to approve existing political
beliefs or economic arrangements, to lend support to official measures, and to take refuge in the
existing climate of opinion on any matter of public consequence.36 When atrophied, the right becomes
meaningless.37 The right belongs as well -- if not more – to those who question, who do not conform,
who differ.38 The ideas that may be expressed under this freedom are confined not only to those that
are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the
press should allow and even encourage the articulation of the unorthodox view, though it be hostile to
or derided by others; or though such view "induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger." 39 To paraphrase Justice Holmes, it is freedom for
the thought that we hate, no less than for the thought that agrees with us. 40

The scope of freedom of expression is so broad that it extends protection to nearly all forms of
communication. It protects speech, print and assembly regarding secular as well as political causes, and
is not confined to any particular field of human interest. The protection covers myriad matters of public
interest or concern embracing all issues, about which information is needed or appropriate, so as to
enable members of society to cope with the exigencies of their period. The constitutional protection
assures the broadest possible exercise of free speech and free press for religious, political, economic,
scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to
advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection afforded free
speech extends to speech or publications that are entertaining as well as instructive or informative.
Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,41 this Court stated that all forms of
media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of
speech and of expression.

While all forms of communication are entitled to the broad protection of freedom of expression
clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspapers and other print media, as will be subsequently discussed.

E.2. Differentiation: The Limits & Restraints of Free Speech

From the language of the specific constitutional provision, it would appear that the right to free speech
and a free press is not susceptible of any limitation. But the realities of life in a complex society
preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge
such freedom. For freedom of expression is not an absolute, 42 nor is it an "unbridled license that gives
immunity for every possible use of language and prevents the punishment of those who abuse this
freedom."

Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation
by the State under its pervasive police power, in order that it may not be injurious to the equal right of
others or those of the community or society.43 The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may vary from those of
another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and
evaluation of the permissible scope of restrictions on various categories of speech. 44 We have ruled,
for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as "fighting
words" are not entitled to constitutional protection and may be penalized. 45

Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so
on) have been applied differently to each category, either consciously or unconsciously. 46 A study of
free speech jurisprudence—whether here or abroad—will reveal that courts have developed different
tests as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene
speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech
affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the
right to a fair trial; and speech associated with rights of assembly and petition. 47

Generally, restraints on freedom of speech and expression are evaluated by either or a combination of
three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a
rational connection has been established between the speech restrained and the danger
contemplated; 48 (b) the balancing of interests tests,used as a standard when courts need to balance
conflicting social values and individual interests, and requires a conscious and detailed consideration of
the interplay of interests observable in a given situation of type of situation; 49 and (c) the clear and
present danger rule which rests on the premise that speech may be restrained because there is
substantial danger that the speech will likely lead to an evil the government has a right to prevent. This
rule requires that the evil consequences sought to be prevented must be substantive, "extremely
serious and the degree of imminence extremely high." 50

As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear

and present danger test to resolve free speech challenges. More recently, we have concluded that we
have generally adhered to the clear and present danger test. 51

E.3. In Focus: Freedom of the Press

Much has been written on the philosophical basis of press freedom as part of the larger right of free
discussion and expression. Its practical importance, though, is more easily grasped. It is the chief
source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of
opinion on public questions. It is the instrument by which citizens keep their government informed of
their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep
government responsible and efficient. Without a vigilant press, the mistakes of every administration
would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:52

The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear
conscience.

Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed,
the press benefits from certain ancillary rights. The productions of writers are classified as intellectual
and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a
periodical publication are liable for damages, be they private individuals or public officials.
 E.4. Anatomy of Restrictions: Prior Restraint, Content-Neutral and Content-Based Regulations

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four
aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from
punishment subsequent to publication; 53 (3) freedom of access to information; 54 and (4) freedom of
circulation.55

Considering that petitioner has argued that respondents’ press statement constitutes a form of
impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of
content-based (as distinguished from content-neutral) regulations.

At this point, it should be noted that respondents in this case deny that their acts constitute prior
restraints. This presents a unique tinge to the present challenge, considering that the cases in our
jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act
or issuance actually constituted prior restraint. Rather, the determinations were always about whether
the restraint was justified by the Constitution.

Be that as it may, the determination in every case of whether there is an impermissible restraint on the
freedom of speech has always been based on the circumstances of each case, including the nature of
the restraint. And in its application in our jurisdiction, the parameters of this principle have been
etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act
against the circumstances in which they operate, and then determining the appropriate test with
which to evaluate.

Prior restraint refers to official governmental restrictions on the press or other forms of expression in
advance of actual publication or dissemination.56 Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form of censorship, and regardless of whether it
is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes
governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites
to publication including the payment of license taxes for the privilege to publish; and even injunctions
against publication. Even the closure of the business and printing offices of certain newspapers,
resulting in the discontinuation of their printing and publication, are deemed as previous restraint or
censorship. 57 Any law or official that requires some form of permission to be had before publication
can be made, commits an infringement of the constitutional right, and remedy can be had at the
courts.

Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on
speech, and any act that restrains speech is presumed invalid,58 and "any act that restrains speech is
hobbled by the presumption of invalidity and should be greeted with furrowed brows," 59 it is
important to stress not all prior restraints on speech are invalid. Certain previous restraints may be
permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as
against the appropriate test by which it should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on
freedom of speech. A distinction has to be made whether the restraint is (1) a content-
neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls
the time, place or manner, and under well defined standards; 60 or (2) a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the utterance or speech. 61 The cast of
the restriction determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity.62 Because regulations of this type are not designed to
suppress any particular message, they are not subject to the strictest form of judicial scrutiny but
an intermediate approach—somewhere between the mere rationality that is required of any other law
and the compelling interest standard applied to content-based restrictions. 63 The test is
called intermediate because the Court will not merely rubberstamp the validity of a law but also
require that the restrictions be narrowly-tailored to promote an important or significant governmental
interest that is unrelated to the suppression of expression. The intermediate approach has been
formulated in this manner:

A governmental regulation is sufficiently justified if it is within the constitutional power of the

Government, if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the incident
restriction on alleged [freedom of speech & expression] is no greater than is essential to the
furtherance of that interest. 64

On the other hand, a governmental action that restricts freedom of speech or of the press based on
content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the
challenged act has overcome the clear and present danger rule will it pass constitutional
muster,65 with the government having the burden of overcoming the presumed unconstitutionality.

Unless the government can overthrow this presumption, the content-based restraint will be struck
down.66

With respect to content-based restrictions, the government must also show the type of harm the
speech sought to be restrained would bring about— especially the gravity and the imminence of the
threatened harm – otherwise the prior restraint will be invalid. Prior restraint on speech based on its
content cannot be justified by hypothetical fears, "but only by showing a substantive and imminent evil
that has taken the life of a reality already on ground."67 As formulated, "the question in every case is
whether the words used are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that Congress has a right to prevent.
It is a question of proximity and degree."68

The regulation which restricts the speech content must also serve an important or substantial
government interest, which is unrelated to the suppression of free expression. 69

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance
of that interest. 70 A restriction that is so broad that it encompasses more than what is required to
satisfy the governmental interest will be invalidated. 71 The regulation, therefore, must be reasonable
and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. 72

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an

intermediate review. A content-based regulation,73 however, bears a heavy presumption of invalidity
and is measured against the clear and present danger rule. The latter will pass constitutional muster
only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor
vague. 74

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to
the clear and present danger rule, as they are content-based restrictions. The acts of respondents
focused solely on but one object—a specific content— fixed as these were on the alleged taped
conversations between the President and a COMELEC official. Undoubtedly these did not merely
provide regulations as to the time, place or manner of the dissemination of speech or expression.

E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents’ argument that the challenged act is valid on the ground that broadcast
media enjoys free speech rights that are lesser in scope to that of print media. We next explore and
test the validity of this argument, insofar as it has been invoked to validate a content-based restriction
on broadcast media.

The regimes presently in place for each type of media differ from one other. Contrasted with the
regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film
and video have been subjected to regulatory schemes.

The dichotomy between print and broadcast media traces its origins in the United States. There,
broadcast radio and television have been held to have limited First Amendment protection,75 and U.S.
Courts have excludedbroadcast media from the application of the "strict scrutiny" standard that they
would otherwise apply to content-based restrictions.76 According to U.S. Courts, the three major
reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by
which the medium operates [i.e., airwaves are physically limited while print medium may be
limitless]; 77 (b) its "pervasiveness" as a medium; and (c) its unique accessibility to children. 78 Because
cases involving broadcast media need not follow "precisely the same approach that [U.S. courts] have
applied to other media," nor go "so far as to demand that such regulations serve ‘compelling’
government interests,"79 they are decided on whether the "governmental restriction" is narrowly
tailored to further a substantial governmental interest," 80 or the intermediate test.

As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment
between broadcast and print media. Nevertheless, a review of Philippine case law on broadcast
media will show that—as we have deviated with the American conception of the Bill of Rights 81— we
likewise did not adopt en masse the U.S. conception of free speech as it relates to broadcast
media, particularly as to which test would govern content-based prior restraints.

Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main,
is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media,
and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting
speech), or is based on a compelling government interest that also has constitutional protection, such
as national security or the electoral process.

Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has
consistently held that the clear and present danger test applies to content-based restrictions on media,
without making a distinction as to traditional print or broadcast media.

The distinction between broadcast and traditional print media was first enunciated in Eastern
Broadcasting Corporation (DYRE) v. Dans,82 wherein it was held that "[a]ll forms of media, whether
print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause.
The test for limitations on freedom of expression continues to be the clear and present danger rule…"83
Dans was a case filed to compel the reopening of a radio station which had been summarily closed on
grounds of national security. Although the issue had become moot and academic because the owners
were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made
formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial functions.
Particularly, the Court made a detailed exposition as to what needs be considered in cases involving
broadcast media. Thus:84

xxx xxx xxx

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the
freedom of speech and expression clause. The test for limitations on freedom of expression
continues to be the clear and present danger rule, that words are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that the lawmaker has a right to prevent, In his Constitution of the
Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of
our decisions which apply the test. More recently, the clear and present danger test was
applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and
present danger test, however, does not lend itself to a simplistic and all embracing
interpretation applicable to all utterances in all forums.

Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified

users. A broadcast corporation cannot simply appropriate a certain frequency without regard
for government regulation or for the rights of others.

All forms of communication are entitled to the broad protection of the freedom of expression
clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat
lesser in scope than the freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S.

726), confronted with a patently offensive and indecent regular radio program, explained why
radio broadcasting, more than other forms of communications, receives the most limited
protection from the free expression clause. First, broadcast media have established a uniquely
pervasive presence in the lives of all citizens, Material presented over the airwaves confronts
the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely
accessible to children. Bookstores and motion picture theaters may be prohibited from making
certain material available to children, but the same selectivity cannot be done in radio or
television, where the listener or viewer is constantly tuning in and out.

Similar considerations apply in the area of national security.

The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there are
low income masses who find the cost of books, newspapers, and magazines beyond their
humble means. Basic needs like food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also becoming
universal. Their message may be simultaneously received by a national or regional audience of
listeners including the indifferent or unwilling who happen to be within reach of a blaring radio
 or television set. The materials broadcast over the airwaves reach every person of every age,
persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental
capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to
monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers
of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject
the utterance.

(5) The clear and present danger test, therefore, must take the particular circumstances of
broadcast media into account. The supervision of radio stations-whether by government or
through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated
handling.

The government has a right to be protected against broadcasts which incite the listeners to
violently overthrow it. Radio and television may not be used to organize a rebellion or to signal
the start of widespread uprising. At the same time, the people have a right to be informed.
Radio and television would have little reason for existence if broadcasts are limited to bland,
obsequious, or pleasantly entertaining utterances. Since they are the most convenient and
popular means of disseminating varying views on public issues, they also deserve special
protection.

(6) The freedom to comment on public affairs is essential to the vitality of a representative
democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already
stressing that.

The interest of society and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence and dignity of the individual be
exalted.

(7) Broadcast stations deserve the special protection given to all forms of media by the due
process and freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to
justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but
only after categorically declaring that "the test for limitations on freedom of expression continues to
be the clear and present danger rule," for all forms of media, whether print or broadcast. Indeed, a
close reading of the above-quoted provisions would show that the differentiation that the Court
in Dans referred to was narrowly restricted to what is otherwise deemed as "unprotected speech"
(e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory
scheme necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus,
when this Court declared in Dans that the freedom given to broadcast media was "somewhat lesser in
scope than the freedom accorded to newspaper and print media," it was not as to what test should be
applied, but the context by which requirements of licensing, allocation of airwaves, and application of
norms to unprotected speech. 85
In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,86 that the
test to determine free expression challenges was the clear and present danger, again without
distinguishing the media.87Katigbak, strictly speaking, does not treat of broadcast media but motion
pictures. Although the issue involved obscenity standards as applied to movies, 88 the Court concluded
its decision with the following obiter dictum that a less liberal approach would be used to resolve
obscenity issues in television as opposed to motion pictures:

All that remains to be said is that the ruling is to be limited to the concept of obscenity
applicable to motion pictures. It is the consensus of this Court that where television is
concerned, a less liberal approach calls for observance. This is so because unlike motion
pictures where the patrons have to pay their way, television reaches every home where there is
a set. Children then will likely be among the avid viewers of the programs therein shown…..It
cannot be denied though that the State as parens patriae is called upon to manifest an attitude
of caring for the welfare of the young.

More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by
a broadcast company, we reiterated that the clear and present danger rule is the test we
unquestionably adhere to issues that involve freedoms of speech and of the press. 89

This is not to suggest, however, that the clear and present danger rule has been applied to all cases
that involve the broadcast media. The rule applies to all media, including broadcast, but only when the
challenged act is a content-based regulation that infringes on free speech, expression and the press.
Indeed, in Osmena v. COMELEC,90 which also involved broadcast media, the Court refused to apply the
clear and present danger rule to a COMELEC regulation of time and manner of advertising of political
advertisements because the challenged restriction was content-neutral. 91 And in a case involving due
process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the
Philippines v. COMELEC92 treated a restriction imposed on a broadcast media as a reasonable condition
for the grant of the media’s franchise, without going into which test would apply.

That broadcast media is subject to a regulatory regime absent in print media is observed also in other
jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing,
regulation by administrative bodies, and censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a
number of respects, but have a common historical basis. The stricter system of controls seems
to have been adopted in answer to the view that owing to their particular impact on
audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now
accepted that books and other printed media do not. These media are viewed as beneficial to
the public in a number of respects, but are also seen as possible sources of harm. 93

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of

frequencies was thought to provide a rationale. However, cable and satellite television have
enormously increased the number of actual and potential channels. Digital technology will further
increase the number of channels available. But still, the argument persists that broadcasting is the
most influential means of communication, since it comes into the home, and so much time is spent
watching television. Since it has a unique impact on people and affects children in a way that the print
media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has
been argued further that a significant main threat to free expression—in terms of diversity—comes not
from government, but from private corporate bodies. These developments show a need for a
reexamination of the traditional notions of the scope and extent of broadcast media regulation. 94

The emergence of digital technology -- which has led to the convergence of broadcasting,
telecommunications and the computer industry -- has likewise led to the question of whether the
regulatory model for broadcasting will continue to be appropriate in the converged
environment.95 Internet, for example, remains largely unregulated, yet the Internet and the broadcast
media share similarities, 96 and the rationales used to support broadcast regulation apply equally to the
Internet.97 Thus, it has been argued that courts, legislative bodies and the government agencies
regulating media must agree to regulate both, regulate neither or develop a new regulatory framework
and rationale to justify the differential treatment. 98

F. The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go to
its application to the case at bar. To recapitulate, a governmental action that restricts freedom of
speech or of the press based on content is given the strictest scrutiny, with the government having the
burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This
rule applies equally to all kinds of media, including broadcast media.

This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a)
the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e)
the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who
have the burden to show that these acts do not abridge freedom of speech and of the press failed to
hurdle the clear and present danger test. It appears that the great evil which government wants to
prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of
the case at bar, however, are confused and confusing, and respondents’ evidence falls short of
satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary
obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped
conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to
be a "complete" version and the other, an "altered" version. Thirdly, the evidence of the respondents
on the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tape’s
different versions. The identity of the wire-tappers, the manner of its commission and other related
and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of
the tape, it is even arguable whether its airing would violate the anti-wiretapping law.

We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech
and of the press. Our laws are of different kinds and doubtless, some of them provide norms of
conduct which even if violated have only an adverse effect on a person’s private comfort but does not
endanger national security. There are laws of great significance but their violation, by itself and
without more, cannot support suppression of free speech and free press. In fine, violation of law is
just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom
of speech and of the press. The totality of the injurious effects of the violation to private and public
interest must be calibrated in light of the preferred status accorded by the Constitution and by related
international covenants protecting freedom of speech and of the press. In calling for a careful and
calibrated measurement of the circumference of all these factors to determine compliance with the
clear and present danger test, the Court should not be misinterpreted as devaluing violations of law.
By all means, violations of law should be vigorously prosecuted by the State for they breed their own
evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise
of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure
of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no
option but to uphold the exercise of free speech and free press. There is no showing that the feared
violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere
press statements of the Secretary of Justice and of the NTC in question constitute a form of content-
based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is
not decisive that the press statements made by respondents were not reduced in or followed up
with formal orders or circulars. It is sufficient that the press statements were made by respondents
while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his
statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of
media. Any act done, such as a speech uttered, for and on behalf of the government in an official
capacity is covered by the rule on prior restraint. The concept of an "act" does not limit itself to acts
already converted to a formal order or official circular. Otherwise, the non formalization of an act
into an official order or circular will result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck down as they constitute
impermissible forms of prior restraints on the right to free speech and press.

There is enough evidence of chilling effect of the complained acts on record. The warnings given to
media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of
the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the
Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the
land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press
Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of
speech and of the press. This silence on the sidelines on the part of some media practitioners is too
deafening to be the subject of misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be exercised
with care and in light of the distinct facts of each case. For there are no hard and fast rules when it
comes to slippery constitutional questions, and the limits and construct of relative freedoms are never
set in stone. Issues revolving on their construct must be decided on a case to case basis, always based
on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent
invasions of a constitutionally protected right, we should be swift in striking them down as nullities per
se. A blow too soon struck for freedom is preferred than a blow too late.

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued,
nullifying the official statements made by respondents on June 8, and 11, 2005 warning the media on
airing the alleged wiretapped conversation between the President and other personalities, for
constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 81561             January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee 

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to
Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known
as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife,
Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang
Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages. Anita
Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant
informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland.
Appellant filled up the contract necessary for the transaction, writing therein his name,
passport number, the date of shipment and the name and address of the consignee, namely,
"WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant,
however, refused, assuring her that the packages simply contained books, cigars, and gloves
and were gifts to his friend in Zurich. In view of appellant's representation, Anita Reyes no
longer insisted on inspecting the packages. The four (4) packages were then placed inside a
brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and
on top of the packages before the box was sealed with masking tape, thus making the box
ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job
Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure,
opened the boxes for final inspection. When he opened appellant's box, a peculiar odor emitted
therefrom. His curiousity aroused, he squeezed one of the bundles allegedly containing gloves
and felt dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper
protruding from the opening of one of the gloves. He made an opening on one of the cellophane
wrappers and took several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987;
Emphasis supplied).
 Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a
laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6,
October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the
National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e.,
August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes informed the
NBI that the rest of the shipment was still in his office. Therefore, Job Reyes and three (3) NBI
agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6,
1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the presence
of the NBI agents, opened the top flaps, removed the styro-foam and took out the cellophane
wrappers from inside the gloves. Dried marijuana leaves were found to have been contained
inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He discovered
that the package contained bricks or cake-like dried marijuana leaves. The package which
allegedly contained tabacalera cigars was also opened. It turned out that dried marijuana leaves
were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof, after
signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the agents requested assistance from the latter's Chief
Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was invited
by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the
Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for
laboratory examination. It turned out that the dried leaves were marijuana flowering tops as certified
by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the
Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED
OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT
HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT
OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT
ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation
of his constitutional rights against unreasonable search and seizure and privacy of communication (Sec.
2 and 3, Art. III, Constitution) and therefore argues that the same should be held inadmissible in
evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The 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,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

Sec. 3. (1) 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.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had its
origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution.
As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and
State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367
US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]),
declared as inadmissible any evidence obtained by virtue of a defective search and seizure warrant,
abandoning in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948])
wherein the admissibility of evidence was not affected by the illegality of its seizure. The 1973 Charter
(Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to the present with the
advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66
SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See
also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other authorized
government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a private person, acting in a private capacity and
without the intervention and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and seizure
has been violated? Stated otherwise, may an act of a private individual, allegedly in violation of
appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the
Constitution cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity of

one's person, whether citizen or alien, from interference by government, included in which is his
residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is his
castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to
refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf.
Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886];
Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing
the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown
in previous cases, its protection applies to governmental action. Its origin and history clearly
show that it was intended as a restraint upon the activities of sovereign authority, and was not
intended to be a limitation upon other than governmental agencies; as against such authority it
was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested
occupation of his dwelling and the possession of his property, subject to the right of seizure by
process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who
searched the automobile to ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared admissible in prosecution for illegal
possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure
clauses are restraints upon the government and its agents, not upon private individuals (citing People
v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965);
State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
 The search of which appellant complains, however, was made by a private citizen — the owner
of a motel in which appellant stayed overnight and in which he left behind a travel case
containing the evidence***complained of. The search was made on the motel owner's own
initiative. Because of it, he became suspicious, called the local police, informed them of the
bag's contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action."

The contraband in the case at bar having come into possession of the Government without the latter
transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure
of the evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the
argument stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a standard operating procedure
on the part of Mr. Reyes as a precautionary measure before delivery of packages to the Bureau of
Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp.
119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI
agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to the
postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes
into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at
that which is in plain sight is not a search. Having observed that which is open, where no trespass has
been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the
contraband articles are identified without a trespass on the part of the arresting officer, there is not
the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v.
State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken
into custody of the police at the specific request of the manager and where the search was initially
made by the owner there is no unreasonable search and seizure within the constitutional meaning of
the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be subject to protection. But protection
against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query
which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The Bill of
Rights governs the relationship between the individual and the state. Its concern is not the
relation between individuals, between a private individual and other individuals. What the Bill of
Rights does is to declare some forbidden zones in the private sphere inaccessible to any power
holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint
directed only against the government and its agencies tasked with the enforcement of the law. Thus, it
could only be invoked against the State to whom the restraint against arbitrary and unreasonable
exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is
to pass the test of constitutionality. However, if the search is made at the behest or initiative of the
proprietor of a private establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable search and seizure
cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the
present phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence
obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not
whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p.
8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167 SCRA
393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The modifications
introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search
and seizure is directed against. The restraint stayed with the State and did not shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the
State by an individual unjustly traduced by the exercise of sovereign authority. To agree with appellant
that an act of a private individual in violation of the Bill of Rights should also be construed as an act of
the State would result in serious legal complications and an absurd interpretation of the constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's
constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting him
despite the undisputed fact that his rights under the constitution while under custodial investigation
were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and found
nothing to indicate, as an "undisputed fact", that appellant was not informed of his constitutional
rights or that he gave statements without the assistance of counsel. The law enforcers testified that
accused/appellant was informed of his constitutional rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their testimonies should be given full faith and
credence, there being no evidence to the contrary. What is clear from the records, on the other hand,
is that appellant refused to give any written statement while under investigation as testified by Atty.
Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you
investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his
constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original
Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on cross-
examination. As borne out by the records, neither was there any proof by the defense that appellant
gave uncounselled confession while being investigated. What is more, we have examined the assailed
judgment of the trial court and nowhere is there any reference made to the testimony of appellant
while under custodial investigation which was utilized in the finding of conviction. Appellant's second
assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was
not the owner of the packages which contained prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-
minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the cost
of the shipment since the German national was about to leave the country the next day (October 15,
1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving
and contrary to human experience. It can easily be fabricated. An acquaintance with a complete
stranger struck in half an hour could not have pushed a man to entrust the shipment of four (4) parcels
and shell out P2,000.00 for the purpose and for appellant to readily accede to comply with the
undertaking without first ascertaining its contents. As stated by the trial court, "(a) person would not
simply entrust contraband and of considerable value at that as the marijuana flowering tops, and the
cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand,
would not simply accept such undertaking to take custody of the packages and ship the same from a
complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do
the errand, appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence,
are negative self-serving evidence which deserve no weight in law and cannot be given greater
evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People
v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he
was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of
Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a
Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from appellant's
residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p.
21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be
credible in itself such as the common experience and observation of mankind can approve as probable
under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg.
130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castañares
v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask Michael's full
name, his complete address or passport number. Furthermore, if indeed, the German national was the
owner of the merchandise, appellant should have so indicated in the contract of shipment (Exh. "B",
Original Records, p. 40). On the contrary, appellant signed the contract as the owner and shipper
thereof giving more weight to the presumption that things which a person possesses, or exercises acts
of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore
estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the
crime charged is hereby AFFIRMED. No costs.

SO ORDERED.