01/08/2019
G.R. No. 202666
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 onetoone 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, selfserving, 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. GinesPerez44 is most instructive:
https://lawphil.net/judjuris/juri2014/sep2014/gr_202666_2014.html
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