Privacy in General

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.

SECTION 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.

Griswold v. Connecticut, 381 US 479 (1965). https://www.oyez.org/cases/1964/496

Facts of the case
In 1879, Connecticut passed a law that banned the use of any drug, medical device, or other instrument in
furthering contraception. A gynecologist at the Yale School of Medicine, C. Lee Buxton, opened a birth control
clinic in New Haven in conjunction with Estelle Griswold, who was the head of Planned Parenthood in
Connecticut. They were arrested and convicted of violating the law, and their convictions were affirmed by
higher state courts. Their plan was to use the clinic to challenge the constitutionality of the statute under the
Fourteenth Amendment before the Supreme Court.
Question
Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be
counseled in the use of contraceptives?
Conclusion
A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from
making the use of contraception by married couples illegal.
In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the right of marital
privacy against state restrictions on contraception. While the Court explained that the Constitution does not explicitly
protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that
establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments create the right to privacy in marital
relations. The Connecticut statute conflicted with the exercise of this right and was therefore held null and void.

Justice Goldberg, joined by Justices Warren and Brennan, concurred. Rather than finding that the right to privacy
was contained in imaginary penumbras, Goldberg located it in the Ninth and Fourteenth Amendments.

Justice Harlan concurred, arguing that the Due Process Clause of the Fourteenth Amendment protects the right
to privacy.

Justice White concurred, arguing that the Fourteenth Amendment was the proper basis for the decision.

Justice Black, joined by Justice Stewart, dissented. Unpersuaded by the loose reasoning of the majority, Black felt
that there was no way to infer that the Constitution contained a right to privacy. He also dismissed the views of the
concurrences that it could be found in the Ninth and Fourteenth Amendments.

Justice Stewart, joined by Justice Black, filed a separate dissenting opinion. Stewart argued that despite his
personal view that the law was "uncommonly silly," he felt that the Court had no choice but to find it constitutional.
G.R. No. L-20387 January 31, 1968

JESUS P. MORFE, plaintiff-appellee,

vs.
AMELITO R. MUTUC, as Executive Secretary, ET AL., defendants-appellants.

Jesus P. Morfe for and his own behalf as plaintiff-appellee.

Office of the Solicitor General for defendants-appellants.

FERNANDO, J.:

Congress in 1960 enacted the Anti-Graft and Corrupt Practices Act 1 to deter public officials and employees from
committing acts of dishonesty and improve the tone of morality in public service. It was declared to be the state
policy "in line with the principle that a public office is a public trust, to repress certain acts of public officers and
private persons alike which constitute graft or corrupt practices or which may lead thereto." 2 Nor was it the first
statute of its kind to deal with such a grave problem in the public service that unfortunately has afflicted the
Philippines in the post-war era. An earlier statute decrees the forfeiture in favor of the State of any property found to
have been unlawfully acquired by any public officer or employee. 3

One of the specific provisions of the Anti-Graft and Corrupt Practices Act of 1960 is that every public officer, either
within thirty (30) days after its approval or after his assumption of office "and within the month of January of every
other year thereafter", as well as upon the termination of his position, shall prepare and file with the head of the
office to which he belongs, "a true detailed and sworn statement of assets and liabilities, including a statement of the
amounts and sources of his income, the amounts of his personal and family expenses and the amount of income
taxes paid for the next preceding calendar: . . ." 4

In this declaratory relief proceeding, the periodical submission "within the month of January of every other year
thereafter" of such sworn statement of assets and liabilities after an officer or employee had once bared his financial
condition upon assumption of office was challenged for being violative of due process as an oppressive exercise of
police power and as an unlawful invasion of the constitutional right to privacy, implicit in the ban against
unreasonable search and seizure construed together with the prohibition against self-incrimination. The lower court
in the decision appealed from sustained plaintiff, then as well as now, a judge of repute of a court of first instance.
For it, such requirement of periodical submission of such sworn statement of assets and liabilities exceeds the
permissible limit of the police power and is thus offensive to the due process clause.

We do not view the matter thus and accordingly reverse the lower court.

1. The reversal could be predicated on the absence of evidence to rebut the presumption of validity. For in this
action for declaratory relief filed with the Court of First Instance of Pangasinan on January 31, 1962, plaintiff, after
asserting his belief "that it was a reasonable requirement for employment that a public officer make of record his
assets and liabilities upon assumption of office and thereby make it possible thereafter to determine whether, after
assuming his position in the public service, he accumulated assets grossly disproportionate to his reported incomes,
the herein plaintiff [having] filed within the period of time fixed in the aforesaid Administrative Order No. 334 the
prescribed sworn statement of financial condition, assets, income and liabilities, . . ." 5 maintained that the provision
on the "periodical filing of sworn statement of financial condition, assets, income and liabilities after an officer or
employee had once bared his financial condition, upon assumption of office, is oppressive and unconstitutional." 6

As earlier noted, both the protection of due process and the assurance of the privacy of the individual as may be
inferred from the prohibition against unreasonable search and seizure and self-incrimination were relied upon. There
was also the allegation that the above requirement amounts to "an insult to the personal integrity and official dignity"
of public officials, premised as it is "on the unwarranted and derogatory assumption" that they are "corrupt at heart"
and unless thus restrained by this periodical submission of the statements of "their financial condition, income, and
expenses, they cannot be trusted to desist from committing the corrupt practices defined. . . ." 7 It was further
asserted that there was no need for such a provision as "the income tax law and the tax census law also require
statements which can serve to determine whether an officer or employee in this Republic has enriched himself out
of proportion to his reported income." 8
Then on February 14, 1962, came an Answer of the then Executive Secretary and the then Secretary of Justice as
defendants, where after practically admitting the facts alleged, they denied the erroneous conclusion of law and as
one of the special affirmative defenses set forth: "1. That when a government official, like plaintiff, accepts a public
position, he is deemed to have voluntarily assumed the obligation to give information about his personal affair, not
only at the time of his assumption of office but during the time he continues to discharge public trust. The private life
of an employee cannot be segregated from his public life. . . ." 9 The answer likewise denied that there was a
violation of his constitutional rights against self-incrimination as well as unreasonable search and seizure and
maintained that "the provision of law in question cannot be attacked on the ground that it impairs plaintiff's normal
and legitimate enjoyment of his life and liberty because said provision merely seeks to adopt a reasonable measure
of insuring the interest or general welfare in honest and clean public service and is therefore a legitimate exercise of
the police power." 10

On February 27, 1962, plaintiff filed a Motion for judgment on the pleadings as in his opinion all his material
allegations were admitted. Then on March 10, 1962, an order was issued giving the parties thirty days within which
to submit memoranda, but with or without them, the case was deemed submitted for decision the lower court being
of the belief that "there is no question of facts, . . . the defendants [having admitted] all the material allegations of the
complaint." 11

The decision, now on appeal, came on July 19, 1962, the lower court declaring "unconstitutional, null and void
Section 7, Republic Act No. 3019, insofar as it required periodical submittal of sworn statements of financial
conditions, assets and liabilities of an official or employee of the government after he had once submitted such a
sworn statement upon assuming office; . . . ." 12

In Ermita-Malate Hotel and Motel Operators Association v. The Mayor of Manila, 13 it was the holding of this Court
that in the absence of a factual foundation, the lower court deciding the matter purely "on the pleadings and the
stipulation of facts, the presumption of validity must prevail." In the present case likewise there was no factual
foundation on which the nullification of this section of the statute could be based. Hence as noted the decision of the
lower court could be reversed on that ground.

A more extended consideration is not inappropriate however, for as likewise made clear in the above Ermita-Malate
Hotel case: "What cannot be stressed sufficiently is that if the liberty involved were freedom of the mind or the
person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty
curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider."

Moreover, in the Resolution denying the Motion for Reconsideration in the above case, we expressly affirmed: "This
is not to discount the possibility of a situation where the nullity of a statute, executive order, or ordinance may not be
readily apparent but the threat to constitutional rights, especially those involving the freedom of the mind, present
and ominous." 14 In such an event therefore, "there should not be a rigid insistence on the requirement that evidence
be presented." Also, in the same Resolution, Professor Freund was quoted thus: "In short, when freedom of the
mind is imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled, it is the
lawmakers' judgment that commands respect. This dual standard may not precisely reverse the presumption of
constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values within the due process
clause. 15

2. We inquire first whether or not by virtue of the above requirement for a periodical submission of sworn statement
of assets and liabilities, there is an invasion of liberty protected by the due process clause.

Under the Anti-Graft Act of 1960, after the statement of policy, 16 and definition of terms, 17 there is an enumeration of
corrupt practices declared unlawful in addition to acts or omissions of public officers already penalized by existing
law. They include persuading, inducing, or influencing another public officer to perform an act constituting a violation
of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties
of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense;
requesting or receiving directly or indirectly any gift, present, share, percentage, or benefit, for himself, or for any
other person, in connection with any contract or transaction between the government and any other party, wherein
the public officer in his official capacity, has to intervene under the law; requesting or receiving directly or indirectly
any gift, present, or other pecuniary or material benefit, for himself or for another, from any person for whom the
public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit
or license, in consideration for the help given or to be given; accepting or having any member of his family accept
employment in a private enterprise which has pending official business with him during the pendency thereof or
within one year after its termination; causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or
judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence; neglecting or
refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter
pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some
pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage
in favor of or discriminating against any other interested party; entering, on behalf of the Government, into any
contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer
profited or will profit thereby; having directly or indirectly financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity or in which he is prohibited by
the Constitution or by any law from having any interests; becoming interested directly or indirectly, for personal gain,
or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is
a member, and which exercises discretion in such approval, even if he votes against the same or does not
participate in such action; approving or granting knowingly any license, permit, privilege or benefit in favor of any
person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere
representative or dummy of one who is not so qualified or entitled and divulging valuable information of a
confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or
releasing such information in advance of its authorized release date. 18

After which come the prohibition on private individuals, 19 prohibition on certain relatives, 20 and prohibition on
Members of Congress. 21 Then there is this requirement of a statement of assets and liabilities, that portion requiring
periodical submission being challenged here. 22 The other sections of the Act deal with dismissal due to unexplained
wealth, reference being made to the previous statute, 23 penalties for violation, 24 the vesting of original jurisdiction in
the Court of First Instance as the competent court, 25 the prescription of offenses, 26 the prohibition against any
resignation or retirement pending investigation, criminal or administrative or pending a prosecution, 27 suspension
and loss of benefits, 28 exception of unsolicited gifts or presents of small or insignificant value as well as recognition
of legitimate practice of one's profession or trade or occupation, 29 the separability clause, 30 and its effectivity. 31

Nothing can be clearer therefore than that the Anti-Graft Act of 1960 like the earlier statute 32 was precisely aimed at
curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public
service. It is intended to further promote morality in public administration. A public office must indeed be a public
trust. Nobody can cavil at its objective; the goal to be pursued commands the assent of all. The conditions then
prevailing called for norms of such character. The times demanded such a remedial device.

The statute was framed with that end in view. It is comprehensive in character, sufficiently detailed and explicit to
make clear to all and sundry what practices were prohibited and penalized. More than that, an effort was made, so
evident from even a cursory perusal thereof, to avoid evasions and plug loopholes. One such feature is the
challenged section. Thereby it becomes much more difficult by those disposed to take advantage of their positions
to commit acts of graft and corruption.

While in the attainment of such public good, no infringement of constitutional rights is permissible, there must be a
showing, clear, categorical, and undeniable, that what the Constitution condemns, the statute allows. More
specifically, since that is the only question raised, is that portion of the statute requiring periodical submission of
assets and liabilities, after an officer or employee had previously done so upon assuming office, so infected with
infirmity that it cannot be upheld as valid?

Or, in traditional terminology, is this requirement a valid exercise of the police power? In the aforesaid Ermita-Malate
Hotel decision, 33 there is a reaffirmation of its nature and scope as embracing the power to prescribe regulations to
promote the health, morals, education, good order, safety, or the general welfare of the people. It has been
negatively put forth by Justice Malcolm as "that inherent and plenary power in the state which enables it to prohibit
all things hurtful to the comfort, safety and welfare of society." 34

Earlier Philippine cases refer to police power as the power to promote the general welfare and public interest; 35 to
enact such laws in relation to persons and property as may promote public health, public morals, public safety and
the general welfare of each inhabitant; 36 to preserve public order and to prevent offenses against the state and to
establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood calculated to
prevent conflict of rights. 37 In his work on due process, Mott 38 stated that the term police power was first used by
Chief Justice Marshall. 39

As currently in use both in Philippine and American decisions then, police power legislation usually has reference to
regulatory measures restraining either the rights to property or liberty of private individuals. It is undeniable however
that one of its earliest definitions, valid then as well as now, given by Marshall's successor, Chief Justice Taney
does not limit its scope to curtailment of rights whether of liberty or property of private individuals. Thus: "But what
are the police powers of a State? They are nothing more or less than the powers of government inherent in every
sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish
offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce
within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to
govern men and things within the limits of its domain." 40 Text writers like Cooley and Burdick were of a similar
mind. 41

What is under consideration is a statute enacted under the police power of the state to promote morality in public
service necessarily limited in scope to officialdom. May a public official claiming to be adversely affected rely on the
due process clause to annul such statute or any portion thereof? The answer must be in the affirmative. If the police
power extends to regulatory action affecting persons in public or private life, then anyone with an alleged grievance
can invoke the protection of due process which permits deprivation of property or liberty as long as such
requirement is observed.

While the soundness of the assertion that a public office is a public trust and as such not amounting to property in its
usual sense cannot be denied, there can be no disputing the proposition that from the standpoint of the security of
tenure guaranteed by the Constitution the mantle of protection afforded by due process could rightfully be invoked. It
was so implicitly held in Lacson v. Romero, 42 in line with the then pertinent statutory provisions 43 that procedural
due process in the form of an investigation at which he must be given a fair hearing and an opportunity to defend
himself must be observed before a civil service officer or employee may be removed. There was a reaffirmation of
the view in even stronger language when this Court through Justice Tuason in Lacson v. Roque 44 declared that
even without express provision of law, "it is established by the great weight of authority that the power of removal or
suspension for cause can not, except by clear statutory authority, be exercised without notice and hearing." Such is
likewise the import of a statement from the then Justice, now Chief Justice, Concepcion, speaking for the Court
in Meneses v. Lacson; 45 "At any rate, the reinstatement directed in the decision appealed from does not bar such
appropriate administrative action as the behaviour of petitioners herein may warrant, upon compliance with the
requirements of due process."

To the same effect is the holding of this Court extending the mantle of the security of tenure provision to employees
of government-owned or controlled corporations entrusted with governmental functions when through Justice Padilla
in Tabora v. Montelibano, 46 it stressed: "That safeguard, guarantee, or feeling of security that they would hold their
office or employment during good behavior and would not be dismissed without justifiable cause to be determined in
an investigation, where an opportunity to be heard and defend themselves in person or by counsel is afforded them,
would bring about such a desirable condition." Reference was there made to promoting honesty and efficiency
through an assurance of stability in their employment relation. It was to be expected then that through Justice
Labrador in Unabia v. City Mayor, 47 this Court could categorically affirm: "As the removal of petitioner was made
without investigation and without cause, said removal is null and void. . . ."

It was but logical therefore to expect an explicit holding of the applicability of due process guaranty to be
forthcoming. It did in Cammayo v. Viña, 48 where the opinion of Justice Endencia for the Court contained the
following unmistakable language: "Evidently, having these facts in view, it cannot be pretended that the
constitutional provision of due process of law for the removal of the petitioner has not been complied with."

Then came this restatement of the principle from the pen of Justice J.B.L. Reyes "We are thus compelled to
conclude that the positions formerly held by appellees were not primarily confidential in nature so as to make their
terms of office co-terminal with the confidence reposed in them. The inevitable corollary is that respondents-
appellees, Leon Piñero, et al., were not subject to dismissal or removal, except for cause specified by law and within
due process. . . ." 49 In a still later decision, Abaya v. Subido, 50 this Court, through Justice Sanchez, emphasized
"that the vitality of the constitutional principle of due process cannot be allowed to weaken by sanctioning
cancellation" of an employee's eligibility or "of his dismissal from service — without hearing — upon a doubtful
assumption that he has admitted his guilt for an offense against Civil Service rules." Equally emphatic is this
observation from the same case: "A civil service employee should be heard before he is condemned. Jurisprudence
has clung to this rule with such unrelenting grasp that by now it would appear trite to make citations thereof."

If as is so clearly and unequivocally held by this Court, due process may be relied upon by public official to protect
the security of tenure which in that limited sense is analogous to property, could he not likewise avail himself of such
constitutional guarantee to strike down what he considers to be an infringement of his liberty? Both on principle,
reason and authority, the answer must be in the affirmative. Even a public official has certain rights to freedom the
government must respect. To the extent then, that there is a curtailment thereof, it could only be permissible if the
due process mandate is not disregarded.

Since under the constitutional scheme, liberty is the rule and restraint the exception, the question raised cannot just
be brushed aside. In a leading Philippine case, Rubi v. Provincial Board, 51 liberty as guaranteed by the Constitution
was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary personal restraint
or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but
is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common welfare." In accordance with this case therefore, the
rights of the citizens to be free to use his faculties in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; to pursue any avocation, are all deemed embraced in the concept of liberty. This
Court in the same case, however, gave the warning that liberty as understood in democracies, is not license. Implied
in the term is restraint by law for the good of the individual and for the greater good, the peace and order of society
and the general well-being. No one can do exactly as he pleases. Every man must renounce unbridled license. In
the words of Mabini as quoted by Justice Malcolm, "liberty is freedom to do right and never wrong; it is ever guided
by reason and the upright and honorable conscience of the individual."

The liberty to be safeguarded is, as pointed out by Chief Justice Hughes, liberty in a social organization, 52 implying
the absence of arbitrary restraint not immunity from reasonable regulations and prohibitions imposed in the interest
of the community. 53 It was Linton's view that "to belong to a society is to sacrifice some measure of individual liberty,
no matter how slight the restraints which the society consciously imposes." 54 The above statement from Linton
however, should be understood in the sense that liberty, in the interest of public health, public order or safety, of
general welfare, in other words through the proper exercise of the police power, may be regulated. The individual
thought, as Justice Cardozo pointed out, has still left a "domain of free activity that cannot be touched by
government or law at all, whether the command is specially against him or generally against him and others." 55

Is this provision for a periodical submission of sworn statement of assets and liabilities after he had filed one upon
assumption of office beyond the power of government to impose? Admittedly without the challenged provision, a
public officer would be free from such a requirement. To the extent then that there is a compulsion to act in a certain
way, his liberty is affected. It cannot be denied however that under the Constitution, such a restriction is allowable as
long as due process is observed.

The more crucial question therefore is whether there is an observance of due process. That leads us to an inquiry
into its significance. "There is no controlling and precise definition of due process. It furnishes though a standard to
which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate
case, be valid. What then is the standard of due process which must exist both as a procedural and as substantive
requisite to free the challenged ordinance, or any action for that matter, from the imputation of legal infirmity
sufficient to spell its doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice.
Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official
action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process
is thus hostile to any official action marred by lack of reasonableness. Correctly has it been identified as freedom
from arbitrariness. It is the embodiment of the sporting idea of fair play. It exacts fealty 'to those strivings for justice'
and judges the act of officialdom of whatever branch 'in the light of reason drawn from considerations of fairness
that reflect [democratic] traditions of legal and political thought.' It is not a narrow or 'technical conception with fixed
content unrelated to time, place and circumstances,' decisions based on such a clause requiring a 'close and
perceptive inquiry into fundamental principles of our society.' Questions of due process are not to be treated
narrowly or pedantically in slavery to form or phrases." 56

It would be to dwell in the realm of abstractions and to ignore the harsh and compelling realities of public service
with its ever-present temptation to heed the call of greed and avarice to condemn as arbitrary and oppressive a
requirement as that imposed on public officials and employees to file such sworn statement of assets and liabilities
every two years after having done so upon assuming office. The due process clause is not susceptible to such a
reproach. There was therefore no unconstitutional exercise of police power.

4. The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in
disposing of the objections raised by plaintiff that the provision on the periodical submission of a sworn statement of
assets and liabilities is violative of the constitutional right to privacy. There is much to be said for this view of Justice
Douglas: "Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it
must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of
all freedom." 57 As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most
comprehensive of rights and the right most valued by civilized men." 58

The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique
individual whose claim to privacy and interference demands respect. As Laski so very aptly stated: "Man is one
among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they
are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the
consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of
that experience personal to himself. If he surrenders his will to others, he surrenders his personality. If his will is set
by the will of others, he ceases to be master of himself. I cannot believe that a man no longer master of himself is in
any real sense free." 59

Nonetheless, in view of the fact that there is an express recognition of privacy, specifically that of communication
and correspondence which "shall be inviolable except upon lawful order of Court or when public safety and
order" 60 may otherwise require, and implicitly in the search and seizure clause, 61 and the liberty of abode 62 the
alleged repugnancy of such statutory requirement of further periodical submission of a sworn statement of assets
and liabilities deserves to be further looked into.

In that respect the question is one of first impression, no previous decision having been rendered by this Court. It is
not so in the United States where, in the leading case of Griswold v. Connecticut, 63 Justice Douglas, speaking for
five members of the Court, stated: "Various guarantees create zones of privacy. The right of association contained
in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against
the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that
privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." After referring to various American Supreme Court
decisions, 64 Justice Douglas continued: "These cases bear witness that the right of privacy which presses for
recognition is a legitimate one."

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the
ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed
"a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." 65 It has
wider implications though. The constitutional right to privacy has come into its own. 1äwphï1.ñët

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the idea that governmental powers stop
short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government, safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this
private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly
important as modern society has developed. All the forces of a technological age — industrialization, urbanization,
and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference between a democratic and a
totalitarian society." 66
Even with due recognition of such a view, it cannot be said that the challenged statutory provision calls for
disclosure of information which infringes on the right of a person to privacy. It cannot be denied that the rational
relationship such a requirement possesses with the objective of a valid statute goes very far in precluding assent to
an objection of such character. This is not to say that a public officer, by virtue of a position he holds, is bereft of
constitutional protection; it is only to emphasize that in subjecting him to such a further compulsory revelation of his
assets and liabilities, including the statement of the amounts and sources of income, the amounts of personal and
family expenses, and the amount of income taxes paid for the next preceding calendar year, there is no
unconstitutional intrusion into what otherwise would be a private sphere.

5. Could it be said, however, as plaintiff contends, that insofar as the challenged provision requires the periodical
filing of a sworn statement of financial condition, it would be violative of the guarantees against unreasonable search
and seizure and against self-incrimination?

His complaint cited on this point Davis v. United States. 67 In that case, petitioner Davis was convicted under an
information charging him with unlawfully having in his possession a number of gasoline ration coupons representing
so many gallons of gasoline, an offense penalized under a 1940 statute. 68 He was convicted both in the lower court
and in the Circuit Court of Appeals over the objection that there was an unlawful search which resulted in the
seizure of the coupons and that their use at the trial was in violation of Supreme Court decisions. 69 In the District
Court, there was a finding that he consented to the search and seizure. The Circuit Court of Appeals did not disturb
that finding although expressed doubt concerning it, affirming however under the view that such seized coupons
were properly introduced in evidence, the search and seizure being incidental to an arrest, and therefore reasonable
regardless of petitioner's consent.

In affirming the conviction the United States Supreme Court, through Justice Douglas emphasized that the Court
was dealing in this case "not with private papers or documents, but with gasoline ration coupons which never
became the private property of the holder but remained at all times the property of the government and subject to
inspection and recall by it." 70 He made it clear that the opinion was not to be understood as suggesting "that officers
seeking to reclaim government property may proceed lawlessly and subject to no restraints. Nor [does it] suggest
that the right to inspect under the regulations subjects a dealer to a general search of his papers for the purpose of
learning whether he has any coupons subject to inspection and seizure. The nature of the coupons is important here
merely as indicating that the officers did not exceed the permissible limits of persuasion in obtaining them." 71

True, there was a strong dissenting opinion by Justice Frankfurter in which Justice Murphy joined, critical of what it
considered "a process of devitalizing interpretation" which in this particular case gave approval "to what was done
by arresting officers" and expressing the regret that the Court might be "in danger of forgetting what the Bill of Rights
reflects experience with police excesses."

Even this opinion, however, concerned that the constitutional guarantee against unreasonable search and seizure
"does not give freedom from testimonial compulsion. Subject to familiar qualifications every man is under obligation
to give testimony. But that obligation can be exacted only under judicial sanctions which are deemed precious to
Anglo-American civilization. Merely because there may be the duty to make documents available for litigation does
not mean that police officers may forcibly or fraudulently obtain them. This protection of the right to be let alone
except under responsible judicial compulsion is precisely what the Fourth Amendment meant to express and to
safeguard." 72

It would appear then that a reliance on that case for an allegation that this statutory provision offends against the
unreasonable search and seizure clause would be futile and unavailing. This is the more so in the light of the latest
decision of this Court in Stonehill v. Diokno, 73 where this Court, through Chief Justice Concepcion, after stressing
that the constitutional requirements must be strictly complied with, and that it would be "a legal heresy of the highest
order" to convict anybody of a violation of certain statutes without reference to any of its determinate provisions
delimited its scope as "one of the most fundamental rights guaranteed in our Constitution," safeguarding "the
sanctity, of the domicile and the privacy of communication and correspondence. . . ." Such is precisely the evil
sought to be remedied by the constitutional provision above quoted — to outlaw the so-called general warrants.

It thus appears clear that no violation of the guarantee against unreasonable search and seizure has been shown to
exist by such requirement of further periodical submission of one's financial condition as set forth in the Anti-Graft
Act of 1960.
Nor does the contention of plaintiff gain greater plausibility, much less elicit acceptance, by his invocation of the non-
incrimination clause. According to the Constitution: "No person shall be compelled to be a witness against
himself." 74 This constitutional provision gives the accused immunity from any attempt by the prosecution to make
easier its task by coercing or intimidating him to furnish the evidence necessary to convict. He may confess, but only
if he voluntarily wills it. He may admit certain facts but only if he freely chooses to.75 Or he could remain silent, and
the prosecution is powerless to compel him to talk. 76 Proof is not solely testimonial in character. It may be
documentary. Neither then could the accused be ordered to write, when what comes from his pen may constitute
evidence of guilt or innocence. 77 Moreover, there can be no search or seizure of his house, papers or effects for the
purpose of locating incriminatory matter. 78

In a declaratory action proceeding then, the objection based on the guaranty against self-incrimination is far from
decisive. It is well to note what Justice Tuason stated: "What the above inhibition seeks to [prevent] is compulsory
disclosure of incriminating facts." 79 Necessarily then, the protection it affords will have to await, in the language of
Justice J. B. L. Reyes, the existence of actual cases, "be they criminal, civil or administrative." 80 Prior to such a
stage, there is no pressing need to pass upon the validity of the fear sincerely voiced that there is an infringement of
the non-incrimination clause. What was said in an American State decision is of relevance. In that case, a statutory
provision requiring any person operating a motor vehicle, who knows that injury has been caused a person or
property, to stop and give his name, residence, and his license number to the injured party or to a police officer was
sustained against the contention that the information thus exacted may be used as evidence to establish his
connection with the injury and therefore compels him to incriminate himself. As was stated in the opinion: "If the law
which exacts this information is invalid, because such information, although in itself no evidence of guilt, might
possibly lead to a charge of crime against the informant, then all police regulations which involve identification may
be questioned on the same ground. We are not aware of any constitutional provision designed to protect a man's
conduct from judicial inquiry or aid him in fleeing from justice. But, even if a constitutional right be involved, it is not
necessary to invalidate the statute to secure its protection. If, in this particular case, the constitutional privilege
justified the refusal to give the information exacted by the statute, that question can be raised in the defense to the
pending prosecution. Whether it would avail, we are not called upon to decide in this proceeding." 81

6. Nor could such a provision be nullified on the allegation that it constitutes "an insult to the personal integrity and
official dignity" of public officials. On its face, it cannot thus be stigmatized. As to its being unnecessary, it is well to
remember that this Court, in the language of Justice Laurel, "does not pass upon questions of wisdom, justice or
expediency of legislation." 82 As expressed by Justice Tuason: "It is not the province of the courts to supervise
legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a
legislative concern." 83 There can be no possible objection then to the observation of Justice Montemayor: "As long
as laws do not violate any Constitutional provision, the Courts merely interpret and apply them regardless of
whether or not they are wise or salutary." 84 For they, according to Justice Labrador, "are not supposed to override
legitimate policy and . . . never inquire into the wisdom of the law." 85

It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, 86 that only
congressional power or competence, not the wisdom of the action taken may be the basis for declaring a statute
invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the
respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion
not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would
substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of
justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal
norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be
objections, even if valid and cogent on its wisdom cannot be sustained.

WHEREFORE, the decision of the lower court of July 19, 1962 "declaring unconstitutional, null and void Section 7,
Republic Act No. 3019, insofar as it requires periodical submittal of sworn statements of financial conditions, assets
and liabilities of an official or employee of the government after he had once submitted such a sworn statement . . .
is reversed." Without costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar and Angeles, JJ., concur.
Sanchez, J., reserves his vote.
Castro, J., concurs in the result.
G.R. No. 127685 July 23, 1998

BLAS F. OPLE, petitioner,

vs.

RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT BARBERS,
CARMENCITA REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE
NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

PUNO, J.:

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the right
to privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive of rights and the right
most valued by civilized men." 1 Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" on two important constitutional grounds, viz:
one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's
protected zone of privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger
barriers against further erosion.

A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows:

ADOPTION OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to
conveniently transact business with basic service and social security providers and other
government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify persons
seeking basic services on social security and reduce, if not totally eradicate fraudulent transactions
and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and social
security providing agencies and other government intrumentalities is required to achieve such a
system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of
the powers vested in me by law, do hereby direct the following:

Sec. 1. Establishment of a National Compoterized Identification Reference System. A decentralized

Identification Reference System among the key basic services and social security providers is
hereby established.

Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to

draw-up the implementing guidelines and oversee the implementation of the System is hereby
created, chaired by the Executive Secretary, with the following as members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and Local Government

 Secretary, Department of Health

Administrator, Government Service Insurance System,

Administrator, Social Security System,

Administrator, National Statistics Office

Managing Director, National Computer Center.

Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the
IACC and as such shall provide administrative and technical support to the IACC.

Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO
shall serve as the common reference number to establish a linkage among concerned agencies. The
IACC Secretariat shall coordinate with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology and in computer application designs of
their respective systems.

Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in
coordination with the National Statistics Office, the GSIS and SSS as lead agencies and other
concerned agencies shall undertake a massive tri-media information dissemination campaign to
educate and raise public awareness on the importance and use of the PRN and the Social Security
Identification Reference.

Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from
the respective budgets of the concerned agencies.

Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the
Office of the President through the IACC, on the status of implementation of this undertaking.

Sec. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred
and Ninety-Six.

(SGD.) FIDEL V. RAMOS

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997.
On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben
Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee,
are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order
enjoining its implementation.

Petitioner contends:

A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE

SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF
THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE

IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE
EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
 C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A
SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION. 2

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL

REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE
POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF
CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION

REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED
AGENCIES;

D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. 3

We now resolve.

As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the
petitioner and the justiciability of the case at bar. More specifically, respondents aver that petitioner has no legal
interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated.

These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our Senate.
As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of
A.O. No. 308 is a usurpation of legislative power. 4 As taxpayer and member of the Government Service Insurance
System (GSIS), petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS
funds to implement A.O. No. 308. 5

The ripeness for adjudication of the Petition at bar is not affected by the fact that the implementing rules of A.O. No.
308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face.
His action is not premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the
respondents themselves have started the implementation of A.O. No. 308 without waiting for the rules. As early as
January 19, 1997, respondent Social Security System (SSS) caused the publication of a notice to bid for the
manufacture of the National Identification (ID) card. 6 Respondent Executive Secretary Torres has publicly
announced that representatives from the GSIS and the SSS have completed the guidelines for the national
identification system. 7 All signals from the respondents show their unswerving will to implement A.O. No. 308 and
we need not wait for the formality of the rules to pass judgment on its constitutionality. In this light, the dissenters
insistence that we tighten the rule on standing is not a commendable stance as its result would be to throttle an
important constitutional principle and a fundamental right.

II

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a law
and hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign
resident, and more particularly, violates their right to privacy.

Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is
understandable. The blurring of the demarcation line between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed. Hence,
the exercise by one branch of government of power belonging to another will be given a stricter scrutiny by this
Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under
the Constitution, to make laws, and to alter and repeal them." 8 The Constitution, as the will of the people in their
original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. 9 The grant of
legislative power to Congress is broad, general and comprehensive. 10 The legislative body possesses plenary
power for all purposes of civil government. 11 Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. 12 In fine, except as limited by
the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of
general concern or common interest. 13

While Congress is vested with the power to enact laws, the President executes the laws. 14 The executive power is
vested in the Presidents. 15 It is generally defined as the power to enforce and administer the laws. 16 It is the power
of carrying the laws into practical operation and enforcing their due observance. 17

As head of the Executive Department, the President is the Chief Executive. He represents the government as a
whole and sees to it that all laws are enforced by the officials and employees of his department. 18 He has control
over the executive department, bureaus and offices. This means that he has the authority to assume directly the
functions of the executive department, bureau and office or interfere with the discretion of its officials.19 Corollary to
the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of
general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control
to enable him to discharge his duties effectively. 20

Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper
governmental organs. 21 It enables the President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents. 22 To this end, he can issue administrative orders, rules and regulations.

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered
by an administrative order. An administrative order is:

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspects of
governmental operation in pursuance of his duties as administrative head shall be promulgated in
administrative orders. 23

An administrative order is an ordinance issued by the President which relates to specific aspects in the
administrative operation of government. It must be in harmony with the law and should be for the sole
purpose of implementing the law and carrying out the legislative policy. 24 We reject the argument that A.O.
No. 308 implements the legislative policy of the Administrative Code of 1987. The Code is a general law and
"incorporates in a unified document the major structural, functional and procedural principles of
governance." 25 and "embodies changes in administrative structure and procedures designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals with Sovereignty and General
Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the
Office of the President, Book IV on the Executive Branch, Book V on Constitutional Commissions, Book VI
on National Government Budgeting, and Book VII on Administrative Procedure. These Books contain
provisions on the organization, powers and general administration of the executive, legislative and judicial
branches of government, the organization and administration of departments, bureaus and offices under the
executive branch, the organization and functions of the Constitutional Commissions and other constitutional
bodies, the rules on the national government budget, as well as guideline for the exercise by administrative
agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration of
government, i.e, internal organization, personnel and recruitment, supervision and discipline, and the effects
of the functions performed by administrative officials on private individuals or parties outside government. 27

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It
establishes for the first time a National Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies — the primacy of national security, the extent of privacy
interest against dossier-gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of thought. As said administrative order
redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as the line that separates
the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident
that it deals with a subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers no right, imposes no
duty, affords no proctection, and creates no office. Under A.O. No. 308, a citizen cannot transact business with
government agencies delivering basic services to the people without the contemplated identification card. No citizen
will refuse to get this identification card for no one can avoid dealing with government. It is thus clear as daylight that
without the ID, a citizen will have difficulty exercising his rights and enjoying his privileges. Given this reality, the
contention that A.O. No. 308 gives no right and imposes no duty cannot stand.

Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and
consequently erodes the plenary power of Congress to make laws. This is contrary to the established approach
defining the traditional limits of administrative legislation. As well stated by Fisher: ". . . Many regulations however,
bear directly on the public. It is here that administrative legislation must he restricted in its scope and application.
Regulations are not supposed to be a substitute for the general policy-making that Congress enacts in the form of a
public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to make laws." 28

III

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as
an administrative legislation because facially it violates the right to privacy. The essence of privacy is the "right to be
let alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States Supreme Court gave more substance
to the right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy
which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, 31 viz:

Specific guarantees in the Bill of Rights have penumbras formed by emanations from these
guarantees that help give them life and substance . . . various guarantees create zones of privacy.
The right of association contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of
peace without the consent of the owner is another facet of that privacy. The Fourth Amendment
explicitly affirms the ''right of the people to be secure in their persons, houses and effects, against
unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables
the citizen to create a zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people."

In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that there is a constitutional right to
privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held:

xxx xxx xxx

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a
criminal offence on the ground of its amounting to an unconstitutional invasion of the right of privacy
of married persons; rightfully it stressed "a relationship lying within the zone of privacy created by
several fundamental constitutional guarantees." It has wider implications though. The constitutional
right to privacy has come into its own.

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently
of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language
of Prof. Emerson is particularly apt: "The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the personal life of the citizen.
This is indeed one of the basic distinctions between absolute and limited government. Ultimate and
pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state can control. Protection of this
private sector — protection, in other words, of the dignity and integrity of the individual — has
become increasingly important as modern society has developed. All the forces of a technological
age — industrialization, urbanization, and organization — operate to narrow the area of privacy and
facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several
provisions of our Constitution. 33 It is expressly recognized in section 3 (1) of the Bill of Rights:

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires otherwise as prescribed by law.

Other facets of the right to privacy are protectad in various provisions of the Bill of Rights, viz: 34

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.

Sec. 2. The right of the people to be secure in their persons, houses papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

xxx xxx xxx

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public health as may be provided by law.

xxx xxx xxx

Sec. 8. The right of the people, including those employed in the public and private sectors, to form
unions, associations, or societies for purposes not contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very person
shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes
as actionable torts several acts by a person of meddling and prying into the privacy of another. 35 It also holds a
public officer or employee or any private individual liable for damages for any violation of the rights and liberties of
another person, 36 and recognizes the privacy of letters and other private communications. 37 The Revised Penal
Code makes a crime the violation of secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and
trespass to dwelling. 40 Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, 41 the Secrecy
of Bank Deposits Act 42 and the Intellectual Property Code. 43 The Rules of Court on privileged communication
likewise recognize the privacy of certain information. 44

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by
the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling
state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need to
provides our citizens and foreigners with the facility to conveniently transact business with basic service and social
security providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate,
fraudulent transactions and misrepresentations by persons seeking basic services. It is debatable whether these
interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not arguable is the broadness,
the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people's right to privacy in clear
and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a
"common reference number to establish a linkage among concerned agencies" through the use of "Biometrics
Technology" and "computer application designs."

Biometry or biometrics is "the science of the applicatin of statistical methods to biological facts; a mathematical
analysis of biological data." 45 The term "biometrics" has evolved into a broad category of technologies which provide
precise confirmation of an individual's identity through the use of the individual's own physiological and behavioral
characteristics. 46 A physiological characteristic is a relatively stable physical characteristic such as a fingerprint,
retinal scan, hand geometry or facial features. A behavioral characteristic is influenced by the individual's personality
and includes voice print, signature and keystroke. 47 Most biometric idenfication systems use a card or personal
identificatin number (PIN) for initial identification. The biometric measurement is used to verify that the individual
holding the card or entering the PIN is the legitimate owner of the card or PIN. 48

A most common form of biological encoding is finger-scanning where technology scans a fingertip and turns the
unique pattern therein into an individual number which is called a biocrypt. The biocrypt is stored in computer data
banks 49 and becomes a means of identifying an individual using a service. This technology requires one's fingertip
to be scanned every time service or access is provided. 50 Another method is the retinal scan. Retinal scan
technology employs optical technology to map the capillary pattern of the retina of the eye. This technology
produces a unique print similar to a finger print. 51 Another biometric method is known as the "artificial nose." This
device chemically analyzes the unique combination of substances excreted from the skin of people. 52 The latest on
the list of biometric achievements is the thermogram. Scientists have found that by taking pictures of a face using
infra-red cameras, a unique heat distribution pattern is seen. The different densities of bone, skin, fat and blood
vessels all contribute to the individual's personal "heat signature." 53

In the last few decades, technology has progressed at a galloping rate. Some science fictions are now science facts.
Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science that uses
various technologies in encoding any and all biological characteristics of an individual for identification. It is
noteworthy that A.O. No. 308 does not state what specific biological characteristics and what particular biometrics
technology shall be used to identify people who will seek its coverage. Considering the banquest of options
available to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people is not
groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of
data is limited to biological information alone for identification purposes. In fact, the Solicitor General claims that the
adoption of the Identification Reference System will contribute to the "generation of population data for development
planning." 54 This is an admission that the PRN will not be used solely for identification but the generation of other
data with remote relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can
give the government the roving authority to store and retrieve information for a purpose other than the identification
of the individual through his PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed as the dissenters do.
Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government
agency to avail of basic services and security. His transactions with the government agency will necessarily be
recorded — whether it be in the computer or in the documentary file of the agency. The individual's file may include
his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for
medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge
formidable informatin base through the electronic linkage of the files. 55 The data may be gathered for gainful and
useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert
invitation to misuse, a temptation that may be too great for some of our authorities to resist. 56

We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic
personal infomation about the individual. 57 Even that hospitable assumption will not save A.O. No. 308 from
constitutional infirmity for again said order does not tell us in clear and categorical terms how these information
gathered shall he handled. It does not provide who shall control and access the data, under what circumstances and
for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the
information. 58 Well to note, the computer linkage gives other government agencies access to the information. Yet,
there are no controls to guard against leakage of information. When the access code of the control programs of the
particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for
whatever purpose, or worse, manipulate the data stored within the system. 59

It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered
about our people will only be processed for unequivocally specified purposes. 60 The lack of proper safeguards in
this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to
track down his movement; it may also enable unscrupulous persons to access confidential information and
circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government
authorities and evade the right against unreasonable searches and seizures. 61 The possibilities of abuse and
misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks
control over what can be read or placed on his ID, much less verify the correctness of the data encoded. 62 They
threaten the very abuses that the Bill of Rights seeks to prevent. 63

The ability of sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and
transmit it over a national network is one of the most graphic threats of the computer revolution. 64 The computer is
capable of producing a comprehensive dossier on individuals out of information given at different times and for
varied purposes. 65 It can continue adding to the stored data and keeping the information up to date. Retrieval of
stored date is simple. When information of a privileged character finds its way into the computer, it can be extracted
together with other data on the subject. 66 Once extracted, the information is putty in the hands of any person. The
end of privacy begins.

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the
right to privacy as speculative and hypothetical. Again, we cannot countenance such a laidback posture. The Court
will not be true to its role as the ultimate guardian of the people's liberty if it would not immediately smother the
sparks that endanger their rights but would rather wait for the fire that could consume them.

We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with
regard to the Natioal ID and the use of biometrics technology as it stands on quicksand. 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) whether this expectation is one that society recognizes as reasonable. 67 The
factual circumstances of the case determines the reasonableness of the expectation. 68 However, other factors, such
as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this
expectation. 69 The use of biometrics and computer technology in A.O. No. 308 does not assure the individual of a
reasonable expectation of privacy. 70 As technology advances, the level of reasonably expected privacy
decreases. 71 The measure of protection granted by the reasonable expectation diminishes as relevant technology
becomes more widely accepted. 72 The security of the computer data file depends not only on the physical
inaccessibility of the file but also on the advances in hardware and software computer technology. A.O. No. 308 is
so widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of technology used,
cannot be inferred from its provisions.

The rules and regulations to be by the IACC cannot remedy this fatal defect. Rules and regulations merely
implement the policy of the law or order. On its face, A.O. No. gives the IACC virtually infettered discretion to
determine the metes and bounds of the ID System.

Nor do your present laws prvide adequate safeguards for a reasonable expectation of privacy. Commonwealth Act.
No. 591 penalizes the disclosure by any person of data furnished by the individual to the NSO with imprisonment
and fine. 73 Republic Act. No. 1161 prohibits public disclosure of SSS employment records and reports. 74 These
laws, however, apply to records and data with the NSO and the SSS. It is not clear whether they may be applied to
data with the other government agencies forming part of the National ID System. The need to clarify the penal
aspect of A.O. No. 308 is another reason why its enactment should be given to Congress.

Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by using the
rational relationship test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to streamline and speed up the
implementation of basic government services, (2) eradicate fraud by avoiding duplication of services, and (3)
generate population data for development planning. He cocludes that these purposes justify the incursions into the
right to privacy for the means are rationally related to the end. 76

We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the constitutionality of R.A. 3019, the Anti-
Graft and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling a public
officer to make an annual report disclosing his assets and liabilities, his sources of income and expenses, did not
infringe on the individual's right to privacy. The law was enacted to promote morality in public administration by
curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public
service. 78
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an administrative
order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. IN the case at bar, A.O. No. 308 may have been impelled by
a worthy purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we now hod that when
the integrity of a fundamental right is at stake, this court will give the challenged law, administrative order, rule or
regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity in the
performance of official duties. Nor is it enough for the authorities to prove that their act is not irrational for a basic
right can be diminished, if not defeated, even when the government does not act irrationally. They must satisfactorily
show the presence of compelling state interests and that the law, rule or regulation is narrowly drawn to preclude
abuses. This approach is demanded by the 1987 Constitution whose entire matrix is designed to protect human
rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean towards the stance that will
not put in danger the rights protected by the Constitutions.

The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In Whalen, the United States Supreme
Court was presented with the question of whether the State of New York could keep a centralized computer record
of the names and addresses of all persons who obtained certain drugs pursuant to a doctor's prescription. The New
York State Controlled Substance Act of 1972 required physicians to identify parties obtaining prescription drugs
enumerated in the statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the
names and addresses of the patients can be recorded in a centralized computer file of the State Department of
Health. The plaintiffs, who were patients and doctors, claimed that some people might decline necessary medication
because of their fear that the computerized data may be readily available and open to public disclosure; and that
once disclosed, it may stigmatize them as drug addicts. 80 The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e., the individual interest in avoiding disclosure of personal matters, and
the interest in independence in making certain kinds of important decisions. The U.S. Supreme Court held that while
an individual's interest in avoiding disclosuer of personal matter is an aspect of the right to privacy, the statute did
not pose a grievous threat to establish a constitutional violation. The Court found that the statute was necessary to
aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. The patient-identification
requirement was a product of an orderly and rational legislative decision made upon recommmendation by a
specially appointed commission which held extensive hearings on the matter. Moreover, the statute was narrowly
drawn and contained numerous safeguards against indiscriminate disclosure. The statute laid down the procedure
and requirements for the gathering, storage and retrieval of the informatin. It ebumerated who were authorized to
access the data. It also prohibited public disclosure of the data by imposing penalties for its violation. In view of
these safeguards, the infringement of the patients' right to privacy was justified by a valid exercise of police power.
As we discussed above, A.O. No. 308 lacks these vital safeguards.

Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se agains the use of
computers to accumulate, store, process, retvieve and transmit data to improve our bureaucracy. Computers work
wonders to achieve the efficiency which both government and private industry seek. Many information system in
different countries make use of the computer to facilitate important social objective, such as better law enforcement,
faster delivery of public services, more efficient management of credit and insurance programs, improvement of
telecommunications and streamlining of financial activities. 81 Used wisely, data stored in the computer could help good
administration by making accurate and comprehensive information for those who have to frame policy and make key
decisions. 82 The benefits of the computer has revolutionized information technology. It developed the
internet, 83 introduced the concept of cyberspace 84 and the information superhighway where the individual, armed only
with his personal computer, may surf and search all kinds and classes of information from libraries and databases
connected to the net.

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy.
The right is not intended to stifle scientific and technological advancements that enhance public service and the
common good. It merely requires that the law be narrowly focused 85 and a compelling interest justify such
intrusions. 86 Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that invades individual privacy will be subjected by this Court
to strict scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to wit:

The concept of limited government has always included the idea that governmental powers stop
short of certain intrusions into the personal life of the citizen. This is indeed one of the basic
disctinctions between absolute and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of
limited government safeguards a private sector, which belongs to the individual, firmly distinguishing
 it from the public sector, which the state can control. Protection of this private sector — protection, in
other words, of the dignity and integrity of the individual — has become increasingly important as
modern society has developed. All the forces of a technological age — industrialization,
urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it.
In modern terms, the capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society. 87

IV

The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from
various sources — governments, journalists, employers, social scientists, etc. 88 In th case at bar, the threat comes
from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy
by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-
keeping power of the computer, only the indifferent fail to perceive the danger that A.O. No. 308 gives the government the
power to compile a devastating dossier against unsuspecting citizens. It is timely to take note of the well-worded warning
of Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an unerasable record of his past and his
limitations. In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to
forget." 89 Oblivious to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a
fundamental right. We close with the statement that the right to privacy was not engraved in our Constitution for flattery.

IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" declared null and void for being unconstitutional.

SO ORDERED.
G.R. No. 193636 July 24, 2012

MARYNETTE R. GAMBOA, Petitioner,

vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial Director of Ilocos Norte, and P/SUPT.
WILLIAM 0. FANG, in his capacity as Chief, Intelligence Division, PNP Provincial Office, Ilocos
Norte, Respondents.

DECISION

SERENO, J.:

Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court) filed pursuant to Rule 191 of the
Rule on the Writ of Habeas Data,2 seeking a review of the 9 September 2010 Decision in Special Proc. No. 14979 of
the Regional Trial Court, First Judicial Region, Laoag City, Branch 13 (RTC Br. 13).3 The questioned Decision
denied petitioner the privilege of the writ of habeas data.4

At the time the present Petition was filed, petitioner Marynette R. Gamboa (Gamboa) was the Mayor of Dingras,
Ilocos Norte.5 Meanwhile, respondent Police Senior Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-
Charge, and respondent Police Superintendent (P/SUPT.) William O. Fang was the Chief of the Provincial
Investigation and Detective Management Branch, both of the Ilocos Norte Police Provincial Office.6

On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative Order No. 275 (A.O. 275),
"Creating an Independent Commission to Address the Alleged Existence of Private Armies in the Country."7 The
body, which was later on referred to as the Zeñarosa Commission,8 was formed to investigate the existence of
private army groups (PAGs) in the country with a view to eliminating them before the 10 May 2010 elections and
dismantling them permanently in the future.9 Upon the conclusion of its investigation, the Zeñarosa Commission
released and submitted to the Office of the President a confidential report entitled "A Journey Towards H.O.P.E.:
The Independent Commission Against Private Armies’ Report to the President" (the Report).10

Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP–Ilocos Norte) conducted a series of
surveillance operations against her and her aides,11 and classified her as someone who keeps a PAG.12 Purportedly
without the benefit of data verification, PNP–Ilocos Norte forwarded the information gathered on her to the Zeñarosa
Commission,13 thereby causing her inclusion in the Report’s enumeration of individuals maintaining PAGs.14 More
specifically, she pointed out the following items reflected therein:

(a) The Report cited the PNP as its source for the portion regarding the status of PAGs in the Philippines.15

(b) The Report stated that "x x x the PNP organized one dedicated Special Task Group (STG) for each
private armed group (PAG) to monitor and counteract their activities."16

(c) Attached as Appendix "F" of the Report is a tabulation generated by the PNP and captioned as "Status of
PAGs Monitoring by STGs as of April 19, 2010," which classifies PAGs in the country according to region,
indicates their identity, and lists the prominent personalities with whom these groups are associated.17 The
first entry in the table names a PAG, known as the Gamboa Group, linked to herein petitioner Gamboa.18

(d) Statistics on the status of PAGs were based on data from the PNP, to wit:

The resolutions were the subject of a national press conference held in Malacañang on March 24, 2010 at
which time, the Commission was also asked to comment on the PNP report that out of one hundred
seventeen (117) partisan armed groups validated, twenty-four (24) had been dismantled with sixty-seven
(67) members apprehended and more than eighty-six (86) firearms confiscated.

Commissioner Herman Basbaño qualified that said statistics were based on PNP data but that the more
significant fact from his report is that the PNP has been vigilant in monitoring the activities of these armed
groups and this vigilance is largely due to the existence of the Commission which has continued
communicating with the Armed Forces of the Philippines (AFP) and PNP personnel in the field to constantly
provide data on the activities of the PAGs. Commissioner Basbaño stressed that the Commission’s efforts
have preempted the formation of the PAGs because now everyone is aware that there is a body monitoring
the PAGs movement through the PNP. Commissioner Lieutenant General Edilberto Pardo Adan also
clarified that the PAGs are being destabilized so that their ability to threaten and sow fear during the election
has been considerably weakened.19

(e) The Report briefly touched upon the validation system of the PNP:

Also, in order to provide the Commission with accurate data which is truly reflective of the situation in the field, the
PNP complied with the Commission’s recommendation that they revise their validation system to include those
PAGs previously listed as dormant. In the most recent briefing provided by the PNP on April 26, 2010, there are one
hundred seven (107) existing PAGs. Of these groups, the PNP reported that seven (7) PAGs have been
reorganized.20

On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion of the Report naming
Gamboa as one of the politicians alleged to be maintaining a PAG.21 Gamboa averred that her association with a
PAG also appeared on print media.22 Thus, she was publicly tagged as someone who maintains a PAG on the basis
of the unverified information that the PNP-Ilocos Norte gathered and forwarded to the Zeñarosa Commission.23 As a
result, she claimed that her malicious or reckless inclusion in the enumeration of personalities maintaining a PAG as
published in the Report also made her, as well as her supporters and other people identified with her, susceptible to
harassment and police surveillance operations.24

Contending that her right to privacy was violated and her reputation maligned and destroyed, Gamboa filed a
Petition dated 9 July 2010 for the issuance of a writ of habeas data against respondents in their capacities as
officials of the PNP-Ilocos Norte.25 In her Petition, she prayed for the following reliefs: (a) destruction of the unverified
reports from the PNP-Ilocos Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c)
rectification of the damage done to her honor; (d) ordering respondents to refrain from forwarding unverified reports
against her; and (e) restraining respondents from making baseless reports.26

The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13, which issued the corresponding
writ on 14 July 2010 after finding the Petition meritorious on its face.27 Thus, the trial court (a) instructed respondents
to submit all information and reports forwarded to and used by the Zeñarosa Commission as basis to include her in
the list of persons maintaining PAGs; (b) directed respondents, and any person acting on their behalf, to cease and
desist from forwarding to the Zeñarosa Commission, or to any other government entity, information that they may
have gathered against her without the approval of the court; (c) ordered respondents to make a written return of the
writ together with supporting affidavits; and (d) scheduled the summary hearing of the case on 23 July 2010.28

In their Return of the Writ, respondents alleged that they had acted within the bounds of their mandate in conducting
the investigation and surveillance of Gamboa.29 The information stored in their database supposedly pertained to two
criminal cases in which she was implicated, namely: (a) a Complaint for murder and frustrated murder docketed as
NPS DOC No. 1-04-INQ-091-00077, and (b) a Complaint for murder, frustrated murder and direct assault upon a
person in authority, as well as indirect assault and multiple attempted murder, docketed as NPS DOCKET No. 1-04-
INV-10-A-00009.30

Respondents likewise asserted that the Petition was incomplete for failing to comply with the following requisites
under the Rule on the Writ of Habeas Data: (a) the manner in which the right to privacy was violated or threatened
with violation and how it affected the right to life, liberty or security of Gamboa; (b) the actions and recourses she
took to secure the data or information; and (c) the location of the files, registers or databases, the government office,
and the person in charge, in possession or in control of the data or information.31 They also contended that the
Petition for Writ of Habeas Data, being limited to cases of extrajudicial killings and enforced disappearances, was
not the proper remedy to address the alleged besmirching of the reputation of Gamboa.32

RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the Petition.33 The trial court categorically
ruled that the inclusion of Gamboa in the list of persons maintaining PAGs, as published in the Report, constituted a
violation of her right to privacy, to wit:

In this light, it cannot also be disputed that by her inclusion in the list of persons maintaining PAGs, Gamboa’s right
to privacy indubitably has been violated. The violation understandably affects her life, liberty and security
enormously. The untold misery that comes with the tag of having a PAG could even be insurmountable. As she
essentially alleged in her petition, she fears for her security that at any time of the day the unlimited powers of
respondents may likely be exercised to further malign and destroy her reputation and to transgress her right to life.

By her inclusion in the list of persons maintaining PAGs, it is likewise undisputed that there was certainly intrusion
into Gamboa’s activities. It cannot be denied that information was gathered as basis therefor. After all, under
Administrative Order No. 275, the Zeñarosa Commission was tasked to investigate the existence of private armies
in the country, with all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative
Code of 1987.

xxx xxx xxx

By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as she accused respondents, who are
public officials, of having gathered and provided information that made the Zeñarosa Commission to include her in
the list. Obviously, it was this gathering and forwarding of information supposedly by respondents that petitioner
barks at as unlawful. x x x.34

Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the ground that Gamboa failed to
prove through substantial evidence that the subject information originated from respondents, and that they
forwarded this database to the Zeñarosa Commission without the benefit of prior verification.35 The trial court also
ruled that even before respondents assumed their official positions, information on her may have already been
acquired.36 Finally, it held that the Zeñarosa Commission, as the body tasked to gather information on PAGs and
authorized to disclose information on her, should have been impleaded as a necessary if not a compulsory party to
the Petition.37

Gamboa then filed the instant Appeal by Certiorari dated 24 September 2010,38 raising the following assignment of
errors:

1. The trial court erred in ruling that the Zeñarosa Commission be impleaded as either a necessary or
indispensable party;
 2. The trial court erred in declaring that Gamboa failed to present sufficient proof to link respondents as the
informant to [sic] the Zeñarosa Commission;

3. The trial court failed to satisfy the spirit of Habeas Data;

4. The trial court erred in pronouncing that the reliance of the Zeñarosa Commission to [sic] the PNP as
alleged by Gamboa is an assumption;

5. The trial court erred in making a point that respondents are distinct to PNP as an agency.39

On the other hand, respondents maintain the following arguments: (a) Gamboa failed to present substantial
evidence to show that her right to privacy in life, liberty or security was violated, and (b) the trial court correctly
dismissed the Petition on the ground that she had failed to present sufficient proof showing that respondents were
the source of the report naming her as one who maintains a PAG.40

Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the mandate to dismantle PAGs in
the country should be done in accordance with due process, such that the gathering and forwarding of unverified
information on her must be considered unlawful.41 She also reiterates that she was able to present sufficient
evidence showing that the subject information originated from respondents.42

In determining whether Gamboa should be granted the privilege of the writ of habeas data, this Court is called upon
to, first, unpack the concept of the right to privacy; second, explain the writ of habeas data as an extraordinary
remedy that seeks to protect the right to informational privacy; and finally, contextualize the right to privacy vis-à-vis
the state interest involved in the case at bar.

The Right to Privacy

The right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional right. This Court,
in Morfe v. Mutuc,43 thus enunciated:

The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in
disposing of the objections raised by plaintiff that the provision on the periodical submission of a sworn statement of
assets and liabilities is violative of the constitutional right to privacy. There is much to be said for this view of Justice
Douglas: "Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it
must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of
all freedom." As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most
comprehensive of rights and the right most valued by civilized men."

The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique
individual whose claim to privacy and interference demands respect. xxx.

xxx xxx xxx

x x x In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five members of the Court,
stated: "Various guarantees create zones of privacy. The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in
any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth
Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the
citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth
Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." After referring to various American Supreme Court decisions, Justice
Douglas continued: "These cases bear witness that the right of privacy which presses for recognition is a legitimate
one."

xxx xxx xxx

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the idea that governmental powers stop
short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government, safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this
private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly
important as modern society has developed. All the forces of a technological age — industrialization, urbanization,
and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference between a democratic and a
totalitarian society."44 (Emphases supplied)

In Ople v. Torres,45 this Court traced the constitutional and statutory bases of the right to privacy in Philippine
jurisdiction, to wit:

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several
provisions of our Constitution. It is expressly recognized in section 3 (1) of the Bill of Rights:

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise as prescribed by law.

Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

xxx xxx xxx

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health as may be provided by law.

xxx xxx xxx

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "every person shall
respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as
actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public
officer or employee or any private individual liable for damages for any violation of the rights and liberties of another
person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a
crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling.
Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act
and the Intellectual Property Code. The Rules of Court on privileged communication likewise recognize the privacy
of certain information.
Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by
the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling
state interest and that it is narrowly drawn. x x x.46 (Emphases supplied)

Clearly, the right to privacy is considered a fundamental right that must be protected from intrusion or constraint.
However, in Standard Chartered Bank v. Senate Committee on Banks,47 this Court underscored that the right to
privacy is not absolute, viz:

With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is
not an absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights
of persons affected by the legislative investigation, not every invocation of the right to privacy should be allowed to
thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held that the right of the people to access
information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions.
In that case, we declared that the right to privacy is not absolute where there is an overriding compelling state
interest. Employing the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no infringement of
the individual’s right to privacy as the requirement to disclosure information is for a valid purpose, in this case, to
ensure that the government agencies involved in regulating banking transactions adequately protect the public who
invest in foreign securities. Suffice it to state that this purpose constitutes a reason compelling enough to proceed
with the assailed legislative investigation.48

Therefore, when the right to privacy finds tension with a competing state objective, the courts are required to weigh
both notions. In these cases, although considered a fundamental right, the right to privacy may nevertheless
succumb to an opposing or overriding state interest deemed legitimate and compelling.

The Writ of Habeas Data

The writ of habeas data 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.49 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.50 It must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus
between the right to privacy on the one hand, and the right to life, liberty or security on the other. Section 1 of the
Rule on the Writ of Habeas Data reads:

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 information regarding the person, family,
home and correspondence of the aggrieved party.

The notion of informational privacy is still developing in Philippine law and jurisprudence. Considering that even the
Latin American habeas data, on which our own Rule on the Writ of Habeas Data is rooted, finds its origins from the
European tradition of data protection,51 this Court can be guided by cases on the protection of personal data decided
by the European Court of Human Rights (ECHR). Of particular note is Leander v. Sweden,52 in which the ECHR
balanced the right of citizens to be free from interference in their private affairs with the right of the state to protect
its national security. In this case, Torsten Leander (Leander), a Swedish citizen, worked as a temporary replacement
museum technician at the Naval Museum, which was adjacent to a restricted military security zone.53 He was refused
employment when the requisite personnel control resulted in an unfavorable outcome on the basis of information in
the secret police register, which was kept in accordance with the Personnel Control Ordinance and to which he was
prevented access.54 He claimed, among others, that this procedure of security control violated Article 8 of the
European Convention of Human Rights55 on the right to privacy, as nothing in his personal or political background
would warrant his classification in the register as a security risk.56

The ECHR ruled that the storage in the secret police register of information relating to the private life of Leander,
coupled with the refusal to allow him the opportunity to refute the same, amounted to an interference in his right to
respect for private life.57 However, the ECHR held that the interference was justified on the following grounds: (a) the
personnel control system had a legitimate aim, which was the protection of national security,58 and (b) the Personnel
Control Ordinance gave the citizens adequate indication as to the scope and the manner of exercising discretion in
the collection, recording and release of information by the authorities.59 The following statements of the ECHR must
be emphasized:

58. The notion of necessity implies that the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued (see, inter alia, the Gillow judgment of 24
November 1986, Series A no. 109, p. 22, § 55).

59. However, the Court recognises that the national authorities enjoy a margin of appreciation, the scope of
which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of
the interference involved. In the instant case, the interest of the respondent State in protecting its national
security must be balanced against the seriousness of the interference with the applicant’s right to respect for
his private life.

There can be no doubt as to the necessity, for the purpose of protecting national security, for the Contracting States
to have laws granting the competent domestic authorities power, firstly, to collect and store in registers not
accessible to the public information on persons and, secondly, to use this information when assessing the suitability
of candidates for employment in posts of importance for national security.

Admittedly, the contested interference adversely affected Mr. Leander’s legitimate interests through the
consequences it had on his possibilities of access to certain sensitive posts within the public service. On the other
hand, the right of access to public service is not as such enshrined in the Convention (see, inter alia, the Kosiek
judgment of 28 August 1986, Series A no. 105, p. 20, §§ 34-35), and, apart from those consequences, the
interference did not constitute an obstacle to his leading a private life of his own choosing.

In these circumstances, the Court accepts that the margin of appreciation available to the respondent State in
assessing the pressing social need in the present case, and in particular in choosing the means for achieving the
legitimate aim of protecting national security, was a wide one.

xxx xxx xxx

66. The fact that the information released to the military authorities was not communicated to Mr. Leander cannot by
itself warrant the conclusion that the interference was not "necessary in a democratic society in the interests of
national security", as it is the very absence of such communication which, at least partly, ensures the efficacy of the
personnel control procedure (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no.
28, p. 27, § 58).

The Court notes, however, that various authorities consulted before the issue of the Ordinance of 1969, including
the Chancellor of Justice and the Parliamentary Ombudsman, considered it desirable that the rule of communication
to the person concerned, as contained in section 13 of the Ordinance, should be effectively applied in so far as it did
not jeopardise the purpose of the control (see paragraph 31 above).

67. The Court, like the Commission, thus reaches the conclusion that the safeguards contained in the Swedish
personnel control system meet the requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the wide
margin of appreciation available to it, the respondent State was entitled to consider that in the present case the
interests of national security prevailed over the individual interests of the applicant (see paragraph 59 above). The
interference to which Mr. Leander was subjected cannot therefore be said to have been disproportionate to the
legitimate aim pursued. (Emphases supplied)

Leander illustrates how the right to informational privacy, as a specific component of the right to privacy, may yield
to an overriding legitimate state interest. In similar fashion, the determination of whether the privilege of the writ of
habeas data, being an extraordinary remedy, may be granted in this case entails a delicate balancing of the alleged
intrusion upon the private life of Gamboa and the relevant state interest involved.

The collection and forwarding of information by the PNP vis-à-vis the interest of the state to dismantle private
armies.
The Constitution explicitly mandates the dismantling of private armies and other armed groups not recognized by
the duly constituted authority.60 It also provides for the establishment of one police force that is national in scope and
civilian in character, and is controlled and administered by a national police commission.61

Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275 articulates a legitimate state
aim, which is to investigate the existence of PAGs with the ultimate objective of dismantling them permanently.

To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it with the powers of an investigative
body, including the power to summon witnesses, administer oaths, take testimony or evidence relevant to the
investigation and use compulsory processes to produce documents, books, and records.62 A.O. 275 likewise
authorized the Zeñarosa Commission to deputize the Armed Forces of the Philippines, the National Bureau of
Investigation, the Department of Justice, the PNP, and any other law enforcement agency to assist the commission
in the performance of its functions.63

Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce all laws and ordinances
relative to the protection of lives and properties; (b) maintain peace and order and take all necessary steps to
ensure public safety; and (c) investigate and prevent crimes.64

Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and functions accorded to the
Zeñarosa Commission and the PNP, the latter collected information on individuals suspected of maintaining PAGs,
monitored them and counteracted their activities.65 One of those individuals is herein petitioner Gamboa.

This Court holds that Gamboa was able to sufficiently establish that the data contained in the Report listing her as a
PAG coddler came from the PNP. Contrary to the ruling of the trial court, however, the forwarding of information by
the PNP to the Zeñarosa Commission was not an unlawful act that violated or threatened her right to privacy in life,
liberty or security.

The PNP was rationally expected to forward and share intelligence regarding PAGs with the body specifically
created for the purpose of investigating the existence of these notorious groups. Moreover, the Zeñarosa
Commission was explicitly authorized to deputize the police force in the fulfillment of the former’s mandate, and thus
had the power to request assistance from the latter.

Following the pronouncements of the ECHR in Leander, the fact that the PNP released information to the Zeñarosa
Commission without prior communication to Gamboa and without affording her the opportunity to refute the same
cannot be interpreted as a violation or threat to her right to privacy since that act is an inherent and crucial
component of intelligence-gathering and investigation. Additionally, Gamboa herself admitted that the PNP had a
1âw phi1

validation system, which was used to update information on individuals associated with PAGs and to ensure that the
data mirrored the situation on the field.66 Thus, safeguards were put in place to make sure that the information
collected maintained its integrity and accuracy.

Pending the enactment of legislation on data protection, this Court declines to make any further determination as to
the propriety of sharing information during specific stages of intelligence gathering. To do otherwise would supplant
the discretion of investigative bodies in the accomplishment of their functions, resulting in an undue encroachment
on their competence.

However, to accord the right to privacy with the kind of protection established in existing law and jurisprudence, this
Court nonetheless deems it necessary to caution these investigating entities that information-sharing must observe
strict confidentiality. Intelligence gathered must be released exclusively to the authorities empowered to receive the
relevant information. After all, inherent to the right to privacy is the freedom 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."67

In this case, respondents admitted the existence of the Report, but emphasized its confidential nature. That it was
1âwphi1

leaked to third parties and the media was regrettable, even warranting reproach. But it must be stressed that
Gamboa failed to establish that respondents were responsible for this unintended disclosure. In any event, there are
other reliefs available to her to address the purported damage to her reputation, making a resort to the extraordinary
remedy of the writ of habeas data unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through substantial evidence that her inclusion in the list
of individuals maintaining PAGs made her and her supporters susceptible to harassment and to increased police
surveillance. In this regard, respondents sufficiently explained that the investigations conducted against her were in
relation to the criminal cases in which she was implicated. As public officials, they enjoy the presumption of
regularity, which she failed to overcome.

It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the alleged
intrusion on the private life of Gamboa, especially when the collection and forwarding by the PNP of information
against her was pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas data must be denied.

WHEREFORE, the instant petition for review is DENIED. The assailed Decision in Special Proc. No. 14979 dated 9
September 2010 of the Regional Trial Court, Laoag City, Br. 13, insofar as it denies Gamboa the privilege of the writ
of habeas data, is AFFIRMED.

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

x-----------------------x

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,

JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT
OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU
OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

x-----------------------x

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.

x-----------------------x

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND
R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA
R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS
GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.
x-----------------------x

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the Executive Department of Government), Respondents.

x-----------------------x

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-
PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.

x-----------------------x

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, Respondents.

x-----------------------x

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN
A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY
EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity
as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.

x-----------------------x

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR
R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police, Respondents.

x-----------------------x

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

x-----------------------x

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity
as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.

x-----------------------x

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR

MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A.
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA
TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR
OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF
CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.
 DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person
can connect to the internet, a system that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual
accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system since it could not filter out a number of
persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting
defamatory statements against him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this reason, the government has
a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories
of innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended
the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:
 a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime
of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with
the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful in
determining the constitutionality of laws that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing
with the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlier
applications to equal protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act
– accessing the computer system of another without right. It is a universally condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ
tools and techniques used by criminal hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in
it and give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records.5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the
search, the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free
card."6 Since the ethical hacker does his job with prior permission from the client, such permission would insulate
him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference,
it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a
form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9 or the fear of
possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no
tendency to intimidate the free exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not being
narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take
the name of another in satire, parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others
who are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures.13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the
relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the
right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights
which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the
right to the protection of the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches16 and
seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has impermissibly intruded into these zones of privacy,
a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his residence address, his
contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data.19 The
law punishes those who acquire or use such identifying information without right, implicitly to cause damage.
Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of the
offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator.20 As such, the press, whether in quest of news
reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They express fear
that private communications of sexual character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In
common usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded," or
"a token of love (as a ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces
socially tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of married
couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give
a proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of obscenity to some."23 The
understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary
to constitute the illegal cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of
the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act
of 2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography."26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other
purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it
apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the
lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has
intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the
Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover
identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system. Actually, ACPA’s definition of child
pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one
can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded
in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct,
manufacture or create any form of child pornography"33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles on
paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one
who formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who
replies to the tweet could be considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For
now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the
use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the
sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in
any part of the message in order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred to a Monty Python’s Flying Circus scene in which
actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads.
What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos,
or both, in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of
the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or any other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the cybercrime law
carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with
the higher standard of "actual malice" as a basis for conviction.38 Petitioners argue that inferring "presumed malice"
from the accused’s defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin
v. People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge
that it is false or with reckless disregard of whether it was false or not.42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such element is
required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false,
is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of
actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who
were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on
her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in
fact, as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above
case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement.45 For his
defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact
true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34
to the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court
and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives
and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of
their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply
suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of
expression.48 Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its exercise
carries with it special duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as
may be necessary and as may be provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4)
above merely affirms that online defamation constitutes "similar means" for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement
or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were
enacted. The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are a
world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated
by one-click reply options offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the
internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter
that the Court will deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids
in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of
the internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or
abetting" a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is
at times sufficient to guide law enforcement agencies in enforcing the law.51 The legislature is not required to define
every single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character. These
forms of aiding or abetting lend themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The
idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of
cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within
a year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including automatic notifications when they update
their profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of preferences on the program’s screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online
his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send
and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or
other media—on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this
particular user’s posts, enabling them to read the same, and "Following," those whom this particular user is
subscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to
his Followers, or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person’s tweet without the need of copying and pasting
it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may
have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun
Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair
with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are
so immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to
friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds
it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers"
then "Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed
posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses
agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel
in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends
or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or
abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or
abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice
as to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a case involving
the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission,
by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an
interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently
offensive" as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for
being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA
threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal
sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas,
and images. As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements
can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts, comments, and other messages.64 Hence,
Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must view these statements of
the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only
insofar as these doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It
prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of
a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such latitude that they could
arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens
are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another
comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it
will destroy relationships and, under certain circumstances, will generate enmity and tension between social or
economic groups, races, or religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child pornography," does
this make Google and its users aiders and abettors in the commission of child pornography crimes?68 Byars
highlights a feature in the American law on child pornography that the Cybercrimes law lacks—the exemption of a
provider or notably a plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any action
voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details.
In this way, certain information is forwarded to third parties and unsolicited commercial communication could be
disseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution of
this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of
internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners
point out, formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing
the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise
of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor is alerted.72 If Section 5
that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the
username and password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be true
with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6),
Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable certainty through adroit tracking of their works.
Absent concrete proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed
by, through and with the use of information and communications technologies shall be covered by the relevant
provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for
by the Revised Penal Code, as amended, and special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the
Solicitor General points out, there exists a substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed using other means. In using the
technology in question, the offender often evades identification and is able to reach far more victims or cause
greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two
different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave
the determination of the correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be libelous, is
again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A.
10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353.
Section 4(c)(4) merely establishes the computer system as another means of publication.75 Charging the offender
under both laws would be a blatant violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as
to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the
offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount commensurate to the
damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished
with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not
exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished
with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided,
That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two
hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate
to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have
been connected with another crime.77 Judges and magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized
to collect or record by technical or electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of
underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of
the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to
the tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the
government should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities
to collect or record "traffic data, in real time, associated with specified communications."83 And this is precisely what
Section 12 does. It empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right,84 transmitting viruses,85 lasciviously exhibiting
sexual organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade
detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones
under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be
located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle
child pornography could use relays of computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-
issued search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the people’s right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of
privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this
Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or
legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation
of privacy must be one society is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners’ challenge to Section 12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general public’s point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,
must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT
user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is
this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the
packet fits together with other packets.93 The difference is that traffic data sent through the internet at times across
the ocean do not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to another where
their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s communication’s
system will put his voice message into packets and send them to the other person’s cellphone where they are
refitted together and heard. The latter’s spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider when he puts his call through. He
also reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone
users in the ‘70s must realize that they necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain
private, such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one another
over cyberspace except through some service providers to whom they must submit certain traffic data that are
needed for a successful cyberspace communication. The conveyance of this data takes them out of the private
sphere, making the expectation to privacy in regard to them an expectation that society is not prepared to recognize
as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person’s
close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the
law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the
Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data.
It is akin to the use of a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against
an identified suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of
their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked
information or, worse, to extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But
this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in
"fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of
individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it
is not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and
that the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The
grant of the power to track cyberspace communications in real time and determine their sources and destinations
must be narrowly drawn to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and
the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free
speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such
analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even impossible. "All
the forces of a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In
modern terms, the capacity to maintain and support this enclave of private life marks the difference between a
democratic and a totalitarian society."96 The Court must ensure that laws seeking to take advantage of these
technologies be written with specificity and definiteness as to ensure respect for the rights that the Constitution
guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt
of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once
computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They
liken the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and
are to be considered private communications. But it is not clear that a service provider has an obligation to
indefinitely keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13,
however, the law now requires service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction and those relating to content data for
at least six months from receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The
service provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process
of preserving data will not unduly hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue
an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or
relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a
valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the
purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is that
the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually
lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure
for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications
and correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly
issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning
of the computer system and the measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data
storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures.
On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the
proper collection, preservation, and use of computer system or data that have been seized by virtue of a court
warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted
upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service
provider’s storage systems and prevent overload. It would also ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the
user’s right against deprivation of property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in
its storage system. If he wanted them preserved, he should have saved them in his computer when he generated
the data or received it. He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in
violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and
right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their
personal computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states
that no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on
the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content
alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear
and present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102 Section 20
necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20
to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be
a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are
not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from
the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating
Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of
cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation
and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is
to enforce it. The second test mandates adequate guidelines or limitations in the law to determine the boundaries of
1avv phi 1

the delegate’s authority and prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best
practices, assurance and technologies that can be used to protect cyber environment and organization and user’s
assets.104 This definition serves as the parameters within which CICC should work in formulating the cybersecurity
plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such
[cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international cooperation."105 This policy is clearly adopted
in the interest of law and order, which has been considered as sufficient standard.106 Hence, Sections 24 and 26(a)
are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to
suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad
faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information
belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual
activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised
Penal Code are committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic
data and subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-
issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

 n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel. 1âw phi 1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as
well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.

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.

DECISION

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 environmental 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,1 otherwise known as the "Rule on the Writ of Habeas Data." Petitioners herein assail the July 27,
2012 Decision2 of the Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. 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 Facebook3 profile.

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 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,4 but were, in fact, viewable by any Facebook user.5

Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page, showed the
photosto Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action. Thereafter, following an
investigation, STC found the identified students to have 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 alcoholicbeverages in public places;

4. Apparel that exposes the underwear;

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 ICM6 Directress. They
claimed that during the meeting, they were 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 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-
38594.7 In it, Tan prayed that defendants therein be enjoined from 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 inCivil 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 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 ofthe TRO remained unresolved.

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data, docketed as SP.
Proc. No. 19251-CEB8 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;

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 databe issued; (b) respondents be ordered to surrender and deposit with the court all soft and
printed copies of the subjectdata 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 inviolation 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 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:

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 quoheld 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 inthis case is whether or not a writ of habeas datashould 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.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the availability of the Writ of Habeas Data

The writ of habeas datais 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.11 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.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 dataas "a procedure designed to safeguard individual
freedom from abuse in the information age."13 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.14 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.15

Without an actionable entitlement in the first place to the right to informational privacy, a habeas datapetition 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,16 bridging the gap created by physical space; and (2) that any information
uploaded in OSNs leavesan 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

Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for the purpose of
complementing the Writ of Amparoin 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 degreeof
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."17 As
such, it is erroneous to limit its applicability to extralegal killings and enforced disappearances only. In fact, the
annotations to the Rule preparedby 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.18 (emphasis Ours) Clearly then, the privilege of the Writ of Habeas Datamay 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 businessof gathering, storing, and collecting of data. As provided under
Section 1 of the Rule:

Section 1. Habeas Data. – The writ of habeas datais 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. (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 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."19 It does 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 asan 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.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

The concept of privacyhas, 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,20 where he explained the three strands of the right to privacy, viz: (1) locational or situational privacy;21 (2)
informational privacy; and (3) decisional privacy.22 Of the 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 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.25 In the same vein, the South African High Court, in its Decision in the landmark case, H v. W,26 promulgated
on January30, 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.

The question now though is up to whatextent 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,27 some of which would 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, includingthe 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."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,30 but without defeating its purpose, Facebook was armed with different privacy
tools designed to regulate the accessibility of a user’s profile31 as well as information uploaded by the user. In H v.
W,32 the South Gauteng High Court 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 canregulate the visibility and accessibility of digital images(photos), posted on his or
her personal bulletin or "wall," except for the user’sprofile picture and ID, by selecting his or her desired privacy
setting:

(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."34 Ideally, the 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 is through the availability of said privacy
tools that many OSN users are said to have a subjective expectation that only those to whomthey grant access to
their profile will view the information they post or upload thereto.35

This, however, does not mean thatany Facebook user automatically has a protected expectation of privacy inall 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 keepcertain posts private, through the employment of
measures to prevent access thereto or to limit its visibility.36 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.37

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post
orprofile detail should not be denied the informational privacy right which necessarily accompanies said
choice.38 Otherwise, using these privacy tools would be a feckless exercise, such that if, for instance, a user uploads
a photo or any personal information to his or her Facebook page and sets its privacy level at "Only Me" or a custom
list so that only the user or a chosen few can view it, said photo would still be deemed public by the courts as if the
user never chose to limit the photo’s visibility and accessibility. Such position, if adopted, will not only strip these
privacy tools of their function but it would also disregard the very intention of the user to keep said photo or
information within the confines of his or her private space.

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 ofthe pictures and showed said photos to Tigol. To
them, this was a breach of the minors’ privacy since their Facebook accounts, allegedly, were under "very private"
or "Only Friends" setting safeguarded with a password.39 Ultimately, they posit that their 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. Aspetitioner’s children testified, it was Angelawho uploaded the subjectphotos which were only viewable by
the five of them,40 although who these five are do not appear on the records.

Escudero, on the other hand, stated in her affidavit41 that "my students showed me some pictures of girls cladin
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 muchweight 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

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 viewthe allegedly private posts were ever resorted to by Escudero’s students,43 and
that it is 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 suchwere the case, they cannot invoke the protection attached to the right to
informational privacy. The ensuing pronouncement in US v. Gines-Perez44 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 suchas 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

Also, United States v. Maxwell46 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 inthe 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"49 the former’s post, or "tag"50 others who are not Facebook friends
with the former, despite its being visible only tohis 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 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."51 Thus, it is suggested, that a profile, or even a post, with visibility set at "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-38594.52 These are not tantamount to a violation of 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 have an expectation of privacy with respect to the photographs in question.

Had it been proved that the access tothe 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."53 This means that self-regulation on the
part of OSN users and internet consumers ingeneral is the best means of avoiding privacy rights violations.54 As a
cyberspace communitymember, one has to be proactive in protecting his or her own privacy.55 It is in this regard that
many OSN users, especially minors, fail.Responsible social networking or observance of the "netiquettes"56 on the
part of teenagers has been the concern of many due to the widespreadnotion 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.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 mosttimely. 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 citizenshipin their
respective programs and curricula in view of the risks that the children are exposed to every time they participate in
online activities.58 Furthermore, 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. 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 beresponsible in their
dealings and activities in cyberspace, particularly in OSNs, whenit enforced the disciplinary actions specified in the
Student Handbook, absenta 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 incyberspace
activities. Accordingly, they should be cautious enough to control their privacy and to exercise sound discretion
1âwphi 1

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.

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 SP. Proc. No. 19251-CEB is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice