SY 2011-2012, Second Semester
- Official Gazette Publication Online
- May a person ask his name to be stricken off from an SC decision, SC website, SCRA and other repositories by invoking his right to privacy?
- Search and Seizure of the Contents of Laptops
IF THE OFFICE OF THE PRESIDENT PUBLISH THE LAW THROUGH WWW.GOV.PH. WOULD THAT SATISTIY ARTICLE 2 OF THE NEW CIVIL CODE AS AMENDED BY EO 200, IN RELATION TO TANADA V. TUVERA (1986)?
The Official Gazette was created by Commonwealth Act 638 (1941), entitled “An Act to Provide for the Uniform Publication and Distribution of the Official Gazette”, and the contents thereof was provided by Section 1 of the same act:
SECTION 1. There shall be published in the Official Gazette (1) all important legislative acts and resolutions of a public nature of the Congress of the Philippines; (2) all executive and administrative orders and proclamations, except as such as have no general applicability; (3) decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; (4) such documents or classes of documents as may be required so to be published by law; and (5) such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published: Provided, That for the purpose of this section every order or document which shall prescribe a penalty shall be deemed to have general applicability and legal effect: And provided, further, That the term “document” as used in this section shall include any order, regulation, rules, certificate, license, notice, or similar instrument issued, prescribed, or promulgated by any executive department, bureau, office, commission, independent board, agency, or instrumentality of the administrative branch of the government, but not the legislative or judicial branch of the Government.
Few would be unfamiliar with how official gazette looks like because very few are likely to see or hold a physical copy of the said publication, even those who are in legal profession. They may know what official gazette is but may not have seen it actually. Presently, Official Gazette is already available online through http://www.gov.ph. The beta version of the site was made available sometime July of 2010 by certain Manolo Quezon.
Since Official Gazette is now online, would publication of the laws, which necessitate publication, through this medium satisfy and would not run counter to Article 2 of the New Civil Code as Amended by EO 200 in relation to Tanada v. Tuvera case (1986)?
Article 2 of the New Civil Code states:
ARTICLE 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.
The fast changing world necessitates the need of being adept in the use of technology. The Philippine laws somehow adopted this scenario, by providing laws relating to the use of these technologies, to wit, the Rules on Electronic Evidence, the E-Commerce Act, the law on Cybercrimes, etc…
The very meat of the requirement of publication is to “make the laws available to the public or notify the public” of the laws to be implemented that would greatly affect them.
Publication whether through printing or online is one and the same species. They would differ only on the method or on how they are made. Publication now covers the use of cyberspace. It serves the same purpose as in the publication through prints. It has the same effect.
Issue on the reckoning period of when the law shall take effect arose. By this amendment, the general assumption now would be that 15 days (provided no specific period for the effectivity) shall reckon from the publication in a newspaper of general circulation because publication in an Official Gazette takes time to be printed.
The idea of the publication being made online would make it possible to comply with the 15-day after publication mandate of the law in case of Official Gazette; it is from the time the laws or issuances are posted online.
Matters of public interest such as newly enacted laws and executive/administrative orders of general application were among those provided for in the Official Gazette. Before the launch of this site, these laws above-mentioned cannot be easily searched in the net compared to Supreme Court decisions. (As amended by EO 200)
A person cannot ask his name be stricken off from any Supreme Court Decisions, Supreme Court website, SCRA and other repositories by invoking the right to privacy provided for by the Constitution and other laws considering the striking off of a name is not among the rights protected by the said Constitution and other laws.
The essence of privacy is the “right to be let alone.” (Cooley on Torts, Sec. 135, vol. 1, 4th ed., (1932), or to live a life of seclusion, or to be free from unwarranted publicity, or to live without unwarranted interference by the public about matters with which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual’s private life which would outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities (Cordero v. Buigasco, 34130-R, 17 April 1972).
Zones of privacy are recognized and protected in our laws as the right of privacy is enshrined in several provisions of the 1987 Philippine Constitution. Section 3(1) of the Bill of Rights as follows:
“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.”
The right to privacy is also heavily protected in various provisions of the Bill of Rights in the 1987 Philippine Constitution, namely:
“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.” (http://newsinfo.inquirer.net/116041/the-right-to-privacy)
Furthermore, there are four different kinds of torts which arise from the violation of the right to privacy: 1) appropriation for the defendant’s advantage of plaintiff’s name or likeness, 2) intrusion upon plaintiff’s seclusion; 3) public disclosure of private information; and 4) publicity which places defendant in a false or objectionable light. (Jaworski v Jadwani, CV-66405, 15 December 1983)
The first kind of violation as mentioned above best fit to the issue at hand, violation of the right to privacy by appropriation of name or likeness.
However, the right of privacy to be invoked by a person in asking that his name be stricken off from any SC Decisions, SC websites, SCRA and other repositories does not again qualify as a ground for this kind of violation. Appropriation of name or likeness, the oldest and most widely recognized branch of the invasion of privacy tort, imposes liability for unauthorized use of another’s name, likeness, or other identifying characteristics. Although the tort applies whenever the defendant, for his or her benefit (pecuniary or otherwise), appropriates the plaintiff’s identity, the great majority of appropriation cases involve ‘‘commercial’’ uses like advertising or merchandising. (http://american-business.org/3138-appropriation-of-name-or-likeness.html)
To make out a publicity rights claim under law, a plaintiff must plead and prove that a defendant “(1) used plaintiff’s identity; (2) appropriated plaintiff’s name and likeness to defendant’s advantage, commercial or otherwise; (3) lack of consent; and (4) resulting injury.” Eastwood v. Super. Ct., 149 Cal. App. 3d 409, 417 (1983).
Supreme Decisions, websites, SCRA and the like formed part already of public records which are documents or pieces of information that are not considered confidential. There are bases from which the name of a person became part of it. These are based on facts and are not fabricated. The use of a person’s name in the mentioned documents is a matter of public interest and not merely for commercial or advertising advantage. No violation of right of privacy can be invoked to speak of.
Article III, Section 2 of the 1987 Philippine Constitution which operates against unreasonable searches and seizure, provides:
“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”
A search and seizure is reasonable if made with a valid warrant. However, the requirement of warrant is subject to exceptions, to wit: a warrantless search incidental to a lawful arrest, search of evidence in plain view, search of a moving vehicle, consented warrantless searches, custom searches, stop and frisk, exigent and emergency circumstances, checkpoints, Republic act requiring inspections or body checks in airports, emergency, and in times of war and within military operations.
A valid search and seizure can extend to the contents of laptops/computers provided it is done in accordance with the law and the subject matter of which calls for the search and seizure of the said laptops/computers. As provided for by law, it is necessary that subject to be seized and searched is particularly described in the warrant secured for that purpose. Failure to comply with the said requirements makes it inadmissible in evidence.
In the Philippines, by reason of technology advancement, evidence that may possibly be used in Court and crimes involving technology are recognized. We have now A.M. NO. 02-1-06-SC 2002-01-22, Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property which took effect on February 15, 2002. Section 16 of the said rule provides for the seizure of computer disks and other storage device and Section 2 thereof also authorizes the ex-parte application of the issuance of a writ of search and seizure directing the alleged infringing defendant or expected adverse party to admit into his premises the persons named in the order and to allow the search, inspection, copying, photographing, audio and audiovisual recording or seizure of any document and article specified in the order. Applied to cybercrimes, consider the following wording in a warrant: Any pornographic material found in the computer shop of X depicting minors engaged in sexual intercourse (in relation to RA 9775), there is also a recognition of technology as a tool in the commission of a crime. And on the surface, it may be argued that the terms of the warrant are sufficiently particular (http://lawandict.blogspot.com/2010/02/cybercrimes-and-search-and-seizure.html)
Search and seizure may be done, therefore, provided it is limited only to what was alleged in the search warrant as required by law.