1. Zones of Privacy

Reasonable Expectation of Privacy Test

In ascertaining whether there is a violation of the right to privacy, courts use the "reasonable expectation of privacy" test. This test determines whether a person has a reasonable expectation of privacy and whether the expectation has been violated.

The reasonableness of a person’s expectation of privacy depends on a two-part test:

• Subjective: Whether, by his conduct, the individual has exhibited an expectation of privacy; and
• Objective: This expectation is one that society recognizes as reasonable. (Pollo v. Constantino-David, G.R. No. 181881, Oct. 18, 2011)

Customs, community norms, and practices may, therefore, limit or extend an individual’s reasonable expectation of privacy. Hence, the reasonableness of a person’s expectation of privacy must be determined on a case-to-case basis since it depends on the factual circumstances surrounding the case. (Sps. Hing v. Choachuy, G.R. No. 179736, June 26, 2013)

In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)

A government employee has a burden of proving that he has legitimate expectation of privacy either in his office or computer files. He can prove this by alleging and demonstrating the following: he used a password on his computer, did not share his office with coworkers and kept the same locked. However, the existence of a workplace privacy policy may limit or erode the reasonable expectation of privacy. (Pollo v. Constantino-David, G.R. No. 181881, Oct. 18, 2011)

Public Figure

The right of privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. (Ayer v. Capulong, G.R. No. 82380, April 29, 1988)

Online Social Network Privacy

Before one can have an expectation of privacy in his or her Online Social Network activity, it is first necessary that said user manifest the intention to keep certain posts private. In the cyber world, utilization of privacy tools is the manifestation of the user’s invocation of his or her right to informational privacy.

That the photos are viewable by “friends only” does not necessarily bolster the contention to the right to privacy. In this regard, whether the digital images under this setting fall within the zones of privacy depends on their actual visibility to other Facebook users and the circumstances of access; the “Friends” setting alone neither establishes privacy nor makes the images public, in view of the following:

• Facebook “allows the world to be more open and connected by giving its users the tools to interact and share in any conceivable way”
• A good number of Facebook users “befriend” other users who are total strangers;
• The sheer number of “Friends” one user has, usually by the hundreds; and
• A user’s Facebook 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.

Setting a post’s or profile detail’s privacy to “Friends” is no assurance that it can no longer be viewed by another user who is not Facebook friends with the source of the content.

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post or profile detail should not be denied the informational privacy right which necessarily accompanies said choice. Otherwise, using these privacy tools would be a feckless exercise, such that if, for instance, a user uploads a photo or any personal information to his or her Facebook page and sets its privacy level at "Only Me" or a custom list so that only the user or a chosen few can view it, said photo would still be deemed public by the courts as if the user never chose to limit the photo’s visibility and accessibility. Such position, if adopted, will not only strip these privacy tools of their function but it would also disregard the very intention of the user to keep said photo or information within the confines of his or her private space. (Vivares v. St. Theresa’s College, G.R. No. 202666, Sept. 29, 2014)

The key points from the Vivares v. St. Theresa's College case are:

• The case involved a dispute over the right to privacy of students at St. Theresa's College (STC) who had posted revealing photos of themselves on Facebook.
• The students were disciplined by STC for violating the school's code of conduct, including posting photos that exposed their underwear and depicted them drinking and smoking.
• The students' parents filed a petition for a writ of habeas data, arguing that STC had violated the students' right to privacy by accessing and disseminating the Facebook photos without consent.
• The Regional Trial Court dismissed the habeas data petition, finding that the students did not have a reasonable expectation of privacy for photos posted on Facebook, even with "friends-only" privacy settings.
• On appeal, the Supreme Court upheld the dismissal, ruling that the students' privacy rights were not violated since the photos were accessible to their Facebook friends, who then showed them to the school officials. The Court emphasized that privacy expectations are diminished in the social media context.
• The case clarified that the writ of habeas data is not limited to cases of extrajudicial killings and enforced disappearances, but can be used to protect the right to informational privacy more broadly.

INFORMATIONAL PRIVACY

Informational privacy refers to the right of individuals to control the collection, use, and disclosure of personal information about themselves.

The key aspects of informational privacy are:

• The right not to have private information disclosed to others. This is the interest in avoiding disclosure of personal matters.
• The right to live freely without surveillance and intrusion. This is the right of an individual to control information about oneself.
• The ability to exercise control over one's personal information and how it is used by others. Informational privacy is concerned with the interest of individuals in exercising control over access to information about themselves.

DECISIONAL PRIVACY

Decisional privacy refers to the freedom of individuals to make personal choices without interference from external sources. It encompasses the right to autonomy in decision-making regarding intimate and personal matters without external influence. It emphasizes the individual's right to make decisions without external coercion or intrusion.

LOCATIONAL PRIVACY

Locational privacy refers to the right of individuals to control information about their physical location or movements. Locational privacy emphasizes the protection of individuals' privacy concerning their whereabouts and movements, especially in the context of technological advancements that can track and monitor individuals' locations.

UP NOTES

1987 Constitution SECTION 3, ARTICLE III.

(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.

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Private and Public Communications

The Constitution does not contain a single, general privacy clause, but Article III, Section 3 expressly protects the privacy of communication and correspondence. It is a penumbral right formed from the shadows created by several constitutional provisions. That is to say, the right to privacy is located within the zones created by various provisions of the Constitution and various statutes which protect aspects of privacy [Ople v. Torres, supra].

In Ople v. Torres, different provisions in the 1987 Constitution also constitute zones of privacy:

• Section 3 – Privacy of communication
• Section 1 – Life, liberty, and property
• Section 2 – Unreasonable searches and seizures
• Section 6 – Liberty of abode
• Section 8 – Right to form associations
• Section 17 – Right against selfincrimination

Three Strands of the Right to Privacy

• Decisional Privacy - Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom...The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique individual whose claim to privacy and interference demands respect [Morfe v. Mutuc, supra].
• Informational Privacy - Right of an individual not to have private information about himself disclosed; and the right of an individual to live freely without surveillance and intrusion [Whalen v. Roe, 429 US 589 (1977)]
• Locational or Situational Privacy - privacy that is felt in physical space, such as that which may be violated by trespass or unwarranted searches and seizure [Vivares v. St. Theresa’s College, G.R. No. 202666 (2014)]

Public Figure

A limited intrusion to a person’s privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute matters of public character. The interest sought to be protected by the right to privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern [Ayer Productions Pty. Ltd. v. Capulong, G.R. No. 82380 (1988)] Owner check: verify whether the citation should read G.R. No. L-82380 (1988).

But as held in Lagunzad v. Soto [G.R. No. L32066 (1979)], being a public figure does not automatically destroy in toto a person’s right to privacy. Owner check: verify whether the citation should read G.R. No. L-32066 (1979).

R.A. 10175 (CYBERCRIME PREVENTION ACT)

Certain Cybercrime Offenses under RA 10175 were assailed for violating both the right against unreasonable searches and seizures and the right to privacy. The court held that relevant to any discussion of the right to privacy is the concept known as the Zones of Privacy, as discussed earlier.

In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. The usual identifying information regarding a person includes his name, his citizenship, his residence address, his contact number, his place and date of birth, the name of his spouse, if any, his occupation, and similar data. The law punishes those who acquire or use such identifying information without right, implicitly to cause damage. Petitioners failed to show how government effort to curb computer-related identity theft violates the right to privacy and correspondence as well as the right to due process of law.

However, Section 12 on real-time collection of traffic data was declared unconstitutional for the authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these agencies. Section 12, of course, limits the collection of traffic data to those “associated with specified communications.” But this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in “fishing expedition,” choosing whatever specified communication they want. This evidently threatens the right of individuals to privacy. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)