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(Tan)

PHILIPPINE RIGHT TO PRIVACY


LMG14
ELM4

CHAZEDELK G. CERDENA
BEATRIXE MARIE G. CALPO
KRISTEL JOYCE MANAHAN
PAULINE DE JOYA

I.

INTRODUCTION

A. WHAT IS RIGHT TO PRIVACY AND ITS BACKGROUND


Privacy is defined as the interest that individuals have in sustaining a personal space, free from
interference by other people and organizations. It is the right to be let alone and as the most
fundamental of all rights cherished by a free people. Right to Privacy is a basic right given to any
Filipino. Every persons right to privacy is thus the most precious of democratic rights. It is the mother of
all our core democratic rights. In fact, the right to privacy is the right to have all those other democratic
right for which we have definite names. It is bestowed by virtue of the Constitutions Bill of Rights
Section 2 states "The right of the people to be secure in their persons, houses, papers
Section 3 states: "(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

B. RECENT HEADLINES INVOLVING RIGHT TO PRIVACY


At the heart of the controversy swirling around former Comelec Commissioner Virgilio
Garcillano is a complex legal issue involving privacy rights. Fundamental to the case is Section 3 of the
Bill of Rights of the 1987 Constitution:
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.
Also germane to the case is RA 4200, the 1960s-era Anti Wiretapping Law authored by the
legendary Senator Lorenzo Taada and described at the height of the Gloriagate crisis by the Philippine
Star -MANILA, July 18, 2005 (STAR) A law each day (KEEPS TROUBLE AWAY) By Jose C. Sison - The
late Senator Lorenzo Taada perhaps never imagined that the Anti-Wiretapping Law he authored would

be the center of controversy involving the use of tape recorded conversations containing lurid details of
plots and counter-plots swirling around the very occupant of the highest office in the land. In passing the
law in 1965 our lawmakers clearly intended "to discourage, through punishment, persons such as
government authorities or representatives of organized groups from installing devices in order to gather
evidence for use in civil, criminal, administrative and or legislative hearings or investigations or to
intimidate, blackmail or gain some unwarranted advantage over the telephone users" (Gaanan vs. IAC, L69809, October 16, 1986, 145 SCRA 112).
It is remarkable that RA 4200 was promulgated in the first year of Ferdinand Marcos presidency
(1965) being written with LORENZO TANADA's renowned anti-authoritarian and civil libertarian
philosophy. But if its most potent application and use should occur forty years later in 2005, that would
surely not cause him any unhappiness. For if the testimony of Marieta Santos in the Philippine Senate
proves to be truthful (as the Senate President Frank Drilon and Defense Committee Chair Sen. Rodolfo
Biazon seem to think it is) then no less than the Intelligence Services of the Armed Forces of the
Philippines may have violated RA 4200.
WHAT IS SO WRONG ABOUT WIRETAPPING? Morally speaking, it is probably the same thing as
EAVESDROPPING. When two other persons are talking to each other, after all, there is something
socially reprehensible about a third person secretly listening in and discovering things that perhaps the
other two would not want anyone else to know. Peeping or spying on a person while he or she is going
through their normal routine would be considered socially reprehensible behavior. Moreover, such
activities -- peeping, spying, eavesdropping, and wiretapping -- are intuitively reprehensible because they
are all invasions of our Right to Privacy. But what exactly is this Right to privacy? Isn't it just the freedom
from being snooped upon?
THE RIGHT TO PRIVACY: In the course of studying the Anti Wiretapping Law, RA 4200, the "Right to
Privacy" is much more than the freedom from Peeping Tom paparazzi, eavesdroppers and investigative

journalists. It turns out that the Right to Privacy is actually a far grander thing than that. The Right to
Privacy is in fact the foundation of most if not all of the human rights and duties that are granted to
individual citizens under a Constitutional Democracy! The Right To Privacy is the Mother of all
democratic rights:
THE PRIVATE SECTOR: Individuals are the most numerous members of the "Private Sector." In
democratic societies, the most basic human right is to be secure in our persons, homes and possessions;
this includes all the physical and mental aspects of private personhood and citizenship in the private
sector. The individual citizen is also the smallest possible minority in a democratic society, the cell of the
body politic as it were. As such, the individual gets an entire Article of the Constitution guaranteeing such
protection -- the Bill of Rights.
FREEDOM OF SPEECH: The Right to Privacy is also the basis of Freedom of Speech and Expression,
because the right to hold a private opinion and to express it freely is a human right of every private
citizen. It is like an extension of the more primitive rights to material property to include the realm of our
thoughts, sensations, literary and artistic creations, and even our ordinary conversations. The quality and
content of such nonmaterial properties of a private person are immaterial to the degree of protection
accorded by the Constitution. They are treated by the Law as possessions in their own right -- as
intellectual private property. Intellectual property doesn't have to be "intellectual" either. Freedom of
speech is based on the freedom to hold private thoughts and opinions as pieces of property, the right to
which we may not be deprived of. Thus Copyrights, patents and trademarks are Intellectual Property
Rights that are based on freedom of speech and the Right to Privacy.
FREEDOM OF PEACEFUL ASSEMBLY, in turn is based on the individual's freedom of speech, when a
large number of such individual private opinions happen to coalesce into a demonstration or protest
march. Or to organize a newspaper, radio station or tv or bloggerdom.

FREEDOM OF RELIGION: A sibling of the rights of free speech is the right to hold a private belief in
GOD or to believe in no deity at all. This private right of believe-it-or-not is also the foundation of the
freedom of religion, the right to worship freely as one wish to in private or in voluntary associations
called churches. Thus the Right to Privacy is also the foundation of the Principle of the Separation of
Church and State, by a not so-circuitous route.
LIMITATIONS ON THE RIGHT TO PRIVACY:
First, the right to privacy does not prohibit any publication of matter which is of public or general
interest. Second. The right to privacy does not prohibit the communication of any matter, though in its
nature private, when the publication is made under circumstances which would render it a privileged
communication according to the law of slander and libel. Third, the law would probably not grant any
redress for the invasion of privacy by oral publication in the absence of special damage. Fourth, the right
to privacy ceases upon the publication of the facts by the individual, or with his consent. Fifth, the truth of
the matter published does not afford a defense. Sixth, The absence of "malice" in the publisher does not
afford a defense.
In addition, these are the principles that guide the debate over whether the media and the citizenry
at-large have any rights at all to "use" the Garci Tapes, to hear them, listen to them, put links on weblogs
to edited copies of them, etc., the Congress has the same "rights" as the citizenry at large with respect to
any question of a purported invasion of the Right to Privacy. In so far as any such breach in one man, is a
breach in the Liberty of all, it also must follow that if the Congress itself is ever deprived of such rights
over the Garci Recordings, the public at-large will also have been so deprived, in equal if not greater
measure.
THE PUBLIC'S RIGHT TO KNOW: In the discussion on the "public's right to know," House Minority
Leader CHIZ ESCUDERO brought up the United States case of BARTNICKI v. VOPPER [532 U.S.
(2001) Docket No. 99-1687] whose Abstract is as follows --

FACTS OF THE CASE: An unidentified person intercepted and recorded a phone call between the chief
union negotiator and the union president (the petitioners) during collective-bargaining negotiations
involving a teachers' union and the local school board. After a teacher-favorable proposal was accepted, a
radio commentator played a tape of the intercepted conversation. Petitioners filed suit under both federal
and state wiretapping laws, alleging that an unknown person using an electronic device had
surreptitiously intercepted their telephone conversation. Rejecting a First Amendment protection defense,
the District Court concluded, in part, that the statutes were content-neutral laws of general applicability
containing "no indicia of prior restraint or the chilling of free speech." Ultimately, the Court of Appeals
found the statutes invalid because they deterred significantly more speech than necessary to protect the
private interests at stake.
QUESTION PRESENTED TO US SUPREME COURT: Does the First Amendment provide protection to
speech that discloses the contents of an illegally intercepted communication?
CONCLUSION: Yes. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the
First Amendment protects the disclosure of illegally intercepted communications by parties who did not
participate in the illegal interception. "In this case, privacy concerns give way when balanced against the
interest in publishing matters of public importance," wrote Justice Stevens. "[A] stranger's illegal conduct
does not suffice to remove the First Amendment shield from speech about a matter of public concern."
Noting that the negotiations were a matter of public interest, Justice Stevens wrote that the "debate may
be more mundane than the Communist rhetoric that inspired Justice Brandeis' classic opinion in Whitney
v. California, but it is no less worthy of constitutional protection."
PARALLELS Why is Bartnicki v. Vopper important to Gloriagate and the Garci Tapes? It is important
because like the Barnicki case, the press and the public had nothing to do with the release of the Garci
recordings into the public domain. In fact most of them got their first copy of the Garci Tapes from none
other than Press Secretary Ignacio Bunye when he revealed the existence of two CDROMs in his

possession -- one containing what he claimed were genuine conversations between President Gloria
Macapagal Arroyo and a certain Mr. Bong Ruado (a local political leader and supporter); and a second
CDROM containing what Sec. Bunye claimed were faked or spliced conversations between the President
and Comelec Commissioner Virgilio Garcillano. Right after this stunning announcement to the
Malacanang Press Corps, Sec. Bunye in retrospect made a big blunder -- he allowed the Palace Media
reporters to listen to and even make digital copies of the two CDROMs. The two sets of Bunye's audio
recordings are still available online at the blog of the Philippine Center for Investigative Journalism
(PCIJ). Just an hour before Sec. Bunye held his Press Conference and released the Bunye Version of the
Garci Recordings into the Public Domain, a radio station, DZBB played another version of the Garci
Recordings, that of lawyer Alan Paguia, which broadcast, in retrospect once more, was the reason for Sec.
Bunye's maladroit antidote to the release into the Public Domain of the Paguia Version of the Garci Tapes.
When it rains, it pours, because then Senator Panfilo Lacson also released the Lacson Version of the Garci
Recordings into the Public Domain, even mass producing copies and distributing them through his Be
Not Afraid Movement. Likewise the PCIJ had posted MP3s of all these versions, which are still available
online. From there, dozens of versions proliferated as mass organizations packaged and sold their own
versions of the Garci recordings, spicing them up with the most hilarious Ring Tones and spoof music
featuring choice snatches of the Garci Recordings, like, "Hello Garci! Yes Ma'm" and "Yung dagdag,
Yung dagdag". Within I would say a week of the original releases into the Public Domain, the atmosphere
was saturated with excerpted sounds from the Garci Recordings. Everyone was talking about the awful
picture that those conversations were painting about the President and Virgilio Garcillano. The scandalous
nature of the developments seems to have goaded the government into foolish action. For example, there
was a clumsy attempt to use the National Telecommuncations Commission (NTC) to pressure
newspapers, televsion and particularly AM radio stations from continuing to air the scandalizing
conversations. This move utterly backfired as it was equivalent to throwing fuel onto a fire. That really
drove the Garci Recordings to the top of the charts and beyond as ringtones and CAR HORNS imitating
the President's voice and Garci's made their hilarious appearance. The rising crescendo of ridicule and

public obloquy alarmed the Palace because it seemed there would surely be a People Power event as
indeed demonstrations and rallies denouncing the President were increasing in frequency and attendance.
The Palace justified this action using the argument that because these various versions of the Garci
Recordings, these "Garci tapes" were illegally acquired they were subject to the sanctions of the AntiWire Tapping Law and ought not to be aired and reproduced by the Media and private citizens. Now if
you read again the Conclusion of Bartnicki v. Vopper, you will see why the Palace would've been struck
down by the US Supreme Court in the hypothetical situation that the Garci Tape case was to be submitted
to that august body. By the way, the parallels between the Garci Case and the US case are striking -- the
wiretapped conversations in the latter were between a Gloria Bartnicki and an Anthony Kane (as noted by
Chiz Escudero during Dong Puno's show.)
BUNYE'S VIOLATION OF RA 4200: If not for the above insights of Bartnicki on the limits of privacy
rights relative to freedom of the press, one would think everyone who had mere possession of a copy of
the Garci tapes would be violating Section (2) of RA 4200 -SECTION 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done
any of the acts declared to be unlawful in the preceding section or who violates the provisions of the
following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon
conviction thereof, be punished by imprisonment for not less than six months or more than six years and
with the accessory penalty of perpetual absolute disqualification from public office if the offender be a
public official at the time of the commission of the offense, and, if the offender is an alien he shall be
subject to deportation proceeding
If one believes Bartnicki is applicable, then "First Amendment rights" -- freedom of speech and the press
-- would shield the press and bloggers from any violation of Sec. 2. But even if one does not believe
Bartnicki to be applicable, one is still faced by one of Gloriagate's enduring absurdities -- Secretary

Bunye was one of the first, if not the first to violate Section 2 when he allowed Malacanang Media to
make copies of his fake and original CDROM-based Garci-Ruado conversations.
But notice that the RIGHTS OF PRIVACY are INDIVIDUAL RIGHTS, while the PUBLIC'S RIGHT TO
KNOW seems more to be a "RIGHT OF EVERYONE. This suggests that the CONGRESS of the
PHILIPPINES should be the true party in interest, on behalf of "everyone" in any case that might require
the adjudication of a question pitting the Rights of Privacy against the Public's Right to Know. As Rep.
Gullas memorably said, (though Teddy Boy Locsin's quotation of him became more memorable): The line
between privacy rights and the public's right to know is the line drawn against self-incrimination."
C. PRIVACY AS CONSTITUTIONAL AND CIVIL RIGHT

Privacy Value
Decisional privacy
Informational
privacy

Privacy as
reputation

Privacy as identity

Evidentiary
privileges

Constitution
Substantive due process
Unreasonable search
Privacy of
correspondence Selfincrimination
Anonymous speech
Anonymous
association
Unreasonable search
Privacy of
correspondence Selfincrimination
Restraints on
speech
Substantive due process

Unreasonable search
Privacy of
correspondence Selfincrimination

Civil Code and


Others
Infliction of distress
Intrusion into
seclusion
Infliction of
distress

Disclosure of private
facts
False
light
Appropriati
on
Remedial law privileges

The Bill of Rights is kept eternally young as broad rights branch off into specialized doctrines with the
evolution of jurisprudence. The freedom of speech, for example, has developed subgenres such as libel,

obscenity, commercial speech, fighting words, and anonymous speech; all of which protect the same
Constitutional value in a particularized factual milieu. Privacy, however, is a welcome constitutional
anomaly in that it was instead culled from a convergence of existing rights. Griswold v. Connecticut
itself admitted to discussing a penumbra formed by emanations from those guarantees that help give
those (explicit Constitutional rights) life and substance. The table outlines how privacy is arguably an
amalgamated right, and this paper expands this listing into a single, integrated framework.
This paper proceeds in three parts. First, it will discuss the current privacy doctrines, strand by strand, and
review their implicit application in recent Philippine jurisprudence and their evolution from Morfe.
Second, it will unite these disparate strands of legal doctrine, and explicitly identify the values sought to
be protected: privacy as autonomy, privacy as seclusion, privacy as reputation, and privacy as identity. It
is submitted that this framework follows directly from the foundations described by Chief Justice
Fernando in Morfe. Finally, it will identify contemporary problem areas for privacy, and apply the
framework to each.

II.

LEGAL ETYMOLOGIES AND THE FRAMEWORK OF MORFE V. MUTUC

The landmark American decision Whalen v. Roe bifurcated the right to privacy into:
1. Decisional privacy: the interest in independence in making certain kinds of important
decisions
2. Informational privacy: the individual interest in avoiding disclosure of personal matters
The constitutional right to privacy was first explicitly recognized in the Philippines by Morfe.
This was decided nine years before Whalen but arguably used the same framework, although Chief
Justice Fernando termed decisional privacy as part of liberty and informational privacy as merely
privacy. By todays standards, it is curious how the same case could put both decisional and
informational privacy in issue, but Morfe dealt with a requirement that public officers disclose their assets

and liabilities each month and challenged this as both violative of due process as an oppressive exercise
of police power and as an unlawful invasion of the constitutional right to privacy, implicit in the ban
against unreasonable search and seizure construed together with the prohibition against selfincrimination.
These two broad categories capture the emphases in the American and Philippine academe
touched on in the introductory discussion, and will be used to frame this sections analysis. A third section
will be added to tackle the civil law privacy doctrines.
Preliminarily, even before discussing Morfes actual language, one point out that Chief Justice
Fernandos decisions seem to paint a broad picture of the right to privacy. For example, Ermita-Malate
Hotel and Motel Operators Association, Inc. v. Mayor of Manila, penned before Morfe, hints that the right
could have been invoked against an ordinance that required all motel occupants to register themselves and
their companions, although the motel operators were not allowed to assert their customers right in the
case and the Court upheld the use of police power against an evil of rather serious proportion. In
Evangelista v. Jarencio, he hinted that the right to privacy is applicable even in administrative regulation.
While none of the other rough dozen decisions that explicitly mention privacy tackle the right as squarely
as Morfe, the broad philosophy that characterized Morfe is evident in each.
A. DECISIONAL PRIVACY: LIBERTY AND THE DUE PROCESS CLAUSE
In the 1977 landmark ruling of Whalen v. Roe, the US Supreme Court expanded the right to
privacy by categorizing privacy claims into two, namely: informational privacy, to refer to the interest in
avoiding disclosure of personal matters; and decisional privacy, to refer to the interest in independence in
making certain kinds of important decisions.
Decisional privacy, evolved from decisions touching on matters concerning speech, religion,
personal relations, education and sexual preferences. As early as 1923, the US Supreme Court recognized
decisional privacy in its majority opinion in Meyer v. Nebraska. The petitioner therein was tried and

convicted by a district court, and his conviction was affirmed by the Supreme Court of the Nebraska, for
teaching the subject of reading in the German language to a ten-year old boy who had not attained and
successfully passed eighth grade. In reversing the judgment, Justice McReynolds of the US Supreme
Court pronounced that the liberty guaranteed by the Fourteenth Amendment denotes not merely freedom
from bodily restraint, but also the right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of happiness by free men. In Griswold v.
Connecticut, the US Supreme Court resolved another decisional privacy claim by striking down a statute
that prohibited the use of contraceptives by married couples. Justice Douglas, delivering the opinion,
declared:
The present case, then, concerns a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of
contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means
having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the
familiar principle, so often applied by this Court, that a governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms. (NAACP v. Alabama, 377 U.S.
288, 307). Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs
of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage
relationship.
One of the most controversial decisional privacy claims was dealt with in Roe v. Wade, by which
the US Supreme Court justified abortion in the United States on the premise that:

This right of privacy is broad enough to encompass a womans decision whether or not to terminate her
pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice
altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be
involved. Maternity, or additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is
also the distress, for all concerned, associated with the unwanted child, and there is the problem of
bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases,
as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.
All these are factors the woman and her responsible physician necessarily will consider in consultation.
Although the results are divided, most of these courts have agreed that the right of privacy,
however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute
and is subject to some limitations; and that at some point the state interests as to protection of health,
medical standards, and prenatal life, become dominant.
In the Philippines, we have upheld decisional privacy claims. For instance, in the 2003 case
of Estrada v. Escritor, although the majority opinion dealt extensively with the claim of religious freedom,
a right explicitly provided by the Constitution, Justice Bellosillos separate opinion was informative with
regard to the privacy aspect of the issue involved and, hence, stated:
More than religious freedom, I look with partiality to the rights of due process and privacy. Law in
general reflects a particular morality or ideology, and so I would rather not foist upon the populace such
criteria as compelling state interest, but more, the reasonably foreseeable specific connection between an
employees potentially embarrassing conduct and the efficiency of the service. This is a fairly objective
standard than the compelling interest standard involved in religious freedom.
Verily, if we are to remand the instant case to the Office of the Court Administrator, we must also
configure the rights of due process and privacy into the equation. By doing so, we can make a difference

not only for those who object out of religious scruples but also for those who choose to live a meaningful
life even if it means sometimes breaking oppressive and antiquated application of laws but are otherwise
efficient and effective workers. As is often said, when we have learned to reverence each individuals
liberty as we do our tangible wealth, we then shall have our renaissance.
The word privacy was first explicitly used in Griswold v. Connecticut, which described a
privacy older than the Bill of Rights: Specific guarantees in the Bill of Rights have penumbras, formed
by emanations from those guarantees that help give them life and substance. Various guarantees create
zones of privacy. The Court, backpedaling from Lochner v. New Yorks stigma and substantive due
process treacherous field, declined to apply the Due Process Clause, and instead found penumbras of
privacy in the freedom of speech, freedom of association, right against unreasonable search, right against
self-incrimination, and the Ninth Amendment that reserved certain unremunerated rights to the people.
Thus, Griswold struck down a statute that forbade the use of contraceptives by married couples:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use
of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage
relationship.
Nevertheless, two years later, Loving v. Virginia struck down a statute that forbade interracial
marriage on Due Process grounds:
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly
pursuit of happiness by free men To deny this fundamental freedom on so unsupportable a basis as the
racial classifications embodied in these statutes is surely to deprive all the State's citizens of liberty
without due process of law.
Six years after Griswold, Boddie v. Connecticut ruled that Due Process prohibited a State from
denying divorce proceedings to poor people, as fees in this context amounted to an exclusive
precondition to the adjustment of a fundamental human relationship. Twelve years after Griswold,

Moore v. East Cleveland struck down a statute that limited occupation of houses to single families as it
defined families, holding that Due Process protected a private realm of family life which the State cannot
enter. Finally, Zablocki v. Redhail cited Griswold as establishing that the right to marry is part of the
fundamental right of privacy implicit in the Fourteenth Amendments Due Process Clause.
In the rough decade after Griswold, only Eisenstadt v. Baird and its extension of Griswold to
unmarried couples was explicitly founded on privacy and penumbras. Nevertheless, Eisenstadts language
was precisely that of the decisional privacy later described in Whalen v. Roe:
It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the
marital couple is not an independent entity If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person.
Moreover, the dissent precisely decried how the majority hark back to the heyday of substantive
due process. A year after Eisenstadt, however, the right to privacy and the spurned substantive due
process were reconciled in Roe v. Wade, which ruled: This right of privacy, whether it be founded in the
Fourteenth Amendments concept of personal liberty and restrictions upon state action, as we feel it is, or,
as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad
enough to encompass a woman's decision whether or not to terminate her pregnancy. Citing Whalen,
Carey v. Population Services upheld Roes rationale: The decision whether or not to beget or bear a child
is at the very heart of this cluster of constitutionally protected choices. That decision holds a particularly
important place in the history of the right of privacy. Thus, decisional privacy is a necessary or even
implied Due Process outgrowth that restrains government from intruding into certain personal decisions
deemed fundamental in human experience, and not just those pertaining to narrow aspects of sexuality
and family life. More than mere restraint, however, European human rights jurisprudence has taken the
concept further towards a respect for individual dignity, much as Professor Tribe discussed. Finally, this

emphasis on dignity is most poignant in post-apartheid South African jurisprudence, where the present
constitution has dignity as a core principle and explicitly prohibits discrimination due to sexual
orientation
B. INFORMATIONAL PRIVACY: PENUMBRAS AND RIGHT TO BE LET ALONE
Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion. In determining whether or not a matter is entitled to
the right to privacy, this Court has laid down a two-fold test. The first is a subjective test, where one
claiming the right must have an actual or legitimate expectation of privacy over a certain matter. The
second is an objective test, where his or her expectation of privacy must be one society is prepared to
accept as objectively reasonable.
In this age of information and communication technology one who holds information holds
power. The flow of this information is vital to nation-building as it upgrades the knowledge and capacity
of every individual and entity on each others field adding to their yield. The flow of information is faster
now as compared before. It helps organizations to work efficiently and increase their productivity.
Workloads may now be delegated to computers through automated processes for staffs to do other more
important matters. One can also work within or without his office through accessing the companys
network remotely. Communication, a vital key in the business world, will be easier and faster through
video conferencing, email, and intra-corporate chat.

Information and communication technology have restructured the corporate structure of businesses but it
also created a lot of problems and disadvantages. Downsizing and job redundancies are problems arising
from computerize business process thereby causing unemployment to people who would have done such
process.

The development of information and communication technologies did not only provide or aid a
nations progress but is also open to abuses. It is not insusceptible to exploitations by criminal elements in
carrying out their selfish, corrupt, and immoral gains. They use it in kidnapping by gaining access to the
personal information of their would-be victim; in prostitution or trafficking via the internet to widen their
influence or to increase their market.
The benefits of the computer have revolutionized information technology. It developed the
internet, introduced the concept of cyberspace and the information superhighway where the individual,
armed only with his personal computer, may surf and search all kinds and classes of information from
libraries and databases connected to the net.
Zones of privacy are recognized and protected in our laws. Within these zones, any form of
intrusion is impermissible unless excused by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is
a constitutional right and the right most valued by civilized men, but also from our adherence to the
Universal Declaration of Human Rights which mandates that, no one shall be subjected to arbitrary
interference with his privacy and everyone has the right to the protection of the law against such
interference or attacks.
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence. 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.[vii]
Thus, with the fast development and usage of information and communication technology,
privacy of individuals or even different organizations regarding their personal information or their

sensitive or privileged information are at stake of being violated or intruded by unauthorized individual.
That is why different laws have been enacted to provide protection to these individuals and organizations
against unlawful intrusions.
Republic Act No. 10175 or The Cybercrime Prevention Act
Republic Act No. 10175 or The Cybercrime Prevention Act was passed to penalize crimes which are
committed with the use of computer. It also protects individual or entities from intellectual property
infringements by its cyber-squatting provision. Chapter II Section 4 (a) (6) of the law provides the acts
constituting cyber-squatting:
Cybersquatting. The acquisition of a domain name over the internet in bad faith to profit, mislead,
destroy reputation, and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration:
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a
personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Another significant provision in this law is the libel provision. Chapter II Section 4 (c) (4)
provides:

Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal
Code, as amended, committed through a computer system or any other similar means which may
be devised in the future.

This provision, however, raises a lot of questions or grey areas. Article 355 of the Revised Penal
Code enumerates the prohibited acts of libel such as: writing; printing; lithography; engraving; radio;
phonograph; painting; theatrical exhibition; cinematographic exhibition; and any similar means. Some of
these prohibited acts cannot be done in a computer such as writing and engraving.
Section 4 (c) (3) of this law penalizes the transmission of unsolicited commercial
communications, also known as spam. It is contended by the government that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet service
providers, reduces the efficiency of commerce and technology, and interferes with the owners peaceful
enjoyment of his property. Transmitting spams amounts to trespass to ones privacy since the person
sending out spams enters the recipients domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.[viii] However, the Supreme Court ruled that
unsolicited advertisements are legitimate forms of expression. The dispositive portion of the decision
states To prohibit the transmission of unsolicited ads would deny a person the right to read his emails,
even unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech
which is not accorded the same level of protection as that given to other constitutionally guaranteed forms
of expression but is nonetheless entitled to protection.The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of expression.
Section 5 of the same law was declared as unconstitutional because its vagueness raises
apprehension on the part of internet users because of its obvious chilling effect on the freedom of
expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front
in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable
unless consummated. In the absence of legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3)
on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand
scrutiny.

Section 12 which authorizes the collection or recording of traffic data in real-time was declared
unconstitutional because it amounts to mass surveillance. All the forces of a technological age x x x
operate to narrow the area of privacy and facilitate intrusions into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference between a democratic and a
totalitarian society.96 The Court must ensure that laws seeking to take advantage of these technologies
be written with specificity and definiteness as to ensure respect for the rights that the Constitution
guarantees.
Republic Act 8792 or The E-Commerce Act
Electronic Commerce is defined as the process of buying and selling goods electronically by
consumers and from company to company through computerized business transactions. Republic Act
8792 or The E-Commerce Act (ECA) has the following salient features: (1) it provides legal recognition
of electronic data messages, signatures, and documents and their communication; (2) it penalizes hacking
and privacy; (3) it recognizes the vital role of information and communications technology in nation
building; (4) it facilitates domestic and international dealings, transactions, arrangements, contracts and
exchanges and storage of information; it applies to both commercial and non-commercial transactions; (5)
it made the Department of Trade and Industry (DTI) the lead agency to direct and supervise the promotion
and development of electronic commerce in the country; and (6) it provides for the extent of liability of
service providers.
Section 6(e) of the Implementing Rules and Regulations of RA 8792 defines electronic data
messages as referring to information generated, sent, received or stored by electronic, optical or similar
means, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.
While an electronic document, is defined under subsection (h) of the same section as an information or
the representation of information, data, figures, symbols or other modes of written expression, described
or however represented, by which a right is established or an obligation extinguished, or by which a fact

may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically.
Republic Act 10173 or The Data Privacy Act of 2012
Republic Act 10173 or The Data Privacy Act of 2012 was signed into law by President Benigno
Aquino Jr. on August 15, 2012. It established the National Privacy Commission tasked to ensure that
proper handling of privileged and sensitive information of an individual, also called the data subject, by
the data controllers and data processors.
Section 4 of the said law provides:
SEC. 4. Scope. This Act applies to the processing of all types of personal information and to
any natural and juridical person involved in personal information processing including those
personal information controllers and processors who, although not found or established in the
Philippines, use equipment that are located in the Philippines, or those who maintain an office,
branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided,
That the requirements of Section 5 are complied with.
This Act does not apply to the following:
(a) Information about any individual who is or was an officer or employee of a government
institution that relates to the position or functions of the individual, including:
(1) The fact that the individual is or was an officer or employee of the government institution;
(2) The title, business address and office telephone number of the individual;
(3) The classification, salary range and responsibilities of the position held by the individual; and
(4) The name of the individual on a document prepared by the individual in the course of
employment with the government;

(b) Information about an individual who is or was performing service under contract for a
government institution that relates to the services performed, including the terms of the contract,
and the name of the individual given in the course of the performance of those services;
(c) Information relating to any discretionary benefit of a financial nature such as the granting of a
license or permit given by the government to an individual, including the name of the individual
and the exact nature of the benefit;
(d) Personal information processed for journalistic, artistic, literary or research purposes;
(e) Information necessary in order to carry out the functions of public authority which includes
the processing of personal data for the performance by the independent, central monetary
authority and law enforcement and regulatory agencies of their constitutionally and statutorily
mandated functions. Nothing in this Act shall be construed as to have amended or repealed
Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act No.
6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No. 9510,
otherwise known as the Credit Information System Act (CISA);
(f) Information necessary for banks and other financial institutions under the jurisdiction of the
independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic
Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money
Laundering Act and other applicable laws; and
(g) Personal information originally collected from residents of foreign jurisdictions in accordance
with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is
being processed in the Philippines.
The scope of the law is broad enough to grant reliefs to those whose right to privacy have been
intruded. Information Technology (IT) industry and Business Process Outsourcing (BPO) industry will

benefit most in this law because of the size of information processed in these industries which must be
within the standards of International Standards of privacy for them to be able to compete in the global
market.
In the case of Ople vs. Torres the Supreme Court raised questions regarding the the
indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve
information for a purpose other than the identification of the individual through his PRN. It plainly held
that A.O. No. 308 falls short of assuring that personal information which will be gathered about our
people will only be processed for unequivocally specified purposes. The lack of proper safeguards in this
regard of A.O. No. 308 may interfere with the individuals liberty of abode and travel by enabling
authorities to track down his movement; it may also enable unscrupulous persons to access confidential
information and circumvent the right against self-incrimination; it may pave the way for fishing
expeditions by government authorities and evade the right against unreasonable searches and seizures.
The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated
when we consider that the individual lacks control over what can be read or placed on his ID, much less
verify the correctness of the data encoded. They threaten the very abuses that the Bill of Rights seeks to
prevent.
The passage of the Privacy Act of 2012 answered the question raised by the Supreme Court
regarding the access of confidential information by unscrupulous persons and circumvent the right against
self-incrimination because under Administrative Order No. 308 the persons who have the authority to
access sensitive information and privileged information and how such information would be accessed
were not defined nor the responsibilities and accountability of such persons. In RA 10173, persons who
may control sensitive and privileged information and persons who may access it were properly defined
under Section 3 (h) and (i):

(h) Personal information controller refers to a person or organization who controls the collection,
holding, processing or use of personal information, including a person or organization who
instructs another person or organization to collect, hold, process, use, transfer or disclose personal
information on his or her behalf. The term excludes:
(1) A person or organization who performs such functions as instructed by another person or
organization; and
(2) An individual who collects, holds, processes or uses personal information in connection with
the individuals personal, family or household affairs.
(i) Personal information processor refers to any natural or juridical person qualified to act as such
under this Act to whom a personal information controller may outsource the processing of
personal data pertaining to a data subject.
Moreover, to be able to gain access to these information, the data subject must give his consent
after properly informed on the purpose of such access or process. Chapter VIII of the law plainly provides
for the penalties of unauthorized disclosures or access to said information.
Thus, the advent of information and communications technology and its rapid growth in the
country paved way for Congress to enact laws to address the issues regarding privacy of individuals and
organizations. Among them are Republic Act 10175 or The Cybercrime Prevention Act of 2012, Republic
Act 8792 or The E-Commerce Act, and Republic Act 10173 or The Data Privacy Act of 2012.

These laws will be used in the Philippine courts to determine whether there are violations
committed against the right to privacy of a person. But, using the reasonable expectation of privacy test,
the available laws under the current Philippine legal system are still not enough to address totally the
issues currently faced in this time not to mention the rapid rate of development and advancement of

information and communications technology. Laws must keep up with these developments in able for the
government to properly protect persons or entities engage in information and communication industry
from violations on their right to privacy. Despite all the laws enacted it does not mean to say that privacy
of an individual is completely protected from incursions. However, these laws are not without flaws.
Some of their provisions were struck down by the Supreme Court because of their being unconstitutional.
It struck down Section 5 of The Cybercrime Prevention Act for being contrary to the freedom of
expression and Section 12 of the same law because it is in a form of mass surveillance which encroaches
ones privacy.
In the case of Ople vs. Torres the Supreme Court struck down Administrative Order 308 which
seeks to implement a National Computerized Identification System for reasons that AO 308 does not
specify biometrics technology to be used, does not state whether encoding of data is limited to biological
information or identification purposes, and it lacks proper safeguards that would result to the interference
with the individuals liberty of abode and unlawful access to ones confidential information.
Privacy protection in the digital world is not easy to enforce. Laws concerning privacy protection
must be worded clearly and devoid of any vagueness to avoid different interpretation that would be taken
advantage by criminal elements and worst at the intrusion of ones right to privacy. The relationship of
technology and the law is that, technology creates all this threat to privacy and the law is the one to
protect privacy from this threats or intrusion of technology.
1. Informational Privacy and the right against unreasonable search
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right
protected by the guarantee against unreasonable search and seizure under Section 2, Article III of the
1987 Constitution, which provides:
SEC. 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.
The constitutional guarantee is not a prohibition of all searches and seizures but only of
unreasonable searches and seizures. The right against unreasonable search and seizure is a core right
implicit in the natural right to life, liberty and property. Even in the absence of a constitution, individuals
have a fundamental and natural right against unreasonable search and seizure under natural law.
Moreover, the violation of the right to privacy produces a humiliating effect that cannot be rectified
anymore. This is why there is no other justification to speak of for a search, except for a warrant.
In the case of Stop and frisk searches (sometimes referred to as Terry searches) are necessary
for law enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission
of offenses. However, this should be balanced with the need to protect the privacy of citizens in
accordance with Article III, Section 2 of the Constitution.
2. Informational Privacy and the right against self-incrimination
The right not to be compelled to be a witness against oneself is a constitutional right that all citizens
enjoy. It is a protection that even Janet Lim-Napoles, alleged mastermind of the pork-barrel scam, has
invoked before the Senate Blue Ribbon Committee. With regard to legislative hearings, an interesting
legal issue is, instead of raising the right against self-incrimination, what if a witness refuses to answer a
question on the basis that it would violate his right to privacy? This is precisely what happened during the
hearings involving the bank accounts of Jose Pidal. Unfortunately for law students, the Senate blue ribbon
committee at that time backed down, so much so that the Supreme Court was not given the opportunity to
rule as to whether a private individual can invoke a right to privacy as opposed to the right against selfincrimination in a legislative inquiry.

Prohibition of testimonial compulsion: So if the Court cannot compel Mr. Cruz to testify against himself,
what options does the State have in proving Mr. Cruzs culpability? Well, the prosecutors can ask the
Court to order the accuseds fingerprints taken and matched against those found in the crime scene. Or
they could have his body subjected to a medical examination. Jurisprudence has held that such intrusions
into the person of the accused, even though they may later point to his guilt; do not constitute an
involuntary compulsion for the accused to testify against him. As enunciated in the case of Holt v.
US: the prohibition of compelling a man in a criminal court to be a witness against himself is a
prohibition of the use of physical or moral compulsion to extort communications from him, not an
exclusion of his body as evidence when it may be material. However, one thing the Court cannot do is
compel the accused to take dictation in his own handwriting. This was the ruling in the case of Beltran v.
Samson where the Court reasoned that, writing is something more than moving the body, or the hand, or
the fingers; writing is not a purely mechanical act, because it requires the application of intelligence and
attention. Thus, if the evidence to be gathered would require an application of the accuseds attention or
intelligence, then it will be inadmissible for violating an accuseds right against self-incrimination but if
not, then it is fair game for so long as what is obtained is material to the case.
3. Informational Privacy and freedom of speech and association
At first blush, the rights to freedom of speech and association appear to have nothing to do with
privacy. Examining libertys underpinnings, however, it becomes clear that they have everything to do
with it. John Stuart Mill wrote that the pursuit of happiness necessarily involves the freedom of thought;
Over himself, over his own body and mind, the individual is supreme. His was a vision of the
progressive enlightened development of a society, driven by the communication of thoughts of a social
nature. According to Alexander Meiklejohn, this encompasses all elements of the arts, sciences and
humanities that allow man to improve himself and his ability to govern himself. Mills development is
achieved when these ideas compete in the community:

When men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas that the best test of truth is the power of the thought to get itself
accepted in the competition of the market, and that truth is the only ground upon which their wishes
safely can be carried out. That at any rate is the theory of our Constitution.
Griswold outlined freedom of speech facets of privacy categorized under decisional privacy, and cited
Pierce and Meyer. Justice Cortes likewise explored this line, citing West Virginia Board of Education v.
Barnette, 290 which enjoined a requirement for public school children to salute the flag. In the context of
this market of ideas, the fullness of the right to be let alone is the right to be anonymous. As the
American Court held:
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an
honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the
majority.Anonymous pamphlets, leaflets, brochures and even books have played an important role in
the progress of mankind. Persecuted groups and sects from time to time throughout history have been
able to criticize oppressive practices and laws either anonymously or not at all.
This has a parallel in the right to association, as most famously held in NAACP v. Alabama. Here, an
association of African-Americans resisted the compelled production of its membership list on substantive
due process grounds because:
It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in
advocacy may constitute as effective a restraint on freedom of association. This Court has
recognized the vital relationship between freedom to associate and privacy in one's associations.
Inviolability of privacy in group association may in many circumstances be indispensable to
preservation of freedom of association, particularly where a group espouses dissident beliefs

Griswold considered this to mean that, the First Amendment has a penumbra where privacy is
protected from governmental intrusion. Simply, anonymity allows an individual to exchange thoughts in
certain ways or regarding certain subjects that he would otherwise be unable to. Professor Michael
Froomkin wrote, The ability to protect a secret, to preserve ones privacy, is a form of power.
Modern life has led to other nuances in this zone of privacy surrounding associations. Today, the right
to associate with a group is emasculated if stripped of the concurrent right to support it financially. Thus,
the American Court ruled:
A restriction on the amount of money a person or group can spend on political communication
during a campaign necessarily reduces the quantity of expression by restricting the number of issues
discussed, the depth of their exploration, and the size of the audience reached. This is because
virtually every means of communicating ideas in todays mass society requires the expenditure of
money.
This, too, must be allowed with relative anonymity and without fear of undue publicity. Finally, the
Constitution also shelters a right of expression through association. Roberts v. U.S. Jaycees held:
The Court has long recognized that, because the Bill of Rights is designed to secure individual
liberty, it must afford the formation and preservation of certain kinds of highly personal relationships
a substantial measure of sanctuary from unjustified interference by the State.... [T]he constitutional
shelter afforded such relationships reflects the realization that individuals draw much of their
emotional enrichment from close ties with others.
Under the Philippine laws the following are the protected rights to expression:
Section 4, Article III provides that no law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances. The right underscores tolerance to different views and thoughts.

Aspects of the Right: Freedom of expression has four aspects, to wit: (a) freedom of speech; (b) freedom
of expression; (c) freedom of the press; and (d) freedom of assembly. Nonetheless, the scope of the
protection extends to right to form associations or societies not contrary to law, right to access to
information on matters of public concern, and freedom of religion. These are all crucial to the
advancement of beliefs and ideas and the establishment of an uninhibited, robust and wide-open debate
in the free market of ideas.
Importance of the Right: Freedom of expression is accorded the highest protection in the Bill of Rights
since it is indispensable to the preservation of liberty and democracy. Thus, religious, political, academic,
artistic, and commercial speeches are protected by the constitutional guarantee.
Limitation: The right is not absolute. It must be exercised within the bounds of law, morals, public policy
and public order, and with due regard for others rights. Thus, obscene, libelous, and slanderous speeches
are not protected by the guarantee. So are seditious and fighting words that advocate imminent lawless
conduct.
Freedom of speech and of the press has two aspects: (a) freedom from prior restraint, and (b) freedom
from subsequent punishment. On the one hand, freedom from prior restraint means freedom from
censorship or governmental screening of what is politically, morally, socially, and artistically correct. In
here, persons and the media are freed from total suppression or restriction by the government of what
could be disseminated, and prevents the government from being a subjective arbiter of what is acceptable
and not. Although the system of prior restraint is presumed unconstitutional, it is allowed under the
following instances:
(a) Undue utterances in time of war;
(b) Actual obstruction or unauthorized dissemination of military information;
(c) Obscene publication; and

(d) Inciting to rebellion.


On the other hand, freedom from subsequent punishment refers to the assurance that citizens can speak
and air out their opinions without fear of vengeance by the government. Subsequent chastisement has the
effect of unduly curtailing expression, and thus freedom therefrom is essential to the freedom of speech
and the press. The State, however, can validly impose subsequent punishment under the following
instances:
(a) Libel which is the most common form of subsequent punishment, refers to a public and malicious
imputation of a crime, vice or defect, real or imaginary or any act or omission, status tending to cause
dishonor, discredit or contempt of a natural or juridical person, or blacken the memory of one who is
dead;
(b) Obscenity which includes works (taken as a whole) appealing to prurient interest or depicting sexual
conduct as defined by law or lacking of serious literary, artistic, political or scientific value;
(c) Criticism of official conduct made with actual malice; and
(d) School articles which materially disrupt class work or involves substantial disorder or invasion of
rights of others.
There are six tests or rules to determine when the freedom may be suppressed. These are:
(1) Dangerous Tendency Test which provides that if a speech is capable of producing a substantive evil
which the State is mandated to suppress or prevent, even if it did not materialize, the State is justified of
restricting the right. This rule has already been abandoned;
(2) Clear and Present Danger Test which is a more libertarian rule, provides that the finding out of
substantive evil is not enough to suppress the right. Rather the substantive evil must have clear and

present danger type depending on the specific circumstances of the case. This rule is consistent with the
principle of maximum tolerance and is often applied by the Court in freedom of expression cases;
(c) Balancing of Interest Test which provides that when there is conflict between a regulation and freedom
of speech, the court has the duty to determine which of the two demands greater protection;
(d) Grave-but-Improbable Danger Test which was meant to supplant the clear and present danger test,
determines whether the gravity of the evil, less its improbability to happen, can justify the suppression of
the right in order to avoid the danger;[29]
(e) OBrien Test which provides that when speech and non-speech elements are combined in the
same course of conduct, a sufficiently important government interest that warrants the regulation of the
non-speech element can also justify incidental limitations on the speech element; and
(f) Direct Incitement Test which determines what words are uttered and the likely result of the utterance,
that is, whether or not they will directly incite or produce imminent lawless action.
Restrictions on Freedom of Speech
Two Kinds of Restrictions: The State may impose two kinds of restrictions on speech under a system of
prior restraint: content-based restriction and content-neutral restriction. The restriction is content-based
when restriction is directed to the speech itself, while the restriction is content-neutral when it is directed,
not to the speech itself, but to the incidents (such as time, place, or manner) of the speech. An example of
a content-based restriction is when the government prohibits speeches against the President, in which case
the restriction is on the speech itself. An example of a content-neutral restriction is when the government
regulates the manner of posting campaign advertisements, in which case the restriction is on the manner
the right is made.
Appropriate Tests for Each Restriction: If the governmental restriction is content-based, the applicable
rule or test is the clear and present danger test. This is to give the government a heavy burden to show

justification for the imposition of such prior restraint which bears a heavy presumption of
unconstitutionality. If the restriction is content-neutral, the applicable rule is only an intermediate
approach, inasmuch as the restraint is only regulatory and does not attack the speech directly.
Mass media may be broadcast media (e.g. television and radio) or print media (e.g. newspaper).
The two have a substantial difference in that broadcast media has a uniquely pervasive presence in the
lives of Filipinos. Thus, freedom of television and radio broadcasting is somewhat lesser than the freedom
accorded to the print media; greater regulation is imposed over broadcast media because of its greater
tendency to invade the privacy of everyone than print media.
Under the doctrine of fair comment, a discreditable imputation directed against a public person in
his public capacity, does not necessarily make one liable. Although generally every discreditable
imputation publicly made is deemed false and malicious because every man is presumed innocent until
proven guilty, nevertheless, if the imputation directed against a person in his public is based on
established facts, even if the inferred opinion is wrong, the comments as justified. As long as the
opinion might reasonably infer from the facts, it is not actionable. In order to that such discreditable
imputation to a public official may be actionable, it must either be a false allegation or a baseless
comment.
Commercial speech is one that proposes a commercial transaction done in behalf of a company or
individual for purposes of profit. It is a protected speech for as long as it is not false or misleading and
does not propose an illegal transaction. But if the government has a substantial interest to protect, even a
truthful and lawful commercial speech may be regulated. Private speech is accorded more freedom and
protection than commercial speech. Freedom of assembly refers to the right to hold a rally to voice out
grievances against the government. As a rule, freedom of assembly is not subject to prior restraint or prior
issuance of permit by government authorities. Nevertheless, it must be exercised in such a way that will
not to prejudice public welfare. Freedom of assembly is reinforced by Batas Pambansa Blg. 880,

otherwise known as the Public Assembly Acts of 1985, which basically provides the requirements and
procedure for holding rallies. It also implements the observance of maximum tolerance towards
participants of rallies consistent with the clear and present danger test. Under the said law, permit is
required to hold a rally. It must be emphasized, however, that the permit is not a requirement for the
validity of the assembly or rally, because the right is not subject to prior restraint. Rather, the permit is a
requirement for the use of the public place.
In Section 8, Article III provides that the right of the people, including those employed in the
public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall
not be abridged. The right of association may be exercised by the employed or the unemployed and by
those employed in the government or in the private sector. It likewise embraces the right to form unions
both in the government and private sector. The right of civil servants to unionize is expressly provided in
Section 2(5), Article IX-B: The right to self-organization shall not be denied to government employees.
The right of labor in general to unionize is likewise provided in Section 3, Article XIII: [The State] shall
guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law. However, the right to
form associations or to self-organization does not include the right to strike. Thus, public school teachers
do not enjoy the right to strike even if they are given the constitutional right of association. The terms and
conditions of employment in the Government, including in any political subdivision or instrumentality
thereof and government owned and controlled corporations with original charters, are governed by law
and the employees therein shall not strike for purposes of securing changes.
Likewise in Section 7, Article III 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 data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by law. The
right guarantees access to official records for any lawful purpose. However, access may be denied by the

government if the information sought involves: (a) National security matters, military and diplomatic
secrets; (b) Trade or industrial secrets; (c) Criminal matters; and (d) Other confidential information (such
as inter-government exchanges prior to consultation of treaties and executive agreement, and privilege
speech).
C. THE RIGHT TO PRIVACY IN THE CIVIL CODE
Right to privacy can also be found in our own Civil Code descended from the Spanish one, and
traceable to the Napoleonic Codes prohibits prying into the privacy of anothers residence; meddling
with or disturbing the private life or family relations of another; and intriguing to cause another to be
alienated from his friends.
The Secrecy of Bank Deposits Act is another contemporary example of a privacy law. Tongue-incheek, we can argue that this law is grounded in religion; after all, the 11th Commandment states: Thou
Shalt Not Get caught.
American tort law is the primary source for these invasions of privacy. A tort related to our
Philippine legal concept of a quasi-delict is basically a civil wrong (as opposed to a criminal act) for
which the injured party can claim damages.
The four types of invasions of privacy recognized by tort law include: (a) appropriation; (b)
intrusion; (c) revelation of private facts; and (d) false light.
An appropriation occurs when one uses anothers name, likeness or even voice for commercial
or trade purposes, without the latters consent. One of the first cases (in 1902) involved a young woman
who found her picture on advertisements for a certain brand of flour. Because the courts did not yet
recognize the right to privacy, she lost her case for damages. Since then, however, individuals have sued
successfully for the non-consensual use of their images. Their premise was that the right to privacy
prohibited the use of their image for publicity, and violated their right to remain anonymous. How then to

explain that some of the largest awards of the past few years have been to celebrities whose image or
voice was appropriated to advertise a product? In this case, the right to privacy is no longer predicated on
a right to anonymity, but rather takes the form of a property right: the celebrities could demand
compensation because the illegal use of their likeness to advertise a product denied them endorsement
fees, or negatively affected a commercial image they sought to protect. Actor Dustin Hoffman,
singer/actresses Cher and Bette Midler, and boxer Muhammad Ali have all filed, and won, cases like this.
Similar actions involving Filipino celebrities are pending in our regional trial courts: one involves a
famous actor who alleges that his image was appropriated to make it appear that he endorsed the
defendants alcoholic beverage. Another case involves an actress whose head was photographically
grafted onto the nearly naked body of another model for a series of sexy calendars. From a purely
academic perspective, one hopes these cases reach our Supreme Court, so that therell be some Philippine
jurisprudence on this type of invasion of privacy.
The second invasion tort, intrusion, means what its name implies: an actual physical intrusion
into a private space, akin to trespassing. Early on, the paparazzi were the most frequent defendants for
this tort. Celebrities then the usual plaintiffs usually sought moral damages for past intrusions, and an
injunction against future ones.
But of late, reality TV shows have also become targets for intrusion suits. In one case, the
California Supreme Court ruled that a road accident victim whose rescue by helicopter was broadcast
over a reality television program could sue for intrusion, because she had a reasonable expectation of
privacy while in the helicopter traveling to the hospital.
A revelation of private facts is the unauthorized disclosure of embarrassing personal facts about
an individual. For it to be considered tortious, the fact must offensive to a reasonable person and
unrelated to a matter of legitimate public interest.

Finally, a false light tort is one in which the defendant depicts the plaintiff in a false light.
Fictionalization is a good example of how this right is violated. In the 1979 case of Lagunzad v. Soto Vda.
de Gonzales, for instance, the Philippine Supreme Court declared that a public figures right to privacy
extends to a fictional or novelized representation of [the] person. While not a false light case, the
rulings significance is clear: anybody wanting to tell the fictionalized story of a real person has to get that
persons consent.
Despite all these cases, privacy law remains in flux. It is relatively young, tracing its beginnings
to 1890, when later-to-be U.S. Supreme Court Justice Louis Brandeis, and Samuel Warren, wrote about
the The Right to Privacy. This article is widely acknowledged as the first piece of legal scholarship
defining the metes and bounds of a right to privacy. Since then, discussions on privacy law have
touched on reproductive health issues (a womans right to use contraception and seek an abortion, in
Griswold v Connecticut , and Roe v Wade ); civil rights (Katz v. United States ); and even euthanasia
(Washington v. Glucksberg, et al ). In the Philippines, a legal article by U.P. College of Law Dean and
later Philippine Supreme Court Justice Irene R. Cortes, The Constitutional Foundations of a Right to
Privacy, is credited with raising awareness about the issue. But Philippine case law remains sparse. The
leading Philippine privacy case remains to be Ayer v. Capulong. Australian production company Ayer
sought to film a docu-drama about the 1986 EDSA Revolution. One of the main figures of EDSA I,
Sen. Juan Ponce Enrile, prohibited Ayer from using his name, image or likeness in the film, and secured
an injunction against Ayer. The Supreme Court recognized Sen. Enriles right to prohibit a fictional
depiction of his role in EDSA I. However, the Court also ruled that Enrile had no right to prohibit Ayer
from portraying publicly-known facts about the EDSA Revolution, including his participation in it.
Enrile, by playing a pivotal role in EDSA, was a public figure, and therefore had a limited right to
privacy.
Moreover in the right to privacy has recently been invoked several times in the argument against
the recent revenue issuances by the Bureau of Internal Revenue imposing disclosure requirements in

amending the tax forms required to be filed by every taxpayer. This included Revenue Memorandum
Circular No. 57-2011, which has already been rectified and amended by Revenue Regulation No. 192011. Revenue Memorandum Circular No. 57-2011 required taxpayers to reveal additional information
about their other sources of income.

III.

VALUES PROTECTED BY THE RIGHT OF PRIVACY

There are two general reasons why privacy is important. The first is that privacy helps individuals
maintain their autonomy and individuality. People define themselves by exercising power over
information about themselves and a free country does not ask people to answer for the choices they make
about what information is shared and what is held close. At the same time, this does not mean that public
policy should shield people from the costs of their choices. American privacy allows our many cultures
and subcultures to define for themselves how personal information moves in the economy and society. A
second reason that privacy is important is because of its functional benefits. This area has been especially
slippery for policy-makers because they have often use the term "privacy" to refer to one or more of
privacy's benefits.
Likewise, there are four values protected by the right of Privacy. Autonomy is obviously the first
value. This is protected by decisional privacy, which is directed primarily against the State and its
monopoly of the police power. Seclusion is the second and most familiar. This is protected by just about
every manifestation of the right to be let alone, particularly the rights against unreasonable search and
to privacy of correspondence, and the intrusion into seclusion tort. It is also protected by the public figure
doctrine from the freedom of speech, the rights to anonymous speech and association, and to some extent,
doctrine from the right against self-incrimination. The key is that an intrusion into a private zone of
seclusion is a violation in itself, independent of any resulting disclosure of information. Reputation is the
third value, as referred to by the related disclosure of private facts and false light torts. The value would
be elaborated as the exclusive right to control the personal information one discloses to the world and the

persona by which one is known to it. In this sense, the embarrassing and sensitive and the seemingly
trivial detail are imbued with a privacy value for the individual. Aside from the two torts on disclosure,
constitutional protections would arise from the rights against unreasonable search and self-incrimination,
the privacy of correspondence, and restraints against the freedom of speech and of the press. Identity is
the final value, as protected in Civil Law by the appropriation tort and related doctrines such as the right
of publicity. Given these doctrines roots, the constitutional counterpart, assuming hypothetical facts
involving state action, would be the guarantees to liberty and property in substantive due process.

IV.

RIGHT TO PRIVACYS MODERN APPLICATIONS

A. THE NATIONAL ID SYSTEM, COMPUTER DATABASES, AND PRACTICAL OBSCURITY


The sheer scale of the computers impact underscores the pressing need for safeguards with respect to
such an undertaking today. Consider that the 1880 United States census took seven years to complete,
even with 1,500 clerks. The 1890 census, however, was finished in less than three years, thanks to
Herman Hollerith and a tabulating machine that read holes punched in cards, incidentally the forerunner
of the device that propelled the company that became IBM into business legend. Half a century later, with
advances in data storage technology, the government easily collected and stored information on millions.
One must further consider that computer records are very difficult to actually erase, considering they
are easily replicated and transmitted, and are far more easily stored for decades without the need for
disposal. Coupled with the accessibility facilitated by the Internet and similar advances in communication
technology, all this taken together means that a single violation of informational privacy can be repeated
many times over simply by storing a piece of information in an electronic database, and even years later,
there is no such thing as an obscure record to an electronic search. This is again all the more true with
respect to the Internet. One easily searches through years worth of newsgroup and e-mail group
messages, and retrieves a forgotten year-old note with ease. In an even more formidable flex of electronic
muscle, a website called The Wayback Machine even archives for free websites that have been removed
or discontinued. Perhaps one must even consider the interesting proposition that in the context of

electronic records, even technically public information easily becomes too public, and this is in an
entirely different context from the broadened Internet public figure doctrine, since the latter largely deals
with aspects of a person communicating in a roughly public manner. The proposition is exemplified by
Cincinnatis Hamilton County, where the local clerk converted records into electronic form and later
made them available through the Internet in 1999. Merely by typing a persons name, one could obtain
everything disclosed in recent cases from Social Security numbers to, in some cases, psychiatric
testimony. By 2003, the website enjoyed thirty million inquiries a month. Residents deemed the
innovation a double-edged sword. On the other, it is a ready source of abuse from idle gossip to aids to
stalking. One observes that such automation removes the human barrier in accessing the information
inevitably collected by the State, and when the cost of information is radically reduced; the idle mind is
placed on the same footing as a journalist, historian, or lawyer poring through old records442 one no
longer even incurs photocopying costs.
To further broaden the discussion, Reporters and Rose dealt with still another balancing of interests
between the right to privacy and the right to information explicit in the Philippine Constitution:
Section 7. 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 data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.453
The American reasoning is readily applicable to the Philippines. The right to information is not
absolute, and the first sentence grants a general but self-executory right with respect to matters of public
concern. The second sentence implements this, though the right of access is controlled and limited by the
State, which is necessarily authorized to decide precisely what information is of public concern. So far,
Philippine jurisprudence has focused on official information pertaining to public officials themselves,
such as voting in the Movie & Television Review and Classification Board, inquiries by an individual

regarding official action with a direct bearing on him,457 ongoing negotiations prior to finalization of a
government contract, political advertisements and election-related speech, party seeking to obtain a court
dismissal order against her case, and media coverage of court proceedings. A searchable, State-maintained
database was precisely what impelled the Ople majority to assert privacy as a fundamental right. Privacy
should be upheld over the Rosenbloom issue-based public figure determination integrated into
jurisprudence, something borne out by the right to informations phrasing:
Public concern like public interest is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary citizen.
One concludes that the right to privacy cannot absolutely bar the implementation of a national ID
system, as no Constitutional right is absolute. However, the discussion by both Justice Cortes and in Ople
mandate strict restrictions on the use of the information, including the concerns raised in Reporters and
Rose regarding third party access to information disclosed to the State. Thus far, these concerns have been
lamentably absent from the public debate.
B. PRIVATE COMMERCIAL DATABASES AND INTERNET DATA COLLECTION
For all the talk of State information databases and peace of minds protection, it must be emphasized
that due to information collections radically decreased costs and modern computers power, the State no
longer has a monopoly on data, not even on its collection. Today, private entities are the largest holders of
information for commercial or data mining purposes the largest collection of American public records
amounting to over sixteen billion is actually held by an Atlanta-based company called ChoicePoint, which
sells criminal and employment background checks even to the FBI and the Internal Revenue Service.463
Even businesses face strong pressures to collect information from and profile their customers. In the
Philippines, for example, 20 percent of an enterprises customers are usually responsible for 80 percent of
revenues, making it crucial to react to the needs and tastes of these regular customers. Thus, a loyalty

program such as a customer card that allows discounts or free items is seen not as an incentive to the
customer to purchase more, but a means for the business to collect data about him.464
Over the Internet, data can be collected by tracking websites visited by a particular computer or
Internet account, compiling customer purchase records, or offering free services such as birthday
reminders among friends, which require the users to enter personal information. Such information can be
sold, matched, and compiled, and taken advantage of by marketers and advertisers. Today, even
collections of e-mail addresses have commercial value, especially if their owners share a common interest
or demographic, given the low cost of sending solicitations and ads en masse. Although these are actions
by private parties, their regulation is a weighty government concern. The individuals protection here is
not remedied by addressing any particular intrusion, given the great number an Internet user might face.
The systemic harms involved and the proposed fundamental nature of the privacy violated as per Ople, it
may be argued, call for protection of the right even by private actors, through legislation if not by
Constitutional imperative or privacy torts. An American case, for example, held that messages sent by
users through America Onlines network enjoy an objective expectation of privacy. although the
appropriation privacy tort appears difficult to apply to these situations; the ability of private entities to
reconstruct a persons purchases and commercial preferences seems to implicate a different kind of
violation of identity.
C. WIRETAPPING AND E-MAIL SURVEILLANCE
R.A. 4200 or the Anti-Wire Tapping Act, as a reinforcement of privacy of communication, is a law
which prohibits a person not authorized by all the parties to any private communication, to wiretap or use
any devise to secretly overhear, intercept, record, or communicate the content of the said communication
to any person. Wiretapping or the use of record may be permitted in civil or criminal proceedings
involving specified offenses principally affecting national security, and only with previous authorization

by the court which must comply with the requirements of a warrant. The authority is effective only for
sixty days.
On the other hand, The writ of habeas data is a remedy available to any person whose right to privacy
in life, liberty, or security is violated or threatened to be violated by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home, and correspondence of the aggrieved
party.
The exclusionary rule on this two privacy states that any evidence unlawfully obtained is inadmissible
as evidence before the courts. This is based on Section 3(2), Article III which provides that any evidence
obtained in violation of right to privacy of communication or right to due process of law shall be
inadmissible for any purpose in any proceeding. The same rule is applied to any evidence taken in violate
of R.A. 4200. The rule is also called Fruit of the Poisonous Tree Doctrine. The name of the doctrine
metaphorically describes what happens to an evidence (fruit) taken through unlawful means
(poisonous tree). The evidence-fruit is discarded because it may infect or destroy the integrity of the case
and forfeit the purpose of the law.
Finally, note that during the Hello Garci scandal, the legal knee-jerk argument was that no case could
be made unless a party to the alleged wiretapping identified his or her voice and authenticated the
recording. This line of thinking, however, unfairly creates a Catch 22 assuming not all the voices on a
recording have been identified. Indeed, Arroyo later practically admitted the Hello Garci recording
authenticity in a televised public apology and the next section discusses that it is proper for a lawyer to
make a court appearance to protect an anonymous clients interests.
D. INTERNET ANONYMITY

Privacy, more than any other Constitutional right, has been kept scrambling to keep pace by the
inexorable march of sciences frenetic cadence.498 At present, the Internet sets the drumbeat, and
anonymity, a key privacy outgrowth from the freedom of speech,499 defines this new electronic medium.
In many cases, authorship of individual messages cannot be traced. Free e-mail accounts can be
obtained quickly and anonymously. Internet forums offer similar anonymity, there being no way to pierce
a pseudonym unless an account can be traced using billing or other real world information.
Internet anonymity is a great equalizer, drawing attention away from the speakers characteristics
such as age, gender, race, social status and profession, and forces listeners to focus on the message. Nearabsolute anonymity allows the discussion of sensitive topics such as political beliefs, sexuality, religion
and finances, even with complete strangers. Finally, anonymity also encourages a speaker to propose even
the most radical of ideas, without fear of reprisal or ostracization, or simply of losing ones privacy. The
precise test that should be used is a matter of remedial law, although it clearly involves a constitutional
issue and may lay a basis for a civil claim, whether due to a privacy tort or a breach of contract. The
important point, however, is that this narrow aspect of discovery should be treated as a foothold for
privacy doctrine in procedural law. These Internet cases recognized freedom of speech values in the facts
presented, and similar recognition of the related privacy values is straightforward.
E. SPAM AND E-MAIL ABUSE
In the past, unsolicited door-to-door advertisements raised privacy issues when households were
continually disturbed by unwelcome salesmen. Today, automated e-mail mass advertising is another
factor that makes privacy a key Internet issue, and is increasingly relevant in SMS or text messaging.
Spam is unsolicited commercial e-mail sent through open-relays to millions of internet users
around the world. It has been described as cost-shifted advertising because computers send
advertisements en masse at little cost to the senders, while consuming users time, and it is an increasingly
common experience to spend several minutes clearing ones inbox of junk email. The hidden economic

burden is massive; a study published by the European Commission in January 2001 estimated private
consumer losses at EUR 10B per year. Spammers obtain e-mail addresses in three ways: by scavenging or
harvesting, or automatically collecting addresses from web pages; by guessing, using dictionary terms or
randomly-generated strings to develop addresses; and by outright purchase from list brokers Spam clearly
requires a broader understanding of privacy violations since there is no disclosure of ones personal
information (except ones e-mail address in some cases); the reverse takes place as one faces intrusion via
an avalanche of unwanted information in small doses. Unlike human marketers in jurisprudence or even
mailed catalogs, spam is more intrusive in that one can receive it at any time and place, even the
supposedly most sacred zones of privacy such as the bedroom. Katz divorced expectations of privacy
from place and attached them to the person, and an intellectual framework to deal with spam extends this
logic in even greater abstraction. Again, disclosure is not the constitutive element of violations of that
wall between himself and the outside world. Analyzing traditional media, Eastern Broadcasting v. Dans
noted that the radio audience has lesser opportunity to cogitate, analyze and reject the utterance. This is
because the impact of such speech is forceful and immediate. However, spam, although not forceful
or immediate and easily deleted, has a similar effect in that one has no control over the daily torrent of
junk e-mails.
The United States has already regulated intrusive advertising via familiar media such as mail,
telephone, and door-to-door advertising. The states interest in protecting an individuals right of privacy
was extended as a power to control and limit unsolicited advertisements sent to his home. Note
commercial speech enjoys much less protection in the spectrum of speech and is more justifiably
regulated, provided that the government has a legitimate interest in seeking such regulation, which is
straightforward because no individual has an incentive to police the miniscule but infinite intrusions.
Using intermediate scrutiny, the government must only establish: first, the substantial interest; second,
how the regulation advances the particular interest; and three, that the regulation is narrowly drawn.

Philippine jurisprudence thus has a ready ground to justify spams regulation. In addition, note that
tort law offers a theoretical but impractical remedy, since identifying the spammers is extremely difficult
-- unless a captive cell phone user sets his sights on his telecommunications provider.
F. COOKIES AND ONLINE PROFILING
Marketers around the world have capitalized on personal information harvested from the Internet. As
technology increases convenience, it facilitates informations collection, and its sale as the new online
commodity. Such digital thievery is done through cookies, or, The pages you read tell marketers what
junk to push on you. Cookies work through unique identifiers a web server places onto ones computer,
and commonly store usernames, passwords, display preferences and other settings, and financial
information to facilitate sales. Primarily and ostensibly, cookies are for Internet users own conveniences,
and spare one from reentering personal information for each transaction. However, these also help
advertisers, from noting the banner advertisements that have already been flashed to the user to recording
the products one has browsed. The latter allows a website that one never entered data into to sell a
marketer the fact that one clicked on information on, for example, personal digital assistants. As more
data is correlated with a computers unique identifier, its users digital portrait takes shape in what is
called online profiling.
Advertisers track this profiling information and use cookies in determining what your interests might
be as you move from site to site, and display banner ads related to that users interests. All this is
currently unregulated, and no one is required to notify the user of such profiling. Compiled personal
informations use or sale is similarly unregulated, which is causing increasing concern in the United
States. Technically, users can regulate cookies. These are saved as miniscule, simple text files that can be
deleted, and browsers can bet set to reject cookies. Further. a cookie poses no immediate danger to ones
computer; it cannot contain a virus and cannot manipulate the hard drive. Online profiling likewise
requires an expansion of current thinking as some may argue that there is no undue disclosure of

information. Well before the Internet, people were already divulging personal information for the
processing of countless needs such as drivers licenses, medical records, credit card applications and bank
accounts. What has changed is that all this information was not as easily accessible as it is now by the
click of the mouse, nor was there the technology to so readily compile, sort and transfer this information
Although the violators are almost always private parties seeking commercial gain, the minute but
cumulative injuries amount to systemic harms that only government can address. The violations nature
should at least encourage legislation. Such, however, run into the opposite fear of Internet regulation and
curtailments of online freedoms, particularly those related to the freedom of speech. Governments may
not be ready to pass a lot of regulations governing online privacy since technology is developing far
too rapidly to be enclosed. They may also face pressure from business interests. Cookies, perhaps,
present the subtlest form of personal informations unmonitored disclosure through the internet. Coupled
with commercial electronic databases power, even the privacy value of identity is implicated, ones peace
of mind disturbed by the thought of a recreated electronic profile directing advertisements to ones web
browser or e-mail.
G. MONEY LAUNDERING AND FINANCIAL AND COMMERCIAL PRIVACY
One of the broadest Human Security Act provisions allows the examination of financial records. If an
organization is declared as terrorist and unlawful under the Act, the government may apply to examine its
financial records and, more broadly, those of its members. This brings privacy to the fore, as financial
privacy is a fertile field of debate.
Modern technology has expanded not just the ability to express oneself, but to act financially as well.
Amidst fears of money laundering and terrorism, the privacy that surrounds such financial cyber-reach
and the need to protect peace of mind and reputation must be reiterated because money becomes
increasingly indispensable in the exercise of even fundamental rights in todays complex economy. The
right to associate today, for example, is emasculated without the necessary right to fund ones

associations. In the same breath it asserted privacy a fundamental right; a key zone of privacy surrounds
the Secrecy of Bank Deposits Act. Whether or not this portion is dictum, it was quoted in the key banking
decision Marquez v. Desierto, and another decision emphasized the absolute confidentiality mandated
by the Act.574 Moreover, banking cases more generally speak of public faith in the banking system, a
statement arguably not limited to its financial stability. This is borne out by the foundational English case
Tournier v. National Provincial and Union Bank of England, which held that confidentiality of
transactions and accounts was implied in all contracts with banks, a contention generally adhered to by
American courts.
However, the American Supreme Court ruling on financial privacy, United States v. Miller,580
reversed a lower court decision that applied the right against unreasonable search to bank records:
[W]e perceives no legitimate expectation of privacy in their contents. The checks are not
confidential communications but negotiable instruments to be used in commercial transactions. All of
the documents obtained, including financial statements and deposit slips, contain only information
voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.
The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed
by that person to the Government the depositor takes the risk, in revealing his affairs to another, that
the information will be conveyed by that person to the Government.
The Court gave the additional reason that the records in question were the banks business records,
not the defendants personal papers. Justice William Brennan, however, dissented, citing:
[T]he emerging trend among high state courts of relying upon state constitutional protections of
individual liberties protections pervading counterpart provisions of the United States Constitution,
but increasingly being ignored by decisions of this Court.
On the same day, Justice Brennan also wrote in his separate opinion in Fisher v. United States:

I do not join the Courts opinion, however, because of the portent of much of what is said of a
serious crippling of the protection secured by the privilege against compelled production of ones
private books and papers. Like todays decision in United States v. Miller, it is but another step in
the denigration of privacy principles settled nearly 100 years ago in Boyd v. United States.
Nonbusiness economic records in the possession of an individual, such as canceled checks or tax
records would also seem to be protected. They may provide clear insights into a person's total lifestyle.
They are, however, like business records and the papers involved in these cases, frequently, though not
always, disclosed to other parties.Nevertheless, both the Anti-Money Laundering Act of 2001 and the
Human Security Act require court orders before lifting Secrecy of Bank Deposits Act protections.
Moreover, disclosure argument is less applicable today, with the increasing volume of bank transactions
matched by an increasingly impersonal automation, and some of the remaining human intervention may
be couched in the context of Reporters Committees practical obscurity.
H. DRUG TESTING
Drug testing, given the recent concerns regarding terrorism, must be seen as an anomaly in
Constitutional law. Where concerns against an anti-terror law have raised howls of protest on privacy
grounds, drug testing has been radically expanded by the Dangerous Drugs Act of 2002 yet has failed to
generate the same attention. The dangers of intrusion and disruption of seclusion, however, are similar,
and there are additional dangers to reputation due to disclosure of personal medical information or even
erroneous test results. Beyond privacy intrusions, the new law is in fact a penal law which should
arguably be examined against the warrant requirements of the right against unreasonable search. The law
provides:
Sec. 36. Authorized Drug Testing. Authorized drug testing shall be done by any government
forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH
to safeguard the quality of test results. The DOH shall take steps in setting the price of the drug test

with DOH accredited drug testing centers to further reduce the cost of such drug test. The drug testing
shall employ, among others, two (2) testing methods, the screening test which will determine the
positive result as well as the type of the drug used and the confirmatory test which will confirm a
positive screening test. Drug test certificates issued by accredited drug testing centers shall be valid
for a one-year period from the date of issue which may be used for other purposes. The following
shall be subjected to undergo drug testing:
(a) Applicants for drivers license. No drivers license shall be issued or renewed to any person
unless he/she presents a certification that he/she has undergone a mandatory drug test and indicating
thereon that he/she is free from the use of dangerous drugs;
(b) Applicants for firearms license and for permit to carry firearms outside of residence. All
applicants for firearm's license and permit to carry firearms outside of residence shall undergo a
mandatory drug test to ensure that they are free from the use of dangerous drugs: Provided, That all
persons who by the nature of their profession carry firearms shall undergo drug testing;(c) Students of
secondary and tertiary schools. Students of secondary and tertiary schools shall, pursuant to the
related rules and regulations as contained in the school's student handbook and with notice to the
parents, undergo a random drug testing: Provided, That all drug testing expenses whether in public or
private schools under this Section will be borne by the government;
(d) Officers and employees of public and private offices. Officers and employees of public and
private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as
contained in the company's work rules and regulations, which shall be borne by the employer, for
purposes of reducing the risk in the workplace. Any officer or employee found positive for use of
dangerous drugs shall be dealt with administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the
Civil Service Law;

(e) Officers and members of the military, police and other law enforcement agencies. Officers and
members of the military, police and other law enforcement agencies shall undergo an annual
mandatory drug test;
(f) All persons charged before the prosecutor's office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day shall have to undergo a
mandatory drug test; and
(g) All candidates for public office whether appointed or elected both in the national or local
government shall undergo a mandatory drug test.
In addition to the above stated penalties in this Section, those found to be positive for dangerous
drugs use shall be subject to the provisions of Section 15 of this Act.
Sec. 15. Use of Dangerous Drugs. A person apprehended or arrested, who is found to be positive for
use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six
(6) months rehabilitation in a government center for the first offense, subject to the provisions of
Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall
suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years
and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos
(P200,000.00): Provided, That this Section shall not be applicable where the person tested is also
found to have in his/her possession such quantity of any dangerous drug provided for under Section
11 of this Act, in which case the provisions stated therein shall apply.
Focusing on privacy, Schmerber v. California held that the human body itself is a zone of privacy and
that a blood test must be deemed covered by the right against unreasonable search This laid the
foundation for balancing the right against the police power in drug test cases by the United States Court in
1989.Initially, the balance swung in favor of the police power. Skinner v. Railway Labor Executives
Association upheld federal regulations that required breath and urine tests on railroad employees who

violated certain safety rules. The decision explicitly recognized that Schmerber and the right against
unreasonable search would be applicable, even though there was no penetration of the skin. However, it
ruled that the case presented special needs beyond normal law enforcement that may justify departures
from the usual warrant and probable-cause requirements.
However, compared against the consistent American doctrine, the Philippine Dangerous Drugs Act is
alarmingly broad. It amounts to blanket approval of drug testing for almost every member of society,
without any showing of special needs or other particular circumstances. Even with respect to public
school students, it must be noted that the American cases upheld testing policies on a per school district
basis. Further, except for the requirement that positive results be confirmed by a second test, it prescribes
no safeguard or instruction that intrusion be minimal. This includes not only the physical intrusions
during the testing itself, but the confidentiality of the results, considering that a medical test can reveal a
wide range of information about an individual whose disclosure is far more intrusive than the test itself.
Neither is there any prescription that tests be effective.
Finally, it must be emphasized that the Dangerous Drugs Act is a penal law, and the probable cause
requirement must be applied, not the American administrative search jurisprudence discussed The testing
for drivers licenses was the first to be applied, even before the Dangerous Drugs Act was amended, and
is the most visible today. Even without considering the penal sanction, it is highly questionable under the
American guidelines. First, it affects a class that is potentially the countrys entire adult population, and it
is difficult to imagine what special need exists. Second, it is woefully ineffective by Chandlers
standard, since the licensee obtains his own test and has three years before the next renewal to plan when
to undergo the test. Third, the current policy has no particular safeguards for concerns such as female
subjects modesty, the intrusion of compelled urination in general, or false positive results. Even outside
the economic context, this disproportionate burden on the innocent must be taken as a valid Bill of Rights
argument.

Finally, again, it cannot be emphasized enough that the Dangerous Drugs Act is a penal law which the
right against unreasonable search and its safeguards were precisely designed to apply to.
I. LEGISLATIVE INVESTIGATION
The meeting of the power of legislative investigation and the right to privacy has already been
comprehensively discussed by Justice Puno in his recent lecture. In summary, in the early United States,
the right against self-incrimination was the original tool to deflect legislative inquiries. When legislators
instead asked questions about the activities of others that the right could not protect against, witnesses
next invoked the freedoms of speech and of association, arguing that legislative inquiries were being used
as a pretext to stifle these. Distilling this discussion into a Constitutional framework, one must first
determine whether the legislative inquiry is a valid one, in accordance with proper procedure. If it is, then
second, one must determine whether the right to privacy is validly invoked, whether against the entire
inquiry or specific questions
The Philippines has only two main cases regarding legislative investigation. As distinguished by
Justice Puno, the 1950 decision Arnault v. Nazareno was more liberal in that it deemed a legislative
investigation valid if it was on a subject Congress could validly legislate on. The 1991 decision Bengzon
v. Senate Blue Ribbon Committee, decided under the above 1987 Constitution provision, deemed an
investigation invalid because it was initiated after Senator Juan Ponce Enrile had asked the committee to
investigate a transaction for a possible violation of the Anti-Graft and Corrupt Practices Act without
hinting at any intended legislation. The Senate Rules at the time allowed Senators to refer their speeches
to committees if they felt it required appropriate inquiries in aid of legislation. With respect to the right to
privacy, the witness ultimately relied on his right against self-incrimination, meaning there is no
applicable ruling to date. One would have to apply the general doctrines of privacy.
J. PRIVACY IN COURT PROCEEDINGS

It is difficult to invoke the right to privacy in the trial context in general and in discovery in particular
because there are no rules to facilitate this, except for general ones, such as protections for witnesses
against abuse. Privilege enjoys the most specific rules, and the attorney-client and work product
privileges are the easiest to apply. The former, especially in the context of casual, rapid electronic
exchanges, may be broadened to protect communications of the attorneys and the clients agents and
employees. The work product privilege may be broadened by granting it to documents where preparations
were assisted by a lawyer, including a computer database for litigation purposes, or otherwise reveals the
lawyers thinking in any way. Further, because of the potential volume of electronic documents involved
in discovery, privilege should not be deemed waived by inadvertent production, absent a showing of
actual

negligence.

REFERENCE(S):
Bautista, D. a. (2011). my self-incrimination II. Manila: Philstar global.
Bocobo, D. J. (2005, December 13). The right to privacy and Public's right to know.
Retrieved from Philippine Commentary :
http://philippinecommentary.blogspot.com/2005/12/right-to-privacy-andpublics-right-to.html
G.R. No. 181881 BRICCIO Ricky A. POLLO v. CHAIRPERSON KARINA CONSTANTINODAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV LYDIA
A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL
SERVICE COMMISSION, G.R no 181881 (The Supreme court).
Khan, A. R. (2014). The unwanted Gaze: right to privacy in Philippine Law. Manila:
SRMO-LAW.
library, b. l. (n.d.). search and seizure. Retrieved from batasnatin law library:
http://www.batasnatin.com/law-library/remedial-law/criminal-procedure/698search-and-seizure.html
Nonato, A. R. (2012, January 20). inquirer.net. Retrieved from the right to privacy:
http://newsinfo.inquirer.net/131265/the-right-to-privacy-2
Rodriguez, R. (2015, July 3). THE SCOPE OF PRIVACY IN DIGITAL WORLD UNDER
PHILIPPINE LAW AND JURISPRUDENCE. Retrieved from BLOG:

https://ramrodriguez.wordpress.com/2015/07/03/the-scope-of-privacy-indigital-world-under-philippine-law-and-jurisprudence/
Sison, J. C. (2005). Philippine Star. Manila: Philippine Star.
Tan, O. F. (n.d.). articulating the complete philippine right to privacy in constitutional
and civil law. p. 250.
THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee, v. VICTOR COGAED Y
ROMANA, Accused-Appellant. (The Supreme Court 2014).
Varilla, P. A. (n.d.). Comission on Information and Communications technology.
Privacy framework in the philippines.