28. Vivares vs St.

Theresa’s College

Facts: In January 2012, Angela Tan, a high school student at St. Theresa’s College (STC),
uploaded on Facebook several pictures of her and her classmates (Nenita Daluz and Julienne
Suzara) wearing only their undergarments.Thereafter, some of their classmates reported said
photos to their teacher, Mylene Escudero. Escudero, through her students, viewed and
downloaded said pictures. She showed the said pictures to STC’s Discipline-in-Charge for
appropriate action.
Later, STC found Tan et al to have violated the student’s handbook and banned them from
“marching” in their graduation ceremonies scheduled in March 2012.
The issue went to court but despite a TRO (temporary restraining order) granted by the Cebu
RTC enjoining the school from barring the students in the graduation ceremonies, STC still
barred said students.

Subsequently, Rhonda Vivares, mother of Nenita, and the other mothers filed a petition for the
issuance of the writ of habeas data against the school. They argued, among others, that:
1. 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.
2.  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
the children were intruded upon;
3. The intrusion into the Facebook accounts, as well as the copying of information, data, and
digital images happened at STC’s Computer Laboratory;
They prayed that STC be ordered to surrender and deposit with the court all soft and printed
copies of the subject data and have such data be declared illegally obtained in violation of the
children’s right to privacy.
The Cebu RTC eventually denied the petition. Hence, this appeal.

ISSUE: Whether or not the petition for writ of habeas data is proper.

HELD: Yes, it is proper but in this case, it will not prosper.

Contrary to the arguments of STC, the Supreme Court ruled that:
1. The petition for writ of habeas data can be availed of even if this is not a case of extralegal
killing or enforced disappearance; and
2. The writ of habeas data can be availed of against STC even if it is not an entity engaged in the
business of “gathering, collecting, or storing data or information regarding the person, family,
home and correspondence of the aggrieved party”.
First, the Rule on Habeas Data does not state that it can be applied only in cases of extralegal
killings or enforced disappearances. Second, nothing in the Rule would suggest that the habeas
data protection shall be available only against abuses of a person or entity engaged in the
business of gathering, storing, and collecting of data.
Right to Privacy on Social Media (Online Networking Sites)
The Supreme Court ruled that if an online networking site (ONS) like Facebook has privacy
tools, and the user makes use of such privacy tools, then he or she has a reasonable
expectation of privacy (right to informational privacy, that is). Thus, such privacy must be
respected and protected.
In this case, however, there is no showing that the students concerned made use of such
privacy tools. Evidence would show that that their post (status) on Facebook were published as
“Public”.
Facebook has the following settings to control as to who can view a user’s posts on his “wall”
(profile page):
(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;
(c) Friends – only the user’s Facebook friends can view the photo;
(d) Custom – the photo is made visible only to particular friends and/or networks of the
Facebook user; and
(e) Only Me – the digital image can be viewed only by the user.
The default setting is “Public” and if a user wants to have some privacy, then he must choose
any setting other than “Public”. If it is true that the students concerned did set the posts subject
of this case so much so that only five people can see them (as they claim), then how come most
of their classmates were able to view them. This fact was not refuted by them. In fact, it was
their classmates who informed and showed their teacher, Escudero, of the said pictures.
Therefore, it appears that Tan et al never use the privacy settings of Facebook hence, they have
no reasonable expectation of privacy on the pictures of them scantily clad.
STC did not violate the students’ right to privacy. The manner which the school gathered the
pictures cannot be considered illegal. As it appears, it was the classmates of the students who
showed the picture to their teacher and the latter, being the recipient of said pictures, merely
delivered them to the proper school authority and it was for a legal purpose, that is, to
discipline their students according to the standards of the school (to which the students and
their parents agreed to in the first place because of the fact that they enrolled their children
there).
 
Some notable foreign jurisprudence used by the Supreme Court in this case:
1. United States v. Gines-Perez: “A person who places a photograph on the Internet precisely
intends to forsake and renounce all privacy rights to such imagery, particularly under
circumstances such as here, where the Defendant did not employ protective measures or
devices that would have controlled access to the Web page or the photograph itself.”
2. United States v. Maxwell: “The more open the method of transmission is, the less privacy
one can reasonably expect. Messages sent to the public at large in the chat room or e-mail that
is forwarded from correspondent to correspondent loses any semblance of privacy.”
3. H v. W, (South Africa Case dated January 30, 2013): “The 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.”
This case recognized this ability of Facebook 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.”
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29.Disini et al vs SOJ

“Subsequent Punishment”

Facts:The case arises out of consolidated petitions to the Supreme Court on the
constitutionality of several provisions of the Cybercrime Prevention Act of 2012, Act No. 10175.
The Act is the government’s platform in combating illegal cyberspace activities.

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.

Issue: Whether the Cybercrime Prevention Act of 2012 is constitutional, considering the
petitioners’ contention that 21 separate sections of the Act violate their constitutional rights,
particularly the right to freedom of expression and access to information.
Held :Sections 4(c)(3), 12, and 19 of the Cybercrime Prevention Act of 2012 is
unconstitutional.in Morfe v. Mutuc, it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.

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. (In Relation to Sec.
19)

In this case,
 Section 4(c)(3) violated the right to freedom of expression by prohibiting the
electronic transmission of unsolicited commercial communications.
 Section 12 in violation of the right to privacy because it lacked sufficient specificity
and definiteness in collecting real-time computer data.
 Section 19 of the Act for giving the government the authority to restrict or block
access to computer data without any judicial warrant.

Notes:

Among 21 challenged sections, the Court declared Sections 4(c)(3), 12, and 19 of the Act
as unconstitutional.

Section 4(c)(3) prohibits the transmission of unsolicited commercial electronic

communications, commonly known as spams, that seek to advertise, sell, or offer for sale of
products and services unless the recipient affirmatively consents, or when the purpose of the
communication is for service or administrative announcements from the sender to its existing
users, or “when 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 government argued that unsolicited commercial communications amount to both

nuisance and trespass because they tend to interfere with the enjoyment of using online
services and that they enter the recipient’s domain without prior permission.
 The Court first noted that spams are a category of commercial speech, which does not
receive the same level of protection as other constitutionally guaranteed forms of
expression ,”but is nonetheless entitled to protection.” It ruled that the prohibition on
transmitting unsolicited communications “would deny a person the right to read his emails,
even unsolicited commercial ads addressed to him.” Accordingly, the Court declared
Section4(c)(3) as unconstitutional.

Section 12 of the Act authorizes the law enforcement without a court warrant “to
collect or record traffic data in real-time associated with specified communications transmitted
by means of a computer system.” Traffic data under this Section includes the origin,
destination, route, size, date, and duration of the communication, but not its content nor the
identity of users.

The Petitioners argued that such warrantless authority curtails their civil liberties and
set the stage for abuse of discretion by the government. They also claimed that this provision
violates the right to privacy and protection from the government’s intrusion into online
communications.

According to the Court, since Section 12 may lead to disclosure of private

communications, it must survive the rational basis standard of whether it is narrowly tailored
towards serving a government’s compelling interest. The Court found that the government did
have a compelling interest in preventing cyber crimes by monitoring real-time traffic data.

As to whether Section 12 violated the right to privacy, the Court first recognized that the
right at stake concerned informational privacy, defined as “the right not to have private
information disclosed, and the right to live freely without surveillance and intrusion.”

In determining whether a communication is entitled to the right of privacy, the Court

applied a two-part test:

(1) Whether the person claiming the right has a legitimate expectation of privacy over
the communication, and
(2) whether his expectation of privacy can be regarded as objectively reasonable in the
society.

The Court noted that internet users have subjective reasonable expectation of privacy
over their communications transmitted online. However, it did not find the expectation as
objectively reasonable because traffic data sent through internet “does not disclose the actual
names and addresses (residential or office) of the sender and the recipient, only their coded
Internet Protocol (IP) addresses.”
a
Even though the Court ruled that real-time traffic data under Section 12 does not enjoy
the objective reasonable expectation of privacy, the existence of enough data may reveal the
personal information of its sender or recipient, against which the Section fails to provide
sufficient safeguard. The Court viewed the law as “virtually limitless, enabling law enforcement
authorities to engage in “fishing expedition,” choosing whatever specified communication they
want.”

Accordingly, the Court struck down Section 12 for lack of specificity and definiteness
as to ensure respect for the right to privacy.

Section 19 authorizes the Department of Justice to restrict or block access to a

computer data found to be in violation of the Act. The Petitioners argued that this section also
violated the right to freedom of expression, as well as the constitutional protection against
unreasonable searches and seizures.

The Court first recognized that computer data constitutes a personal property, entitled
to protection against unreasonable searches and seizures. Also, the Philippines’ Constitution
requires the government to secure a valid judicial warrant when it seeks to seize a personal
property or to block a form of expression. Because Section 19 precluded any judicial
intervention, the Court found it unconstitutional.

30. Ayer Productions vs Capulong

Facts: Petitioner McElroy an Australian film maker, and his movie production company, Ayer
Productions, envisioned, sometime in 1987, for commercial viewing and for Philippine and
international release, the historic peaceful struggle of the Filipinos at EDSA. The proposed
motion picture entitled "The Four Day Revolution" was endorsed by the MTRCB as and other
government agencies consulted. Ramos also signified his approval of the intended film
production.

It is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama"

style, creating four fictional characters interwoven with real events, and utilizing actual
documentary footage as background. David Williamson is Australia's leading playwright and
Professor McCoy (University of New South Wales) is an American historian have developed a
script.

Enrile declared that he will not approve 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. petitioners
acceded to this demand and the name of Enrile was deleted from the movie script, and
petitioners proceeded to film the projected motion picture. However, a complaint was filed by
Enrile invoking his right to privacy. RTC ordered for the desistance of the movie production and
making of any reference to plaintiff or his family and from creating any fictitious character in
lieu of plaintiff which nevertheless is based on, or bears substantial or marked resemblance to
Enrile. Hence the appeal.
Issue: Whether or Not freedom of expression was violated.

Held: Yes. Freedom of speech and of expression includes the freedom to film and produce
motion pictures and exhibit such motion pictures in theaters or to diffuse them through
television. 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.

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. Subject matter is one of public interest and concern. The
subject thus relates to a highly critical stage in the history of the country.

At all relevant times, during which the momentous events, clearly of public concern, that
petitioners propose to film were taking place, Enrile was a "public figure:" Such public figures
were held to have lost, to some extent at least, their right to privacy.

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.