This is a repost. The original is in the pages of this blog.
The Scope of Privacy in a Digital World under Philippine Law and Jurisprudence
The expectation of privacy in the Philippines. Are we truly private? To what extent are we private? With the advancement of technology, countries, people and communities are being united. With the advancement of technology, communication becomes easier and reliable. It seems that it was only years ago that people were communicating through letters and telegrams. Now with just a click of a button, one can send an e-mail or even a picture. Information becomes easily accessible with the invention of the internet. The simple question of what is the most common fruit in Davao may easily known with a click of a button. With all of these informations what is there to worry about? It seems that such a technology will only lead us to advancement and improvement in our lives. However, privacy seems to become a growing concern in today’s technological age. Just like any other society, we are always faced with deviants in a social system. A person who does not always follow the rules, or a person who enjoys disruption, a person who enjoys chaos. Such a person does not care about social advancement or technological advancement. Such a person is like the Joker in movie Batman, he just wants to see the world burn. He has no plan. However, that is the beauty of the Joker. He gives the hero a sense of choice. There is a false sense of choice wherein the hero thinks he has a choice when it fact the Joker controls the choice. This concept of privacy in the Philippines is much like the Joker in the Batman movie, it is a mere false sense of privacy.
The word privacy seems to be defined as a state in which one is not observed or disturbed by other people according to the Apple dictionary. The first definition is a state in which one is not observed. Are we not being observed in the Internet? Is the government not observing our every move? Perhaps not, it would require too much manpower to perform such a feat. However, site hosts or servers may be able to control what is being put in their sites. On the other hand, privacy is defined in Black’s Law Dictionary as the condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions. Zones of privacy is defined in Black’s Law Dictionary as a range of fundamental privacy rights that are implied in the express guarantees of the Bill of Rights.
This article will give a brief overview of the scope privacy focusing more on privacy with regard to commission of crimes such as warrantless arrests and on the extent of cyberlibel in the Philippines. It is important to understand that a holistic analysis of the scope of privacy in the Philippines would be preferred but certain aspects of privacy are better to be analyzed to grasp the idea of privacy. It is the theory of the author that the scope of privacy is limited when it comes to the internet. It hard to create a system where information is public in the internet but only certain informations and communications become private. It is difficult to distinguish which is private and public. This is especially true when it comes to social media such as Facebook. It is still important that people should become more vigilant in protecting their speech when it comes to the internet. The law may only protect so far.
The E-Commerce Law and and the Rules on Electronic Evidence provides for the foundation in which electronic documents may be used a evidence equivalent to paper documents. To this extent the law provides for certain legal measures and remedies to keep up with the latest technological advances. This creates for a wider protection to citizens of the Philippines. As such the promulgation of the the Cybercrime Law became widely popular and criticized for being restrictive to the freedom of speech in the Digital World. Hence, the Disini vs Secretary of Justice case was promulgated which declared void and unconstitutional Section 4(c)(3), Section 12 and Section 19 of the Republic Act No. 10175. With such a ruling privacy became less apparent since every information may be shared for as long as it is not against public policy. The question on privacy with regard to this is whether or not restriction to block access of certain computer data will pave the way to more crimes. It is a growing concern that if information such as bomb making is posted online, then there is nothing the government can do to block access to such information. In fact our privacy laws in the Philippines seems to be more protective rather than restrictive or preventive. Privacy in the Philippines aims to protect rather than restrict. This seems like the Filipino people are simply waiting for a catastrophe before any legal remedies may be resorted to. Damage must first be done before any action may be resorted to.
Take for example the Disini vs Secretary of Justice case, the authority for the collection or recording of traffic date in real-time was considered as unconstitutional since it would be tantamount to mass surveillance according to the Supreme Court. If this provision was not considered as unconstitutional then data in real-time may be collected to ensure the safety of citizens. However, such a power may be abused and even temptation to abuse it.
When it comes to the internet it seems that the government is having difficulty regulating and controlling information dissemination. The Philippine Laws on privacy seem to protect by having legal remedies rather than preventing future crimes. If the internet seems a bit more free and less private. Is our personal space when it comes to our personal belongings ours? Are we still private in our person? Most households have cellphones and some may have electronic gadgets or devices such as tablets, laptops or cameras. These objects seem to be common in today’s society because of the high supply of electronic gadgets. With such fairly common gadgets can such devices be searched through legal means? Is it a violation of one’s privacy if such gadgets are looked into in a checkpoint or in customs?
Several provision of laws provides certain protections when it comes to searches and seizures. Among them are found in the Constitution. It provides that “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 probably 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.”
Another section which is important is Section 3 of Article III of the 1987 Constitution provides that (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.
With regard to information of public concern, Section 7 of Article III of the 1987 Constitution provides that “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research date used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
So the big question now is may the right of privacy be violated if there was a valid arrest and subsequently there was a search? May Customs open a laptop or electronic device to see if there is child pornography?
In the Rules of Court, a peace officer or even a private person may, without a warrant, arrest a person:
- When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
- When an offense has just been committed and he has probably cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
- when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112.
The provision clearly provides for situation where there is a valid ground to arrest a person without a warrant and thus subject the incidentally to a valid search. A warrantless search may be had when there is a valid warrantless arrest or through a valid warrant. A warrantless search that is incidental to a valid arrest is allowed if it is within the permissible area of search, or the place within the immediate control of the person being arrested as seen in Espano vs Court of Appeals. Therefore if a person is validly arrested and he is carrying with him a cellphone which contains information which implicates him to a different crime, will the person arrested be successfully charged with the crime? According to jurisprudence and the Rules of Court, a search may be made when there is a valid arrest and the purpose of the search is to search for dangerous weapons or anything which may have been used or constitute proof of the commission of an offense. Does this contemplate of devices which contain data which are considered illegal according to law? Would a person arrested who has a cellphone which contains child pornography considered to have violated Republic Act No. 9775 even if the search was made incidental to a valid arrest? The term “anything which may have been used or constitute proof of the commission of an offense” seems to contemplate any type of offense. Does this phrase only refer to dangerous weapons and anything associated with the commission of an offense using dangerous weapons?
If the term is used to refer to only offences which refer to dangerous weapons then several crimes will be ignored and such a person will be free from liability from such a crime. However, it should be noted that according to the Rules on Electronic Evidence, cellphones may be proven by the testimony of a person who was a party to the same or has personal knowledge. In essence, if a cellphone was seized due to a lawful arrest, then such cellphone can be used against the accused. Even if there are two separate crimes, the evidence admitted incidental to a valid arrest can be used to file a complaint for another crime.
So if a cellphone containing child pornography can be seized what about if the cellphone continued a recording of a telephone conversation between two people which incriminates the other? So if A was arrested with a valid warrant, and incidental to the arrest his cellphone was seized, and upon examination of the cellphone there is an audio recording between A and B. The audio recording if admitted to evidence would be incriminating and a ground for filing a complaint against B. May a complaint be filed immediately against B?
It seems there are two conflicting views. According to the Rules on Evidence, an audio recording shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy of it. However, according to the Anti-Wiretapping Law, it is unlawful to record communication or spoken word without any authorization to do so. It is apparent that the recording of communication may be allowed only under certain circumstances. The question that arises regarding privacy is whether it is legal to record a conversation between individuals without asking permission? If it is not legal then acquiring evidence as to one’s culpability becomes difficult.
A classic example of such a situation is whether the Metropolitan Manila Development Authority officers are allowed to record conversations between violators of traffic regulations and vice versa? It seems that this question seems to be that they are allowed to do so in order to gain evidence. However, it seems that such a right is nowhere to be found in any of the Metropolitan Manila Development Authority regulations.
If the violator on the other hand records the conversation with the Metropolitan Manila Development Authority without the permission of the officer would the violator be liable for Anti-Wiretapping? The only argument one can make is that it is based on transparency. There should be evidence as to whether or not public officers are stepping out of line.
It is safe to assume that the privacy of our own self is still being debated upon. It is difficult to answer whether an electronic device may be searched even without the permission of the owner. This would create a total invasion of one’s privacy if it is allowed by Customs to search even the contents of a laptop since such device may contain information or data which is in violation of Philippine Law. It seems that the contents of devices are safe from intrusion since there is no jurisprudence or law which clearly indicates that searches may be had in the contents of electronic devices or gadgets. If there is no clear mandate to check the contents then public officers would think twice before attempting to search the contents. Therefore the privacy of our own gadgets which are away from the internet or cyberspace is deemed private. However, such privacy is vulnerable to attack by different interpretations of the law.
In the context of cyberspace, there is now a need to look at specifically the crime of libel which can be committed online. Before the decision of Disini vs Secretary of Justice and after Republic Act No. 10175, the concept of Cyberlibel has been widely discussed. It is first important to note what exactly is Libel? According Black’s Law Dictionary, Libel is to defame someone in a permanent medium, especially in writing. It is interesting to note of the phrase “permanent medium”. Several questions arise from such a phrase. Are writing in the internet considered writing? A better question is whether text messages considered writing? In today’s modern world, information may be transferred not only from using one’s hands, but the mouth may even translate into writing. There are numerous technologies now that through mere speech one may write. A spoken word is heard by a device and such device transcribes it into text. Will this be considered as writing?
It is essential now to look at the definition of Libel in the Revised Penal Code, in Article 353, A libel is a 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. Therefore libel may still be committed through the use of speech and even from writing which was transcribed by word of mouth using a computer program. However, the concern of privacy arises is whether or not the use of speech and later transcribed by a computer will be considered as libel by means of writings or similar means, or as oral defamation? The concern here is if such libellous material is posted in the internet, would it still be considered as cyberlibel?
The growing concern today is whether or not a posting in Facebook may be considered as libellous material if such communication is between individuals in a private group? If the target of the libellous material subsequently finds out, does he have a case? It can be argued that if electronic documents produce legal effects equivalent to paper based documents and are admissible in court then such writing may be considered as libellous.
Another growing concern is that even if Cyberlibel is committed in the internet, it may only be punished here in the Philippines. If a person who lives abroad commits libel, the victim cannot pursue the case. Even if the jurisdiction of the court is that jurisdiction still lies if any of the elements of libel was committed within the Philippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time of the offences was committed, was in the Philippines.
Another growing concern is on the account of several accounts in social media. There are people who have several accounts in one social media. Some accounts are used for business others for personal use. However, there are some use it for different purposes such as stalking or even cyberbullying. It becomes difficult in the crime of libel to pinpoint who exactly is the perpetrator of the crime of Libel if that is the case. This is subject to abuse since people may create an account which is completely anonymous but has created a fan base which consistently tune in for information which then may divulge information which is either true or considered as libellous. For the victim of the libellous statement who shall he sue? This is the growing concern of cyberlibel.
Another interesting point to iterate is that cellphones can now be used to access social media and even the internet. Cellphones may even contain videos or date which are violative of Philippine privacy laws. A scenario which should be analysed is that a cellphone may save certain accounts which were previously signed in with. Therefore a friend may access their Facebook in someone’s cellular phone and such account will be saved in that someone’s cellular phone. This person may access his friend’s account anytime he wants. If such a person posts libellous materials in his friend’s phone, who would be liable? It would be difficult to figure out who accessed the account. If there is a way to find out which cellphone accessed the account, then another situation is of concern.
The absent minded of a person who left their Facebook account open in an internet shop and subsequently a stranger uses such computer, and subsequently posted a libellous material in such an account, who would be liable in such a scenario? It seems that the law does not distinguish but the owner would be liable for such libellous material. Furthermore, if such content which was posted was child pornography which according to the law on Anti-Child Pornography, mere possession of the content of child pornography they become liable. If such be the case then the owner of the account would be liable for child pornography and therefore a criminal would be scot free because of such a scenario.
These laws on Cyberlibel seem to be unenforced and difficult to enforce. Since there is no power of the government to monitor the actions of the citizens there is no control over the information and communications being disseminated in the world wide web. This would have political implications for politicians who are running for office. Anything which can be libellous can be posted and disseminated by a stranger who remains anonymous and later removes such material after most people have already shared it or liked it. In the case of Disini vs Secretary of Justice, it provided that sharing or liking is not considered aiding or abetting and therefore only the original poster of libellous material can be in violation of Cyberlibel.
There are many laws which are about to be passed for the consistent protection of the freedom of speech and the protection of the privacy of Filipino citizens. It is only through knowledge which the people may prevent cybercrimes to proliferate. The privacy in our own self seems to be protected because of the ambiguity in the law. While our privacy in the internet is free. It is focused more on protection rather than prevention. This construct may bring positive effects or negative effects. This solely depends on the Filipino people. Therefore privacy is still in the choice of individual citizens. That is why there is a need to increase awareness and spread the news until there is still freedom of speech in the world wide web. As of now privacy in the Digital world is still evolving.