Vulnerable right
Jose C. Sison (The Philippine Star) - September 12, 2017 - 4:00pm

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 provided 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. Before 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 students 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, following an investigation, the school found the identified students to have violated the school’s Student Handbook, to wit: engaging in immoral, indecent, obscene or lewd acts; smoking and drinking alcoholic beverages in public places; wearing apparel that exposes the underwear, advocates unhealthy behavior, depicts obscenity and sexually suggestive messages, language or symbols, and posing. Posing and uploading 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 graduation 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 privacy.

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 measures that will prevent access thereto or limit their visibility. And this intention can materialize 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 images 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 special means to be able to view the allegedly private posts were ever resorted to  by Ms Dory’s other students. 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 photos 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 voluntarily 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 generally 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 responsible 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)

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