The Right to Privacy: FB and the third division of the SC
by Jose Mario De Vega
Section 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.
Section 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. (Article 3, The 1987 Philippine Constitution)
Does it mean that because “nothing is ever private on Facebook”, any creature or bastard or stalker or hacker for that matter can just go to our profile to stalked, peeped, looked, stared and worst, hacked, took and download our private and personal pictures, data and information as against our consent and permission?
I do not think so!
It is widely accepted that “the most frequently quoted statement by a Supreme Court justice on the subject of privacy comes in Justice Brandeis’s dissent” in Olmstead v. U. S. (1928) wherein he stated unequivocally that:
“The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality — the right to be left alone — the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man’s home and privacies of life. This is a recognition of the significance of man’s spiritual nature, his feelings, and his intellect.”
I refer to Tara Quismundo’s “SC: Privacy laws do not apply on Facebook photos freely uploaded by Internet users”, PDI, October 23rd with regard to the high court’s Third Division ruling that denied “a petition for habeas data filed by parents of two high school students of St. Theresa’s College (STC) Cebu, citing the protection of their Facebook photos that school officials found objectionable.”
A petition for Habeas data is a remedy provided to “any person whose right to privacy in life, liberty or security is violated or threatened” through the “gathering, collecting or storing of data or information regarding the person family, home and correspondence of the aggrieved party.”
According to the said report:
“The Facebook photos, which showed the students drinking and smoking in a bar, and wearing just undergarments on a street, prompted school officials to ban five students from marching in their graduation rites in March 2012. The photos were uploaded by one of their friends.”
I cannot understand why the hell the school decided to ban said students from marching on their graduation?
Those students drunk and smoked in a bar and wore undergarments on a street — not inside the bloody school!
Those students posted the said pictures at their own FaceBook page. They did not spread it to the public, so my issue with the bloody school is: what the fuck is your problem with that?
Perhaps the bloody school will retort and say: Hey, Mister, those students that you are defending is our students.
My reply: so what? Yes, they are your students, but do you still have your academic, parental, institutional and religious power or control over them — the very moment they get out of your bloody premises?
Yes, I perfectly understand that while inside your school, those girls must observed and followed all of your conservative and myopic rules and regulations, but outside your ground — who the hell are you to tell them how the hell are they going to live and lead their lives?
It is on this note that I am condemning the lower court and so as the third division of the Supreme Court in ruling in favor of the said school!
It is my fervent and firm view that what the SC did is a stupid ruling that clearly destroys the constitutional guarantee protecting the right of privacy of the people.
Originally, in every act that an individual will do will affect two spheres or domains, namely the public and the private. Now, due to the advent of modern technology, I will argue that there is a third area which is the virtual domain.
My ultimate point is that, no matter how powerful the state or government is, it has no right whatsoever to penetrate, invade and enter the private sphere of the human acts. That zone of privacy must be respected at all cost.
In the critical words of Professor Paul Kurtz:
“Society should respect the right of an individual to control his or her personal life. The zones of privacy that society should not intrude upon without good reasons are a person’s body, possessions, beliefs, values, actions, and associations, insofar as these pertains to his or her own private sphere of interest and conduct.”
The right to privacy is a right guaranteed by the Constitution as a protection against governmental intrusion.
To quote Justice Marshall in Stanley v Georgia:
“Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”
To reiterate the government and so as the school and other institutions have no right to tell people how the hell they are going to live and lead their lives.
For as Justice Kennedy reaffirmed in broad terms the Constitution’s protection for privacy:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life….The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’”
In my view, the court, in the case under discussion has committed an irreparable damage and injury to the private rights of those students. Instead of simply accepting just like that the assertion of the school that they just saw the said pictures subject of this issue, the court should have ordered the court a quo to investigate further the truth with regard to that specific claim.
The court should have remanded the case to the lower court and ordered the same to investigate fully and pinpoint specifically who were those bastard culprits who invaded the private lives of these teenagers!
Imagine the utterly preposterous scenario, somebody took some of your private pictures against your will, without your consent and worst, without your knowledge, then those bastards (whoever the hell they are) had shown it to your boss, the school, your parents, boyfriend/girlfriend, etc. and now, you shall be penalize for that?
This is the heights of shame and the ultimate travesty of justice!
The fact that some nefarious creatures had taken your photo without your consent makes you already a victim of a cyber crime and the fact that your picture were used to punished and penalized you makes you a victim for the second time around!
Talked about adding insult to an injury and double black eyes — to the maximum!!!
The said ruling of the court is idiotic and invasive of the rights of the people.
Why? Because this ruling of the court will lead to a dangerous tendency and it will make a sinister precedent.
It is like an invitation to all hackers and virtual criminals to enter the private lives of people on the cyberspace, because as the court claimed “nothing is ever private on Facebook.”
So, if ever a hacker is caught violating the right of another, the latter can interpose the defense that: it is not I who downloaded the same by another friend of mine.
I totally agree with lawyer JJ Disini when he said that “the Supreme Court decision is scary since it creeps into the very nature of online privacy.”
He further said that “Facebook already allows users to customize privacy settings to public, friends only, custom or even completely private.”
According to him, the “privacy settings are there “precisely to control the flow of information.””
I concur with him that this ruling of the court is creepy, dangerous and sinister.
As reported by ANC, “SC junks case of Cebu students banned from graduation rites due to ‘bikini photos’”, October 25th:
“The Supreme Court is saying that even if you attempt to limit the privacy and set the privacy, as long as another person can see it, you no longer have the right to privacy on those things you have posted.”
What the hell is this?
Further, he stated in a DZMM interview that:
“Does this mean that all your friends have the right to show all your photos with other people including school officials? Because that is what happened. Ano na ngayon ang right to privacy mo?”
“They are saying that in a social network, if you have 100 friends and your friends have 200 friends, you are essentially sharing your information to 300 friends. It is the same with email. If I email you, does that mean you can forward that to all those in your address book?”
This is judicial stupidity at its worst!
Further, it seems to me that the court is slightly implying that the whole thing is the fault of Mark Zuckerburg!
Check this out:
“We cannot afford protection to persons if they themselves did nothing to place the matter within the confines of their private zone. [Online] 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.”
Will it change the court’s ruling if the private pictures were taken, let say from Twitter or Instagram or other social networking sites?
To quote the words of Professor A. C. Grayling:
“No human rights convention is complete without an article that defends privacy, for the excellent reason that privacy is an indispensable adjunct of the minimum that individuals require for a chance to build good lives. One aspect of its importance is that it gives people a measure of control over the front they offer others, and the amount of information that others have about them, concerning matters that are personal, intimate, eccentric or constitutive of the individual’s inner life…But the foremost reason for privacy is that it is crucial for personal autonomy and psychological well-being.”
I humbly suggest to the parents of those aggrieved students to file a motion for reconsideration to the Supreme Court en banc to review this fiasco and shameful ruling of its third division!
Jose Mario Dolor De Vega
Philosophy and Social Science lecturer
Unibersidad de Manila
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