SOCIAL MEDIA AND PRIVACY RIGHTS

 

SOCIAL MEDIA AND PRIVACY RIGHTS

 

Finding someone who does not have a Facebook, Twitter, Google+, LinkedIn, Instagram or other social media profile seems strange because even older generations are now fascinated by the wonders of the cyber world. The vast majority if not almost all of us use social media every day.

Over 80% of the Philippine Internet population uses social media. In Universal McCann’s 2008 Wave 3 study on social media, the Philippines has the highest penetration of social networking among Internet users at 83%, compared with the global average of 58%.

Among the available social media platforms, Filipino online users prefer using Facebook over Twitter, Tumbler, Pinterest among others, with 92% having profile and with women as the most active users. For Filipino online users, Facebook is the easiest and cheapest to access. Mobile networks in the Philippines offer it for free as package for data plan or as an incentive for subscribing to their network.

The pervasive use of social media in the Philippines greatly affected the manner by which Filipinos interact and communicate. Many live in the “always available mode”. While the Philippines is not an information based society, it is very much a networked culture. This development in information and communications technology (ICT) impacted Filipinos conception of privacy

With social networking such a huge part of our lives, are there any social media laws? How are common legal issues resolved when they occur in a social network?

Civil and Constitutional Rights.

There are basic and fundamental rights as guaranteed by the  Constitution, which apply as well in the cyber-world, including the right to free speech, freedom of religion, freedom from unreasonable search and seizure and others. And just as in the real world, one can get in trouble for using those rights, for instance by tweeting something libelous against a person, by writing about illegal activities on one's Facebook page, or by posting photos showing off illegal activities or insulting police officers.  Obviously, such activities could lead to an investigation, arrest, and prosecution if the law has been violated. 

Also, the same rules apply to obscenity and decency on social media as they do in the real world, and most social sites are completely within their rights under the terms of service of use for that site to remove offensive content and ban profiles that post it. Because social media is a private enterprise and not state run, it can actually engage in greater degrees of control over certain kinds of content than the government can. So, while one may try to assert that an obscene or indecent photograph, video, or phrase should be allowed under the right to freedom of expression , the site may well be able to ban it on contractual grounds under its terms of service.

Privacy

One of the biggest areas of concern in recent years has been the way in which technology has eroded the right to privacy. Privacy in the context of social media is less understood and has resulted to rising cases of violations of privacy occurring in online spaces specifically in social media.

In the Philippines, there is no specific and direct policy on social media privacy. However, there are several laws including jurisprudence that deal with privacy in general and in relation to social media. A range of privacy policies can be found in the Constitution, Revised Penal Code, Rules of Court and Civil Code.

Provisions related to privacy can be drawn out from Chapter Two of the Civil Code of the Philippines under Human Relations in which Article 26 states that, “Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons.” Though not considered as criminal offense, it identified acts that can produce a cause of action for damages and other relief, and in which social media can be used as a medium and place of commission of the offense. These include meddling with or disturbing the private life or family relations of another, intriguing to cause another to be alienated from his friends, vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

Also of concern are the privacy rights of others. If you are at an event and you start snapping photos, others depicted in those photos may or may not approve of having them put up on the Internet. Many, concerned about their reputation, have become increasingly concerned about the party-going friend who snaps shots of everyone after a few drinks and posts them online. While meant to be harmless, this could actually cost someone his or her reputation or affect their personal dealings with others because it could give the impression that the person depicted is a hard-partying type who may be perceived as irresponsible.

Another example is the unflattering photo, such as someone who has put on a few pounds but got caught at the beach in a swimsuit. Having such materials freely available to everyone in a person's social network could be embarrassing to the person depicted. Even more troubling could be depictions of children for obvious reasons.

As a result, it may be best to make sure that everyone in a photograph approves its publication in social media before posting it or, at the very least, should someone object you should be agreeable to removing the picture.

There are two available jurisprudences decided by the Philippine Supreme Court dealing with privacy in relation to social media:

Judge Ma. Cecilia Austria Case

The case involved Ma. Cecelia Austria, Batangas Regional Trial Court Judge, whose profile picture in Friendster was deemed inappropriate for her profession as an officer of the court. According to the Supreme Court, a member of the court cannot and should not have a public Friendster account as her position and stature limits her to what she can do on the Internet. It further added that a an open public account on Friendster exposes the judge to influence and pressure, and gives litigants and lawyers an open access to communicate with her especially those attempting to influence her decisions.[10]

The Supreme Court also said that the new code of judicial conduct does not actually prohibit a judge from joining or maintaining an account on a social networking site. And joining is considered as a freedom of expression. But you have to remember that this freedom of expression is not absolute.

In the exercise of the freedom of expression, they should always conduct themselves in a manner that preserves the dignity of the judicial office and the impartiality and independence of the judiciary.

The Supreme court further stated that in the exercise of their freedom of expression they, referring to the judges should always conduct themselves in a manner that preserves the dignity of the judicial office and impartiality and independence of the judiciary

St. Theresa’s College Cebu Case

The case stemmed from students of St. Theresa’s College who were not allowed to participate in graduation exercise due to their provocative posts in Facebook. The parents of the students filed a case against the school over invasion of privacy. The Philippine Supreme Court ruled in favor of the school stating that nothing is ever private in Facebook.

The Supreme Court issued a ruling saying that nothing is ever private on Facebook, even those tagged as private never really escape public viewing, including unintended audiences. The decision stemmed from the case involving photos posted on Facebook of two minor students from STC. The photos, which were uploaded by one of their friends, showed the students drinking and smoking in a bar, and wearing just undergarments on a street. The photos were shown by one of the Facebook friends of the girls to the school officials prompting them to ban the students from marching in their graduation rites in March 2012. According to the STC, the students violated the school code of conduct.

The parents of the students in defense filed a petition for the issuance of a writ of habeas data and asked the court to order STC to surrender and deposit all soft and printed copies of the photographs, and to declare they have been illegally obtained in violation of the children’s right to privacy.

The court dismissed the parents’ petition and ruled that, “STC did not violate the minors’ privacy rights.” According to the court, the school cannot be faulted for being “steadfast in its duty of teaching its students to be responsible in their dealings and activities in cyberspace, particularly in [social networks], when it enforced the disciplinary actions specified in the Student Handbook, absent a showing that, in the process, it violated the students’ rights.”

The decision of the court stated that the students cannot invoke the protection attached to the right to informational privacy because the photos were seen by other STC students, who in turn showed them to the computer teacher who reported the incident to the school authorities. In the language of the court, “the photos, having been uploaded on Facebook without restrictions as to who may view them, lost their privacy in some way.”

The Anti-Photo and Video Voyeurism Act of 2009 

The Anti-Photo and Video Voyeurism Act of 2009 was passed as a response to the proliferation of intimate/private photos and videos, most notably of women, without their consent. The law itself recognizes invasion of privacy as a criminal offense. The law penalizes those who take photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter’s consent, under circumstances in which such person/s has/have a reasonable expectation of privacy. Likewise, the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved are punishable.

ANTI-BULLYING LAW

REPUBLIC ACT NO. 10627

AN ACT REQUIRING ALL ELEMENTARY AND SECONDARY SCHOOLS TO ADOPT POLICIES TO PREVENT AND ADDRESS THE ACTS OF BULLYING IN THEIR INSTITUTIONS

Acts of Bullying. – For purposes of this Act, "bullying" shall refer to any severe or repeated use by one or more students of a written, verbal or electronic expression, or a physical act or gesture, or any combination thereof, directed at another student that has the effect of actually causing or placing the latter in reasonable fear of physical or emotional harm or damage to his property; creating a hostile environment at school for the other student; infringing on the rights of the other student at school; or materially and substantially disrupting the education process or the orderly operation of a school; such as, but not limited to, the following:

a. Any unwanted physical contact between the bully and the victim like punching, pushing, shoving, kicking, slapping, tickling, headlocks, inflicting school pranks, teasing, fighting and the use of available objects as weapons;

b. Any act that causes damage to a victim’s psyche and/or emotional well-being;

c. Any slanderous statement or accusation that causes the victim undue emotional distress like directing foul language or profanity at the target, name-calling, tormenting and commenting negatively on victim’s looks, clothes and body; and

d. Cyber-bullying or any bullying done through the use of technology or any electronic means.

The Cybercrime Prevention Act of 2012

The Cybercrime Prevention Act of 2012 was enacted to address crimes committed in cyber space and use of ICT. The law is divided into 31 sections split across eight chapters, criminalizing several types of offense, including illegal access (hacking), data interference, device misuse, cybersquatting, computer-related offenses such as computer fraud, content-related offenses such as cybersex and spam, and other offenses. The law also reaffirms existing laws against child pornography, an offense under Republic Act No. 9779 (the Anti-Child Pornography Act of 2009), and libel, an offense under Section 355 of the Revised Penal Code of the Philippines, also criminalizing them when committed using a computer system.

 

Conclusion

Social media will undoubtedly continue to grow and evolve, as will the laws pertaining to it. The best way to stay safe is to be a responsible user of social media platforms, to be careful and rational in treating social media as a medium of expression, and always to remember the golden rule in the Bible. Be kind considerate courteous and respectful in the use of your language. Always ask yourself the question: Would someone be offended if I publish this post?