F. Local Autonomy
8. E XPECTATION OF PRIVACY MUST BE MANIFESTED BY THE USER
Having discussed some of the major and policy shaping decisions made by the Supreme Court on the right to privacy, let us now analyze the ruling in Vivares.53 Petitioners appealed before the Supreme Court to reverse the Trial Court’s ruling adverse their prayer. The petitioners premised their argument that there was actual or threatened violation of the children’s right to privacy when the School obtained the pictures of the minors because the method of obtaining them was illegal. The allegation of illegality hinged on the claim that the pictures were set to be seen only by the friends of the children, and that their teacher was not one of them. Hence, the teacher had no right to view them, nor to download them thereafter and show it to the School officials. By doing so, petitioners posit, the right to privacy of the minors were violated in cyberspace.
The appeal was dismissed and the Trial Court’s reasoning that petitioners failed to prove that there existed an actual or threatened violation of the right to privacy of the minors was upheld. The Supreme Court ruled that the actions of the School do not constitute a violation of the children’s right to privacy because the petitioners failed to prove by corroborating evidence that the pictures were set to be seen only by their intimate circle of friends (they mentioned that it was viewable only to the five of them but it was not clear from the records who these five people are). Considering that the default setting of Facebook is “Public”, that is viewable by all Facebook users, it was reasonable to assume that the photos where in reality viewable by all the Facebook friends of the children or by the public at large. The Court further held that the School did not actively access the pictures, but rather were mere recipients of the information when the friends of the minors informed their teacher about its existence. In sum, the Court faulted the children for failing to exercise cyber responsibility by utilizing the privacy tools of Facebook that was readily available to them.
What is interesting in this ruling is how the Supreme Court viewed the right to informational privacy in Online Social Networks. First, they recognized that contrary to the generally held view that there is no reasonable expectation of privacy in cyberspace because a person intends to renounce all privacy rights when he posts something in the Internet54, having an expectation of informational privacy is not necessarily incompatible with engaging in cyberspace activities, including those in OSNs. This expectation can be inferred from the subjective expectation of OSN users that the content of their accounts can only be viewed by the people whom they grant access to. However, the OSN user has to manifest his intention to keep his online posts private, or his expectation to have some privacy.
How can a person manifest intention in cyberspace?
The answer of the Supreme Court was clear and categorical: the OSN user can manifest his expectation of privacy if he utilized the privacy tools and features of Social Network Websites such as Facebook. Only when this is done can the right to informational privacy be invoked. If the OSN user failed to use these security and privacy tools, then he is deemed to have waived his right to privacy and is barred to seek relief from the Courts. It is incumbent upon internet users to exercise due diligence in their online dealings and activities
53
Supra, Note 3. 54
and must not be negligent in protecting their rights, because equity serves the vigilant.55 The failure of the children to utilize the available tools readily available to them took them out of the ambit of the protection afforded by law. In the words of the Court, the students placed themselves in that position. 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 effect, Vivares is pronouncing that the burden of proof lies upon the petitioner to prove that he has exercised the cautious diligence required from him as an OSN user by preponderance of evidence, before he can invoke relief from the Courts.
CRITIQUE.
I offer a little critique. It is obvious that Facebook, being a Fortune 500 company56 is one of the top, if not the number one, social media platform in the world. Being such, it has the capacity, the manpower, and available technology to offer the privacy tools they have now. Their tools are impressive and reflective of a real person’s privacy preference in the real physical world. However, not all OSN’s have this technology or capability. With the Vivares ruling, it seems that a legal vacuum was created when the Court pronounced that “OSN users
should be mindful enough to learn the use of privacy tools57 to manifest their expectation of privacy in
cyberspace.58” Failing to do so is tantamount to a waiver and excludes them from the protection of the law.
But what about the Online Social Media Networks who do not have the sophisticated privacy tools that Facebook offers? Does this mean that the right to privacy is still waived where user information was taken from Online Social Networks without security and privacy tools offered?
Vivares seems to consider Facebook as representative of all other Online Social
Networks which is clearly not the case. Facebook is an excellent social media company, but not all social media companies are as advanced as Facebook. There is no way for a user to manifest his intention of privacy in an OSN that do not offer any privacy tools. The Supreme Court seem to fail to take this into account. But nevertheless, Vivares offered an actual opportunity, perhaps the first of its kind, for the Court to finally address the issue of privacy in cyberspace. 55 Supra, note 53. 56 http://fortune.com/company/fb, retrieved 11/2/2014 57 Supra, note 53. 58 Supra, note 53.
SUMMARY AND CONCLUSION.
In summary, the Supreme Court has interpreted the right to privacy in the following manner:
The Right to Privacy
Jurisprudence Ruling
Morfe v. Motuc May be limited by law.
Ayer v. Capulong and Enrile It is necessarily narrower if the person is a public figure.
Blas Ople v. Ruben Torres et. al It is upheld if the challenged law is not narrowly drawn.
Sabio v. Gordon Does not exist in matters involving state interest.
KMU v. NEDA
Will not preclude a reasonable collection and storage of personal data.
Anonymous letter complaint against Atty. Miguel Morales et. al.,
It is protected by the due process clause but it can also be waived.
Disini et.al v. Secretary of
Justice et. al. To determine violation in cyberspace, expectation of privacy of all Internet users must be taken into account.
Inferring from the above analysis, two doctrines are observed:
General Doctrine:
The Right to Privacy is guaranteed by the Constitution and protected by the due process clause but can be limited by law or defeated by state interest and is necessarily narrower for public figures.
Cyberspace Application:
The right to privacy in cyberspace is protected only if the person alleging violation has proven that he has manifested his reasonable expectation of privacy with his dealings and activities in the Internet. The utilization of the privacy tools of a website is the user’s manifestation of reasonable expectation of privacy in cyberspace.
CONCLUSION
To answer the question posed in the title of this article, the online information protected by law are only those that have been manifestly intended to be private.
OF CIVILIANS INVOLVED IN HOSTILITIES
Jan Mark P. Baguio February 2014
INTRODUCTION
The law of armed conflict (LOAC), also known as the laws of war or international humanitarian law (IHL) establishes a comprehensive legal framework to protect civilians from the effects of military operations. Under International Humanitarian Law (IHL), civilians are entitled to protected status and may not be attacked. This is based on the presumption that civilians are not engaged in the hostilities around them. The principle of distinction articulates this foundational rule.1 This principle is ‘inseparable’2 from the principle of the protection of the civilian population.3
The 1949 Geneva Conventions and the 1977 Additional Protocols form the core of the legal framework regulating behavior during war in relation to protecting civilians and other persons that do not take part in hostilities (e.g. wounded, sick and captured combatants). Common Article 3 to the Geneva Conventions and Additional Protocol II establish rules imposing obligations on state and non-state armed groups alike in non-international armed conflict, i.e. internal-armed conflicts. This rule, according to ICRC, has become customary international law.4
However, the advent of new and more complicated warfare poses great challenges to the application of these two humanitarian law principles: the principle of distinction and the principle of protection. In the absence of legal distinction between combatants and civilians
1
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted by Conference June 8, 1977, 1125 U.N.T.S 3 [hereinafter AP I], at art. 48.
2
Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) [1863].
3
AP I, supra note 3, at art. 51 ¶ 2:
The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
The ICTY held Article 51 to be customary in nature. See, eg, Prosecutor v. Blaškić (Judgment) (ICTY, Appeals Chamber, Case No IT-95-14-A, 29 July 2004) [110] (‘Blaškić Appeals Chamber Judgment’);
Prosecutor v. Galić (Judgment) (ICTY, Trial Chamber, Case No IT-98-029-T, 5 December 2003) [45]
(‘Galić Trial Chamber Judgment’). 4
in a non-international armed conflict, the protection of genuine civilians rest on the warring factions’ discretion to expose them to legitimate attack. This is aggravated by the new type of warfare that involves combat between state and non-state forces, characterized by urban fighting where it becomes difficult to distinguish between combatants and genuine civilians. In fact, combatants regard civilians as indispensable collateral damage as human shields or in perfidy to weaken the enemy.
This paper attempts to bring to the fore a discussion on the original intention of International Humanitarian Law: the protection of civilians. No matter how modern warfare evolves, this principle must at all times be a priority among those involved in armed conflict. Civilians must at all times be spared.
OBJECTIVES OF THE STUDY
In general, this study focuses on the principles of distinction and protection of civilians during armed conflict and examines the challenges as gray areas confronting these principles in the context of the current features of armed conflict.
Specifically, the study examines the following concepts:
1. Some legal problems arising out of the phenomenon of increased civilian participation in hostilities in the light of: (a) concept of civilians and (b) civilian status in International Humanitarian Law.
2. The relevance and fundamental importance of the principle of distinction in relation to: (a) contemporary trends in armed conflict; (b) privatization of former military function; (c) implications of the principle of distinction in modern armed conflicts 3. The concept of direct participation in hostilities in terms of: (a) types of activities as
its scope; (b) terrorism and its implications on the two principles of IHL; and (c) the gray areas in the concept
4. Relevant conclusions and recommendations drawn from the study
SCOPE AND LIMITATIONS
This paper does not seek to address the full range of concerns that arise in relation to the distinction and protection of civilians in contemporary warfare, nor does it attempt to undertake a legal analysis of the current state of IHL. Rather, it aims to examine and briefly comment on some of the legal problems arising out of the phenomenon of increased civilian participation in hostilities.