David, Kremil: The Writ of Habeas Data in Relation to Private Websites

I. Introductory Part

Kranzberg’s First Law helps to clarify this situation: Technology is neither good nor bad—nor is it neutral. At the risk of spoiling its Zenlike nature, let me propose an interpretation: a technology isn’t inherently good or bad, but it will have an impact, which is why it’s not neutral. Almost every applied technology has a good side and a bad side. When you think of transportation technologies, do you think of how they enable a delightful vacation or get the family back together during the holidays—or do you think of traffic jams and pollution? Are books a source of wisdom and spirituality or a way to distribute pornography and hate? Do you applaud medical technology for curing plagues or deplore transportation technology for spreading them? Does encrypted e-mail keep honest people safe from criminals or criminals safe from the police? Are plastics durable conveniences or everlasting pollutants? Counterfeiting comes with money, obscene phone calls come with the telephone, spam comes with e-mail, and pornography comes with the Internet. Every law creates an outlaw.

– Bob Seidensticker, Future Hype: The Myths of Technology Change [1]

The emergence of internet technology in our time has been inconceivably tremendous. What used to be impossible a decade ago seems to be ordinary things nowadays, especially in the field of communication and research. Much of what we know or do not know may simply be downloaded from the web. This is a time of net surfing, web browsing, and online recreations – terms which have never been heard of in the recent past.

As Bob Seidensticker aptly observed, technology will have an impact. Although he did not categorically insist on the impact of technology to the prevailing legal systems of the world, the preferences of tech-savvy [2] have legal implications, without them knowing it. The use or abuse of internet communication may touch upon the realm of constitutional rights, privacy issues, and jurisprudence and legislation.

The term cyberspace [3] refers to the abstract, non-physical world made up of networked computers where people communicate, shop, study, research, play, socialize and otherwise interact. Internet (Net) [4] on the other hand, refers to the worldwide network of computers originally set up by the US Department of Defense in the late 1960s. Called ARPANET (Advanced Research Projects Agency Network), it was designed to function as a continuing method of communication should any part of the system be destroyed by nuclear attack or sabotage. In time, it was used as a means of communication among university scholars throughout the United States. It eventually evolved into the popular electronic forum for international communication by way of interactive discussion, email, commercial websites, entertainment and much more.

The emergence of internet technology has changed virtually everything. The conventional ways of business and banking transactions, research and communication, as well as other private and governmental services have been gradually replaced or modified by the use of virtual technology. Even the field of the law has to evolve dynamically to meet the restless trends brought by the indulgence of society into the World Wide Web. Another world has been created thus, where different sets of rules are to be observed by many of us who engage in the use of technology. Internet has become a forum to commit cyber crimes, tortuous acts, and other causes of action brought by our social networking, web surfing, and online interaction. Internet does not only deal with lifeless microchip and broadband connectivity. It still remains that the entity behind every conduct in the web is an act of a person, deserving to be protected by the mantle of the law or otherwise punished for violation of other’s right. Therefore, it becomes imperative to learn how to cope with the nuances and how to apply the law amidst the intangible concept of virtual life.

II. Statement of the Legal Argument in Contemplation

Here is a guy with propensity for some unusual sexual gratification. He places his hi-tech digital camera in the most inconspicuous part of his room. He entices her partner to have a release of that unresolved sexual tension. While both of them are in limbo of forgotten dreams, the woman is not aware that their act is being recorded in video format all through out.

The guy eventually uploads the recorded intercourse in a private website dedicated to hosting video files in different format, leaving it open in the virtual space, and giving other net surfers the free hand to download the same video for whatever pleasure they may obtain. Here is a girl who complains over the proliferation of her video. She may run after the guy who did the uploading, but too late for her to save her face from the rest of the spectators who has seen her performance in the internet.

Sounds familiar?

The present study aims to achieve one concrete purpose. In times when digital e-life of the people and the prevalence of virtual community, individual freedom and privacy issues which may or are disturbed by the intricacies of these network immersion, the law will always offer remedy. And for this particular instance of privacy invasion in its most unthinkable approach, the judiciary has taken the bold initiative to cope with the changing time. The writ of habeas data has been promulgated to accommodate a situation similar to the one cited at the onset of this section.

The statement of the legal argument in contemplation therefore is succinctly put in this wise: The benefit of writ of habeas data can be extended to a victim of internet harassment or to a person whose right to privacy has been violated by malicious uploading and posting of videos, pictures, and other irreverent stuff.

III. Background of the Thesis

A. Introductory Discussion

Remedial Law is that branch of law which prescribes the method of enforcing the rights or obtaining redress for their invasions.v It is a procedural law which provides for means or methods whereby causes of action may be effectuated, wrong redressed and relief obtained. Under this jurisdiction, our procedural law follows code pleading which is based on written rules found in the Rules of Court. Whenever a person’s right is violated by the acts of another, the injured person may resort to court action. This is ordinarily done through a written complaint filed in the proper court for its resolution. As previously stated, our courts of law follow a defined procedure in deciding the matter invoked by a person. [6]

The very same rules require that the elements of causes of action, parties, venue and jurisdiction must be properly invoked by the person who asks for the resolution of his case before the court. The rules further provide a specific guideline for a specific cause of action, containing therein all the substantial as well as the remedial elements in an adversarial proceeding.

In some instance, the Court may entertain a request in writing, generally known as petition. Such petition is filed in court for purposes of obtaining a ruling or order, directing some act to be done in favor of the petitioner. At the core of judicial function is the deciding of the case brought before the court. To be able to serve such function would require court orders. One form of court order is a writ. Judicial histories of the world have adapted the tradition of issuing a writ. A writ is a document in the King’s name (under the British tradition), and under the seal of the Crown or of a court, commanding the person to whom it is addressed to do or forbear from doing some act.

Chief Justice Reynato S. Puno [7], in one of his speeches speaks of writ in this wise:

In the history of law, filing an individual petition before courts to invoke constitutional rights has long been granted a substantive recognition. The first and perhaps most famous of these is the petition for a writ of habeas corpus, roughly translated, “You should have the body. “ the writ of habeas corpus is a guarantee against deprivation of liberty of a person. It originated in the Middle Ages in England, recognized in the several versions of the Magna Carta, so that a person held in custody is brought before a judge or court to determine whether the detention id lawful or otherwise.

Aside from the writ of habeas corpus, several writs have been developed to protect the rights of the individual against the State. In the United States craft of America, the writs of mandamus, prohibition and certiorari are used to command a governmental agency to perform a ministerial function, prohibit the commission of an illegal act, or correct an erroneous act committed with grave abuse of discretion. In Latin American countries, particularly Mexico and Argentina, they crafted the writ of amparo which protected a whole gamut of constitutional rights. In Taiwan, they have the writ of respondeat superior that makes a superior liable for the acts of the subordinate. There are other mechanisms to protect human rights, but the most recent of these legal mechanisms is the writ of habeas data.

Pursuant to the rulemaking power of the Judiciary [8], the Supreme Court promulgated the rule on habeas data [9] – a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. The rule on habeas data took effect on February 2, 2008.

The history of the writ is a short one but can be traced to certain European legal mechanisms that protected individual privacy. Certain German constitutional rights can be identified as direct progenitors of the Habeas Data right. The German Constitutional Tribunal created the right to information self determination by interpretation of certain human dignity and personality. This is a right to now what type of data is stored on manual and automatic data bases about an individual, and it implies that there must be transparency on the gathering and processing of the data. [10]

The other direct predecessor of the writ of habeas data is the Council of Europe’s 108th Convention on Data Protection of 1981. The purpose of the convention is to secure the privacy of the individual regarding the automated processing of personal data. To achieve this, several rights are given to the individual, including the right to access their personal data as held in an automated data base. The first country to implement the writ of habeas data is th Federal Republic of Brazil, when its legislature in 1988 voted for a new constitution which included a novel right of the habeas data of individual complaint which is now guaranteed as a full constitutional right. Many countries in Latin America followed suit and adapted the new legal tool in their respective constitutions.

B. Privacy as Object of the Writ

Privacy is the right to be left alone. There is actionable violation to the right to privacy if publicity is given to any private or purely personal information about a person without the latter’s consent regardless of whether or not such publicity constitutes a criminal offense, like libel or defamation, the circumstance that the publication was made with intent of gain or for commercial or business purposes invariably serves to aggravate the violation of the right.

Castan Centre for Human Rights Law Faculty of Law of Monash University in its book Human Rights Translated, the right to privacy is described as follows:

“This right protects people against arbitrary, unreasonable or unlawful interference with their privacy, family, home or correspondence, as well as attacks on their honour and reputation. ‘Arbitrary’, or unreasonable, restrictions on privacy are prohibited even if authorised under a State’s domestic laws. Governments have duties to protect against interferences with privacy by State agents or private bodies such as employers and the media.

“The right to privacy is not absolute. Governments can, for example, authorise restrictions on privacy by measures that are necessary to protect a legitimate public interest, such as public order (e.g., search warrants to facilitate the detection of crime and apprehension of criminal suspects) or national security (e.g., lawful surveillance of terrorist suspects). Companies’ activities may impact on the right to privacy, especially in the workplace. Privacy has become a particularly important issue in this electronic age in which large amounts of data are stored and more sophisticated methods of obtaining that data are being devised. Companies are frequently involved in the large-scale gathering of personal data on customers, employees and other stakeholders; there is a consequent need to ensure the confidentiality of such information. Companies may impinge on the right to privacy or risk being complicit in other human rights violations, if, for example, IT or telecommunications firms were to unlawfully or arbitrarily hand over sensitive customer data to the State without consent. The notion of privacy has been interpreted by the European Court of Human Rights to include freedom from unreasonable interference in the enjoyment of one’s private space. For example, under this theory, a company’s emission of gas fumes into a residential area could harm the privacy rights of residents in that area.”

Habeas Data has been described as a procedure designed to safeguard the individual freedom from abuse in the information age. It can be a mechanism available to citizens that will insure a real control over sensible personal data, stopping the abuse of such information which will be detrimental to the individual. [11] Under the Section 1 of the German Federal Act on Data Protection, the core objective of the data protection does not the protection of data. The term refers to the protection of the personal rights of those persons whose data are being processed.

The applicability of the writ directed to privacy issues is basically to enjoin government from exercising arbitrarily the data held by it regarding the persons of individual. Nonetheless, as will be discussed below, the Writ of Habeas Data can be rightly directed against private entities in as much as private companies maintaining websites are prone to abuse their power in the cyberspace. Government websites are outnumbered by millions of private websites, such that the probability that these private websites will violate privacy rights is higher than government sites will.

IV. Nature, Purpose and Applicability of the Writ

A. Writ of Habeas Data under the Philippine Judicial System

Our Supreme Court had in mind the extra-judicial killings happening in the Philippines when it promulgated that the writ of habeas data is available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

The writ of habeas data may still be unfamiliar to many Filipinos today. In a recent case of Castillo, et.al. vs. Cruz [12], the Supreme Court nullified the issuance by the Regional Trial Court of Bulacan of a writ of habeas data to stall the final and executory order in a property dispute. The High Court held:

“Oddly, respondents also seek the issuance of a writ of habeas data when it is not even alleged that petitioners are gathering, collecting, or storing data or information regarding their person, family, home and correspondence.”

Similarly, in a forcible entry case of Daniel Masangkay Tupaz, et.al. vs. Judge Elmo del Rosario [13] the Supreme Court denied the petition for issuance of writ of habeas data filed by the petitioners to compel the Philippine National Police to release report on the burning of the homes of the petitioners and the acts of violence employed against them by private respondents and likewise the investigation report if an investigation was conducted by the PNP. The Court ratiocinated in this wise:

“These allegations obviously lack what the Rule on Habeas Data requires as a minimum, thus rendering the petition fatally deficient. Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy related to right to life, liberty or security. The information likewise has not alleged, much less demonstrated, any need for information under the control of police authorities other than those it has already set forth as integral annexes. The necessity or justification for the issuance of the writ of habeas data is nothing more than the “fishing expedition” that this Court – in the course of drafting the Rules on Habeas Data – had in mind in defining what the purpose of habeas data is not. In these lights, the outright denial of the petition for the issuance of the writ of habeas data is fully in order.”

B. An Emerging Cause of Action

Section 1 of the Rule on Habeas Data provides that the aggrieved party who has the locus standi to file the petition of habeas data may be 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 data or information regarding the person, family, home and correspondence of such aggrieved party. The aggrieved party may file the petition. However Section 2 provides that in cases of extra-judicial killings and enforced disappearance, the petition may be filed by:

a. Any member of the immediate family of the aggrieved party, namely: the spouses, children or parents; or

b. Any ascendant, descendant, or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

The respondent in the petition may be:

a. A public official or employee; or

b. A private individual or entity who is engaged in the gathering, collecting, or storing of data regarding the person, family, home and correspondence.

As perused from the foregoing, there must be an unlawful act or omission on the part of the respondent. Such unlawful act or omission must result to the violation of or threat to the right to privacy in life, liberty or security of the aggrieved party.

C. Procedural Requirements in Obtaining the Writ

A verified written petition for a writ of habeas data should contain:

a. The personal circumstances of the petitioner and the respondent;

b. The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party;

c. The actions and recourses taken by the petitioner to secure the data or information;

d. 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, if known;

e. The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and

f. Such other relevant reliefs as are just and equitable.

D. The Judicial Process Under The Rule

The aggrieved party who invokes the jurisdiction of the Court in a petition for the writ of habeas data is praying for two reliefs; the first one is the granting by the Court of the writ of the habeas data and the other one is the granting of the privilege of the writ itself. The former refers to the decision of the court to give due course to the petition, require the respondent to file his return and set the petition for hearing. The grant of the privilege of the writ, on the other hand refers to the decision of the Court, granting the petitioner of the privilege pursuant to those he has pleaded in the petition under paragraphs e and f of Section 6 of the Rule.

The petition for the grant of the writ of habeas data may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. [14] Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from its issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. [15] No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition.[16]

The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance.

The writ shall be served upon the respondent by the officer or person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. [17] Under Section 10 of the Rule, the respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following:

a) The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others;

b) In case of respondent in charge, in possession or in control of the data or information subject of the petition:

i. a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection;

ii. the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and

iii. the currency and accuracy of the data or information held; and

c) Other allegations relevant to the resolution of the proceeding.

A general denial of the allegations in the petition shall not be allowed.

The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resists a lawful process or order of the court. [18]

In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. [19]

A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. [20]

The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. [21]

The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of. Such other reliefs as are just and equitable.

Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated by the court, justice or judge within five (5) work days. [22]

The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. This return should not be confused with the return mentioned in Section 10. The verified return under Section 17 refers to the report from the officer, stating what he has done in respect to a command from the court or why he has failed to do what was commanded under the order. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. [23]

The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. The court shall set the return for hearing with due notice to the parties and act accordingly. [24]

E. Practical Applicability of the Rule

For purposes of discussion, recall the hypothetical situation under the Statement of the Legal Argument in Contemplation. The woman in this case is the aggrieved party. Considering as such, she is entitled to the protection of the law and may avail of the remedy under the writ of habeas data. In connection with this, the aggrieved party’s right to privacy in life has been violated by an unlawful act of her partner.

It is submitted that the guy’s act – of uploading the recorded intercourse in a website, leaving it in open virtual space, and giving other net surfers the free hand to download the same video for whatever pleasure they may obtain – is in violation of the partner’s right to privacy in life. The legal basis that the aggrieved party may invoke is found in the Civil Code under Article 26 which provides that:

Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another’s residence:

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

The requirement of the rule that the act or omission causing the violation must be unlawful is thus satisfied under the premises. It also shows that the gathering, collecting, storing or using of data by the guy without the consent of his partner is unlawful and even vexatious. The term data as used in the Rule may be interpreted to mean information, in its ordinary sense. Such data or information may include any ephemeral, concrete, visible, or recognizable element which may identify a person. Following the rule on statutory construction of sui generis, the video file in whatever format preposterously uploaded by the guy in the case study is a data which must be destructed or suppressed to prevent further injury on the part of the aggrieved party.

Analyzing the requirements of Section 6, the aggrieved party must verify the petition. By verification, the petitioner states that he/she has read the pleadings and that the allegations therein are true and correct of his/her own knowledge and authentic records. [25] The petition must also show the nexus between the violation of the right to privacy and the threat or violation of the petitioner’s right to life, liberty, or property, the attempts made to secure the data or have it amended or destroyed before the filing of the petition, the location of the file and the name of the person in charge, if known, and the reliefs prayed for.

F. Enforcement of the Privilege of the Writ of Habeas Data

And now for the hard part.

Assuming that the girl in the given problem has complied with the requirements of the petition of the writ and has been subsequently granted by the court of the privilege of the writ for purposes of enforcing the reliefs prayed for. Normally, the girl may pray for the suppression or destruction of the database or information or files kept by the respondent. Such destruction of files would mean going over the website where the video has been uploaded, and thereafter deleting the uploaded file. The respondent can only do so much. The technical assiduity of the person tasked to enforce the writ must be competent to comply with its requirements. Obviously, he must be equipped with the sufficient knowledge of how the internet works to serve the purpose of Section 16 of the Rule which states that if the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable.

In view of the discussion above, a somewhat highly technical procedure must be observed to comply with the order of the court.

1. Understanding the basic concept of internet communication

In effecting the writ of habeas data, one should take pains in learning the meanings or definitions of internet-related terms. A working knowledge on how the internet works therefore is essential on the part of the court personnel tasked with the implementation of the writ, and the aggrieved party to make sure that writ is effectively served.

Internet and the World Wide Web are only two of the thousand terms that may be encountered with regards to the implementation of the writ. One cannot simplistically define the term Internet as “an inter-connected networks of computers” or refer the World Wide Web as the equivalent words for the acronym www. The key to internet is networking – getting the computers to connect and communicate. While the Internet networks the computer machines, the World Wide Web networks the information – meaning connecting the people into a massively interlinked collection of digital documents, movies, data bases, among others. Internet is the way on how to get connected to the world wide web. [26]

The World Wide Web is the virtual world which emerged from the connections and links of all computers around the globe, having with as key players are the network providers, website hosts, search engines, and millions of individual internet surfers, bloggers, chatters and even hackers.

All computers which are connected to the Internet through an Internet Service Provider (ISP) are assigned with a temporary Internet Protocol address (IP address). This IP address is a unique address in the form of series as nnn.nnn.nnn.nnn where n must be a number from 0 to 255. This is the computer’s numeric identity on the Internet. All computers of Web surfers are identified by a number. [27] As a user, the number assigned may either be static (always remains the same) or may be offered on an “as available” basis each time the individual logs on. [28]

Dialing, in the internet lingo refers to the act of establishing a connection through dial-up network or a digital subscriber line (DSL), usually by the use of telephone connection or modem. A modem is a device or program that enables a computer to transmit data over telephone or cable lines. What the internet user does is that he or she dials the IP address of a certain computer in the network through the ISP. The dialed IP address is then transmitted over the network. This numeric (IP address) or alphabetic (under the Domain Name System) text are translated into electronic signals, transmitted over the internet, and then translated back into alphabetic text.

By and large, internet works simply this way: A computer with all the proper dialer software and modem contains an access number, which the dialer contacts. The modem converts the signals from the computer into signals that travel over the lines to an Internet Service Provider. The ISP will then provide the connection of the computer to the internet.

Websites can be accessed via a web browser through their uniform resource locator with the use of certain protocols, depending on the requirements of the ISP. The browser and the web server communicate by means of protocols such as hypertext transfer protocol and hypertext markup language. The domain name contained in the URL identifies which computer maintains the website being dialed. The browser sends the request to the appropriate web server on the internet. Once the web server locates the file of the webpage, it will download the said page into the requesting computer. [29] For purposes of this paper, private website refers to a website maintained by private individual and companies as distinguished from government websites, run and maintained by the various governments for in the exercise of their governmental functions. Corollarily, the writ of habeas data is applicable to both private and government websites.

The sheriff tasked in implementing the writ of habeas data may go after the respondent and require him to do the following:

  • Log on to the web site where the purported vexatious video had been uploaded.
  • Remove from the respondent’s account the said video by permanently deleting it.
  • Require the respondent to destroy all soft copies of the video that he possesses or he stored.

However, our rules can only do so much. The writ may not practically order the destruction of residual copies of the data or those downloaded by third parties prior to the enforcement of the writ. A net surfer who comes across the uploaded incriminating photo or video may retrieve or download the same in his personal laptop or even cellphone. It would be impractical for the writ to run against said person.

2. Other situations where the writ is applicable.

Websites can be likened to a residence of a person (whether a natural or a juridical person) in the cyberspace, as in personal home page or company website. In an ever evolving age of information technology, there have been millions of websites developed and maintained in the world wide web from gaming sites, to online libraries, auction site, entertainment, news, and even pornographic sites. A social networking site provides for a forum where its members can socialize electronically. Other sites offer special features such as audio or video streaming where a registered user may upload, view, or download text data or video format.

Such is the trend that almost all facets of human interests can be linked and embodied in a website. A virtual world is now existing “out there” where netizens are its inhabitants. Just like in the physical world, social interaction using the internet services such as chatting, email, and web forum, produce consequences and other nuances which must be dealt with. Ordinary human endeavors have been coercively or voluntarily given counterpart in the intangible world of the web. We now engage in online banking and shopping, peer to peer gaming, videoconferencing, among others. Even several government services can now be availed via the net such as civil registration, passport application, and other similar bureaucratic transactions.

Consequently, problems arising out of human interaction in the physical world can also be experienced by the actors and key players in the cyberspace. Legal consequence is only one notion to consider amidst the various issues that transpire in the internet. Concepts such as internet privacy, internet reputation, cybercrimes, and web jurisdiction have come into fore in a quite different manner. So greatly different from the physical world that it even requires us, as key players and actors in the physical and virtual world to seek new ways in confronting such issues.

Consider another website devoted to social networking such as Facebook. This website provides for its users the privilege of creating a personal webpage where they can connect to other friends, relatives, or coworkers and share other stuff such as photos, videos, and messages. It has also interactive features where a certain Facebook user may suggest a friend to other user, become a fan of a well known celebrity, or simply engage in interactive games of Farmville or Mafia. Photos posted by another may be tagged or labeled in such a way as to identify the person in the picture.

Privacy issues may come along Facebook users as when posted comments or uploaded pictures may cause incrimination of a person, especially so when such person is not a Facebook user. Although the site offers privacy settings like search invisibility and album security, irresponsible Facebook users may be compelled by a writ of habeas data to rectify or remove from their personal webpage those incriminating and vexatious comments or photos. The Facebook website, acting as storage of information and personal data (e.g. photos and notes) can also be a respondent in a habeas data proceeding. The legal basis for this conclusion is found on Section 1 of the Rule. The said website provider is rightly considered as a private entity engaged in the gathering, collecting, or storing of data regarding the person, family, home and correspondence.

In as much as the emergence of the internet has created a segment of society exclusive to all those who actively participate therein, the rise of internet reputation as a personal right has also given way. Internet reputation may be roughly defined as the reputation of a person as a netizen or how he is known by his friends or others in the internet forum. Personal website or homepages are sometimes attacked by negatively in other websites. A person whose internet reputation has become a subject of defamatory comment may seek the relief of habeas data as a special provisional remedy without prejudice to his right to file criminal or civil action. [30]

The writ of habeas data is also a useful tool in rectifying a citizen’s erroneous information in government databases, if such erroneous information will violate or threaten the citizen’s right to privacy in life, liberty or security.

One serious problem confronting internet use is the anonymity of persons behind websites and user accounts. The internet surfers enjoy the royal prerogative of dishonesty in an unparalleled approach. Since the internet is not regulated by any governmental body, a subscriber to a Facebook may put personal information totally different from the truth.

V. An Issue of Jurisdiction

Jurisdiction [31] is the competence of a State to prescribe rules of conduct, to enforce its legal processes, and to adjudicate controversies or claims. As an aspect of State’s authority to govern, it thus comprehends legislative, executive and judicial competence within its territory. The authority is exclusive over all persons, events, and transactions, except as may be limited by the State’s consent. It is the State’s duty under general international law to refrain from intervention in the exclusive jurisdiction of other States.

The general understanding of jurisdiction refers to the territorial jurisdiction by which the State [32] may exercise its powers. The jurisdiction is geographical in consonance with one of the elements of a State; that is the territory. For a government entity, especially the Judicial branch entrusted with the power to interpret laws, to exercise its function, it must first validly acquire jurisdiction over the person or the property subject of a controversy. In cases pertaining to actions which involve the use of internet or where the entity in the cyberspace is invoked as respondent or defendant, a valid acquisition of jurisdiction is a condition precedent to the pursuance of the case.

According to Jovan Korbalija [33], three main considerations are important when thinking about jurisdiction:

  • Which court or state authority has the proper authority (procedural jurisdiction);
  • Which rules should apply? (substantive jurisdiction);
  • How to implement court decisions (enforcement jurisdiction).

In his book, Introduction to Internet Governance, Kurbalija aptly observed –

“The number of Internet-related disputes has been steadily increasing, which has made the issue of jurisdiction one of the hot aspects of Internet governance. Confusion over jurisdiction can have two immediate and simultaneous consequences:

  • an inability of the state to exercise its legal power as a responsible entity in regulating social relations within its territory;
  • an inability of individuals and legal entities to exercise their rights to justice (denial of justice).

Other consequences of ambiguous jurisdiction might be:

  • legal insecurity on the Internet, including “forum shopping”;
  • slower development of e-commerce;
  • compartmentalisation of the Internet into legal safe zones.

Because of these consequences, the clarification of jurisdiction and its procedures is a vital matter in Internet governance.”

Internet jurisdiction has thus, been recently a serious dilemma in international law. The cyberspace knows no bound and respects no territory. The legal component of the internet may be said to have been left behind by the evolving technology. Obviously, the problem of jurisdiction in the internet can be blamed to its peculiar setup. An interesting part in the Cyberspace Independence Declaration [34] by John Perry Barlow may well express the sovereignty of the cyberspace:

“…We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.

“Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions…”

The writ of habeas data shall be enforceable anywhere in the Philippines. There will be no problem if the aggrieved party who obtains the writ will have it enforced within the jurisdiction of the Philippines. However, it is highly probable that the respondent may not be a citizen of this country or better yet, the website in which the writ is enjoined is maintained in a foreign state. This will be a clear case of brutum fulmen. The traditional concept of jurisdiction is geographical in nature, in such a way that the court issuing a writ may only exercise its power within its confines.

A look at foreign jurisprudence regarding internet-related cases will shows that no single formula may be universally adapted to suit the differing requirements of every sovereign state. Different forms of governments mean different laws and procedures. Therefore, conflicts arise as to the assertion of one state’s cause of action against another, or of one individual person against a foreign entity.

In the case of Yahoo! Inc. vs. La Ligue Contre Le Racisme at L’Antisemitisme [35], the point of contention is whether or not a French Court decision can be enforceable against Yahoo. com, a foreign website company. The judgment ordered the company Yahoo! to take all necessary measures to dissuade and render impossible any access via Yahoo.com to the Nazi artifacts that may be construed as constituting apology for Nazism or a contesting of a Nazi crime.

Although the said case was later on appealed by the respondent, ruling of California court may shed light on how to deal with the matter. Part of the decision contains a discussion on comity, to this effect:

“No legal judgment has any effect of its own force, beyond the limits of the sovereign from which its authority is derived. However the United States Constitution and implementing legislation require that full faith and credit be given to judgments of sister states, territories, and possessions of the United States. The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by the “comity of nations.” Comity is neither a matter of absolute obligation, on the one hand, nor mere courtesy and good will upon the other. United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country’s interests. The court is not required to give effect to foreign judicial proceedings grounded on policies which do violence to its own fundamental interests.

“what makes this case uniquely challenging is that the Internet in effect allows one to speak in more than one place at the same time. Although France has sovereign right to regulate what speech is permissible in France, this Court may not enforce a foreign order that violates the protections of United States Constitution by chilling protected speech that occur simultaneously within our border.”

The problem of jurisdiction with respect to the implementation of Habeas Data has been felt by foreign states which adapt this rule in their constitutions and statutes. In his paper [36], Andres Guadamuz asserted that –

Whether Habeas Data will be successful will depend on many different factors, but the main one will be the effectiveness of each judicial system. It is rather difficult to measure each country’s judicial institution lacking actual caseload statistics and other hard data. It is clear that the legislation has already been creating case law in Brazil, Paraguay and Columbia. Nevertheless, it can be stated as a fact that Latin American courts are often understaffed and overworked, common characteristics of the legal systems of developing countries.”

VI. Conclusion

The writ of habeas data is a potent tool, in this jurisdiction at least, to compel any person responsible for circulating an objectionable comment, fallacious and misleading information or degrading web blogs and postings to rectify, suppress or destruct or update if needed, the database or information or files which constitute the violation of the right of the prejudiced individual. Also, the writ may be used to restrain entities which maintain private websites from accommodating such data, which when circulated in the net may cause harm or injury to the owner of the data or information. The emerging trend in blogging, chatting, online forum and other usage of the internet are not properly regulated. Data security may not be guaranteed due to the openness or easy access to the internet. Even the government is helpless to beat the cyber terrorism, attendant to state enemies who take advantage of the technology in the furtherance of their unlawful activities.

The beauty of the modern world we are now into would include the benefits of latest technology, especially in the field of communication. To lend a few lines from a song, “it’s a small world after all. “

The world is really literally and figuratively getting smaller and smaller as knowledge and information continue to reach on an always optimal spectrum. It cannot be denied that affiliations and connections of individuals to various diverging entities such as government, politics, business, and cultural and social communities impose upon them certain rules of standards, peculiar to each institution. Internet and cyberspace is one of these institutions that affect individual life. Perforce, internet life and or e-life for that matter must succumb to an even higher entity, regardless of boundaries (or even the lack of a boundary).

The writ of habeas data is a novel attempt to at least regulate the conduct of individuals and government with respect to matters in the age of information technology. Legal and judicial systems of the world may be perhaps slow to cope with technology, partly due to the traditions these legal systems have been maintaining over centuries. Nevertheless, the growing concern of mutual interrelationship among nations and subjects of international law, whether, individual or juridical entities to having a peaceful coexistence will always be upheld.

It is high time that the nations of the world unite toward a better setup that will uniformly render enjoyment of technological advancement. The vision of John Perry Barlow in the closing statement of his Cyberspace Independence Declaration [37] may be effectively accomplished with the help of government, one that is ruled by laws and not of men.


End Notes

[1] Quotes about Laws, [http://www.gaia.com/quotes/topics/laws] Last visited January 20, 2010.

[2] A hyphenated compound of “technological” and “savvy” indicating proficiency in the use of technology. It is usually used to describe an individual who displays an ability to effectively employ desktop/laptop computers and consumer-level technological gadgets but may also be used for someone who has an affinity for the use of technology within a particular domain or field. This term appears to be a contraction of “high-tech savvy”, as in the 1984 use in the title of “A New B-School Mission: Teaching High-Tech Savvy”, Business Week: 170-172, November 19, 1984, ISSN 0007-7135.

[3] Charles Steed, The User-Friendly Guide to Internet and Computer Terms. (Charles Steed and Gold Standard Press, Nevada 2001), page 29.

[4] Ibid. page 67.

[5] Ferdinand A. Tan. Handbook on Civil Procedure and Pleadings. Quezon City: Rex Printing Inc. 2005, page 1 citing Bustos v.s Lucero, 81 Phil. 640.

[6] Federico B. Moreno, Philippine Law Dictionary. Quezon City: Rex Bookstore, Inc. 2005, page 841.

[7] Speech delivered in UNESCO Policy Forum and Organizational Meeting of the Information for all Programs (IFAP), Philippine National Committee, November 19, 2007.

[8] Constitution. Art.VIII, Sec. 5, par.(5).

[9] Supreme Court, A.M. No. 08-1-16-SC dated 22 January 2008.

[10] Andres A. Guadamuz, “Habeas Data vs. European Data Protection Directive”: Journal of Information, Law and Technology, January 1, 2004.

[11] Habeas Data: An Update on the Latin America data protection constitutional right. [http://www.bileta.ac.uk/01papers/guadamuz.html], last accessed March 10, 2010.

[12] G.R. No. 182165, November 25, 2009.

[13] G.R. No. 182484, June 17, 2008.

[14] Section 3 of the Rules on Habeas Data

[15] Section 7, Ibid.

[16] Section 5, Ibid.

[17] Section 9, Ibid.

[18] Section 11, Ibid.

[19] Section 14, Ibid.

[20] Section 12, Ibid.

[21] Section 15, Ibid.

[22] Section 16, Ibid.

[23] Section 17, Ibid.

[24] Section 18, Ibid.

[25] A.M. No. 00-2-10 (2000) of the Supreme Court, amending Section 4, Rule 7 of the Rules of Court

[26] i – Quote: Brilliance and Banter from the Internet Age, edited by David L. Green page 13.

[27] How Does the Internet Work? By Rus Shuller . [http:www.theshulers.com/whitepapers/internete_whitepaper/;index.html.] last accessed March 22, 2010.

[28] Charles Steed, op. cit. Page 64.

[29] The Animated Internet: How the Web Works, [http://www.learnthenet.com/animated-internet/how-the-web-works/index.php] last accessed April 9, 2010.

[30] For purposes of discussion, it is submitted that a case for libel under our statutes will prosper. As provided for under Article 355 of the Revised Penal Code, a libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, or any similar means shall be punished by prision correccional in its minimum or medium period or a fine ranging from 200 to 6,000 pesos, or both, in addition to civil action which may be brought by the offended party. The operative phrase here is “any similar means”. Posting a libelous comment in a website falls under the phrase.

[31] Merlin M. Magallona, Fundamentals of Public International Law, C&E Publishing Quezon City: 2005 page 48.

[32] State is the body politic of people, occupying a definite portion of territory, under one government exercising sovereignty.

[33] An Introduction to Internet Governance: 2009 Diplo Foundation Switzerland.

[34] Cyberspace Independence Declaration, [http://www.ibiblio.org/netchange/hotstuff/barlow.html] last accessed April 9, 2010.

[35] This case is decided by the US District Court for the Northern District of California, Case Number C-00-21275 JF [Docket No. 17] November 7, 2001, 145F. Supp. 2d 1168.

[36] Habaes Data: An Update on Latin America data protection constitutional right. University of Edinburgh Scotland. [http://www. Bileta.ac.uk/01papers/guadamuz.html.] last accessed March 10, 2010.

[37] The last sentence reads as “We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before. “

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: