Vulnerable right

A LAW EACH DAY [Keeps Trouble Away] By Jose C. Sison (The Philippine Star) | Updated September
13, 2017 - 12:00am

In this modern age of information technology, the right to informational privacy or the right of individuals to
control information has become vulnerable to attacks and intrusions due to the availability of numerous
avenues of information gathering and data sharing like the facebook (FBs) that usually appears in on-line
social networking (OSN). So how is this right to privacy protected under our laws? Is there a remedy pro-
vided by our law to prevent violation of this right. This is explained in this case of students in an exclusive
and very conservative private school for girls.

The girls here are graduating high school students particularly Triny, Mitchie, Carly, Anna and Bridge. Be-
fore graduation, they organized a beach party and while they were changing into their swimsuits, they
took digital pictures of themselves clad only in their undergarments. These pictures were then uploaded
by Anna on her Facebook profile.

Back at the school, the computer teacher of the high school department, Ms. Dory learned from her stu-
dents that some seniors at the school posted pictures online, depicting themselves from the waist up,
dressed only in brassieres. Ms. Dory then asked her students if they knew who the girls in the photos are.
In turn, they readily identified Triny, Mitchie and Carly, among others. Using the school’s computers, Ms
Dory’s students logged in to their respective personal Facebook accounts and showed her photos of the
identified students, which include: (a) Triny and Mitchie drinking hard liquor and smoking cigarettes inside
a bar; and (b) walking along the streets wearing articles of clothing that show virtually the entirety of their
black brassieres. What is more, Ms. Dory’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, but were, in
fact, viewable by any Facebook user.

Upon discovery, Ms Dory reported the matter and, through one of her student’s Facebook page, showed
the photos to Ms May Gomez, the school’s Discipline-in Charge, for appropriate action. Thereafter, follow-
ing an investigation, the school found the identified students to have violated the school’s Student Hand-
book, to wit: engaging in immoral, indecent, obscene or lewd acts; smoking and drinking alcoholic bever-
ages in public places; wearing apparel that exposes the underwear, advocates unhealthy behavior, de-
picts obscenity and sexually suggestive messages, language or symbols, and posing. Posing and upload-
ing pictures on the Internet that entail ample body exposure.
The five students in the pictures were then required by Ms. Quesada, the school principal to report to her
office where they claimed they were castigated and verbally abused by the STC officials present in the
conference. The following day, Ms. Quesada informed them that, as part of their penalty, they are barred
from joining the scheduled commencement exercises.

So Anna’s mother filed a Petition for Injunction and Damages before the RTC against the school and its
officials praying that they be enjoined from implementing the sanction. Later the mother of Triny joined the
petition as an intervenor. In their memorandum they attached printed copies of the photographs in issue
as annexes. That same day, the RTC issued an order (TRO) allowing the students to attend the gradua-
tion ceremony, to which the school filed a motion for reconsideration (MR). But despite the issuance of the
TRO, the school nevertheless, barred the sanctioned students from participating in the graduation rites
because the MR remained unresolved.

Thereafter, the parents of Mitchie and the mother of Triny filed another Petition before the RTC for the
Issuance of a Writ of Habeas Data. They primarily alleged that the right of their children to informational
privacy has been violated because the privacy setting of their children’s Facebook accounts was set at
“Friends Only.” Thus they have a reasonable expectation of privacy which must be respected and which
the school and its official should have known instead of viewing them and punishing the minors for being
“immoral.”

After the school filed their written “return” to the writ denying any violation of their right to privacy as there
is no reasonable expectation of privacy on Facebook, the RTC dismissed the petition because the photos
having been uploaded on FB without restrictions as to who may view them somehow lost, lost their priva-
cy.

This ruling was confirmed by the Supreme Court (SC). The SC said that before one can have an
expectation of privacy in his or her OSN activity, it is first necessary that the students
manifest the intention to keep certain posts private through the employment of mea-
sures that will prevent access thereto or limit their visibility. And this intention can mate-
rialize in cyberspace through the utilization of the OSN’s privacy tools denying access to
his or her post or profile detail. In this case, the images in question were visible to other FB users.
The five students testified that it was Anna who posted the photos in the FB and they did not question the
other students’ act of showing the photos to Ms. Dory. So this disproves their allegation that the photos
were viewable only by the five of them. Without any evidence to corroborate their statement that the im-
ages were visible only to them, and without their challenging Ms Dory’s claim that the other students were
able to view the photos, their statements are, at best, self-serving, thus deserving scant consideration.
They did not dispute that Ms Dory’s sworn account that her other students, who are their Facebook
“friends,” showed her the photos using their own Facebook accounts. This only goes to show that no spe-
cial means to be able to view the allegedly private posts were ever resorted to by Ms Dory’s other stu-
dents. So it is reasonable to assume 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. So they cannot invoke the protection attached to the right to informational
privacy. Messages sent to the public at large in the chat room or e-mail and forwarded
from correspondent to correspondent loses any semblance of privacy. Even if the pho-
tos are viewable by “friends only” this setting still remain to be outside the confines of
the zones of privacy. The users’ FB friend can “share” the former’s post, or “tag” others
who are not Facebook friends with the former, despite its being visible only to his or her
own Facebook friends.
The visibility set at “Friends Only” cannot easily, more so automatically, be said to be “very private,” The
school and its officials did not resort to any unlawful means of gathering the information as it was volun-
tarily given to them by persons who had legitimate access to the said posts.

Responsible social networking or observance of the “netiquettes”56 on the part of teenagers has been the
concern of many due to the widespread notion that teenagers can sometimes go too far since they gen-
erally lack the people skills or general wisdom to conduct themselves sensibly in a public forum.

As such, the school cannot be faulted for being steadfast in its duty of teaching its students to be respon-
sible in their dealings and activities in cyberspace, particularly in OSNs, when it enforced the disciplinary
actions specified in the Student Handbook, absent a showing that, in the process, it violated the students’
rights. (Vivares et. al vs. St.Theresa’s College et. al, G.R. 202666, September 29, 2014)