VIVARES VS ST.

THERESAS COLLEGE

FACTS: In January 2012, Angela Tan, a high school student at St. Theresas
College (STC), uploaded on Facebook several pictures of her and her
classmates (Nenita Daluz and Julienne Suzara) wearing only their
undergarments.

Thereafter, some of their classmates reported said photos to their teacher,

Mylene Escudero. Escudero, through her students, viewed and downloaded
said pictures. She showed the said pictures to STCs Discipline-in-Charge for
appropriate action.

Later, STC found Tan et al to have violated the students handbook and
banned them from marching in their graduation ceremonies scheduled in
March 2012.

The issue went to court but despite a TRO (temporary restraining order)
granted by the Cebu RTC enjoining the school from barring the students in
the graduation ceremonies, STC still barred said students.

Subsequently, Rhonda Vivares, mother of Nenita, and the other mothers filed
a petition for the issuance of the writ of habeas data against the school. They
argued, among others, that:

1. The privacy setting of their childrens Facebook accounts was set at

Friends Only. They, thus, have a reasonable expectation of privacy
which must be respected.
2. The photos accessed belong to the girls and, thus, cannot be used and
reproduced without their consent. Escudero, however, violated their

rights by saving digital copies of the photos and by subsequently

showing them to STCs officials. Thus, the Facebook accounts of
the children were intruded upon;
3. The intrusion into the Facebook accounts, as well as the copying of
information, data, and digital images happened at STCs Computer
Laboratory;

They prayed that STC be ordered to surrender and deposit with the court all
soft and printed copies of the subject data and have such data be
declared illegally obtained in violation of the childrens right to privacy.

The Cebu RTC eventually denied the petition. Hence, this appeal.

ISSUE: Whether or not the petition for writ of habeas data is proper.

HELD: Yes, it is proper but in this case, it will not prosper.

Contrary to the arguments of STC, the Supreme Court ruled that:

1. The petition for writ of habeas data can be availed of even if this is not
a case of extralegal killing or enforced disappearance; and
2. The writ of habeas data can be availed of against STC even if it is not
an entity engaged in the business of gathering, collecting, or storing
data or information regarding the person, family, home and
correspondence of the aggrieved party.

First, the Rule on Habeas Data does not state that it can be applied only in
cases of extralegal killings or enforced disappearances. Second, nothing in

the Rule would suggest that the habeas data protection shall be available
only against abuses of a person or entity engaged in the business of
gathering, storing, and collecting of data.

Right to Privacy on Social Media (Online Networking Sites)

The Supreme Court ruled that if an online networking site (ONS) like
Facebook has privacy tools, and the user makes use of such privacy tools,
then he or she has a reasonable expectation of privacy (right to
informational privacy, that is). Thus, such privacy must be respected and
protected.

In this case, however, there is no showing that the students concerned made
use of such privacy tools. Evidence would show that that their post (status)
on Facebook were published as Public.
Facebook has the following settings to control as to who can view a users
posts on his wall (profile page):
(a) Public the default setting; every Facebook user can view the
photo;
(b) Friends of Friends only the users Facebook friends and their
friends can view the photo;
(c) Friends only the users Facebook friends can view the photo;
(d) Custom the photo is made visible only to particular friends and/or
networks of the Facebook user; and
(e) Only Me the digital image can be viewed only by the user.

The default setting is Public and if a user wants to have some privacy, then
he must choose any setting other than Public. If it is true that the students
concerned did set the posts subject of this case so much so that only five
people can see them (as they claim), then how come most of their

classmates were able to view them. This fact was not refuted by them. In
fact, it was their classmates who informed and showed their teacher,
Escudero, of the said pictures. Therefore, it appears that Tan et al never use
the privacy settings of Facebook hence, they have no reasonable expectation
of privacy on the pictures of them scantily clad.

STC did not violate the students right to privacy. The manner which the
school gathered the pictures cannot be considered illegal. As it appears, it
was the classmates of the students who showed the picture to their teacher
and the latter, being the recipient of said pictures, merely delivered them to
the proper school authority and it was for a legal purpose, that is, to
discipline their students according to the standards of the school (to which
the students and their parents agreed to in the first place because of the fact
that they enrolled their children there).

Some notable foreign jurisprudence used by the Supreme Court in this case:
1. United States v. Gines-Perez: A person who places a photograph
on the Internet precisely intends to forsake and renounce all privacy
rights to such imagery, particularly under circumstances such as here,
where the Defendant did not employ protective measures or devices
that would have controlled access to the Web page or the photograph
itself.

2. United States v. Maxwell: The more open the method of transmission

is, the less privacy one can reasonably expect. Messages sent to the
public at large in the chat room or e-mail that is forwarded from
correspondent to correspondent loses any semblance of privacy.

3. H v. W, (South Africa Case dated January 30, 2013): The law has to
take into account the changing realities not only technologically but
also socially or else it will lose credibility in the eyes of the people. x x
x It is imperative that the courts respond appropriately to changing
times, acting cautiously and with wisdom.

4. This case recognized this ability of Facebook 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 users
information, these privacy settings are not foolproof.