"x x x
On petitioner's right to privacy
One of the arguments raised by petitioner before this Court concerns the admissibility of the evidence presented by the prosecution, which was taken from his Facebook messenger account. He claims that the photos presented in evidence during the trial of the case were taken from his Facebook messenger account. According to him, this amounted to a violation of his right to privacy, and therefore, any evidence obtained in violation thereof amounts to a fruit of the poisonous tree.
The right to privacy is defined as "the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities." It is the right of an individual "to be free from unwarranted publicity, or to live without unwarranted interference by the public in matters in which the public is not necessarily concerned." Simply put, the right to privacy is "the right to be let alone."29 In his Separate Concurring Opinion, Associate Justice Marvic Mario Victor F. Leonen expounded on the concept of privacy, as it has developed throughout the digital age, thus:
Chief Justice Puno sparked judicial interest in the right to privacy. In his speech that I cited in my separate opinion in Versoza v. People,30 he discussed the three strands of privacy in American Jurisprudence, namely, locational or situational privacy, informational privacy, and decisional privacy.
Locational privacy, also known as situational privacy, pertains to privacy that is felt in a physical space. It may be violated through an act of trespass or through an unlawful search. Meanwhile, informational privacy refers to one's right to control "the processing—i.e., acquisition, disclosure and use—of personal information."
Decisional privacy, regarded as the most controversial among the three, refers to one's right "to make certain kinds of fundamental choices with respect to their personal and reproductive autonomy."31
This speech has been influential in several of our jurisprudence.32 To this day, we are still refining our concept of privacy, particularly the right to informational privacy.33
As early as Morfe v. Mutuc,34 we have recognized the increasing importance of the protection of the right to privacy in the digital age. Such right is of particular importance given the nature of the internet and our inescapable dependence on it despite the possible disruption that it can bring. In my separate opinion in Disini v. Secretary of Justice,35 I explained:
The internet or cyberspace is a complex phenomenon. It has pervasive effects and are, by now, ubiquitous in many communities. Its possibilities for reordering human relationships are limited only by the state of its constantly evolving technologies and the designs of various user interfaces. The internet contains exciting potentials as well as pernicious dangers.
The essential framework for governance of the parts of cyberspace that have reasonable connections with our territory and our people should find definite references in our Constitution. However, effective governance of cyberspace requires cooperation and harmonization with other approaches in other jurisdictions. Certainly, its scope and continuous evolution require that we calibrate our constitutional doctrines carefully: in concrete steps and with full and deeper understanding of incidents that involve various parts of this phenomenon. The internet is neither just one relationship nor is it a single technology. It is an interrelationship of many technologies and cultures.
While the Internet has engendered innovation and growth, it has also engendered new types of disruption. A noted expert employs an "evolutionary metaphor" as he asserts:
[Generative technologies] encourage mutations, branchings away from the status quo — some that are curious dead ends, others that spread like wildfire. They invite disruption —along with the good things and bad things that can come with such disruption.
Addressing the implications of disruption, he adds:
Disruption benefits some while others lose, and the power of the generative Internet, available to anyone with a modicum of knowledge and a broadband connection, can be turned to network-destroying ends ... [T]he Internet's very generativity — combined with that of the PCs attached —sows the seeds for a "digital Pearl Harbor."
The Internet is an infrastructure that allows for a "network of networks." It is also a means for several purposes. As with all other "means enhancing capabilities of human interaction," it can be used to facilitate benefits as well as nefarious ends. The Internet can be a means for criminal activity.
Parallel to the unprecedented escalation of the use of the Internet and its various technologies is also an escalation in what has been termed as cybercrimes.36
Privacy scholars explain that the right to informational privacy, to a certain extent, requires "limitation on inspection, observation, and knowledge by others."37 Thus, it has the following aspects: (1) to keep inalienable information to themselves; (2) to prevent first disclosure; and (3) to prevent further dissemination in case the information has already been disclosed. More recently, the European Union has paved the way for the fourth aspect —the right to be forgotten, or the right to prevent the storage of data.
As regards the first component of the right to informational privacy, a person has the right not to be exposed on the internet in matters involving one's private life, such as acts having no relation to public interest or concern. Closely related to the first component is the right to prevent first disclosure, allowing individuals to regulate the extent, time, and manner of disclosure, if at all, of their information. In case the data have been illegally disclosed, a person does not lose protection since they have the right to prevent their further dissemination. In some cases, one has the right to prevent the storage of their data, which gives one the right to be forgotten. Privacy scholars describe this right as "forced omission," or the process of making the information difficult to find on the internet.38
Under the 1987 Constitution, the right to privacy is expressly recognized under Article III, Sec. 3 thereof, which reads:
SECTION 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.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
While the above provision highlights the importance of the right to privacy and its consequent effect on the rules on admissibility of evidence, one must not lose sight of the fact that the Bill of Rights was intended to protect private individuals against government intrusions. Hence, its provisions are not applicable between and amongst private individuals. As explained in People v. Marti:39
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner Bernas, Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)40
While the case of Zulueta v. Court of Appeals41 (Zulueta) may appear to carve out an exception to the abovementioned rule by recognizing the rule on inadmissibility of evidence between spouses when one obtains evidence in violation of his/her spouse's right to privacy, such a pronouncement is a mere obiter dictum that cannot be considered as a binding precedent. This is because the petition brought to the Court in Zulueta simply asked for the return of the documents seized by the wife and thus, pertained to the ownership of the documents therein. Moreover, documents were declared inadmissible because of the injunction order issued by the trial court and not on account of Art. III, Sec. 3 of the Constitution. At any rate, violation of the right to privacy between individuals is properly governed by the provisions of the Civil Code, the Data Privacy Act (DPA),42 and other pertinent laws, while its admissibility shall be governed by the rules on relevance, materiality, authentication of documents, and the exclusionary rules under the Rules on Evidence.
In this case, the photographs and conversations in the Facebook Messenger account that were obtained and used as evidence against petitioner, which he considers as fruit of the poisonous tree, were not obtained through the efforts of the police officers or any agent of the State. Rather, these were obtained by a private individual. Indeed, the rule governing the admissibility of an evidence under Article III of the Constitution must affect only those pieces of evidence obtained by the State through its agents. It is these individuals who can flex government muscles and use government resources for a possible abuse. However, where private individuals are involved, for which their relationship is governed by the New Civil Code, the admissibility of an evidence cannot be determined by the provisions of the Bill of Rights.
Here, the pieces of evidence presented by the prosecution were properly authenticated when AAA identified them in open court. As further pointed out by Associate Justice Rodil V. Zalameda during the deliberations of this case, the DPA allows the processing of data and sensitive personal information where it relates to the determination of criminal liability of a data subject,43 such as a violation of R.A. No. 10175 in relation to R.A. No. 9775 and when necessary for the protection of lawful rights and interests of persons in court proceedings,44 as in this case where the communications and photos sought to be excluded were submitted in evidence to establish AAA's legal claims before the prosecutor's office and the courts.
Be that as it may, the act of AAA cannot be said to have violated petitioner's right to privacy. The test in ascertaining whether there is a violation of the right to privacy has been explained in the case of Spouses Hing v. Choachuy, Sr.45 as follows:
In ascertaining whether there is a violation of the right to privacy, courts use the "reasonable expectation of privacy" test. This test determines whether a person has a reasonable expectation of privacy and whether the expectation has been violated. In Ople v. Torres, we enunciated that "the reasonableness of a person's expectation of privacy depends on a two-part test: (1) whether, by his conduct, the individual has exhibited an expectation of privacy; and (2) this expectation is one that society recognizes as reasonable." Customs, community norms, and practices may, therefore, limit or extend an individual's "reasonable expectation of privacy." Hence, the reasonableness of a person's expectation of privacy must be determined on a case-to-case basis since it depends on the factual circumstances surrounding the case.46
Here, petitioner's expectation of privacy emanates from the fact that his Facebook Messenger account is password protected, such that no one can access the same except himself. Petitioner never asserted that his Facebook Messenger account was hacked or the photos were taken from his account through unauthorized means. Rather, the photos were obtained from his account because AAA, to whom he gave his password, had access to it. Considering that he voluntarily gave his password to AAA, he, in effect, has authorized AAA to access the same. He did not even take steps to exclude AAA from gaining access to his account. Having been given authority to access his Facebook Messenger account, petitioner's reasonable expectation of privacy, in so far as AAA is concerned, had been limited. Thus, there is no violation of privacy to speak of.
While the messages and photos were taken from the Facebook Messenger of petitioner because AAA was forced by BBB to do so, such does not deviate from the fact that petitioner allowed another person to access his account. When he gave his Facebook Messenger password to AAA, he made its contents available to AAA, and the latter would then have the latitude to show to other persons what she could access, whether she be forced to do so or not. The availability of accessing these photos limited the scope of his right to privacy, especially that these became essential in pursuing AAA's claims to protect her rights.
In any case, it bears pointing out that petitioner failed to raise his objection to the admissibility of the photos during the proceedings in the RTC. Basic is the rule that in order to exclude evidence, the objection to admissibility of evidence must be made at the proper time, and the grounds therefore be specified. Objection to evidence must be made at the time it is formally offered. In case of documentary evidence, offer is made after all the witnesses of the party making the offer have testified, specifying the purpose for which the evidence is being offered. It is only at this time, and not at any other, that objection to the documentary evidence may be made. When a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived. This is true even if by its nature the evidence is inadmissible and would have surely been rejected if it had been challenged at the proper time.47
As a complimentary principle, it is well-settled that no question will be entertained on appeal unless it has been raised in the proceedings below. Points of law, theories, issues and arguments not brought to the attention of the lower court, administrative agency or quasi-judicial body, need not be considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of fairness and due process impel this rule. Any issue raised for the first time on appeal is barred by estoppel.48
By failing to timely raise his objection to the admissibility of the photos, petitioner is deemed to have already waived the same. Thus, the photos taken from his Facebook Messenger account are admissible in evidence.
X x x. "
G.R. No. 247348. November 16, 2021
CHRISTIAN CADAJAS Y CABIAS, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.