G.R. No. 175822. October 23, 2013.
* PETITION for review on certiorari of the decision and resolu-tion of the Court of
CALIFORNIA CLOTHING, INC. and MICHELLE S. YBAÑEZ,
petitioners, vs. SHIRLEY G. QUIÑONES, respondent.
Civil Law; Human Relations; Abuse of Rights; Any abuse in the exercise of such right
and in the performance of duty causing damage or injury to another is actionable under the
Civil Code.—Respondent’s complaint against petitioners stemmed from the prin-ciple of
abuse of rights provided for in the Civil Code on the chapter of human relations. Respondent
cried foul when petitioners allegedly embarrassed her when they insisted that she did not
pay for the black jeans she purchased from their shop despite the evidence of payment which
is the official receipt issued by the shop. The issu-ance of the receipt notwithstanding,
petitioners had the right to verify from respondent whether she indeed made payment if
they had reason to believe that she did not. However, the exercise of such right is not
without limitations. Any abuse in the exercise of such right and in the performance of duty
causing damage or injury to another is actionable under the Civil Code.
Same; Same; Same; Under the abuse of rights principle found in Article 19 of the Civil
Code, a person must, in the exercise of legal right or duty, act in good faith.—Under the
abuse of rights principle found in Article 19 of the Civil Code, a person must, in the exercise
of legal right or duty, act in good faith. He would be liable if he in-stead acted in bad faith,
with intent to prejudice another. Good faith refers to the state of mind which is manifested
by the acts of the individual concerned. It consists of the intention to abstain from taking
an unconscionable and unscrupulous advantage of another. Malice or bad faith, on the other
hand, implies a conscious and in-tentional design to do a wrongful act for a dishonest
purpose or moral obliquity.
_______________
* THIRD DIVISION.
421
VOL. 708, OCTOBER 23, 2013 421
California Clothing, Inc. vs. Quiñones
Same; Same; Same; A person should not use his right unjustly or contrary to honesty
and good faith, otherwise, he opens himself to liability.—To malign respondent without
substantial evidence and despite the latter’s possession of enough evidence in her favor, is
clearly impermissible. A person should not use his right unjustly or contrary to honesty and
good faith, otherwise, he opens himself to liability. The exercise of a right must be in
accordance with the purpose for which it was established and must not be excessive or
unduly harsh. In this case, petitioners obviously abused their rights.
Same; Damages; Moral Damages; Moral damages may be awarded whenever the
defendant’s wrongful act or omission is the proximate cause of the plaintiffs physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation and similar injury in the cases speci-fied or analogous to
those provided in Article 2219 of the Civil Code.—In view of the foregoing, respondent is
entitled to an award of moral damages and attorney’s fees. Moral damages may be awarded
whenever the defendant’s wrongful act or omission is the proximate cause of the plaintiffs
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation and similar injury in the cases specified
or analogous to those provided in Article 2219 of the Civil Code. Moral damages are not a
bonanza. They are given to ease the defendant’s grief and suffering. They should, thus,
reasonably approximate the extent of hurt caused and the gravity of the wrong done. They
are awarded not to enrich the complainant but to enable the latter to obtain means,
diversions, or amusements that will serve to alleviate the moral suffering he has undergone.
We find that the amount of P50,000.00 as moral damages awarded by the CA is reasonable
under the circumstances. Considering that respondent was com-pelled to litigate to protect
her interest, attorney’s fees in the amount of P20,000.00 is likewise just and proper.
Appeals.
The facts are stated in the opinion of the Court.
Rainero C. Roiles for petitioners.
Geraldez, Suico-Le, Chanco, Peque, Caracut-Arnibal Law Offices for
respondent.
422
422 SUPREME COURT REPORTS ANNOTATED
California Clothing, Inc. vs. Quiñones
PERALTA, J.:
Assailed in this petition for review on certiorari under Rule 45 of the Rules of
Court are the Court of Appeals Decision dated August 3, 2006 and
1
Resolution dated November 14, 2006 in CA-G.R. CV No. 80309. The assailed
2
decision reversed and set aside the June 20, 2003 Decision of the Regional Trial3
Court of Cebu City (RTC), Branch 58, in Civil Case No. CEB-26984; while the
assailed resolution denied the motion for reconsideration filed by petitioner
Michelle Ybañez (Ybañez).
The facts of the case, as culled from the records, are as fol-lows:
On July 25, 2001, respondent Shirley G. Quiñones, a Res-ervation Ticketing
Agent of Cebu Pacific Air in Lapu Lapu City, went inside the Guess USA Boutique
at the second floor of Robinson’s Department Store (Robinson’s) in Cebu City. She
fitted four items: two jeans, a blouse and a shorts, then decided to purchase the
black jeans worth P2,098.00. Respondent allegedly paid to the cashier evidenced
4
by a receipt issued by the store. While she was walking through the sky-walk
5 6
connecting Robinson’s and Mercury Drug Store (Mer-cury) where she was
heading next, a Guess employee ap-proached and informed her that she failed to
pay the item she got. She, however, insisted that she paid and showed the
_______________
1Penned by Associate Justice Agustin S. Dizon, with Associate Justices Isaias P. Dicdican and Apolinario
D. Bruselas, Jr., concurring; Rollo, pp. 52-62.
2 Penned by Associate Justice Agustin S. Dizon, with Associate Justices Isaias P. Dicdican and Pampio A.
Abarintos, concurring; Rollo, pp. 70-71.
3 Penned by Presiding Judge Gabriel T. Ingles; Rollo, pp. 40-51.
4 Rollo, pp. 52-53.
5 Records, p. 8.
6Id., at p. 2.
423
VOL. 708, OCTOBER 23, 2013 423
California Clothing, Inc. vs. Quiñones
employee the receipt issued in her favor. She then suggested that they talk about
7
it at the Cebu Pacific Office located at the basement of the mall. She first went to
Mercury then met the Guess employees as agreed upon. 8
When she arrived at the Cebu Pacific Office, the Guess em-ployees allegedly
subjected her to humiliation in front of the clients of Cebu Pacific and repeatedly
demanded payment for the black jeans. They supposedly even searched her
9
wallet to check how much money she had, followed by another argu-ment.
Respondent, thereafter, went home. 10
On the same day, the Guess employees allegedly gave a let-ter to the Director
of Cebu Pacific Air narrating the incident, but the latter refused to receive it as it
did not concern the office and the same took place while respondent was off 21 Id.
22 Id., at pp. 43-44.
duty. Another letter was allegedly prepared and was sup-posed to be sent to the
11

Cebu Pacific Office in Robinson’s, but the latter again refused to receive 425
it. Respondent also claimed that the Human Resource Department (HRD) of
12
VOL. 708, OCTOBER 23, 2013 425
Robinson’s was furnished said letter and the latter in fact conducted an
investigation for purposes of canceling respon-dent’s Robinson’s credit card. California Clothing, Inc. vs. Quiñones
Respondent further claimed that she was not given a copy of said damaging evidence presented, the trial court concluded that the peti-tioners and the other
letter. With the above experience, respondent claimed to have suffered physical
13 defendants believed in good faith that respondent failed to make payment.
anxiety, sleepless nights, mental anguish, fright, serious apprehension, Considering that no mo-tive to fabricate a lie could be attributed to the Guess
besmirched reputation, moral shock and social humiliation. She thus filed the14 employ-ees, the court held that when they demanded payment from respondent,
Complaint for Damages before the RTC against petitioners California
15 they merely exercised a right under the honest belief that no payment was made.
_______________ The RTC likewise did not find it damaging for respondent when the confrontation
7 Id. took place in front of Cebu Pacific clients, because it was respon-dent herself who
8 Id.
9 Id. put herself in that situation by choosing the venue for discussion. As to the letter
10 Id., at p. 3. sent to Cebu Pacific Air, the trial court also did not take it against the Guess
11 Id.
12 Id.
employ-ees, because they merely asked for assistance and not to em-barrass or
13 Id., at p. 4. humiliate respondent. In other words, the RTC found no evidence to prove bad
14 Id., at p. 5. faith on the part of the Guess employees to warrant the award of damages. 23

15 Id., at pp. 1-7.

On appeal, the CA reversed and set aside the RTC decision, the dispositive
424 portion of which reads:
424 SUPREME COURT REPORTS ANNOTATED WHEREFORE, the instant appeal is GRANTED. The decision of the Regional
Trial Court of Cebu City, Branch 58, in Civil Case No. CEB-26984 (for: Damages)
California Clothing, Inc. vs. Quiñones is hereby REVERSED and SET ASIDE. Defendants Michelle Ybañez and
Clothing, Inc. (California Clothing), Excelsis Villagonzalo (Villagonzalo), Imelda California Clothing, Inc. are hereby ordered to pay plaintiff-appellant Shirley G.
Hawayon (Hawayon) and Ybañez. She demanded the payment of moral, nominal, Quiñones jointly and solidarily moral damages in the amount of Fifty Thousand
Pesos (P50,000.00) and attorney’s fees in the amount of Twenty Thousand Pesos
and exemplary damages, plus attorney’s fees and litigation expenses. 16
(P20,000.00).
In their Answer, petitioners and the other defendants admitted the issuance
17
SO ORDERED. 24

of the receipt of payment. They claimed, however, that instead of the cashier
(Hawayon) issu-ing the official receipt, it was the invoicer (Villagonzalo) who did While agreeing with the trial court that the Guess employ-ees were in good
it manually. They explained that there was miscommuni-cation between the faith when they confronted respondent in-side the Cebu Pacific Office about the
employees at that time because prior to the issuance of the receipt, Villagonzalo alleged nonpayment, the CA, however, found preponderance of evidence showing
asked Hawayon “Ok na?,” and the latter replied “Ok na,” which the former be- _______________
23 Rollo, pp. 49-51.
lieved to mean that the item has already been paid. Realiz-ing the mistake,
18
24 Id., at p. 61. (Italics and emphasis in the original)
Villagonzalo rushed outside to look for re-spondent and when he saw the latter,
he invited her to go back to the shop to make clarifications as to whether or not 426
payment was indeed made. Instead, however, of going back to the shop, 426 SUPREME COURT REPORTS ANNOTATED
respondent suggested that they meet at the Cebu Pacific Office. Villagonzalo,
California Clothing, Inc. vs. Quiñones
Hawayon and Ybañez thus went to the agreed venue where they talked to
that they acted in bad faith in sending the demand letter to respondent’s
respondent. They pointed out that it appeared in their conversation that re-
19

employer. It found respondent’s possession of both the official receipt and the
spondent could not recall whom she gave the payment. They emphasized that
20

subject black jeans as evi-dence of payment. Contrary to the findings of the RTC,
25
they were gentle and polite in talking to respondent and it was the latter who was
the CA opined that the letter addressed to Cebu Pacific’s director was sent to
arrogant in answer-ing their questions. As counterclaim, petitioners and the
21

respondent’s employer not merely to ask for assis-tance for the collection of the
other defendants sought the payment of moral and exemplary damages, plus
disputed payment but to subject her to ridicule, humiliation and similar injury
attorney’s fees and litigation expenses. 22

such that she would be pressured to pay. Considering that Guess already started
26
On June 20, 2003, the RTC rendered a Decision dismissing both the complaint
its investigation on the incident, there was a taint of bad faith and malice when
and counterclaim of the parties. From the
_______________ it dragged respondent’s employer who was not privy to the transaction. This is
16 Id., at p. 5. especially true in this case since the purported letter contained not only a
17 Id., at pp. 38-46.
18 Id., at pp. 41-42.
narrative of the incident but accusations as to the alleged acts of respondent in
19 Id., at p. 42. trying to evade payment. The appellate court thus held that petitioners are
27

20 Id., at p. 43.
guilty of abuse of right entitling respondent to collect moral damages and
attorney’s fees. Petitioner California Clothing Inc. was made liable for its failure
to exercise extraordinary diligence in the hiring and selection of its employees;
while Ybañez’s liability stemmed from her act of signing the demand letter sent
to respondent’s employer. In view of Hawayon and Villagonzalo’s good faith,
however, they were exonerated from liability. 28
Ybañez moved for the reconsideration of the aforesaid de-cision, but the
29
same was denied in the assailed November 14, 2006 CA Resolution.
Petitioners now come before the Court in this petition for review
on certiorari under Rule 45 of the Rules of Court based on the following grounds:
_______________
25 Id., at p. 56.
26Id., at p. 57.
27 Id., at p. 58.
28 Id., at p. 61.
29 CA Rollo, pp. 84-90.
427
VOL. 708, OCTOBER 23, 2013 427
California Clothing, Inc. vs. Quiñones
I.
THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE
LETTER SENT TO THE CEBU PACIFIC OFFICE WAS MADE TO SUBJECT
HEREIN RESPONDENT TO RIDICULE, HUMILIATION AND SIMILAR
INJURY.
II.
THE HONORABLE COURT OF APPEALS ERRED IN AWARDING MORAL
DAMAGES AND ATTORNEY’S FEES. 30
The petition is without merit.
Respondent’s complaint against petitioners stemmed from the principle of
abuse of rights provided for in the Civil Code on the chapter of human relations.
Respondent cried foul when petitioners allegedly embarrassed her when they in-
sisted that she did not pay for the black jeans she purchased from their shop
despite the evidence of payment which is the official receipt issued by the shop.
The issuance of the receipt notwithstanding, petitioners had the right to verify
from respondent whether she indeed made payment if they had reason to believe
that she did not. However, the exercise of such right is not without limitations.
Any abuse in the exer-cise of such right and in the performance of duty causing
damage or injury to another is actionable under the Civil Code. The Court’s
pronouncement in Carpio v. Valmonte is noteworthy:
31
In the sphere of our law on human relations, the victim of a wrongful act or
omission, whether done will-fully or negligently, is not left without any remedy or
re-course to obtain relief for the damage or injury he sus-tained. Incorporated into
our civil law are not only prin-
_______________
30 Rollo, p. 14.
31 481 Phil. 352; 438 SCRA 38 (2004).
428
428 SUPREME COURT REPORTS ANNOTATED
California Clothing, Inc. vs. Quiñones
ciples of equity but also universal moral precepts which are designed to indicate
certain norms that spring from the fountain of good conscience and which are meant
to serve as guides for human conduct. First of these funda-mental precepts is the
principle commonly known as “abuse of rights” under Article 19 of the Civil Code.
It provides that “Every person must, in the exercise of his rights and in the
performance of his duties, act with jus-tice, give everyone his due and observe honesty
and good faith.” x x x 32
The elements of abuse of rights are as follows: (1) there is a legal right or duty;
(2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring
another. 33
In this case, petitioners claimed that there was a miscom-munication between
the cashier and the invoicer leading to the erroneous issuance of the receipt to
respondent. When they realized the mistake, they made a cash count and discov-
ered that the amount which is equivalent to the price of the black jeans was
missing. They, thus, concluded that it was respondent who failed to make such
payment. It was, there-fore, within their right to verify from respondent whether
she indeed paid or not and collect from her if she did not. How-ever, the question
now is whether such right was exercised in good faith or they went overboard
giving respondent a cause of action against them.
Under the abuse of rights principle found in Article 19 of the Civil Code, a
person must, in the exercise of legal right or duty, act in good faith. He would be
liable if he instead acted in bad faith, with intent to prejudice another. Good faith 34
refers to the state of mind which is manifested by the acts of
_______________
32 Carpio v. Valmonte, supra, at pp. 361-362; pp. 46-47.
33 Dart Philippines, Inc. v. Calogcog, G.R. No. 149241, August 24, 2009, 596 SCRA 614, 624; Carpio v.
Valmonte, supra note 31, at p. 362; p. 47.
34 Villanueva v. Rosqueta, G.R. No. 180764, January 19, 2010, 610 SCRA 334, 339.
429
VOL. 708, OCTOBER 23, 2013 429
California Clothing, Inc. vs. Quiñones
the individual concerned. It consists of the intention to ab-stain from taking an
unconscionable and unscrupulous ad-vantage of another. Malice or bad faith, on
35
the other hand, implies a conscious and intentional design to do a wrongful act
for a dishonest purpose or moral obliquity. 36
Initially, there was nothing wrong with petitioners asking respondent
whether she paid or not. The Guess employees were able to talk to respondent at
the Cebu Pacific Office. The confrontation started well, but it eventually turned
sour when voices were raised by both parties. As aptly held by both the RTC and
the CA, such was the natural consequence of two parties with conflicting views
insisting on their respective beliefs. Considering, however, that respondent was
in posses-sion of the item purchased from the shop, together with the official
receipt of payment issued by petitioners, the latter cannot insist that no such
payment was made on the basis of a mere speculation. Their claim should have
been proven by substantial evidence in the proper forum.
It is evident from the circumstances of the case that peti-tioners went
overboard and tried to force respondent to pay the amount they were demanding.
In the guise of asking for assistance, petitioners even sent a demand letter to
respon-dent’s employer not only informing it of the incident but obvi-ously
imputing bad acts on the part of respondent. Petitioners claimed that after
receiving the receipt of payment and the item purchased, respondent “was noted
to hurriedly left (sic) the store.” They also accused respondent that she was not
completely being honest when she was asked about the cir-cumstances of
payment, thus:
x x x After receiving the OR and the item, Ms. Gutierrez was noted to hurriedly left
(sic) the store. x x x
_______________
35 Dart Philippines, Inc. v. Calogcog, supra note 33.
36 Gonzales v. Philippine Commercial and International Bank, G.R. No. 180257, February 23, 2011, 644
SCRA 180, 202.
430
430 SUPREME COURT REPORTS ANNOTATED
California Clothing, Inc. vs. Quiñones
When I asked her about to whom she gave the money, she gave out a blank
expression and told me, “I can’t re-member.” Then I asked her how much money
she gave, she answered, “P2,100; 2 pcs 1,000 and 1 pc 100 bill.” Then I told her that
that would (sic) impossible since we have no such denomination in our cash fund at
that mo-ment. Finally, I asked her if how much change and if she received change
from the cashier, she then answered, “I don’t remember.” After asking these
simple questions, I am very certain that she is not completely being honest
about this. In fact, we invited [her] to come to our boutique to clear these matters
but she vehemently refused saying that she’s in a hurry and very busy. 37
Clearly, these statements are outrightly accusatory. Peti-tioners accused
respondent that not only did she fail to pay for the jeans she purchased but that
she deliberately took the same without paying for it and later hurriedly left the
shop to evade payment. These accusations were made despite the issuance of the
receipt of payment and the release of the item purchased. There was, likewise, no
showing that respondent had the intention to evade payment. Contrary to
petitioners’ claim, respondent was not in a rush in leaving the shop or the mall.
This is evidenced by the fact that the Guess employees did not have a hard time
looking for her when they realized the supposed nonpayment.
It can be inferred from the foregoing that in sending the demand letter to
respondent’s employer, petitioners intended not only to ask for assistance in
collecting the disputed amount but to tarnish respondent’s reputation in the eyes
of her employer. To malign respondent without substantial evidence and despite
the latter’s possession of enough evi-dence in her favor, is clearly impermissible.
A person should not use his right unjustly or contrary to honesty and good
_______________
37 Rollo, p. 59. (Emphasis and italics in the original)
431
VOL. 708, OCTOBER 23, 2013
California Clothing, Inc. vs. Quiñones
faith, otherwise, he opens himself to liability. The exercise of a right must be in
38
accordance with the purpose for which it was established and must not be
excessive or unduly harsh. In this case, petitioners obviously abused their rights.
39
Complementing the principle of abuse of rights are the provisions of Articles
20 and 21 of the Civil Code which read: 40
Article 20. Every person who, contrary to law, willfully or negligently causes
damage to another, shall indemnify the latter for the same.
Article 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to mor-als or good customs, or public policy shall
compensate the latter for the damage.
In view of the foregoing, respondent is entitled to an award of moral damages
and attorney’s fees. Moral damages may be awarded whenever the defendant’s
wrongful act or omission is the proximate cause of the plaintiffs physical
suffering, men-tal anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation and similar injury in the cases
specified or analogous to those provided in Article 2219 of the Civil Code. Moral 41
damages are not a bonanza. They are given to ease the defendant’s grief and
suffering. They should, thus, reasonably approximate the extent of hurt caused
and the gravity of the wrong done. They are awarded not to enrich the
42
complainant but to enable the latter to obtain means, diversions, or amusements
that will serve to alleviate the moral suffering he has undergone. 43
_______________
38 Uypitching v. Quiamco, G.R. No. 146322, December 6, 2006, 510 SCRA 172, 179.
39 Dart Philippines, Inc. v. Calogcog, supra note 33; id.
40 Carpio v. Valmonte, supra note 31, at p. 362; p. 47.
41 Id., at p. 364; p. 49.
42 Villanueva v. Rosqueta, supra note 34, at p. 341.
43 Carpio v. Valmonte, supra note 31, at p. 365; p. 50.
432
432 SUPREME COURT REPORTS ANNOTATED
California Clothing, Inc. vs. Quiñones
We find that the amount of P50,000.00 as moral damages awarded by the CA
is reasonable under the circumstances. Considering that respondent was
compelled to litigate to protect her interest, attorney’s fees in the amount of
P20,000.00 is likewise just and proper.
WHEREFORE, premises considered, the petition is DENIED for lack of
merit. The Court of Appeals Decision dated August 3, 2006 and Resolution dated
November 14, 2006 in CA-G.R. CV No. 80309, are AFFIRMED.
SO ORDERED.
Velasco, Jr. (Chairperson), Abad, Mendoza and Leonen, JJ., concur.
Petition denied, judgment and resolution affirmed.
Notes.—Every man has a right to build, keep, and be fa-vored with a good
name; A party is obliged to respect the other party’s good name even though they
are opposing par-ties in the unlawful detainer case; A violation of the principle
embodied in Article 19 of the Civil Code constitutes an abuse of rights, a tortuous
431 conduct. (Manaloto vs. Veloso III, 632 SCRA 347 [2010])
 G.R. No. 182894. April 22, 2014.*
FE FLORO VALINO, petitioner, vs. ROSARIO D. ADRIANO, FLORANTE D.
ADRIANO, RUBEN D. ADRIANO, MARIA TERESA ADRIANO ONGOCO,
VICTORIA ADRIANO BAYONA, and LEAH ANTONETTE D. ADRIANO,
respondents.
Civil Law; Persons and Family Relations; Funerals; It is undeniable that the law
simply confines the right and duty to make funeral arrangements to the members of the
family to the exclusion of one’s common law partner.—It is undeniable that the law simply
1
_______________
* EN BANC.
2confines the right and duty to make funeral arrangements to the members of the
family to the exclusion of one’s common law partner. In Tomas Eugenio, Sr. v. Velez, 185
SCRA 425 (1990), a petition for habeas corpus was filed by the brothers and sisters of the
late Vitaliana Vargas against her lover, Tomas Eugenio, Sr., alleging that the latter forcibly
took her and confined her in his residence. It appearing that she already died of heart failure
due to toxemia of pregnancy, Tomas Eugenio, Sr. sought the dismissal of the petition for
lack of jurisdiction and claimed the right to bury the deceased, as the common-law husband.
Same; Same; Same; The right and duty to make funeral arrangements, like any other
right, will not be considered as having been waived or renounced, except upon clear and
satisfactory proof of conduct indicative of a free and voluntary intent to that end.—It is clear
that the law gives the right and duty to make funeral arrangements to Rosario, she being
the surviving legal wife of Atty. Adriano. The fact that she was living separately from her
husband and was in the United States when he died has no controlling significance. To say
that Rosario had, in effect, waived or renounced, expressly or impliedly, her right and duty
to make arrangements for the funeral of her deceased husband is baseless.
The right and duty to make funeral arrangements, like any other right, will not be
considered as having been waived or renounced, except upon clear and
satisfactory proof of conduct indicative of a free and voluntary intent to that end.
While there was disaffection between Atty. Adriano and Rosario and their children when
he was still alive, the Court also recognizes that human compassion, more often than not,
opens the door to mercy and forgiveness once a family member joins his Creator. Notably,
it is an undisputed fact that the respondents wasted no time in making frantic pleas to Valino
for the delay of the interment for a few days so they could attend the service and view the
remains of the deceased. As soon as they came to know about Atty. Adriano’s death in the
morning of December 19, 1992 (December 20, 1992 in the Philippines), the respondents
immediately contacted Valino and the Arlington Memorial Chapel to express their request,
but to no avail.
Same; Same; Same; Considering the ambiguity as to the true wishes of the deceased,
it is the law that supplies the presumption as to his intent. No presumption can be said to
have been created in
3Valino’s favor, solely on account of a long-time relationship with Atty. Adriano.—
Valino insists that the expressed wishes of the deceased should nevertheless prevail
pursuant to Article 307 of the Civil Code. Valino’s own testimony that it was Atty. Adriano’s
wish to be buried in their family plot is being relied upon heavily. It should be noted,
however, that other than Valino’s claim that Atty. Adriano wished to be buried at the
Manila Memorial Park, no other evidence was presented to corroborate such claim.
Considering that Rosario equally claims that Atty. Adriano wished to be buried in the
Adriano family plot in Novaliches, it becomes apparent that the supposed burial wish of
Atty. Adriano was unclear and undefinite. Considering this ambiguity as to the true wishes
of the deceased, it is the law that supplies the presumption as to his intent. No presumption
can be said to have been created in Valino’s favor, solely on account of a long-time
relationship with Atty. Adriano.
Same; Same; Same; Should there be any doubt as to the true intent of the deceased,
the law favors the legitimate family.—It cannot be surmised that just because Rosario was
unavailable to bury her husband when she died, he had already renounced her right to do
so. Verily, in the same vein that the right and duty to make funeral arrangements will not
be considered as having been waived or renounced, the right to deprive a legitimate spouse
of her legal right to bury the remains of her deceased husband should not be readily
presumed to have been exercised, except upon clear and satisfactory proof of conduct
indicative of a free and voluntary intent of the deceased to that end. Should there be any
doubt as to the true intent of the deceased, the law favors the legitimate family.
Here, Rosario’s keenness to exercise the rights and obligations accorded to the legal wife
was even bolstered by the fact that she was joined by the children in this case.
Same; Same; Same; It is generally recognized that any inferences as to the wishes of
the deceased should be established by some form of testamentary disposition.—Even
assuming, ex gratia argumenti, that Atty. Adriano truly wished to be buried in the Valino
family plot at the Manila Memorial Park, the result remains the same. Article 307 of the
Civil Code provides: Art. 307. The funeral shall be in accordance with the expressed
wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation
shall determine the funeral rites. In case of doubt, the form of the
4funeral shall be decided upon by the person obliged to make arrangements for the
same, after consulting the other members of the family. From its terms, it is apparent that
Article 307 simply seeks to prescribe the “form of the funeral rites” that should govern in
the burial of the deceased. As thoroughly explained earlier, the right and duty to make
funeral arrangements reside in the persons specified in Article 305 in relation to Article 199
of the Family Code. Even if Article 307 were to be interpreted to include the place of burial
among those on which the wishes of the deceased shall be followed, Dr. Arturo M.
Tolentino (Dr. Tolentino), an eminent authority on civil law, commented that it
is generally recognized that any inferences as to the wishes of the deceased
should be established by some form of testamentary disposition. As Article 307 itself
provides, the wishes of the deceased must be expressly provided. It cannot be inferred
lightly, such as from the circumstance that Atty. Adriano spent his last remaining days
with Valino. It bears stressing once more that other than Valino’s claim that Atty. Adriano
wished to be buried at the Valino family plot, no other evidence was presented to corroborate
it.
Same; Same; Same; It is generally recognized that the corpse of an individual is
outside the commerce of man.—It is generally recognized that the corpse of an individual is
outside the commerce of man. However, the law recognizes that a certain right of possession
over the corpse exists, for the purpose of a decent burial, and for the exclusion of the
intrusion by third persons who have no legitimate interest in it. This quasi-property right,
arising out of the duty of those obligated by law to bury their dead, also authorizes them to
take possession of the dead body for purposes of burial to have it remain in its final resting
place, or to even transfer it to a proper place where the memory of the dead may receive the
respect of the living. This is a family right. There can be no doubt that persons having
this right may recover the corpse from third persons.
LEONEN, J., Dissenting Opinion:
Civil Law; Persons and Family Relations; Funerals; View that Article 305 of the Civil
Code should only be considered when, first, the deceased left no explicit instructions on how
he wishes to be interred, and second, when none among the deceased’s surviving relations
are willing to make the funeral arrangements and a conflict
5arises.—I am of the opinion that Article 305 should only be considered when, first,
the deceased left no explicit instructions on how he wishes to be interred, and second, when
none among the deceased’s surviving relations are willing to make the funeral
arrangements and a conflict arises. In these situations, the conflict must be settled
according to the order of preference stated in Article 199. In any other case, it should be the
express wishes of the deceased which should take precedence.
 Same; Same; Same; View that Article 307 of the Civil Code should be interpreted to
mean that the right to determine one’s funeral, including the right to
determine how and where one wishes to be buried, remains with the deceased, and it is only
in the absence of his express wishes, or in the absence of his religious beliefs and affiliations,
or if there is doubt as to his wishes, that other persons may assume the right to decide the
funeral arrangements.—It is the ponencia’s opinion that the wishes of the deceased
contemplated in Article 307 only governs the “form of the funeral” and that the duty and,
more specifically, the right to make arrangements for the funeral remains with the persons
specified in Article 305 in relation to Article 199. It is my submission, however, that Article
307 should be interpreted to mean that the right to determine one’s funeral, including the
right to determine how and where one wishes to be buried, remains with the deceased, and
it is only in the absence of his express wishes, or in the absence of his religious beliefs and
affiliations, or if there is doubt as to his wishes, that other persons may assume the right to
decide the funeral arrangements. This right, like other rights pointed out by the ponencia,
must not be considered waived or renounced except upon clear and satisfactory proof of
conduct indicative of a free and voluntary intent to that end. There is neither indication nor
have there been any allegations that Atty. Adriano did not freely and voluntarily relay his
last wishes to his common-law wife, petitioner Fe. Atty. Adriano, therefore, did not
waive his right to determine where he should be buried, in favor of the persons indicated in
Article 305 in relation to Article 199.
Same; Same; Same; View that part of life is the ability to control how one wishes to be
memorialized, and such right should remain with the deceased. It is only when the deceased
has not left any express instructions that the right is given to the persons specified under the
law.—It is unfortunate that the ponencia would rather uphold the
6wishes of his estranged family rather than give the deceased his final request. Part
of life is the ability to control how one wishes to be memorialized, and such right should
remain with the deceased. It is only when the deceased has not left any express instructions
that the right is given to the persons specified under the law.
PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Pizarras & Associates Law Office for petitioner.
Ching, Mendoza, Quilas and Associates Law Firm for respondents.
MENDOZA, J.:
Challenged in this petition is the October 2, 2006 Decision[1] and the May 9,
2008 Resolution[2] of the Court of Appeals (CA) in C.A.-G.R. CV No. 61613, which
reversed the October 1, 1998 Decision[3] of the Regional Trial Court, Branch 77,
Quezon City (RTC) which ruled that petitioner Fe Floro Valino (Valino) was
entitled to the remains of the decedent.
The Facts
Atty. Adriano Adriano (Atty. Adriano), a partner in the Pelaez Adriano and
Gregorio Law Office, married respondent Rosario Adriano (Rosario) on November
15, 1955. The couple had two (2) sons, Florante and Ruben Adriano; three (3)
daughters, Rosario, Victoria and Maria Teresa; and one (1) adopted daughter,
Leah Antonette.
_______________
[1] Rollo, pp. 36-46; Penned by Associate Justice Vicente Q. Roxas with Associate Justices Josefina
Guevara-Salonga and Apolinario D. Bruselas, Jr., concurring.
[2] Id., at p. 65.
[3] Id., at pp. 127-131.
7
The marriage of Atty. Adriano and Rosario, however, turned sour and they
were eventually separated-in-fact. Years later, Atty. Adriano courted Valino, one
of his clients, until they decided to live together as husband and wife. Despite
such arrangement, he continued to provide financial support to Rosario and their
children (respondents).
In 1992, Atty. Adriano died of acute emphysema. At that time, Rosario was in
the United States spending Christmas with her children. As none of the family
members was around, Valino took it upon herself to shoulder the funeral and
burial expenses for Atty. Adriano. When Rosario learned about the death of her
husband, she immediately called Valino and requested that she delay the
interment for a few days but her request was not heeded. The remains of Atty.
Adriano were then interred at the mausoleum of the family of Valino at the
Manila Memorial Park. Respondents were not able to attend the interment.
Claiming that they were deprived of the chance to view the remains of Atty.
Adriano before he was buried and that his burial at the Manila Memorial Park
was contrary to his wishes, respondents commenced suit against Valino praying
that they be indemnified for actual, moral and exemplary damages and attorney’s
fees and that the remains of Atty. Adriano be exhumed and transferred to the
family plot at the Holy Cross Memorial Cemetery in Novaliches, Quezon City.
In her defense, Valino countered that Rosario and Atty. Adriano had been
separated for more than twenty (20) years before he courted her. Valino claimed
that throughout the time they were together, he had introduced her to his friends
and associates as his wife. Although they were living together, Valino admitted
that he never forgot his obligation to support the respondents. She contended that,
unlike Rosario, she took good care of Atty. Adriano and paid for all his medical
expenses when he got seriously ill. She also claimed that despite knowing that
Atty. Adriano was in a coma and dying, Rosario still left for the United States.
According to Valino, it
8was Atty. Adriano’s last wish that his remains be interred in the Valino family
mausoleum at the Manila Memorial Park.
Valino further claimed that she had suffered damages as result of the suit
brought by respondents. Thus, she prayed that she be awarded moral and
exemplary damages and attorney’s fees.
Decision of the RTC
The RTC dismissed the complaint of respondents for lack of merit as well as
the counterclaim of Valino after it found them to have not been sufficiently
proven.
The RTC opined that because Valino lived with Atty. Adriano for a very long
time, she knew very well that it was his wish to be buried at the Manila Memorial
Park. Taking into consideration the fact that Rosario left for the United States at
the time that he was fighting his illness, the trial court concluded that Rosario
did not show love and care for him. Considering also that it was Valino who
performed all the duties and responsibilities of a wife, the RTC wrote that it could
be reasonably presumed that he wished to be buried in the Valino family
mausoleum.[4]
In disposing of the case, the RTC noted that the exhumation and the transfer
of the body of Atty. Adriano to the Adriano family plot at the Holy Cross Memorial
Cemetery in Novaliches, Quezon City, would not serve any useful purpose and so
he should be spared and respected.[5]
Decision of the CA
On appeal, the CA reversed and set aside the RTC decision and directed
Valino to have the remains of Atty. Adriano exhumed at the expense of
respondents. It likewise directed
_______________
[4] Id., at pp. 129-130.
[5] Id., at p. 131.
9respondents, at their expense, to transfer, transport and inter the remains of the
decedent in the family plot at the Holy Cross Memorial Park in Novaliches,
Quezon City.
In reaching said determination, the CA explained that Rosario, being the legal
wife, was entitled to the custody of the remains of her deceased husband. Citing
Article 305 of the New Civil Code in relation to Article 199 of the Family Code, it
was the considered view of the appellate court that the law gave the surviving
spouse not only the duty but also the right to make arrangements for the funeral
of her husband. For the CA, Rosario was still entitled to such right on the ground
of her subsisting marriage with Atty. Adriano at the time of the latter’s death,
notwithstanding their 30-year separation in fact.
Like the RTC, however, the CA did not award damages in favor of respondents
due to the good intentions shown by Valino in giving the deceased a decent burial
when the wife and the family were in the United States. All other claims for
damages were similarly dismissed.
The Sole Issue
The lone legal issue in this petition is who between Rosario and Valino is
entitled to the remains of Atty. Adriano.
The Court’s Ruling
Article 305 of the Civil Code, in relation to what is now Article 199 [6] of the
Family Code, specifies the persons who have the right and duty to make funeral
arrangements for the deceased. Thus:
Art. 305. The duty and the right to make arrangements for the funeral of a relative
shall be in accor-
_______________
[6] Formerly Article 294(a) of the New Civil Code.
10dance with the order established for support, under Article 294. In case of descendants of
the same degree, or of brothers and sisters, the oldest shall be preferred. In case of
ascendants, the paternal shall have a better right. [Emphases supplied]
Art. 199. Whenever two or more persons are obliged to give support, the liability
shall devolve upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
[Emphasis supplied]
Further, Article 308 of the Civil Code provides:
Art. 308. No human remains shall be retained, interred, disposed of or
exhumed without the consent of the persons mentioned in Articles 294 and 305.
[Emphases supplied]
In this connection, Section 1103 of the Revised Administrative Code provides:
Section 1103. Persons charged with the duty of burial.—The immediate duty of
burying the body of a deceased person, regardless of the ultimate liability for the expense
thereof, shall devolve upon the persons herein below specified:
(a) If the deceased was a married man or woman,
the duty of the burial shall devolve upon the surviving
spouse if he or she possesses sufficient means to pay
the necessary expenses;
x x x x. [Emphases supplied]
11
From the aforecited provisions, it is undeniable that the law simply confines
the right and duty to make funeral arrangements to the members of the family to
the exclusion of one’s common law partner. In Tomas Eugenio, Sr. v. Velez,[7] a
petition for habeas corpus was filed by the brothers and sisters of the late
Vitaliana Vargas against her lover, Tomas Eugenio, Sr., alleging that the latter
forcibly took her and confined her in his residence. It appearing that she already
died of heart failure due to toxemia of pregnancy, Tomas Eugenio, Sr. sought the
dismissal of the petition for lack of jurisdiction and claimed the right to bury the
deceased, as the common-law husband.
In its decision, the Court resolved that the trial court continued to have
jurisdiction over the case notwithstanding the death of Vitaliana Vargas. As to
the claim of Tomas Eugenio, Sr. that he should be considered a “spouse” having
the right and duty to make funeral arrangements for his common-law wife, the
Court ruled:
x x x Indeed, Philippine Law does not recognize common law marriages. A man
and woman not legally married who cohabit for many years as husband and wife, who
represent themselves to the public as husband and wife, and who are reputed to be husband
and wife in the community where they live may be considered legally married in common
law jurisdictions but not in the Philippines.
While it is true that our laws do not just brush aside the fact that such relationships
are present in our society, and that they produce a community of properties and interests
which is governed by law, authority exists in case law to the effect that such form of co-
ownership requires that the man and woman living together must not in any way be
incapacitated to contract marriage. In any case, herein petitioner has a subsisting marriage
with another woman, a legal impediment which disquali-
_______________
[7] 263 Phil. 1149; 185 SCRA 425 (1990).
12fied him from even legally marrying Vitaliana. In Santero vs. CFI of Cavite, the Court,
thru Mr. Justice Paras, interpreting Art. 188 of the Civil Code (Support of Surviving Spouse
and Children During Liquidation of Inventoried Property) stated: “Be it noted, however,
that with respect to ‘spouse,’ the same must be the legitimate ‘spouse’ (not common-
law spouses).”
There is a view that under Article 332 of the Revised Penal Code, the term “spouse”
embraces common law relation for purposes of exemption from criminal liability in cases of
theft, swindling and malicious mischief committed or caused mutually by spouses. The
Penal Code article, it is said, makes no distinction between a couple whose cohabitation is
sanctioned by a sacrament or legal tie and another who are husband and wife de facto. But
this view cannot even apply to the facts of the case at bar. We hold that the provisions of
the Civil Code, unless expressly providing to the contrary as in Article 144, when referring
to a “spouse” contemplate a lawfully wedded spouse. Petitioner vis-à-vis Vitaliana
was not a lawfully-wedded spouse to her; in fact, he was not legally capacitated to marry
her in her lifetime.[8] [Emphases supplied]
 As applied to this case, it is clear that the law gives the right and duty to
make funeral arrangements to Rosario, she being the surviving legal wife of Atty.
Adriano. The fact that she was living separately from her husband and was in the
United States when he died has no controlling significance. To say that Rosario
had, in effect, waived or renounced, expressly or impliedly, her right and duty to
make arrangements for the funeral of her deceased husband is baseless.
The right and duty to make funeral arrangements, like any other right, will
not be considered as having been waived or renounced, except upon
clear and satisfactory proof of conduct indicative of a free and voluntary
_______________
[8] Id., at pp. 1158-1159; p. 435.
13intent to that end.[9] While there was disaffection between Atty. Adriano and
Rosario and their children when he was still alive, the Court also recognizes that
human compassion, more often than not, opens the door to mercy and forgiveness
once a family member joins his Creator. Notably, it is an undisputed fact that the
respondents wasted no time in making frantic pleas to Valino for the delay of the
interment for a few days so they could attend the service and view the remains of
the deceased. As soon as they came to know about Atty. Adriano’s death in the
morning of December 19, 1992 (December 20, 1992 in the Philippines), the
respondents immediately contacted Valino and the Arlington Memorial Chapel to
express their request, but to no avail.
Valino insists that the expressed wishes of the deceased should nevertheless
prevail pursuant to Article 307 of the Civil Code. Valino’s own testimony that it
was Atty. Adriano’s wish to be buried in their family plot is being relied upon
heavily. It should be noted, however, that other than Valino’s claim that Atty.
Adriano wished to be buried at the Manila Memorial Park, no other evidence was
presented to corroborate such claim. Considering that Rosario equally claims that
Atty. Adriano wished to be buried in the Adriano family plot in Novaliches, it
becomes apparent that the supposed burial wish of Atty. Adriano was unclear
and undefinite. Considering this ambiguity as to the true wishes of the deceased,
it is the law that supplies the presumption as to his intent. No presumption can
be said to have been created in Valino’s
_______________
[9] See Marawi Marantao General Hospital, Inc. v. Court of Appeals, 402 Phil. 356, 369; 349 SCRA 321, 330-
331 (2001). See also Thomson v. Court of Appeals, 358 Phil. 761, 778; 298 SCRA 280, 294 (1998); Gatchalian v.
Delim, G.R. No. 56487, October 21, 1991, 203 SCRA 126, 132; Yepes v. Samar Express Transit, 123 Phil. 948,
949; 17 SCRA 91, 93 (1966); Andres v. The Crown Life Insurance Co., 102 Phil. 919, 924 (1958); Lang v. Acting
Provincial Sheriff of Surigao, 93 Phil. 661, 669 (1953); and Fernandez v. Sebido, 70 Phil. 151, 159 (1940).
14favor, solely on account of a long-time relationship with Atty. Adriano.
Moreover, it cannot be surmised that just because Rosario was unavailable to
bury her husband when he died, she had already renounced her right to do so.
Verily, in the same vein that the right and duty to make funeral arrangements
will not be considered as having been waived or renounced, the right to deprive a
legitimate spouse of her legal right to bury the remains of her deceased husband
should not be readily presumed to have been exercised, except upon clear and
satisfactory proof of conduct indicative of a free and voluntary intent of the
deceased to that end. Should there be any doubt as to the true intent of the
deceased, the law favors the legitimate family. Here, Rosario’s keenness to
exercise the rights and obligations accorded to the legal wife was even bolstered
by the fact that she was joined by the children in this case.
Even assuming, ex gratia argumenti, that Atty. Adriano truly wished to be
buried in the Valino family plot at the Manila Memorial Park, the result remains
the same. Article 307 of the Civil Code provides:
Art. 307. The funeral shall be in accordance with the expressed wishes of the
deceased. In the absence of such expression, his religious beliefs or affiliation shall
determine the funeral rites. In case of doubt, the form of the funeral shall be decided
upon by the person obliged to make arrangements for the same, after consulting the other
members of the family.
From its terms, it is apparent that Article 307 simply seeks to prescribe the
“form of the funeral rites” that should govern in the burial of the deceased. As
thoroughly explained earlier, the right and duty to make funeral arrangements
reside in the persons specified in Article 305 in relation to Article 199 of the
Family Code. Even if Article 307 were to be interpreted to include the place of
burial among those on which the
15wishes of the deceased shall be followed, Dr. Arturo M. Tolentino (Dr.
Tolentino), an eminent authority on civil law, commented that it is generally
recognized that any inferences as to the wishes of the deceased should
be established by some form of testamentary disposition.[10] As Article 307
itself provides, the wishes of the deceased must be expressly provided. It cannot
be inferred lightly, such as from the circumstance that Atty. Adriano spent his
last remaining days with Valino. It bears stressing once more that other than
Valino’s claim that Atty. Adriano wished to be buried at the Valino family plot,
no other evidence was presented to corroborate it.
At any rate, it should be remembered that the wishes of the decedent with
respect to his funeral are not absolute. As Dr. Tolentino further wrote:
The dispositions or wishes of the deceased in relation to his funeral, must not be
contrary to law. They must not violate the legal and reglamentary provisions
concerning funerals and the disposition of the remains, whether as regards the time
and manner of disposition, or the place of burial, or the ceremony to be
observed.[11] [Emphases supplied]
In this case, the wishes of the deceased with respect to his funeral
are limited by Article 305 of the Civil Code in relation to Article 199 of the
Family Code, and subject the same to those charged with the right and duty to
make the proper
_______________
[10] TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. I, p. 657, citing Sheeban v.
Commercial Travelers, 283 Mass. 543, 186 N.E. 627; Lindh v. Great Northern, 99 Minn. 408,
109 N.W. 823; Kyles v. Southern Ry Co., 147 N.C. 394, 61 S.E. 278.
[11] TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. I, p. 657, citing Sacred Heart of
Jesus v. Soklowski, 159 Minn. 331, 199 N.W. 81; Wilson v. Read, 74 N.H. 322, 68 Atl.
37; Pettigrew v. Pettigrew, 20 Pa. 313, 56 Atl. 878.
16arrangements to bury the remains of their loved-one. As aptly explained by the
appellate court in its disquisition:
The testimony of defendant-appellee Fe Floro Valino that it was the oral wish of Atty.
Adriano Adriano that he be interred at the Floro family’s mausoleum at the Manila
Memorial Park, must bend to the provisions of the law. Even assuming arguendo that it
was the express wish of the deceased to be interred at the Manila Memorial Park, still, the
law grants the duty and the right to decide what to do with the remains to the wife, in this
case, plaintiff-appellant Rosario D. Adriano, as the surviving spouse, and not to defendant-
appellee Fe Floro Valino, who is not even in the list of those legally preferred, despite the
fact that her intentions may have been very commendable. The law does not even consider
the emotional fact that husband and wife had, in this case at bench, been separated-in-fact
and had been living apart for more than 30 years.[12]
As for Valino’s contention that there is no point in exhuming and transferring
the remains of Atty. Adriano, it should be said that the burial of his remains in a
place other than the Adriano family plot in Novaliches runs counter to the wishes
of his family. It does not only violate their right provided by law, but it also
disrespects the family because the remains of the patriarch are buried in the
family plot of his live-in partner.
It is generally recognized that the corpse of an individual is outside the
commerce of man. However, the law recognizes that a certain right of possession
over the corpse exists, for the purpose of a decent burial, and for the exclusion of
the intrusion by third persons who have no legitimate interest in it. This quasi-
property right, arising out of the duty of those obligated by law to bury their dead,
also authorizes them to take possession of the dead body for purposes of burial to
have
_______________
[12] Rollo, p. 43.
17itremain in its final resting place, or to even transfer it to a proper place where
the memory of the dead may receive the respect of the living. This is a family
right. There can be no doubt that persons having this right may recover the
corpse from third persons.[13]
All this notwithstanding, the Court finds laudable the acts of Valino in taking
care of Atty. Adriano during his final moments and giving him a proper burial.
For her sacrifices, it would indeed be unkind to assess actual or moral damages
against her. As aptly explained by the CA:
The trial court found that there was good faith on the part of defendant-appellee Fe
Floro Valino, who, having lived with Atty. Adriano after he was separated in fact from his
wife, lovingly and caringly took care of the well-being of Atty. Adriano Adriano while he was
alive and even took care of his remains when he had died.
On the issue of damages, plaintiffs-appellants are not entitled to actual damages.
Defendant-appellee Fe Floro Valino had all the good intentions in giving the remains of
Atty. Adriano a decent burial when the wife and family were all in the United States and
could not attend to his burial. Actual damages are those awarded in satisfaction of, or in
recompense for, loss or injury sustained. To be recoverable, they must not only be capable
of proof but must actually be proven with a reasonable degree of certainty. In this case at
bench, there was no iota of evidence presented to justify award of actual damages.
Plaintiffs-appellants are not also entitled to moral and exemplary damages. Moral
damages may be recovered only if the plaintiff is able to satisfactorily prove the existence
of the factual basis for the damages and its causal connection with the acts complained of
because moral damages although incapable of pecuniary estimation are designed not to
impose a penalty but to compen-
_______________
13 TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. I, p. 654, citing 1-I Enneccerus, Kipp & Wolff 548 fn; 1 Valverde
239-240 fn.
18sate for injury sustained and actual damages suffered. No injury was caused to plaintiffs-
appellants, nor was any intended by anyone in this case. Exemplary damages, on the other
hand, may only be awarded if claimant is able to establish his right to moral, temperate,
liquidated or compensatory damages. Unfortunately, neither of the requirements to sustain
an award for either of these damages would appear to have been adequately established by
plaintiffs-appellants.
As regards the award of attorney’s fees, it is an accepted doctrine that the award thereof
as an item of damages is the exception rather than the rule, and counsel’s fees are not to be
awarded every time a party wins a suit. The power of the court to award attorney’s fees
under Article 2208 of the New Civil Code demands factual, legal and equitable justification,
without which the award is a conclusion without a premise, its basis being improperly left
to speculation and conjecture. In this case, we have searched but found nothing in plaintiffs-
appellants’ suit that justifies the award of attorney’s fees. [14]
Finally, it should be said that controversies as to who should make
arrangements for the funeral of a deceased have often aggravated the
bereavement of the family and disturbed the proper solemnity which should
prevail at every funeral. It is for the purpose of preventing such controversies
that the Code Commission saw it best to include the provisions on “Funerals.”[15]
WHEREFORE, the petition is DENIED.
SO ORDERED.
Sereno (CJ.), Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta,
Bersamin, Del Castillo, Villarama, Jr., Perez, Reyes and Perlas-Bernabe,
JJ., concur.
_______________
[14] Id., at pp. 43-45.
[15] Report of the Code Commission, p. 49.
19
Abad, J., I join Justice Leonen’s Dissent.
Leonen, J., I dissent. See Separate Opinion.
DISSENTING OPINION
LEONEN, J.:
We will all die. But what may matter to many of us is how we live and how
our life is kept in the memories of those we leave behind. This case is not about
whether a common-law wife has more rights over the corpse of the husband than
the latter’s estranged legal spouse. This case is about which between them knows
his wishes.
Therefore, I respectfully disagree with the ponencia in denying this petition.
I vote to set aside the decision of the Court of Appeals dated October 2, 2006
in C.A.-G.R. CV No. 61613, which directs petitioner Fe to have the remains of
Atty. Lope Adriano exhumed, and orders respondents to transfer, transport, and
inter, at their expense, the remains of the decedent from Manila Memorial Park
to the family plot in Holy Cross Memorial Park in Novaliches, Quezon City. I vote
to sustain the decision dated October 1, 1998, of the Regional Trial Court of
Quezon City, Branch 77 in Civil Case No. Q-93-15288, dismissing respondents’
complaint for damages.
I disagree with the position that in the determination of how Atty. Adriano
should be buried, “the law gives the right and duty to make funeral arrangements
to Rosario, she being the surviving legal wife of Atty. Adriano,” [1] in accordance
with Article 305[2] of the Civil Code in relation to Article 199[3] of the Family
Code.
[1] Ponencia, p. 12.
 [2] Article 305. The duty and the right to make arrangements for the funeral
of a relative shall be in accordance with the order
_______________
[1] Ponencia, p. 12.
[2] Article 305. The duty and the right to make arrangements for the funeral of a relative shall be in
accordance with the order
20
I am of the opinion that Article 305 should only be considered when, first, the
deceased left no explicit instructions on how he wishes to be interred, and second,
when none among the deceased’s surviving relations are willing to make the
funeral arrangements and a conflict arises. In these situations, the conflict must
be settled according to the order of preference stated in Article 199. In any other
case, it should be the express wishes of the deceased which should take
precedence.
This view, in fact, is embodied in Article 307 of the Civil Code, which states:
Article 307. The funeral shall be in accordance with the expressed wishes of
the deceased. In the absence of such expression, his religious beliefs or affiliation shall
determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon
by the person obliged to make arrangements for the same, after consulting the other members
of the family. (Emphasis supplied)
It is the ponencia’s opinion that the wishes of the deceased contemplated in
Article 307 only governs the “form of the funeral” and that the duty and, more
specifically, the right to make arrangements for the funeral remains with the
persons specified in Article 305 in relation to Article 199. It is my submission,
however, that Article 307 should be interpreted
_______________
established for support, under Article 294. In case of descendants of the same degree, or of brothers and
sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right.
[3] Article 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon
the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
21to mean that the right to determine one’s funeral, including the right to
determine how and where one wishes to be buried, remains with the deceased,
and it is only in the absence of his express wishes, or in the absence of his religious
beliefs and affiliations, or if there is doubt as to his wishes, that other persons
may assume the right to decide the funeral arrangements.
This right, like other rights pointed out by the ponencia,[4] must not be
considered waived or renounced except upon clear and satisfactory proof of
conduct indicative of a free and voluntary intent to that end. There is neither
indication nor have there been any allegations that Atty. Adriano did not freely
and voluntarily relay his last wishes to his common-law wife, petitioner Fe. Atty.
Adriano, therefore, did not waive his right to determine where he should be
buried, in favor of the persons indicated in Article 305 in relation to Article 199.
Accordingly, it was improper to cite in the ponencia Tomas Eugenio, Sr. v.
Judge Velez.[5] In Eugenio, Tomas Eugenio, Sr. claimed the right to bury his
common-law wife, arguing that he should be considered a “spouse” under Article
305 in relation to Article 199. The assertion led this court to expound on the
interpretation of Article 305 in relation to Article 199 and conclude that:
x x x. Indeed, Philippine Law does not recognize common law marriages. A man and
woman not legally married who cohabit for many years as husband and wife, who represent
themselves to the public as husband and wife, and who are reputed to be husband and wife
in the community where they live may be considered legally “married” in common law
jurisdictions but not in the Philippines.
While it is true that our laws do not just brush aside the fact that such relationships
are present in our
_______________
[4] Ponencia, pp. 12-13.
[5] 263 Phil. 1149; 185 SCRA 425 (1990) [Per J. Padilla, En Banc].
22society, and that they produce a community of properties and interests which is
governed by law, authority exists in case law to the effect that such form of co-ownership
requires that the man and woman living together must not in any way be incapacitated to
contract marriage. In any case, herein petitioner has a subsisting marriage with another
woman, a legal impediment which disqualified him from even legally marrying Vitaliana.
In Santero vs. CFI of Cavite, the Court, thru Mr. Justice Paras, interpreting Art. 188 of the
Civil Code (Support of Surviving Spouse and Children During Liquidation of Inventoried
Property) stated: “Be it noted however that with respect to ‘spouse’, the same must be the
legitimate ‘spouse’ (not common-law spouses…).”
There is a view that under Article 332 of the Revised Penal Code, the term “spouse”
embraces common law relation for purposes of exemption from criminal liability in cases of
theft, swindling and malicious mischief committed or caused mutually by spouses. The
Penal Code article, it is said, makes no distinction between a couple whose cohabitation is
sanctioned by a sacrament or legal tie and another who are husband and wife de facto. But
this view cannot even apply to the facts of the case at bar. We hold that the provisions of
the Civil Code, unless expressly providing to the contrary as in Article 144, when referring
to a “spouse” contemplate a lawfully wedded spouse. Petitioner vis-a-vis Vitaliana was not
a lawfully-wedded spouse to her; in fact, he was not legally capacitated to marry her in her
lifetime.[6]
In the present case, petitioner Fe has not asserted that she be considered a
“spouse” under Article 305 in relation to Article 199 with the right and the duty
to make funeral arrangements for Atty. Adriano. What she asserts is that she
was Atty. Adriano’s constant companion for a long time who was constantly by
his side, showing him the love and devotion as a wife would have, who took care
of him in his final moments
_______________
[6] Id., at pp. 1159-1160; p. 435. See also ponencia, pp. 11-12.
23and gave him a proper burial. As such, there is a presumption that she would
be in the best position to relay his final wishes.
The trial court in its decision dated October 1, 1998 reached the same
conclusion, thus:
Atty. Lope Adriano’s wish was established at the trial and shown in the
following testimony of the defendant, to wit:
“ATTY. PIZARRAS:
Madam witness, what was the wish of Atty. Lope Adriano
regarding his burial?
WITNESS:
He wanted to be buried at Manila Memorial.
Q: Why do you say that?
 A: We have discussed it long before.
Q: When did you first discuss this?
A: The first time we went to Manila Memorial. He
wanted that his lawn type lot be upgraded to estate type. He
doesn’t want that people will step on his grave.
Q: What happened to this request if his lawn type lot to
be upgraded to estate type?
A: It did not take long. I had it upgraded.” (TSN, May 7,
1997, pp. 4-5; underscoring supplied)
This crucial fact remained unrefuted.
Moreover, considering the very, very long time that the defendant and the
deceased lived like husband and wife prior to his death, it can be reasonably
assumed that it is the defendant who really knows the wishes of the deceased.
And it appears that it was the express wish of the deceased that he be interred at
the Manila Memorial Park.[7]
_______________
[7] Rollo, p. 129.

24The ponencia also noted there was “animosity” between Atty. Adriano and
respondents when he was still alive. He and his legal spouse, respondent Rosario,
have been separated-in-fact for more than thirty (30) years, and he has not been
in contact with his children, the other respondents, for about the same period of
time. They did not even visit him when he fell ill and was on his deathbed; it was
only after he died that they came, asserting their rights to his remains.
It is unfortunate that the ponencia would rather uphold the wishes of his
estranged family rather than give the deceased his final request. Part of life is
the ability to control how one wishes to be memorialized, and such right should
remain with the deceased. It is only when the deceased has not left any express
instructions that the right is given to the persons specified under the law.
Given the circumstances, the remains of Atty. Adriano should remain in the
Floro family mausoleum at the Manila Memorial Park.
The law reaches into much of our lives while we live. It constitutes and frames
most of our actions. But at the same time, the law also grants us the autonomy
or the space to define who we are. Upon our death, the law does not cease to
respect our earned autonomy. Rather, it gives space for us to speak through the
agency of she who may have sat at our bedside as we suffered through a lingering
illness.
I am of the view that it is that love and caring which should be rewarded with
the honor of putting us in that place where we mark our physical presence for the
last time and where we will be eternally remembered.
ACCORDINGLY, the petition should be GRANTED. The decision of the
Court of Appeals in C.A.-G.R. CV No. 61613, reversing the October 1, 1998
decision of the Regional Trial Court, Branch 77, Quezon City, must be SET
ASIDE.
Petition denied.
 G.R. No. 179736. June 26, 2013.*
SPOUSES BILL and VICTORIA HING, petitioners, vs. ALEXANDER
CHOACHUY, SR. and ALLAN CHOACHUY, respondents.
Constitutional Law; Right to Privacy; Words and Phrases; Right to privacy is defined
as “the right to be free from unwarranted exploitation of one’s person or from intrusion into
one’s private activities in such a way as to cause humiliation to a person’s ordinary
sensibilities.”―The right to privacy is enshrined in our Constitution and in our laws. It is
defined as “the right to be free from unwarranted exploitation of one’s person or from
intrusion into one’s private activities in such a way as to cause humiliation to a person’s
ordinary sensibilities.” It is the right of an individual “to be free from unwarranted publicity,
or to live without unwarranted interference by the public in matters in which the public is
not necessarily concerned.” Simply put, the right to privacy is “the right to be let alone.”
The Bill of Rights guarantees the people’s right to privacy and protects them against the
State’s abuse of power. In this regard, the State recognizes the right of the people to be
secure in their houses. No one, not even the State, except “in case of overriding social need
and then only under the stringent procedural safeguards,” can disturb them in the privacy
of their homes.
Same; Same; Article 26(1) of the Civil Code protects an individual’s right to privacy
and provides a legal remedy against abuses that may be committed against him by other
individuals; This provision recognizes that a man’s house is his castle, where his right to
privacy cannot be denied or even restricted by others.―Article 26(1) of the Civil Code, on the
other hand, protects an individual’s right to privacy and provides a legal remedy against
abuses that may be committed against him by other individuals. It states: Art. 26. Every
person shall respect the dignity, personality, privacy and peace of mind of his neighbors and
other persons. The following and similar acts, though they may not constitute a criminal
offense, shall produce a cause of action for damages, prevention and other relief: (1)
_______________
* SECOND DIVISION.
668
668 SUPREME COURT REPORTS ANNOTATED
Hing vs. Choachuy, Sr.
Prying into the privacy of another’s residence; x x x x This provision recognizes that
a man’s house is his castle, where his right to privacy cannot be denied or even restricted
by others. It includes “any act of intrusion into, peeping or peering inquisitively into the
residence of another without the consent of the latter.” The phrase “prying into the privacy
of another’s residence,” however, does not mean that only the residence is entitled to
privacy. As elucidated by Civil law expert Arturo M. Tolentino: Our Code specifically
mentions “prying into the privacy of another’s residence.” This does not mean, however, that
only the residence is entitled to privacy, because the law covers also “similar acts.” A
business office is entitled to the same privacy when the public is excluded
therefrom and only such individuals as are allowed to enter may come in. x x x
(Emphasis supplied) Thus, an individual’s right to privacy under Article 26(1) of the Civil
Code should not be confined to his house or residence as it may extend to places where he
has the right to exclude the public or deny them access. The phrase “prying into the privacy
of another’s residence,” therefore, covers places, locations, or even situations which an
individual considers as private. And as long as his right is recognized by society, other
individuals may not infringe on his right to privacy. The CA, therefore, erred in limiting the
application of Article 26(1) of the Civil Code only to residences.
Same; Same; Reasonable Expectation of Privacy Test; In ascertaining whether there
is a violation of the right to privacy, courts use the “reasonable expectation of privacy” test.
This test determines whether a person has a reasonable expectation of privacy and whether
the expectation has been violated.―In ascertaining whether there is a violation of the right
to privacy, courts use the “reasonable expectation of privacy” test. This test determines
whether a person has a reasonable expectation of privacy and whether the expectation has
been violated. In Ople v. Torres, 504 SCRA 704 (2006), we enunciated that “the
reasonableness of a person’s expectation of privacy depends on a two-part test: (1) whether,
by his conduct, the individual has exhibited an expectation of privacy; and (2) this
expectation is one that society recognizes as reasonable.” Customs, community norms, and
practices may, therefore, limit or extend an individual’s “reasonable expectation of privacy.”
Hence, the reasonableness of a person’s expectation of privacy must be determined on a
case-to-case basis since it depends on the factual circumstances surrounding the case.669
VOL. 699, JUNE 26, 2013 669
Hing vs. Choachuy, Sr.
Same; Same; Same; Surveillance Cameras; In this day and age, video surveillance
cameras are installed practically everywhere for the protection and safety of everyone. The
installation of these cameras, however, should not cover places where there is reasonable
expectation of privacy, unless the consent of the individual, whose right to privacy would be
affected, was obtained.―In this day and age, video surveillance cameras are installed
practically everywhere for the protection and safety of everyone. The installation of these
cameras, however, should not cover places where there is reasonable expectation of privacy,
unless the consent of the individual, whose right to privacy would be affected, was obtained.
Nor should these cameras be used to pry into the privacy of another’s residence or business
office as it would be no different from eavesdropping, which is a crime under Republic Act
No. 4200 or the Anti-Wiretapping Law.
Remedial Law; Civil Procedure; Real Party-in-Interest; Words and Phrases; A real
party defendant is “one who has a correlative legal obligation to redress a wrong done to the
plaintiff by reason of the defendant’s act or omission which had violated the legal right of
the former.”―Section 2, Rule 3 of the Rules of Court provides: SEC. 2. Parties-in-interest.—
A real party-in-interest is the party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by
law or these Rules, every action must be prosecuted or defended in the name of the real
party-in-interest. A real party defendant is “one who has a correlative legal obligation to
redress a wrong done to the plaintiff by reason of the defendant’s act or omission which had
violated the legal right of the former.” In ruling that respondents are not the proper parties,
the CA reasoned that since they do not own the building, they could not have installed the
video surveillance cameras. Such reasoning, however, is erroneous. The fact that
respondents are not the registered owners of the building does not automatically mean that
they did not cause the installation of the video surveillance cameras.
PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.670
670 SUPREME COURT REPORTS ANNOTATED
Hing vs. Choachuy, Sr.
Alvarez, Nuez, Galang, Espina and Lopez Law Offices for petitioners.
Zosa & Quijano Law Offices for respondents.
DEL CASTILLO, J.:
“The concept of liberty would be emasculated if it does not likewise compel
respect for [one’s] personality as a unique individual whose claim to privacy and
[non]-interference demands respect.” 1
 This Petition for Review on Certiorari under Rule 45 of the Rules of Court
2 15 Id., at pp. 23-26.
16 Id., at p. 24.
assails the July 10, 2007 Decision and the September 11, 2007 Resolution of the
3 4

Court of Appeals (CA) in CA-G.R. CEB-SP No. 01473. 672

Factual Antecedents 672 SUPREME COURT REPORTS ANNOTATED
On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the
Regional Trial Court (RTC) of Mandaue City a Complaint for Injunction and 5
Hing vs. Choachuy, Sr.
Damages with prayer for issuance of a Writ of Preliminary Mandatory did they order their employees to take pictures of petitioners’ construction. They 17

Injunction/Temporary Restraining Order (TRO), docketed as Civil Case MAN- also clarified that they are not the owners of Aldo but are mere stockholders. 18

5223 and raffled to Branch 28, against respondents Alexander Choachuy, Sr. and Ruling of the Regional Trial Court
Allan Choachuy. On October 18, 2005, the RTC issued an Order granting the application for
19

Petitioners alleged that they are the registered owners of a parcel of land (Lot a TRO. The dispositive portion of the said Order reads:
WHEREFORE, the application for a [T]emporary [R]estraining [O]rder or a
1900-B) covered by Transfer Certificate of Title (TCT) No. 42817 situated in
[W]rit of [P]reliminary [I]njunction is granted. Upon the filing and approval of a
Barangay Basak, City of bond by [petitioners], which the Court sets at P50,000.00, let a [W]rit of
_______________
1 Morfe v. Mutuc, 130 Phil. 415, 434; 22 SCRA 424, 442 (1968). [P]reliminary [I]njunction issue against the [respondents] Alexander Choachuy, Sr.
2 Rollo, pp. 10-33. and Allan Choachuy. They are hereby directed to immediately remove the revolving
3 CA Rollo, pp. 111-116; penned by Associate Justice Isaias P. Dicdican and concurred in by Associate camera that they installed at the left side of their building overlooking the side of
Justices Antonio L. Villamor and Stephen C. Cruz.
[petitioners’] lot and to transfer and operate it elsewhere at the back where
4 Id., at pp. 128-129.
5 Records, pp. 1-8. [petitioners’] property can no longer be viewed within a distance of about 2-3 meters
from the left corner of Aldo Servitec, facing the road.
671 IT IS SO ORDERED. 20

VOL. 699, JUNE 26, 2013 671

Respondents moved for a reconsideration but the RTC denied the same in its
21

Hing vs. Choachuy, Sr. Order dated February 6, 2006. Thus:

22 23

Mandaue, Cebu; that respondents are the owners of Aldo Development &
6 WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of
Resources, Inc. (Aldo) located at Lots 1901 and 1900-C, adjacent to the property merit. Issue a [W]rit of
_______________
of petitioners; that respondents constructed an auto-repair shop building (Aldo
7
17 Id., at p. 25.
Goodyear Servitec) on Lot 1900-C; that in April 2005, Aldo filed a case against 18 Id., at p. 24.
19 Id., at pp. 51-56; penned by Judge Marilyn Lagura-Yap.
petitioners for Injunction and Damages with Writ of Preliminary Injunction/TRO, 20 Id., at pp. 55-56.
docketed as Civil Case No. MAN-5125; that in that case, Aldo claimed that
8 21 Id., at pp. 75-79.
22 Id., at pp. 98-99.
petitioners were constructing a fence without a valid permit and that the said 23 Erroneously dated as February 6, 2005.
construction would destroy the wall of its building, which is adjacent to
673
petitioners’ property; that the court, in that case, denied Aldo’s application for
9

preliminary injunction for failure to substantiate its allegations; that, in order 10

to get evidence to support the said case, respondents on June 13, 2005 illegally
VOL. 699, JUNE 26, 2013 673
set-up and installed on the building of Aldo Goodyear Servitec two video Hing vs. Choachuy, Sr.
surveillance cameras facing petitioners’ property; that respondents, through
11 [P]reliminary [I]njunction in consonance with the Order dated 18 October 2005.
their employees and without the consent of petitioners, also took pictures of IT IS SO ORDERED. 24

petitioners’ on-going construction; and that the acts of respondents violate

12

petitioners’ right to privacy. Thus, petitioners prayed that respondents be

13
Aggrieved, respondents filed with the CA a Petition for Certiorari under 25

ordered to remove the video surveillance cameras and enjoined from conducting Rule 65 of the Rules of Court with application for a TRO and/or Writ of
illegal surveillance. 14
Preliminary Injunction.
In their Answer with Counterclaim, respondents claimed that they did not
15
Ruling of the Court of Appeals
install the video surveillance cameras, nor 16
On July 10, 2007, the CA issued its Decision granting the Petition 26

_______________ for Certiorari. The CA ruled that the Writ of Preliminary Injunction was issued
6 Id., at pp. 2. with grave abuse of discretion because petitioners failed to show a clear and
7 Id., at pp. 3.
8 Id.
unmistakable right to an injunctive writ. The CA explained that the right to
27

9 Id. privacy of residence under Article 26(1) of the Civil Code was not violated since
10 Id. the property subject of the controversy is not used as a residence. The CA also 28

11 Id.
12 Id., at p. 4. said that since respondents are not the owners of the building, they could not
13 Id., at p. 5. have installed video surveillance cameras. They are mere stockholders of Aldo,
29

14 Id., at p. 8.
which has a separate juridical personality. Thus, they are not the proper
30 Essentially, the issues boil down to (1) whether there is a violation of
parties. The fallo reads:
31 petitioners’ right to privacy, and (2) whether respondents are the proper parties
WHEREFORE, in view of the foregoing premises, judgment is hereby to this suit.
rendered by us GRANTING the petition filed in this case. The assailed orders Petitioners’ Arguments
dated October 18, 2005 and February 6, 200[6] issued by the respondent judge are Petitioners insist that they are entitled to the issuance of a Writ of
hereby ANNULLED and SET ASIDE.
_______________
Preliminary Injunction because respondents’ installation of a stationary camera
24 Records, p. 99. directly facing petitioners’ property and a revolving camera covering a significant
25 CA Rollo, pp. 2-12.
26 Id., at pp. 111-116. portion of the same property constitutes a violation of petitioners’ right to
27 Id., at pp. 113-114. privacy. Petitioners cite Article 26(1) of the Civil Code, which enjoins persons
34

28 Id., at p. 114.
29 Id.
from prying into the private lives of others. Although the said provision pertains
35

30 Id., at p. 115. to the privacy of another’s residence, petitioners opine that it includes business
31 Id.
offices, citing Professor Arturo M. Tolentino. Thus, even assuming arguendo that
36

674 petitioners’ property is used for business, it is still covered by the said provision. 37

As to whether respondents are the proper parties to implead in this case,

674 SUPREME COURT REPORTS ANNOTATED petitioners claim that respondents and Aldo are one and the same, and that
Hing vs. Choachuy, Sr. respondents only want to hide behind Aldo’s corporate fiction. They point out 38

SO ORDERED. 32
that if respondents are not the real owners of the building, where the video
surveillance cameras were installed, then they had no business consenting to the
Issues ocular inspection conducted by the court. 39

_______________
Hence, this recourse by petitioners arguing that: 33 Rollo, pp. 20-21.
I. 34 Id., at pp. 173-176.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT ANNULLED AND SET 35 Id., at p. 172.
ASIDE THE ORDERS OF THE [RTC] DATED 18 OCTOBER 2005 AND 6 FEBRUARY 36 Id., at pp. 174-175.
37 Id.
2006 HOLDING THAT THEY WERE ISSUED WITH GRAVE ABUSE OF DISCRETION.
38 Id., at p. 27.
II. 39 Id.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT
PETITIONER SPOUSES HING ARE NOT ENTITLED TO THE WRIT OF PRELIMINARY 676
INJUNCTION ON THE GROUND THAT THERE IS NO VIOLATION OF THEIR 676 SUPREME COURT REPORTS ANNOTATED
CONSTITUTIONAL AND CIVIL RIGHT TO PRIVACY DESPITE THE FACTUAL
FINDINGS [OF] THE RTC, WHICH RESPONDENTS CHOACHUY FAILED TO REFUTE, Hing vs. Choachuy, Sr.
THAT THE ILLEGALLY INSTALLED SURVEILLANCE CAMERAS OF RESPONDENTS Respondents’ Arguments
CHOACH[U]Y WOULD CAPTURE THE PRIVATE ACTIVITIES OF PETITIONER Respondents, on the other hand, echo the ruling of the CA that petitioners
SPOUSES HING, THEIR CHILDREN AND EMPLOYEES. cannot invoke their right to privacy since the property involved is not used as a
III.
residence. Respondents maintain that they had nothing to do with the
40
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT SINCE
THE OWNER OF THE BUILDING IS ALDO DEVELOPMENT AND RESOURCES, INC. installation of the video surveillance cameras as these were installed by Aldo, the
THEN TO SUE RESPONDENTS CHOACHUY CONSTITUTE[S] A PURPORTEDLY registered owner of the building, as additional security for its building. Hence,
41 42

UNWARRANTED PIERCING OF THE CORPORATE VEIL. they were wrongfully impleaded in this case. 43

IV. Our Ruling

THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT IGNORED THE The Petition is meritorious.
SERIOUS FORMAL DEFICIENCIES OF BOTH THE PETITION AND THE MOTION The right to privacy is the right
FOR RECONSIDERATION to be let alone.
_______________
32 Id., at p. 116. Emphases in the original. The right to privacy is enshrined in our Constitution and in our laws. It is
44

defined as “the right to be free from unwarranted exploitation of one’s person or

675
from intrusion into one’s private activities in such a way as to cause humiliation
VOL. 699, JUNE 26, 2013 675 to a
_______________
40 Id., at pp. 153-154.
Hing vs. Choachuy, Sr. 41 Id., at p. 152.
DATED 15 MARCH 2006 OF RESPONDENT[S] CHOACH[U]Y AND GAVE X X X THEM 42 Id., at p. 154.
DUE COURSE AND CONSIDERATION. 33 43 Id., at p. 152.
44 Section 2, Article III of the Constitution provides:
Section 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.
677
VOL. 699, JUNE 26, 2013 677
Hing vs. Choachuy, Sr.
person’s ordinary sensibilities.” It is the right of an individual “to be free from
45
unwarranted publicity, or to live without unwarranted interference by the public
in matters in which the public is not necessarily concerned.” Simply put, the 46
right to privacy is “the right to be let alone.” 47
The Bill of Rights guarantees the people’s right to privacy and protects them
against the State’s abuse of power. In this regard, the State recognizes the right
of the people to be secure in their houses. No one, not even the State, except “in
case of overriding social need and then only under the stringent procedural
safeguards,” can disturb them in the privacy of their homes. 48
The right to privacy under Article 26(1) of the Civil Code covers business
offices where the public are excluded therefrom and only certain
individuals are allowed to enter.
Article 26(1) of the Civil Code, on the other hand, protects an individual’s
right to privacy and provides a legal remedy against abuses that may be
committed against him by other individuals. It states:
Art. 26. Every person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons. The following and similar acts,
though they may not constitute a criminal offense, shall produce
_______________
45 Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. Nos. 157870, 158633 & 161658, November 3, 2008,
570 SCRA 410, 431.
46 Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the Philippines, 1990 Edition,
Volume I, p. 108.
47 Ople v. Torres, 354 Phil. 948, 970; 293 SCRA 141, 153 (1998).
48 Sony Music Entertainment (Phils.), Inc. v. Judge Español, 493 Phil. 507, 516; 453 SCRA 360, 370 (2005),
citing Villanueva v. Querubin, 150-C Phil. 519, 525; 48 SCRA 345, 350 (1972).
678
678 SUPREME COURT REPORTS ANNOTATED
Hing vs. Choachuy, Sr.
a cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another’s residence;
xxxx
This provision recognizes that a man’s house is his castle, where his right to
privacy cannot be denied or even restricted by others. It includes “any act of
intrusion into, peeping or peering inquisitively into the residence of another
without the consent of the latter.” The phrase “prying into the privacy of
49
another’s residence,” however, does not mean that only the residence is entitled
to privacy. As elucidated by Civil law expert Arturo M. Tolentino:
Our Code specifically mentions “prying into the privacy of another’s residence.” This
does not mean, however, that only the residence is entitled to privacy, because the law
covers also “similar acts.” A business office is entitled to the same privacy when the
public is excluded therefrom and only such individuals as are allowed to enter
may come in. x x x (Emphasis supplied)
50
Thus, an individual’s right to privacy under Article 26(1) of the Civil Code should
not be confined to his house or residence as it may extend to places where he has
the right to exclude the public or deny them access. The phrase “prying into the
privacy of another’s residence,” therefore, covers places, locations, or even
situations which an individual considers as private. And as long as his right is
recognized by society, other individuals may not infringe on his right to privacy.
The CA, therefore, erred in limiting the application of Article 26(1) of the Civil
Code only to residences.
_______________
49 Pineda, Ernesto L., Torts and Damages (Annotated), 2004 Edition, p. 279.
50 Supra note 46 at p. 110.
679
VOL. 699, JUNE 26, 2013 679
Hing vs. Choachuy, Sr.
The “reasonable expectation of privacy” test is used to determine
whether there is a violation of the right to privacy.
In ascertaining whether there is a violation of the right to privacy, courts use
the “reasonable expectation of privacy” test. This test determines whether a
person has a reasonable expectation of privacy and whether the expectation has
been violated. In Ople v. Torres, we enunciated that “the reasonableness of a
51 52
person’s expectation of privacy depends on a two-part test: (1) whether, by his
conduct, the individual has exhibited an expectation of privacy; and (2) this
expectation is one that society recognizes as reasonable.” Customs, community
norms, and practices may, therefore, limit or extend an individual’s “reasonable
expectation of privacy.” Hence, the reasonableness of a person’s expectation of
53
privacy must be determined on a case-to-case basis since it depends on the factual
circumstances surrounding the case. 54
In this day and age, video surveillance cameras are installed practically
everywhere for the protection and safety of everyone. The installation of these
cameras, however, should not cover places where there is reasonable expectation
of privacy, unless the consent of the individual, whose right to privacy would be
affected, was obtained. Nor should these cameras be used to pry into the privacy
of another’s residence or business office as it would be no different from
eavesdropping, which is a crime under Republic Act No. 4200 or the Anti-
Wiretapping Law.
_______________
51 In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon, 535 Phil.
687, 715; 504 SCRA 704, (2006).
52 Supra note 47 at p. 980; p. 164.
53 Id., at p. 981; p. 164.
54 Id., at p. 980; p. 164.
680
680 SUPREME COURT REPORTS ANNOTATED
Hing vs. Choachuy, Sr.
In this case, the RTC, in granting the application for Preliminary Injunction,
ruled that:
After careful consideration, there is basis to grant the application for a
temporary restraining order. The operation by [respondents] of a revolving camera,
even if it were mounted on their building, violated the right of privacy of
[petitioners], who are the owners of the adjacent lot. The camera does not only focus
 on [respondents’] property or the roof of the factory at the back (Aldo Development between his family and the Choachuy family concerning the boundaries of their
and Resources, Inc.) but it actually spans through a good portion of [the] land of respective properties. With these factual circumstances in mind, we believe that
62

[petitioners]. respondents are the proper parties to be impleaded.

Based on the ocular inspection, the Court understands why [petitioner] Hing
was so unyielding in asserting that the revolving camera was set up deliberately to
monitor the on[-]going construction in his property. The monitor showed only a
portion of the roof of the factory of [Aldo]. If the purpose of [respondents] in setting
Moreover, although Aldo has a juridical personality separate and distinct
from its stockholders, records show that it is a family-owned corporation managed
by the Choachuy family. 63

up a camera at the back is to secure the building and factory premises, then the
camera should revolve only towards their properties at the back. [Respondents’]
camera cannot be made to extend the view to [petitioners’] lot. To allow the
[respondents] to do that over the objection of the [petitioners] would violate the
right of [petitioners] as property owners. “The owner of a thing cannot make use
Also quite telling is the fact that respondents, notwithstanding their claim
that they are not owners of the building, allowed the court to enter the compound
of Aldo and conduct an ocular inspection. The counsel for respondents even toured
Judge Marilyn Lagura-Yap inside the building and answered all her questions
regarding the set-up and installation of the video surveillance cameras. And64

thereof in such a manner as to injure the rights of a third person.”

when respondents moved for reconsideration of the Order dated October 18, 2005
55

The RTC, thus, considered that petitioners have a “reasonable expectation of of the RTC, one of the arguments they raised is that Aldo wouldsuffer damages if
privacy” in their property, whether they use it as a business office or as a the video surveillance cameras are removed and transferred. Noticeably, in
65

residence and that the installation of video surveillance cameras directly facing
petitioners’ property or covering a significant portion thereof, without their
consent, is a clear violation of their right to privacy. As we see then, the issuance
of a preliminary injunction was justified. We need not belabor that the issuance
of a preliminary injunction is discretionary on the part of the court taking
cognizance of the case and should not be interfered with, unless there is grave
abuse of discretion committed by the court. Here, there is no indication of any
56
grave abuse of discretion. Hence, the CA erred in finding that petitioners are not
entitled to an injunctive writ.
This brings us to the next question: whether respondents are the proper
parties to this suit.
A real party defendant is one who has a correlative legal obligation to
redress a wrong done to the plaintiff by reason of the defendant’s act or
omission which had violated the legal right of the former.
Section 2, Rule 3 of the Rules of Court provides:
SEC. 2. Parties-in-interest.—A real party-in-interest is the party who stands
to be benefited or injured by the judgment in the suit, or the party entitled to the
avails of the suit. Unless otherwise authorized by law or these Rules, every action
must be prosecuted or defended in the name of the real party-in-interest.
A real party defendant is “one who has a correlative legal obligation to redress
a wrong done to the plaintiff by reason of the defendant’s act or omission which
had violated the legal right of the former.” 57
these instances, the personalities of respondents and Aldo seem to merge.
All these taken together lead us to the inevitable conclusion that respondents
are merely using the corporate fiction of Aldo as a shield to protect themselves
from this suit. In view of the foregoing, we find that respondents are the proper
parties to this suit.
WHEREFORE, the Petition is hereby GRANTED. The Decision dated July
10, 2007 and the Resolution dated September 11, 2007 of the Court of Appeals in
CA-G.R. CEB-SP No. 01473 are hereby REVERSED and SET ASIDE. The
Orders dated October 18, 2005 and February 6, 200[6] of Branch 28 of the
Regional Trial Court of Mandaue City in Civil Case No. MAN-5223 are
hereby REINSTATED and AFFIRMED.
SO ORDERED.
Carpio (Chairperson), Brion, Perez and Perlas-Bernabe, JJ., concur.
Petition granted, judgment and resolution reversed and set aside.
Notes.―The right to privacy has been accorded recognition as a facet of the
right protected by the guarantee against unreasonable search and seizure under
Section 2, Article III of the 1987 Constitution. (Pollo vs. Constantino-David, 659
SCRA 189 [2011])
The right to privacy is considered a fundamental right that must be protected
from intrusion or constraint. (Gamboa vs. Chan, 677 SCRA 385 [2012])

In ruling that respondents are not the proper parties, the CA reasoned that
since they do not own the building, they could not have installed the video
surveillance cameras. Such reasoning, however, is erroneous. The fact that
58

respondents are not the registered owners of the building does not automatically
mean that they did not cause the installation of the video surveillance cameras.
In their Complaint, petitioners claimed that respondents installed the video
surveillance cameras in order to fish for evidence, which could be used against
petitioners in another case. During the hearing of the application for
59

Preliminary Injunction, petitioner Bill testified that when respondents installed

the video surveillance cameras, he immediately broached his concerns but they
did not seem to care, and thus, he reported the matter to the barangay for
60

mediation, and eventually, filed a Complaint against respondents before the

RTC. He also admitted that as early as 1998 there has already been a dispute
61

G.R. No. 202666. September 29, 2014.*
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID
SUZARA, petitioners, vs. ST. THERESA’S COLLEGE, MYLENE
RHEZA T. ESCUDERO, and JOHN DOES, respondents.
Constitutional Law; Habeas Data Rule (A.M. No. 08-1-16-SC); Writ of
Habeas Data; 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 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 writ
of habeas data is a remedy available to any person whose
_______________
* THIRD DIVISION.
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Vivares vs. St. Theresa's College
right to privacy in life, liberty or security is violated or threatened 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. It
is an independent and summary remedy designed to protect the image, privacy,
honor, information, and freedom of information of an individual, and to provide a
forum to enforce one’s right to the truth and to informational privacy. It seeks to
protect a person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful means
in order to achieve unlawful ends.
Same; Same; Same; The existence of a person’s right to informational
privacy and a showing, at least by substantial evidence, of an actual or threatened
violation of the right to privacy in life, liberty or security of the victim are
indispensable before the privilege of the writ may be extended.—In developing the
writ of habeas data, the Court aimed to protect an individual’s right to
informational privacy, among others. A comparative law scholar has, in fact,
defined habeas data as “a procedure designed to safeguard individual freedom
from abuse in the information age.” The writ, however, will not issue on the basis
merely of an alleged unauthorized access to information about a person.
Availment of the writ requires the existence of a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on the other.
Thus, the existence of a person’s right to informational privacy and a showing, at
least by substantial evidence, of an actual or threatened violation of the right to
privacy in life, liberty or security of the victim are indispensable before the
privilege of the writ may be extended.
Same; Same; Same; Informational Privacy; The writ of habeas data can be
availed of as an independent remedy to enforce one’s right to privacy, more
specifically the right to informational privacy.—Had the framers of the Rule
intended to narrow the operation of the writ only to cases of extralegal killings or
enforced disappearances, the above underscored portion of Section 2, reflecting a
variance of habeas data situations, would not have been made. Habeas data, to
stress, was designed “to safeguard individual freedom from abuse in the
information age.” As such, it is erroneous to limit its applicability to extralegal
killings and enforced disappearances only.
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Vivares vs. St. Theresa's College
In fact, the annotations to the Rule prepared by the Committee on the
Revision of the Rules of Court, after explaining that the Writ of Habeas
Data complements the Writ of Amparo, pointed out that: The writ of habeas
data, however, can be availed of as an independent remedy to enforce
one’s right to privacy, more specifically the right to informational
privacy. The remedies against the violation of such right can include the
updating, rectification, suppression or destruction of the database or information
or files in possession or in control of respondents. (emphasis ours) Clearly then,
the privilege of the Writ of Habeas Data may also be availed of in cases outside of
extralegal killings and enforced disappearances.
Same; Same; Same; Nothing in the Rule would suggest that the habeas data
protection shall be available only against abuses of a person or entity engaged in
the business of gathering, storing, and collecting of data.—Nothing in the Rule
would suggest that the habeas data protection shall be available only against
abuses of a person or entity engaged in the business of gathering, storing, and
collecting of data. As provided under Section 1 of the Rule: Section 1. Habeas
Data.—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 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.
Same; Same; Same; Habeas data is a protection against unlawful acts or
omissions of public officials and of private individuals or entities engaged in
gathering, collecting, or storing data about the aggrieved party and his or her
correspondences, or about his or her family.—The provision, when taken in its
proper context, as a whole, irresistibly conveys the idea that habeas data is a
protection against unlawful acts or omissions of public officials and of private
individuals or entities engaged in gathering, collecting, or storing data about the
aggrieved party and his or her correspondences, or about his or her family. Such
individual or entity need not be in the business of collecting or storing data. To
“engage” in something is different from undertaking a business endeavour. To
“engage” means “to do or take part in something.” It does not necessarily mean
that the activity
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Vivares vs. St. Theresa's College

must be done in pursuit of a business. What matters is that the person or
entity must be gathering, collecting or storing said data or information about the
aggrieved party or his or her family. Whether such undertaking carries the
element of regularity, as when one pursues a business, and is in the nature of a
personal endeavour, for any other reason or even for no reason at all, is
immaterial and such will not prevent the writ from getting to said person or
entity.
Same; Same; Same; The Court saw the pressing need to provide for judicial
remedies that would allow a summary hearing of the unlawful use of data or
information and to remedy possible violations of the right to privacy.—The Court
saw the pressing need to provide for judicial remedies that would allow a
summary hearing of the unlawful use of data or information and to remedy
possible violations of the right to privacy. In the same vein, the South African
High Court, in its Decision in the landmark case, H v. W, promulgated on January
30, 2013, recognized that “[t]he law has to take into account the changing realities
not only technologically but also socially or else it will lose credibility in the eyes
of the people. x x x It is imperative that the courts respond appropriately to
changing times, acting cautiously and with wisdom.” Consistent with this, the
Court, by developing what may be viewed as the Philippine model of the writ
of habeas data, in effect, recognized that, generally speaking, having an
expectation of informational privacy is not necessarily incompatible
with engaging in cyberspace activities, including those that occur in OSNs.
Same; Same; Same; Online Social Networks; The purpose of an Online
Social Networks (OSN) is precisely to give users the ability to interact and to stay
connected to other members of the same or different social media platform through
the sharing of statuses, photos, videos, among others, depending on the services
provided by the site.—Briefly, the purpose of an OSN is precisely to give users the
ability to interact and to stay connected to other members of the same or different
social media platform through the sharing of statuses, photos, videos, among
others, depending on the services provided by the site. It is akin to having a room
filled with millions of personal bulletin boards or “walls,” the contents of which
are under the control of each and every user. In his or her bulletin board, a
user/owner can post anything –– from text, to pictures, to music and videos ––
access to which would depend on whether he or she
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96 SUPREME COURT REPORTS ANNOTATED
Vivares vs. St. Theresa's College
allows one, some or all of the other users to see his or her posts. Since
gaining popularity, the OSN phenomenon has paved the way to the creation of
various social networking sites, including the one involved in the case at bar,
www.facebook.com (Facebook), which, according to its developers, people use “to
stay connected with friends and family, to discover what’s going on in the world,
and to share and express what matters to them.”
Same; Same; Same; Same; Facebook; Facebook connections are established
through the process of “friending” another user.—Facebook connections are
established through the process of “friending” another user. By sending a “friend
request,” the user invites another to connect their accounts so that they can view
any and all “Public” and “Friends Only” posts of the other. Once the request is
accepted, the link is established and both users are permitted to view the other
user’s “Public” or “Friends Only” posts, among others. “Friending,” therefore,
allows the user to form or maintain one-to-one relationships with other users,
whereby the user gives his or her “Facebook friend” access to his or her profile
and shares certain information to the latter.
Same; Same; Same; Same; Same; Informational Privacy; Before one can
have an expectation of privacy in his or her Online Social Networks (OSN) activity,
it is first necessary that said user, in this case the children of petitioners, manifest
the intention to keep certain posts private, through the employment of measures to
prevent access thereto or to limit its visibility.—Before one can have an expectation
of privacy in his or her OSN activity, it is first necessary that said user, in
this case the children of petitioners, manifest the intention to keep certain
posts private, through the employment of measures to prevent access
thereto or to limit its visibility. And this intention can materialize in
cyberspace through the utilization of the OSN’s privacy tools. In other
words, utilization of these privacy tools is the manifestation, in cyber
world, of the user’s invocation of his or her right to informational
privacy.
Same; Same; Same; Same; Same; Considering that the default setting for
Facebook posts is “Public,” it can be surmised that the photographs in question
were viewable to everyone on Facebook, absent any proof that petitioners’ children
positively limited the disclosure of the photograph.—Considering that the default
setting for
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Facebook posts is “Public,” it can be surmised that the photographs in
question were viewable to everyone on Facebook, absent any proof that
petitioners’ children positively limited the disclosure of the photograph. If such
were the case, they cannot invoke the protection attached to the right to
informational privacy. The ensuing pronouncement in US v. Gines-Perez, 214 F.
Supp. 2d, is most instructive: [A] person who places a photograph on the Internet
precisely intends to forsake and renounce all privacy rights to such imagery,
particularly under circumstances such as here, where the Defendant did not
employ protective measures or devices that would have controlled access to the
Web page or the photograph itself.
Same; Same; Same; Same; Same; Messages sent to the public at large in the
chat room or e-mail that is forwarded from correspondent to correspondent loses
any semblance of privacy.—Also, United States v. Maxwell, 45 M.J. 406, held that
“[t]he more open the method of transmission is, the less privacy one can
reasonably expect. Messages sent to the public at large in the chat room or e-mail
that is forwarded from correspondent to correspondent loses any semblance of
privacy.”
Same; Same; Same; Same; Same; Setting a post’s or profile detail’s privacy
to “Friends” is no assurance that it can no longer be viewed by another user who
is not Facebook friends with the source of the content.—That the photos are
viewable by “friends only” does not necessarily bolster the petitioners’ contention.
In this regard, the cyber community is agreed that the digital images under this
setting still remain to be outside the confines of the zones of privacy in view of the
following: (1) Facebook “allows the world to be more open and connected by giving
its users the tools to interact and share in any conceivable way”; (2) A good
number of Facebook users “befriend” other users who are total strangers; (3) The
sheer number of “Friends” one user has, usually by the hundreds; and (4) A user’s
Facebook friend can “share” the former’s post, or “tag” others who are not
Facebook friends with the former, despite its being visible only to his or her own
Facebook friends. It is well to emphasize at this point that setting a post’s or
profile detail’s privacy to “Friends” is no assurance that it can no longer be viewed
by another user who is not Facebook friends with the source of the content. The
user’s own Facebook friend can share said content or tag his or her own Facebook
friend thereto, regardless of whether the user tagged by the latter is Facebook
friends or not with the former. Also, when the
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98 SUPREME COURT REPORTS ANNOTATED
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post is shared or when a person is tagged, the respective Facebook friends
of the person who shared the post or who was tagged can view the post, the
privacy setting of which was set at “Friends.”
Same; Same; Same; Same; Same; There can be no quibbling that the images
in question, or to be more precise, the photos of minor students scantily clad, are
personal in nature, likely to affect, if indiscriminately circulated, the reputation of
the minors enrolled in a conservative institution.—In sum, there can be no
quibbling that the images in question, or to be more precise, the photos of minor
students scantily clad, are personal in nature, likely to affect, if indiscriminately
circulated, the reputation of the minors enrolled in a conservative institution.
However, the records are bereft of any evidence, other than bare assertions that
they utilized Facebook’s privacy settings to make the photos visible only to them
or to a select few. Without proof that they placed the photographs subject of this
case within the ambit of their protected zone of privacy, they cannot now insist
that they have an expectation of privacy with respect to the photographs in
question.
Same; Same; Same; Same; Same; As a cyberspace community member, one
has to be proactive in protecting his or her own privacy.—It has been said that
“the best filter is the one between your children’s ears.” This means that
self-regulation on the part of OSN users and internet consumers in general is the
best means of avoiding privacy rights violations. As a cyberspace community
member, one has to be proactive in protecting his or her own privacy. It is in this
regard that many OSN users, especially minors, fail. Responsible social
networking or observance of the “netiquettes” on the part of teenagers has been
the concern of many due to the widespread notion that teenagers can sometimes
go too far since they generally lack the people skills or general wisdom to conduct
themselves sensibly in a public forum.
Same; Same; Same; Same; Same; Considering the complexity of the cyber
world and its pervasiveness, as well as the dangers that these children are
wittingly or unwittingly exposed to in view of their unsupervised activities in
cyberspace, the participation of the parents in disciplining and educating their
children about being a good digital citizen is encouraged by these institutions and
organizations.—Considering the complexity of the cyber world and its
pervasiveness, as well as the dangers that these children are wittingly or
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unwittingly exposed to in view of their unsupervised activities in
cyberspace, the participation of the parents in disciplining and educating their
children about being a good digital citizen is encouraged by these institutions and
organizations. In fact, it is believed that “to limit such risks, there’s no substitute
for parental involvement and supervision.”
Same; Same; Same; Same; Same; It is, thus, incumbent upon internet users
to exercise due diligence in their online dealings and activities and must not be
negligent in protecting their rights.—It is, thus, incumbent upon internet users to
exercise due diligence in their online dealings and activities and must not be
negligent in protecting their rights. Equity serves the vigilant. Demanding relief
from the courts, as here, requires that claimants themselves take utmost care in
safeguarding a right which they allege to have been violated. These are
indispensable. We cannot afford protection to persons if they themselves did
nothing to place the matter within the confines of their private zone. OSN users
must be mindful enough to learn the use of privacy tools, to use them if they desire
to keep the information private, and to keep track of changes in the available
privacy settings, such as those of Facebook, especially because Facebook is
notorious for changing these settings and the site’s layout often.
PETITION for review on certiorari of a decision of the Regional Trial
Court of Cebu City, Br. 14.
The facts are stated in the opinion of the Court.
Mercado & Associates for petitioners.
Florido & Largo Law Office for respondents.
VELASCO, JR., J.:
The individual’s desire for privacy is never absolute, since participation in society
is an equally powerful desire. Thus each individual is continually engaged in a
personal adjustment process in which he balances the desire for privacy with the
desire for disclosure and communication of himself to others, in light of the envi-
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100 SUPREME COURT REPORTS ANNOTATED
Vivares vs. St. Theresa's College
ronmental conditions and social norms set by the society in which he lives.
– Alan Westin, Privacy and Freedom (1967)
 The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, in relation to Section 19 of A.M. No. 08-1-16-
SC, otherwise known as the “Rule on the Writ of Habeas Data.”
1 (Tigol), STC’s Discipline-in-Charge, for appropriate action. Thereafter,
Petitioners herein assail the July 27, 2012 Decision of the Regional Trial
2 following an investigation, STC found the identified students to have
Court, Branch 14 in Cebu City (RTC) in S.P. Proc. No. 19251-CEB, which
dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne),
both minors, were, during the period material, graduating high school
students at St. Theresa’s College (STC), Cebu City. Sometime in January
2012, while changing into their swimsuits for a beach party they were
about to attend, Julia and Julienne, along with several others, took
digital pictures of themselves clad only in their undergarments. These
pictures were then uploaded by Angela Lindsay Tan (Angela) on her
Facebook profile.
3
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer
teacher at STC’s high school department, learned from her students that
some seniors at STC posted pictures
_______________
1 Issued on January 22, 2008.
2 Penned by Presiding Judge Raphael B. Yrastorza, Sr.
3 Facebook is a “voluntary social network to which members subscribe and submit
information. x x x. It has created a worldwide forum enabling friends to share information such
as thoughts, links, and photographs, with one another.” (H v. W., Case No. 12/10142, January 30,
2013, in the South Gauteng High Court, Johannesburg, Republic of South Africa.)
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online, depicting themselves from the waist up, dressed only in
brassieres. Escudero then asked her students if they knew who the girls
in the photos are. In turn, they readily identified Julia, Julienne, and
Chloe Lourdes Taboada (Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their
respective personal Facebook accounts and showed her photos of the
identified students, which include: (a) Julia and Julienne drinking hard
liquor and smoking cigarettes inside a bar; and (b) Julia and Julienne
along the streets of Cebu wearing articles of clothing that show virtually
the entirety of their black brassieres. What is more, Escudero’s students
claimed that there were times when access to or the availability of the
identified students’ photos was not confined to the girls’ Facebook
friends, but were, in fact, viewable by any Facebook user.
4 5
Upon discovery, Escudero reported the matter and, through one of her
student’s Facebook page, showed the photos to Kristine Rose Tigol
deported themselves in a manner proscribed by the school’s Student
Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholic beverages in public places;
4. Apparel that exposes the underwear;
_______________
4 By using the “Friends Only” setting.
5 Using “Public” as their Privacy Setting.
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5. Clothing that advocates unhealthy behaviour; depicts obscenity;
contains sexually suggestive messages, language or symbols; and
6. Posing and uploading pictures on the Internet that entail ample
body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in
the pictures in question, reported, as required, to the office of Sr. Celeste
Ma. Purisima Pe (Sr. Purisima), STC’s high school principal and
ICM Directress. They claimed that during the meeting, they were
6
castigated and verbally abused by the STC officials present in the
conference, including Assistant Principal Mussolini S. Yap (Yap),
Roswinda Jumiller, and Tigol. What is more, Sr. Purisima informed their
101 parents the following day that, as part of their penalty, they are barred
from joining the commencement exercises scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr.
Armenia M. Tan (Tan), filed a Petition for Injunction and Damages before
the RTC of Cebu City against STC, et al., docketed as Civil Case No. CEB-
38594. In it, Tan prayed that defendants therein be enjoined from
7
implementing the sanction that precluded Angela from joining the
commencement exercises. On March 25, 2012, petitioner Rhonda Ave
Vivares (Vivares), the mother of Julia, joined the fray as an intervenor.
On March 28, 2012, defendants in Civil Case No. CEB-38594 filed
their memorandum, containing printed copies of the photographs in issue
as annexes. That same day, the RTC issued a temporary restraining
order (TRO) allowing the
_______________
 6 ICM stands for the “Missionary Sisters of the Immaculate Heart of Mary.”
7 Entitled Dr. Armenia M. Tan, for and in behalf of her minor child v. St. Theresa’s College,
High School Department, Sr. Celeste Ma. Purisima Pe, Mrs. Mussolini S. Yap, Ms. Marnie D.
Racaza, Ms. Kristine Rose Ligot (sic), and Ms. Edita Josephine Yu.
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students to attend the graduation ceremony, to which STC filed a
motion for reconsideration.
Despite the issuance of the TRO, STC, nevertheless, barred the
sanctioned students from participating in the graduation rites, arguing
that, on the date of the commencement exercises, its adverted motion for
reconsideration on the issuance of the TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance
of a Writ of Habeas Data, docketed as S.P. Proc. No. 19251-CEB on the
basis of the following considerations:
1. The photos of their children in their undergarments (e.g., bra) were
taken for posterity before they changed into their swimsuits on the
occasion of a birthday beach party;
2. The privacy setting of their children’s Facebook accounts was set at
“Friends Only.” They, thus, have a reasonable expectation of privacy
which must be respected;
3. Respondents, being involved in the field of education, knew or ought
to have known of laws that safeguard the right to privacy. Corollarily,
respondents knew or ought to have known that the girls, whose privacy
has been invaded, are the victims in this case, and not the offenders.
Worse, after viewing the photos, the minors were called “immoral” and
were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used
and reproduced without their consent. Escudero, however, violated their
rights by saving digital copies of the photos and by subsequently showing
them to STC’s officials. Thus, the Facebook accounts of petitioners’
children were intruded upon;
_______________
8 Entitled Rhonda Ave S. Vivares, and Sps. Margarita and David Suzara v. St. Theresa’s
College, Mylene Rheza T. Escudero, and John Does.
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5. The intrusion into the Facebook accounts, as well as the copying of
information, data, and digital images happened at STC’s Computer
Laboratory; and
6. All the data and digital images that were extracted were boldly
broadcasted by respondents through their memorandum submitted to the
RTC in connection with Civil Case No. CEB-38594.
To petitioners, the interplay of the foregoing constitutes an invasion
of their children’s privacy and, thus, prayed that: (a) a writ of habeas
103 data be issued; (b) respondents be ordered to surrender and deposit with
the court all soft and printed copies of the subject data before or at the
preliminary hearing; and (c) after trial, judgment be rendered declaring
all information, data, and digital images accessed, saved or stored,
reproduced, spread and used, to have been illegally obtained in violation
of the children’s right to privacy.
Finding the petition sufficient in form and substance, the RTC,
through an Order dated July 5, 2012, issued the writ of habeas data.
Through the same Order, herein respondents were directed to file their
8
verified written return, together with the supporting affidavits, within
five (5) working days from service of the writ.
In time, respondents complied with the RTC’s directive and filed their
verified written return, laying down the following grounds for the denial
of the petition, viz.: (a) petitioners are not the proper parties to file the
petition; (b) petitioners are engaging in forum shopping; (c) the instant
case is not one where a writ of habeas data may issue; and (d) there can
be no violation of their right to privacy as there is no reasonable
expectation of privacy on Facebook.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the petition
for habeas data. The dispositive portion of the Decision pertinently
states:
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WHEREFORE, in view of the foregoing premises, the Petition is
hereby DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED. 9
To the trial court, petitioners failed to prove the existence of an actual
or threatened violation of the minors’ right to privacy, one of the
preconditions for the issuance of the writ of habeas data. Moreover, the
court a quo held that the photos, having been uploaded on Facebook
without restrictions as to who may view them, lost their privacy in some
way. Besides, the RTC noted, STC gathered the photographs through
legal means and for a legal purpose, that is, the implementation of the
school’s policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court
pursuant to Section 19 of the Rule on Habeas Data. 10
The Issues
The main issue to be threshed out in this case is whether or not a writ
of habeas data should be issued given the factual milieu. Crucial in
resolving the controversy, however, is the pivotal point of whether or not
there was indeed an actual or threatened violation of the right to privacy
in the life, liberty, or security of the minors involved in this case.
_______________
9 Rollo, p. 39.
10 A.M. No. 08-1-16-SC, February 2, 2008 [Sec. 19. Appeal.—Any party may appeal from the
judgment or final order to the Supreme Court under Rule 45. The appeal may raise questions of
fact or law or both.]
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Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability
of the Writ of Habeas Data
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 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. It is an independent and summary remedy
11
designed to protect the image, privacy, honor, information, and freedom
of information of an individual, and to provide a forum to enforce one’s
right to the truth and to informational privacy. It seeks to protect a
person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful
means in order to achieve unlawful ends. 12
In developing the writ of habeas data, the Court aimed to protect an
individual’s right to informational privacy, among others. A comparative
law scholar has, in fact, defined habeas data as “a procedure designed to
safeguard individual freedom from abuse in the information age.” The 13
writ, however, will not issue on the basis merely of an alleged
unauthorized access to information about a person. Availment of the writ
requires the existence of a nexus between the right to privacy
_______________
11 Id., Sec. 1.
12 Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385.
13 See Andres Guadamuz, Habeas Data and the European Data Protection Directive, in The
Journal of Information, Law and Technology (JILT) (2001), cited in former Chief Justice Reynato
S. Puno’s speech, The Common Right to Privacy (2008).
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on the one hand, and the right to life, liberty or security on the
other. Thus, the existence of a person’s right to informational privacy
14
and a showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of
the victim are indispensable before the privilege of the writ may be
extended. 15
Without an actionable entitlement in the first place to the right to
informational privacy, a habeas data petition will not prosper. Viewed
from the perspective of the case at bar, this requisite begs this question:
given the nature of an online social network (OSN) — (1) that it facilitates
and promotes real-time interaction among millions, if not billions, of
users, sans the spatial barriers, bridging the gap created by physical
16
space; and (2) that any information uploaded in OSNs leaves an indelible
trace in the provider’s databases, which are outside the control of the end-
users — is there a right to informational privacy in OSN activities
of its users? Before addressing this point, We must first resolve the
procedural issues in this case.
a. The writ of habeas data is not only confined to cases of
extralegal killings and enforced disappearances
_______________
14 Supra note 12.
15 See Roxas v. Macapagal-Arroyo, G.R. No. 189155, September 7, 2010, 630 SCRA 211.
16 In Recasting Privacy Torts in a Spaceless World by Patricia Sanchez Abril, the term used
to refer to the physical space which poses a number of problems in privacy torts that occur in
Cyberspace — a spaceless world, is “spatial linchpins.” (Harvard Journal of Law & Technology,
Vol. 21, Number 1 Fall 2007); See also Kizza, Joseph Migga, Ethical and Social Issues in the
Information Age, Third edition, Springer-Verlag London Limited, p. 303, 2007 — “The totality of
cyberspace is in reality a borderless self-regulating and decentralized mosaic of communities with
a variety of cultural, political, and religious agendas.”
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 Contrary to respondents’ submission, the Writ of Habeas Data was
not enacted solely for the purpose of complementing the Writ
of Amparo in cases of extralegal killings and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File.—Any aggrieved party may file a petition for the writ
of habeas data. However, in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the
spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within
the fourth civil degree of consanguinity or affinity, in default of those mentioned
in the preceding paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the
writ only to cases of extralegal killings or enforced disappearances, the
above underscored portion of Section 2, reflecting a variance of habeas
data situations, would not have been made.
Habeas data, to stress, was designed “to safeguard individual freedom
from abuse in the information age.” As such, it is erroneous to limit its
17
applicability to extralegal killings and enforced disappearances only. In
fact, the annotations to the Rule prepared by the Committee on the
Revision of the Rules of Court, after explaining that the Writ of Habeas
Data complements the Writ of Amparo, pointed out that:
_______________
17 From Former Chief Justice Reynato Puno’s speech, “The Writ of Habeas Data,” delivered
on 19 November 2007, at the UNESCO Policy Forum and Organizational Meeting of the
Information for all Program (IFAP), Philippine National Committee, citing Enrique
Falcon, Habeas Data: Concepto y Procedimiento, p. 23 (1996).
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The writ of habeas data, however, can be availed of as an
independent remedy to enforce one’s right to privacy, more specifically
the right to informational privacy. The remedies against the violation of such
right can include the updating, rectification, suppression or destruction of the
database or information or files in possession or in control of
respondents. (emphasis ours)
18
Clearly then, the privilege of the Writ of Habeas Data may also be
availed of in cases outside of extralegal killings and enforced
disappearances.
b. Meaning of “engaged” in the gathering, collecting or storing
of data or information
Respondents’ contention that the habeas data writ may not issue
against STC, it not being an entity engaged in the gathering, collecting
or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party, while valid to a point, is,
nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas
data protection shall be available only against abuses of a person or
entity engaged in the business of gathering, storing, and collecting of
data. As provided under Section 1 of the Rule:
Section 1. Habeas Data.—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 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
_______________
18 Committee on the Revision of the Rules of Court, A.M. No. 08-1-16-SC, Rule on the Writ
of Habeas Data (2008).
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Vivares vs. St. Theresa's College
correspondence of the aggrieved party. (emphasis ours)
The provision, when taken in its proper context, as a whole,
irresistibly conveys the idea that habeas data is a protection against
unlawful acts or omissions of public officials and of private individuals or
109 entities engaged in gathering, collecting, or storing data about the
aggrieved party and his or her correspondences, or about his or her
family. Such individual or entity need not be in the business of collecting
or storing data.
To “engage” in something is different from undertaking a business
endeavour. To “engage” means “to do or take part in something.” It does 19
not necessarily mean that the activity must be done in pursuit of a
business. What matters is that the person or entity must be gathering,
collecting or storing said data or information about the aggrieved party
or his or her family. Whether such undertaking carries the element of
regularity, as when one pursues a business, and is in the nature of a
personal endeavour, for any other reason or even for no reason at all, is
immaterial and such will not prevent the writ from getting to said person
or entity.
To agree with respondents’ above argument, would mean unduly
limiting the reach of the writ to a very small group, i.e., private persons
and entities whose business is data gathering and storage, and in the
process decreasing the effectiveness of the writ as an instrument
designed to protect a right which is easily violated in view of rapid
advancements in the information and communications technology — a
right which a great majority of the users of technology themselves are not
capable of protecting.
Having resolved the procedural aspect of the case, We now proceed to
the core of the controversy.
_______________
19 http://www.merriam-webster.com/dictionary/engage, last accessed February 13, 2013.
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The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacy has, through time, greatly evolved, with
technological advancements having an influential part therein. This
evolution was briefly recounted in former Chief Justice Reynato S. Puno’s
speech, The Common Right to Privacy, where he explained the three
20
strands of the right to privacy, viz.: (1) locational or situational
privacy; (2) informational privacy; and (3) decisional privacy. Of the
21 22
three, what is relevant to the case at bar is the right to informational
privacy — usually defined as the right of individuals to control
information about themselves. 23
With the availability of numerous avenues for information gathering
and data sharing nowadays, not to mention each system’s inherent
vulnerability to attacks and intrusions, there is more reason that every
individual’s right to control said flow of information should be protected
and that each individual should have at least a reasonable expectation of
privacy in cyberspace. Several commentators regarding privacy and
social networking sites, however, all agree that given the millions of OSN
users, “[i]n this [Social Networking] environment, privacy is no longer
grounded in reasonable
_______________
20 Delivered before the Forum on The Writ of Habeas Data and Human Rights, sponsored
by the National Union of Peoples’ Lawyers on March 12, 2008 at the Innotech Seminar Hall,
Commonwealth Ave., Quezon City. (http://sc.judiciary.gov.ph/speech/03-12-08-speech.pdf, last
Accessed, January 24, 2013)
21 Refers to the privacy that is felt in physical space, such as that which may be violated by
trespass and unwarranted search and seizure. Id.
22 Usually defined as the right of individuals to make certain kinds of fundamental choices
with respect to their personal and reproductive autonomy. Id.
23 Id.
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expectations, but rather in some theoretical protocol better known as
wishful thinking.” 24
It is due to this notion that the Court saw the pressing need to provide
for judicial remedies that would allow a summary hearing of the unlawful
use of data or information and to remedy possible violations of the right
to privacy. In the same vein, the South African High Court, in its
25
Decision in the landmark case, H v. W, promulgated on January 30,
26
2013, recognized that “[t]he law has to take into account the changing
realities not only technologically but also socially or else it will lose
credibility in the eyes of the people. x x x It is imperative that the courts
respond appropriately to changing times, acting cautiously and with
wisdom.” Consistent with this, the Court, by developing what may be
viewed as the Philippine model of the writ of habeas data, in effect,
recognized that, generally speaking, having an expectation of
informational privacy is not necessarily incompatible
_______________
24 Romano v. Steelcase, Inc. and Educational & Institutional Services, Inc., Supreme Court
of New York, Suffolk County, 30 Misc. 3d 426; 907 N.Y.S. 2d 650; 2010 N.Y. Misc. Lexis 4538;
2010 NY Slip Op 20388, September 21, 2010, Decided. See also Kizza, Joseph Migga, Ethical and
Social Issues in the Information Age, Third edition, Springer-Verlag London Limited, p. 109, 2007,
“However, these days in the information age, the value of privacy has been eroded. We can no
longer guarantee our privacy. It has left many wondering whether there is such a thing as privacy
any more. x x x No one has guaranteed privacy any more unless such an individual is no longer
part of the society.” Page 304 reads, “According to recent studies, personal privacy is becoming
the number one social and ethical issue of concern for the information age. Advances in technology
have brought with them gadgetry that have diminished individual private spaces through
electronic surveillance and monitoring, transmission, scanning, tapping, and fast and more
efficient means of collecting, categorizing, and sorting data.”
25 Puno, The Common Right to Privacy, supra note 20.
26 Supra note 3. Penned by Judge N. P. Willis.
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with engaging in cyberspace activities, including those that occur in
OSNs.
The question now though is up to what extent is the right to privacy
protected in OSNs? Bear in mind that informational privacy involves
personal information. At the same time, the very purpose of OSNs is
socializing — sharing a myriad of information, some of which would27
have otherwise remained personal.
 b. Facebook’s Privacy Tools: a response to the clamor for
privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to
interact and to stay connected to other members of the same or different
social media platform through the sharing of statuses, photos, videos,
among others, depending on the services provided by the site. It is akin
to having a room filled with millions of personal bulletin boards or
“walls,” the contents of which are under the control of each and every
user. In his or her bulletin board, a user/owner can post anything — from
text, to pictures, to music and videos — access to which would depend on
whether he or she allows one, some or all of the other users to see his or
her posts. Since gaining popularity, the OSN phenomenon has paved the
way to the creation of various social networking sites, including the one
involved in the case at bar, www.facebook.com (Facebook), which,
according to its developers, people use “to stay con-
_______________
27 Including but not limited to the following: name, residence, e-mail address, telephone or
cellular phone number, personal pictures, relationship status, date of birth, current location,
relatives, hobbies and interests, employment, profession, educational background, preferences,
thoughts, messages, conversations, internet memes, videos (ranging from personal videos to scene
extracts from movies, television shows, news, et cetera), photos, religious messages, political
views, updates, commentaries and reactions to current events, support and prayer petitions, as
well as products and services.
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nected with friends and family, to discover what’s going on in the
world, and to share and express what matters to them.” 28
Facebook connections are established through the process of
“friending” another user. By sending a “friend request,” the user invites
another to connect their accounts so that they can view any and all
“Public” and “Friends Only” posts of the other. Once the request is
accepted, the link is established and both users are permitted to view the
other user’s “Public” or “Friends Only” posts, among others. “Friending,”
therefore, allows the user to form or maintain one-to-one relationships
with other users, whereby the user gives his or her “Facebook friend”
access to his or her profile and shares certain information to the latter. 29
To address concerns about privacy, but without defeating its
30
purpose, Facebook was armed with different privacy tools designed to
regulate the accessibility of a user’s profile as well as information
31
uploaded by the user. In H v. W, the South Gauteng High Court
32
recognized this ability of the users to “customize their privacy settings,”
but did so with this caveat: “Facebook states in its policies that, although
it makes every effort to protect a user’s information, these privacy
settings are not foolproof.” 33
For instance, a Facebook user can regulate the visibility and
accessibility of digital images (photos), posted on his or her personal
bulletin or “wall,” except for the user’s profile picture and ID, by selecting
his or her desired privacy setting:
_______________
28 http://newsroom.fb.com/Key-Facts, last accessed January 24, 2013.
29 H v. W, supra note 3.
30 Id.
31 A user’s profile contains basic information about the account owner, i.e., Profile Picture,
Full name, Birthdate, Address, Place of Work, Profession, a list of the user’s “Facebook Friends,”
among others. It is akin to an Identification Card.
32 Supra note 3.
33 Id.
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(a) Public – the default setting; every Facebook user can view the
photo;
(b) Friends of Friends – only the user’s Facebook friends and their
friends can view the photo;
(b) Friends – only the user’s Facebook friends can view the photo;
(c) Custom – the photo is made visible only to particular friends and/or
networks of the Facebook user; and
(d) Only Me – the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed
to set up barriers to broaden or limit the visibility of his or her specific
profile content, statuses, and photos, among others, from another user’s
point of view. In other words, Facebook extends its users an avenue to
make the availability of their Facebook activities reflect their choice as to
“when and to what extent to disclose facts about [themselves] — and to
put others in the position of receiving such confidences.” Ideally, the 34
selected setting will be based on one’s desire to interact with others,
coupled with the opposing need to withhold certain information as well
as to regulate the spreading of his or her personal information. Needless
to say, as the privacy setting becomes more limiting, fewer Facebook
users can view that user’s particular post.
STC did not violate petitioners’ daughters’ right to privacy
Without these privacy settings, respondents’ contention that there is
no reasonable expectation of privacy in Facebook would, in context, be
correct. However, such is not the case. It
_______________
34 Westin, Alan, Privacy and Freedom, cited in Valerie Steeves’ work, Reclaiming the Social
Value of Privacy.
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is through the availability of said privacy tools that many OSN
users are said to have a subjective expectation that only those to
whom they grant access to their profile will view the information
they post or upload thereto. 35
This, however, does not mean that any Facebook user automatically
has a protected expectation of privacy in all of his or her Facebook
activities.
Before one can have an expectation of privacy in his or her OSN
activity, it is first necessary that said user, in this case the children
of petitioners, manifest the intention to keep certain posts private,
through the employment of measures to prevent access thereto
or to limit its visibility. And this intention can materialize in
36
cyberspace through the utilization of the OSN’s privacy tools. In other
words, utilization of these privacy tools is the manifestation,
in cyber world, of the user’s invocation of his or her right to
informational privacy. 37
_______________
35 Newell, Bryce Clayton, Rethinking Reasonable Expectations of Privacy in Online Social
Networks, Richmond Journal of Law and Technology Vol. XVII, Issue 4, 2011, citing Avner Levin
and Patricia Sanchez Abril, Two Notions of Privacy Online, 11 V AND. J. ENT. & TECH. L. 1001,
1012 (2009). (http://jolt.richmond.edu/v17i4/article12.pdf, last accessed January 31, 2013)
36 It has been suggested that: focus on the individual’s control over information allows him
to decide for himself what measure of privacy to grant certain topics. It can also relieve the burden
of determining responsibility for certain perceived privacy breaches. For example, it is clear that
the online socializer who posts embarrassing pictures of himself publicly and without heightened
privacy settings is a victim of his own reckless behavior. By publicizing embarrassing information,
he voluntary relinquished control — and a legally recognizable privacy right — over it. (Avner
Levin and Patricia Sanchez Abril, Two Notions of Privacy Online, 11 V AND. J. ENT. & TECH.
L. 1001, 1012 [2009])
37 In the same vein that “a person has a reasonable expectation of privacy in e-mail
messages stored in computers that he alone
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Therefore, a Facebook user who opts to make use of a privacy tool to
grant or deny access to his or her post or profile detail should not be
denied the informational privacy right which necessarily accompanies
said choice. Otherwise, using these privacy tools would be a feckless
38
exercise, such that if, for instance, a user uploads a photo or any personal
information to his or her Facebook page and sets its privacy level at “Only
Me” or a custom list so that only the user or a chosen few can view it, said
photo would still be deemed public by the courts as if the user never chose
to limit the photo’s visibility and accessibility. Such position, if adopted,
will not only strip these privacy tools of their function but it would also
disregard the very intention of the user to keep said photo or information
within the confines of his or her private space.
We must now determine the extent that the images in question were
visible to other Facebook users and whether the disclosure was
confidential in nature. In other words, did the minors limit the disclosure
of the photos such that the images were kept within their zones of
privacy? This determination is necessary in resolving the issue of
whether the minors carved out a zone of privacy when the photos were
uploaded to Facebook so that the images will be protected against
unauthorized access and disclosure.
Petitioners, in support of their thesis about their children’s privacy
right being violated, insist that Escudero intruded upon their children’s
Facebook accounts, downloaded copies of the pictures and showed said
photos to Tigol. To them, this
_______________
could retrieve through use of his own assigned password. An objective expectation of privacy
exists with regard to e-mail messages that a person transmits electronically to other subscribers
of the same Internet service who have individually assigned passwords.” (United States v.
Maxwell, 42 M.J. 568 [A.F.C.C.A. 1995], 45 M.J. 406 [C.A.A.F. 1996])
38 Romano v. Steelcase, Inc., Supreme Court of New York, Suffolk County, 30 Misc. 3d 426;
907 N.Y.S. 2d 650; 2010 N.Y. Misc. LEXIS 4538; 2010 NY Slip Op 20388, September 21, 2010.
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was a breach of the minors’ privacy since their Facebook accounts,
allegedly, were under “very private” or “Only Friends” setting
safeguarded with a password. Ultimately, they posit that their
39
children’s disclosure was only limited since their profiles were not open
to public viewing. Therefore, according to them, people who are not their
Facebook friends, including respondents, are barred from accessing said
post without their knowledge and consent. As petitioner’s children
testified, it was Angela who uploaded the subject photos which were only
viewable by the five of them, although who these five are do not appear
40
on the records.
Escudero, on the other hand, stated in her affidavit that “my 41
students showed me some pictures of girls clad in brassieres. This student
[sic] of mine informed me that these are senior high school [students] of
STC, who are their friends in [F]acebook. x x x They then said [that] there
are still many other photos posted on the Facebook accounts of these girls.
At the computer lab, these students then logged into their Facebook
account [sic], and accessed from there the various photographs x x x.
They even told me that there had been times when these photos were
‘public’ i.e., not confined to their friends in Facebook.”
In this regard, We cannot give much weight to the minors’ testimonies
for one key reason: failure to question the students’ act of showing the
photos to Tigol disproves their allegation that the photos were viewable
only by the five of them. Without any evidence to corroborate their
statement that the images were visible only to the five of them, and
without their challenging Escudero’s claim that the other students were
able to view the photos, their statements are, at best, self-serving, thus
deserving scant consideration. 42
_______________
39 Rollo, p. 54.
40 TSN, July 19, 2012, pp. 32-34, 37.
41 Rollo, p. 134.
42 People v. Dolorido, G.R. No. 191721, January 12, 2011, 639 SCRA 496.
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It is well to note that not one of petitioners disputed Escudero’s sworn
account that her students, who are the minors’ Facebook “friends,”
showed her the photos using their own Facebook accounts. This only goes
to show that no special means to be able to view the allegedly private
posts were ever resorted to by Escudero’s students, and that it is 43
reasonable to assume, therefore, that the photos were, in reality,
viewable either by (1) their Facebook friends; or (2) by the public at
large.
Considering that the default setting for Facebook posts is “Public,” it
can be surmised that the photographs in question were viewable to
everyone on Facebook, absent any proof that petitioners’ children
positively limited the disclosure of the photograph. If such were the case,
they cannot invoke the protection attached to the right to informational
privacy. The ensuing pronouncement in US v. Gines-Perez is most 44
instructive:
[A] person who places a photograph on the Internet precisely intends to
forsake and renounce all privacy rights to such imagery, particularly under
circumstances such as here, where the Defendant did not employ protective
measures or devices that would have controlled access to the Web page or the
photograph itself. 45
_______________
43 Since the students merely viewed the photographs using their own accounts which are
linked to the profiles of the minors, they being Facebook friends.
44 214 F. Supp. 2d at p. 225.
45 Furthermore, “[a] person who places information on the information superhighway
clearly subjects said information to being accessed by every conceivable interested party. Simply
expressed, if privacy is sought, then public communication mediums such as the Internet are not
adequate forums without protective measures.” Id.
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Also, United States v. Maxwell held that “[t]he more open the method
46
of transmission is, the less privacy one can reasonably expect. Messages
sent to the public at large in the chat room or e-mail that is forwarded
from correspondent to correspondent loses any semblance of privacy.”
That the photos are viewable by “friends only” does not necessarily
bolster the petitioners’ contention. In this regard, the cyber community is
agreed that the digital images under this setting still remain to be outside
the confines of the zones of privacy in view of the following:
(1) Facebook “allows the world to be more open and connected by
giving its users the tools to interact and share in any conceivable way”; 47
(2) A good number of Facebook users “befriend” other users who are
total strangers; 48
(3) The sheer number of “Friends” one user has, usually by the
hundreds; and
(4) A user’s Facebook friend can “share” the former’s post, or49
“tag” others who are not Facebook friends
50
_______________
46 45 M.J. 406 [C.A.A.F. 199].
47 McCarthy, Watson and Weldon-Siviy, Own Your Space: A Guide to Facebook Security.
48 McCarthy, Caroline, Facebook users pretty willing to add strangers as
‘friends’ (2007) http://news.cnet.com/8301-13577_3-9759401-
36.html; https://threatpost.com/en_us/blogs/facebook-you-should-only-friend-people-you-know-
no-seriously-were-not-kidding-081911; http://blog.kaspersky.com/dont-be-facebook-friends-with-
strangers/, last accessed February 1, 2013.
49 Sharing allows a user to post content from another page or user, to his or her own page
or to another user’s page.
50 A tag is a special kind of link. When you tag someone, you create a link to their timeline.
The post you tag the person in may also be added to that person’s timeline. For example, you can
tag a photo to show who’s in the photo or post a status update and say who you’re with. If you tag
a friend in your status update, anyone who with the former, despite its being visible only to his or
her own Facebook friends.
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It is well to emphasize at this point that setting a post’s or profile
detail’s privacy to “Friends” is no assurance that it can no longer be
viewed by another user who is not Facebook friends with the source of
the content. The user’s own Facebook friend can share said content or tag
his or her own Facebook friend thereto, regardless of whether the user
tagged by the latter is Facebook friends or not with the former. Also,
when the post is shared or when a person is tagged, the respective
Facebook friends of the person who shared the post or who was tagged
can view the post, the privacy setting of which was set at “Friends.”
To illustrate, suppose A has 100 Facebook friends and B has 200. A
and B are not Facebook friends. If C, A’s Facebook friend, tags B in A’s
post, which is set at “Friends,” the initial audience of 100 (A’s own
Facebook friends) is dramatically increased to 300 (A’s 100 friends plus
B’s 200 friends or the public, depending upon B’s privacy setting). As a
result, the audience who can view the post is effectively expanded –– and
to a very large extent.
This, along with its other features and uses, is confirmation of
Facebook’s proclivity towards user interaction and socialization rather
than seclusion or privacy, as it encourages broadcasting of individual user
posts. In fact, it has been said that OSNs have facilitated their users’ self-
tribute, thereby resulting into the “democratization of fame.” Thus, it is 51
suggested, that a profile, or even a post, with visibility set at
_______________
sees that update can click on your friend’s name and go to their timeline. Your status update
may also show up on that friend’s timeline. (From Facebook’s Help
Center, http://www.facebook.com/, last accessed April 23, 2013)
51 From Patricia Sanchez Abril’s Recasting Privacy Torts in a Spaceless World, supra note
16, citing Lakshmi Chaudhry, Mirror Mirror on the Web, The Nation, January 29, 2007.
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“Friends Only” cannot easily, more so automatically, be said to be “very
private,” contrary to petitioners’ argument.
As applied, even assuming that the photos in issue are visible only to
the sanctioned students’ Facebook friends, respondent STC can hardly be
taken to task for the perceived privacy invasion since it was the minors’
Facebook friends who showed the pictures to Tigol. Respondents were
mere recipients of what were posted. They did not resort to any unlawful
means of gathering the information as it was voluntarily given to them
by persons who had legitimate access to the said posts. Clearly, the fault,
if any, lies with the friends of the minors. Curiously enough, however,
neither the minors nor their parents imputed any violation of privacy
against the students who showed the images to Escudero.
Furthermore, petitioners failed to prove their contention that
respondents reproduced and broadcasted the photographs. In fact, what
petitioners attributed to respondents as an act of offensive disclosure was
no more than the actuality that respondents appended said photographs
in their memorandum submitted to the trial court in connection with
Civil Case No. CEB-38594. These are not tantamount to a violation of
52
the minor’s informational privacy rights, contrary to petitioners’
assertion.
In sum, there can be no quibbling that the images in question, or to
be more precise, the photos of minor students scantily clad, are personal
in nature, likely to affect, if indiscriminately circulated, the reputation of
the minors enrolled in a conservative institution. However, the records
are bereft of any evidence, other than bare assertions that they utilized
Facebook’s privacy settings to make the photos visible only to them or to
a select few. Without proof that they placed the photographs subject of
this case within the ambit of their protected zone of privacy, they cannot
now insist that they
_______________
52 Rollo, pp. 41-42.
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have an expectation of privacy with respect to the photographs in
question.
Had it been proved that the access to the pictures posted were limited
to the original uploader, through the “Me Only” privacy setting, or that
the user’s contact list has been screened to limit access to a select few,
through the “Custom” setting, the result may have been different, for in
such instances, the intention to limit access to the particular post, instead
of being broadcasted to the public at large or all the user’s friends en
masse, becomes more manifest and palpable.
On Cyber Responsibility
It has been said that “the best filter is the one between your
children’s ears.” This means that self-regulation on the part of OSN
53
users and internet consumers in general is the best means of avoiding
privacy rights violations. As a cyberspace community member, one has
54
to be proactive in protecting his or her own privacy. It is in this regard
55
that many OSN users, especially minors, fail. Responsible social
networking or observance of the “netiquettes” on the part of teenagers
56
has been the concern of many due to the widespread notion that teenagers
can sometimes go too far since
_______________
53 Parry Aftab of WiredSafety.org.
54 Kizza, Joseph Migga, Ethical and Social Issues in the Information Age, Third edition,
Springer-Verlag London Limited, p. 117, 2007.
55 Id., at p. 306.
56 Netiquette is the social code of network communication; it is the social and moral code of
the internet based on the human condition and the Golden Rule of Netiquette; it is a philosophy
of effective internet communication that utilizes common conventions and norms as a guide for
rules and standards. http://www.network
etiquette.net/, last accessed, February 18, 2013.
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they generally lack the people skills or general wisdom to conduct
themselves sensibly in a public forum. 57
Respondent STC is clearly aware of this and incorporating lessons on
good cyber citizenship in its curriculum to educate its students on proper
online conduct may be most timely. Too, it is not only STC but a number
of schools and organizations have already deemed it important to include
digital literacy and good cyber citizenship in their respective programs
and curricula in view of the risks that the children are exposed to every
time they participate in online activities. Furthermore, considering the
58
complexity of the cyber world and its pervasiveness, as well as the
dangers that these children are wittingly or unwittingly exposed to in
view of their unsupervised activities in cyberspace, the participation of
the parents in disciplining and educating their children about being a
good digital citizen is encouraged by these institutions and organizations.
In fact, it is believed that “to limit such risks, there’s no substitute for
parental involvement and supervision.” 59
As such, STC cannot be faulted for being steadfast in its duty of
teaching its students to be responsible in their dealings and activities in
cyberspace, particularly in OSNs, when
_______________
57 Technology Trend: Responsible Social Networking for
Teens, http://www1.cyfernet.org/tech/06-08-TeenUseSM.html, last accessed, February 18, 2013.
58 Kizza, Joseph Migga, supra note 54 at p. 341: “Perhaps one of the most successful forms
of deterrence has been self-regulation. A number of organizations have formed to advocate parents
and teachers to find a way to regulate objectionable material from reaching our children. Also,
families and individuals, sometimes based on their morals and sometimes based on their religion,
have made self-regulation a cornerstone of their efforts to stop the growing rate of online crimes.”
59 Children’s Safety on the Internet, Privacy Rights Clearing House, available
at https://www.privacyrights.org/fs/fs21a-children
safety.htm#1, last accessed, February 18, 2013.
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it enforced the disciplinary actions specified in the Student Handbook,
absent a showing that, in the process, it violated the students’ rights.
OSN users should be aware of the risks that they expose themselves
to whenever they engage in cyberspace activities. Accordingly, they
should be cautious enough to control their privacy and to exercise sound
discretion regarding how much information about themselves they are
willing to give up. Internet consumers ought to be aware that, by entering
or uploading any kind of data or information online, they are
automatically and inevitably making it permanently available online, the
perpetuation of which is outside the ambit of their control. Furthermore,
and more importantly, information, otherwise private, voluntarily
surrendered by them can be opened, read, or copied by third parties who
may or may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence in
their online dealings and activities and must not be negligent in
protecting their rights. Equity serves the vigilant. Demanding relief from
the courts, as here, requires that claimants themselves take utmost care
in safeguarding a right which they allege to have been violated. These are
indispensable. We cannot afford protection to persons if they themselves
did nothing to place the matter within the confines of their private zone.
OSN users must be mindful enough to learn the use of privacy tools, to
use them if they desire to keep the information private, and to keep track
of changes in the available privacy settings, such as those of Facebook,
especially because Facebook is notorious for changing these settings and
the site’s layout often.
In finding that respondent STC and its officials did not violate the
minors’ privacy rights, We find no cogent reason to disturb the findings
and case disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other assigned
errors.
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WHEREFORE, premises considered, the petition is
hereby DENIED. The Decision dated July 27, 2012 of the Regional Trial
Court, Branch 14 in Cebu City in S.P. Proc. No. 19251-CEB is
hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Note.—The failure to conduct a fair and effective investigation
similarly amounted to a violation of, or threat to one’s rights to life,
liberty, and security. The writ’s curative role is an acknowledgment that
the violation of the right to life, liberty, and security may be caused not
only by a public official’s act, but also by his omission. (In the Matter of
the Petition for the Writ of Amparo and Habeas Data in Favor of Noriel
Rodriguez, 696 SCRA 390 [2013])