Right to Privacy

The revered Mr. Justice Brandeis considered it as “the most comprehensive of rights and the right most valued by civilized men.”

Right of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments (Griswold v. Connecticut)

The essence of privacy is the “right to be let alone.” (Fisher, Constitutional Conflicts)

I. Privacy of Communication

What is the Constitutional provision for privacy of communication and correspondence?
Article III Section 3: 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. 

What are the requisites of the right to privacy?
The reasonableness of a person’s expectation of privacy depends on a two-part test: 

(1) Subjective expectation: The person exhibited an actual expectation of privacy;  whether by his conduct, the individual has exhibited an expectation of privacy; 

and 

(2) Objective expectation: The society is prepared to recognize such a communication to be reasonably private. (Pollo v Constantino-David)

  • whether this expectation is one that society recognizes as reasonable.
  • other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this expectation

When is intrusion by the government allowed?

(1) By lawful order of the court. Intrusion can be allowed when there is probable cause under Section 2 Art. III. If the message to be intruded is written, particularity is required. If it’s a wiretap and the like, no need for particularity. What can be specified by the complainant? Identity of the person to be intercepted, the offense, and the period of authorization. 

(2) When public safety or public order requires. It has to be grounded upon the assessment of a non-judicial assessment that public safety and order demands such intrusion, limited to the provisions of law. To hold otherwise will be to opt for a government of men, and not of laws. 

What does public order and safety mean?
It is the security of human lives, liberty, and property against invaders, insurrectionists, and rebels. [1971 Constitutional Convention]

Forms of correspondence subject for interception: (1) letters(2) messages(3) telephone calls(4) telegrams, and the like. [Bernas]

Anti-Wire Tapping Act (RA 4200)
If not authorized by all the parties to any private communication, it is clearly illegal for any person to secretly record such communications by means of a tape recorder.

Is the UMID (Unified Multi-purpose ID) violative of the right to privacy?
No. Because (1) It narrowly limits the data collected, recorded, and released compared to existing ID systems; (2) It provides safeguards to protect the confidentiality of the data collected. [KMU v Director-General]

Is intrusion of privacy in the workplace valid?
Yes. Only if it conforms to the standard of reasonableness. Both inception and scope of intrusion must conform to such standard. (Pollo v. Constantino-David)

(1) Inception is reasonable if it was set-up to turn up evidence against a employee suspected of work-related misconduct. 

  • a search of an employee’s office by a supervisor will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct
  • or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file. 

(2) Scope of intrusion is reasonable if the measures of search are germane to the objectives of the search, and not highly intrusive. 

Husband-and-Wife Relationship does not justify invasion of privacy of husband’s professional documents:“The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her.” [Zulueta vs. CA]

Writ of Habeas Data
What is the writ of habeas data? It is a remedy available to any person whose right to privacy in life, liberty, or property or security is violated or threatened by an unlawful act or omission of a public official or employee, or 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. 

What rule governs habeas data?
AM No. 08-1-16-SC which was approved on 22 January 2008. The rule shall not diminish, increase, or modify substantive rights.  Link to copy: https://www.chanrobles.com/writofhabeasdata.html

Where to file?
Section 3: The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. chanrobles virtual law library. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices.

What are the possible reliefs based on judgment?
If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within five (5) working days.


Cases:
Gaanan vs. IAC An extension telephone that can enable a person to hear the communication in the other telephone is not included under RA 4200. There must by physical interruption through tapping of wire or deliberate installation of a device in order to overhear, intercept, or record spoken words.

In Re Wenceslao Laureta What due process abhors is absolute lack of opportunity to be heard (Tajonera v. Lamaroza, Et Al., 110 SCRA 438 [1981]). The word “hearing” does not necessarily connote a “trial-type” proceeding. Due process may only be in the form of giving parties the opportunity to be heard by soliciting their Answers. 
Respondents’ reliance on the “privacy of communication” is misplaced. Letters addressed to individual Justices, in connection with the performance of their judicial functions become part of the judicial record and are a matter of concern for the entire Court. The contumacious [willfully disobedient to authority] character of those letters constrained the First Division to refer the same to the Court en banc, en consulta and so that the Court en banc could pass upon the judicial acts of the Division. 

Socorro Ramirez v. Garcia It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual nature of conversations as well the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals and the significance of man’s spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals — free from every unjustifiable intrusion by whatever means.17

Salcedo-Ortanez vs. CA Rep. Act No. 4200 or the “Anti-Wire Tapping Law” expressly makes such tape recordings inadmissible in evidence. Section 4: “Any communication… obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.”

II. Right to Privacy

Pollo v. Constantino-David. The head of government conducted a search on his computer and found drafts that led to his ouster. The constitutional guarantee is not a prohibition of all searches and seizures but only of “unreasonable” searches and seizures.Unduly burdensome requiring employers to obtain a warrant Quoting O’Connor v. Ortega: “In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Work-related searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with the “common-sense realization that government offices could not function if every employment decision became a constitutional matter.”

Expectation of Privacy Not Reasonable in Very Open Offices 
Quoting Justice Scalia in O’Connor: some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.

Other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this expectation. (Ople v. Torres)

[Right to privacy] is “implicated only if the conduct of the hospital officials infringed “an expectation of privacy that society is prepared to consider as reasonable.”

Legitimate/reasonable expectation of privacy, both subjective and objective:

  • Telephone booth (US: Katz vs US)
  • In a shared office with other union officials (Mancusi v. DeForte)
  • In a personal desk and file cabinet inside the office/work environment (O’Connor v. Dr. Ortega)

What is clear is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people’s right to privacy in clear and present danger.

Interesting Case for Discussion or Seeming Contradictions

People vs. Marti – a case where Right of Privacy under the Bill of Rights did not apply to a Private Courier The Bill of Rights only govern the acts of the government, not private individuals.

Justice Bidin: “The courier finding an incriminating evidence in a sender’s package, Article III Section 3(2) does not apply. The Bill of Rights only apply to the government.”

Why People vs Marti ruling not apply in Zulueta vs. CA ruling?

People v MartiZulueta v. CA
Opening of package is ADMISSIBLEOpening of letters from alleged paramours NOT ADMISSIBLE

How do you reconcile People v. Marti and Zulueta vs. CA?
In Marti, Bill or rights cannot be invoked against the individual (such as LBC courier). In Zulueta, the Court invoked Bill of Rights against the wife who searched her husband’s cabinet to file accusations of adultery against her.

Zulueta is considered a stray case. And it is still a question up to now how the Bill of Rights was applied to this case. 
Right of privacy of communication applies when the husband used the communication of the wife to incriminate her. 

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by Bryan Villarosa

by Bryan Villarosa

Bacolod City-based Marketing Services Provider | Licensed Financial Advisor

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