Social Media and Privacy: The Philippine Experience
written by Karen Brutas for FMA
Introduction
Social media[1] serves as the Internet to majority of Filipino online users. Over 80% of the Philippine Internet population uses social media. In Universal McCann’s 2008 Wave 3 study on social media, the Philippines has the highest penetration of social networking among Internet users at 83%, compared with the global average of 58%.[2] Among the available social media platforms, Filipino online users prefer using Facebook over Twitter, Tumbler, Pinterest among others, with 92% having profile and with women as the most active users.[3] For Filipino online users, Facebook is the easiest and cheapest to access. Mobile networks in the Philippines offer it for free as package for data plan or as an incentive for subscribing to their network.[4]
The pervasive use of social media in the Philippines greatly affected the manner by which Filipinos interact and communicate. Many live in the “always available mode”. While the Philippines is not an information based society, it is very much a networked culture.[5] This development in information and communications technology (ICT) impacted Filipinos conception of privacy. The concept of privacy is not, as we like to imagine, a universal one. Privacy is hard to define as it is set differently in different jurisdiction. Traditionally, the right to privacy is concisely defined as the right to be left alone. It has also been defined as the right of a person to be free from undesired publicity or disclosure and as the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. In the Philippines, privacy is traditionally viewed as a person’s right against unreasonable seizure which is the person’s right over his/her house, office or any place where he/she has expectation of privacy wherein the state/government cannot enter without warrant.[6] However, developments in technology brought about informational privacy – the person’s right to control information about him/her. In the context of social media this refers to a person’s selective control over who accesses his/her personal information, including contact information and personal communication, and control over the contexts in which the information can be used.[7]
Nonetheless, privacy in the context of social media is less understood and has resulted to rising cases of violations of privacy occurring in online spaces specifically in social media. News reports and anecdotal evidence revealed many cases of invasion of privacy are committed against women and girls. The multiple platforms for posting and reposting information in social media make it hard to control and regulate the personal data women want to share. Viral circulation of private pictures and videos is a common problem in social media. Women and girls are punished for the act without understanding the interconnectedness of technology, privacy and violence against women. In the light of these foregoing, FMA undertakes an issue brief to understand privacy in social media in the context of the Philippines. The study highlights the Philippine Supreme Court’s decision on the case of St. Theresa’s College Cebu.[8] The case stemmed from students of a Catholic school who were not allowed to participate in graduation exercise due to their provocative posts in Facebook. The paper analyzed the case, identified legal, political and social implications of the decision.
The study is presented in the following manner: (1) Scope and Methodology of the Study, (2) Privacy and Social Media Policy in the Philippines, (3) St. Theresas’s College Cebu Case, (4) Filipino Perception of Privacy, (5) Analysis: Is privacy still present in social media?; and (6) Conclusion and Recommendation.
Scope and Methodology of the Study
The paper aims to explore privacy in social media in two levels. The first level of the paper covers the overview of available laws, policies, jurisprudence on privacy and social media in the Philippines. It covers six major pieces of legislation.
The second level is the conduct of focus group discussions (FGD) to gain understanding on social media usage in the country, and key informant interview (KII) to surface perspectives on privacy in social media. The FGD targets young women social media user ages 10-18 years old due to the high prevalence of social media usage among these age group. The FGD covers young women’s experiences in using social media. It identifies the primary social media platform they use, their purpose of using social media, their activities, violations/harms they experience, and their awareness of the policy and terms of use. The FGD surfaces as well their perspectives on privacy and their view on school’s authority to monitor social media accounts of students.
The KII targets lawyers whose works include handling cases involving privacy issues in the advent of information and communications technology, a case involving the use of ICT or specializing on privacy. KII with lawyers covers legal perspectives of privacy in the Philippines and their limitations when applied in social media. The KII also targets parents and teachers and specifically surface their perspectives on the extent of authority the school has over children’s social media activities.
Privacy and Social Media Policy in the Philippines
In the Philippines, there is no specific and direct policy on social media privacy. However, there are several laws including jurisprudence that deal with privacy in general and in relation to social media. A range of privacy policies can be found in the Constitution, Revised Penal Code, Rules of Court and Civil Code.
Overview of Available Laws
The 1987 Constitution
The Constitution tries to provide provisions with regards to right to privacy under the Bill of Rights namely: (a) the right against unreasonable searches and seizures; and (b) the right to privacy of communication and correspondence. From the two sections, it can be surmised that right to privacy can be defined as the right to be left alone. It is the right of a person to be free from undesired publicity or disclosure and as the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.
The Civil Code of the Philippines
Provisions related to privacy can be drawn out from Chapter Two of the Civil Code of the Philippines under Human Relations in which Article 26 states that, “Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons.” Though not considered as criminal offense, it identified acts that can produce a cause of action for damages and other relief, and in which social media can be used as a medium and place of commission of the offense. These include meddling with or disturbing the private life or family relations of another, intriguing to cause another to be alienated from his friends, vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.
The Anti-Photo and Video Voyeurism Act of 2009
The Anti-Photo and Video Voyeurism Act of 2009 was passed as a response to the proliferation of intimate/private photos and videos, most notably of women, without their consent. The law itself recognizes invasion of privacy as a criminal offense. The law penalizes those who take photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter’s consent, under circumstances in which such person/s has/have a reasonable expectation of privacy. Likewise, the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved are punishable.
Human Security Act of 2007
The law has provisions that affect the right to privacy. The Human Security Act of 2007 was enacted to counter and manage terrorism in the Philippines. The law is said to be heavily influenced by the United States’ Patriot Act, which provides tools required to intercept and obstruct terrorism.[9] Section 17 of the Human Security Act defines terrorism as a one that “causes widespread and extraordinary fear and panic among the populace”. It allows authorities to arrest terror suspects without warrants and temporarily detain them without charges. Like most counter terrorism measure, the law has been criticized to violate international certain human rights standards. The law allows for unchecked invasion of privacy, e.g., permitting wiretapping and investigation of bank accounts.
Data Privacy Act of 2012
The Data Privacy Act of 2012 is an act protecting individual personal information in information and communications systems in the government and the private sector. It mandates the public and private institutions to protect and preserve the integrity and confidentiality of all personal data that they might gather including the processing of personal information and sensitive personal information. It also sets the parameters on when and on what premise data processing of personal information can be allowed with basic premise when a data subject has given direct consent.
The Cybercrime Prevention Act of 2012
The Cybercrime Prevention Act of 2012 was enacted to address crimes committed in cyber space and use of ICT. The law is divided into 31 sections split across eight chapters, criminalizing several types of offense, including illegal access (hacking), data interference, device misuse, cybersquatting, computer-related offenses such as computer fraud, content-related offenses such as cybersex and spam, and other offenses. The law also reaffirms existing laws against child pornography, an offense under Republic Act No. 9779 (the Anti-Child Pornography Act of 2009), and libel, an offense under Section 355 of the Revised Penal Code of the Philippines, also criminalizing them when committed using a computer system.
Jurisprudence
There are two available jurisprudences decided by the Philippine Supreme Court dealing with privacy in relation to social media:
Judge Ma. Cecilia Austria Case
The case involved Ma. Cecelia Austria, Batangas Regional Trial Court Judge, whose profile picture in Friendster was deemed inappropriate for her profession as an officer of the court. According to the Supreme Court, a member of the court cannot and should not have a public Friendster account as her position and stature limits her to what she can do on the Internet. It further added that a an open public account on Friendster exposes the judge to influence and pressure, and gives litigants and lawyers an open access to communicate with her especially those attempting to influence her decisions.[10]
St. Theresa’s College Cebu Case
The case stemmed from students of St. Theresa’s College who were not allowed to participate in graduation exercise due to their provocative posts in Facebook. The parents of the students filed a case against the school over invasion of privacy. The Philippine Supreme Court ruled in favor of the school stating that nothing is ever private in Facebook.
Theresa’s College Cebu Case (STC)
The paper highlights the Philippine Supreme Court’s decision on the case filed against St. Theresa’s College Cebu. It is the first ruling made that explicitly deal with privacy in social media, specifically privacy in Facebook. It sets the parameters as to what is considered private and public in social media.[11]
The Supreme Court issued a ruling saying that nothing is ever private on Facebook, even those tagged as private never really escape public viewing, including unintended audiences. The decision stemmed from the case involving photos posted on Facebook of two minor students from STC. The photos, which were uploaded by one of their friends, showed the students drinking and smoking in a bar, and wearing just undergarments on a street. The photos were shown by one of the Facebook friends of the girls to the school officials prompting them to ban the students from marching in their graduation rites in March 2012. According to the STC, the students violated the school code of conduct.
The parents of the students in defense filed a petition for the issuance of a writ of habeas data and asked the court to order STC to surrender and deposit all soft and printed copies of the photographs, and to declare they have been illegally obtained in violation of the children’s right to privacy.
The court dismissed the parents’ petition and ruled that, “STC did not violate the minors’ privacy rights.” According to the court, the school cannot be faulted for being “steadfast in its duty of teaching its students to be responsible in their dealings and activities in cyberspace, particularly in [social networks], when it enforced the disciplinary actions specified in the Student Handbook, absent a showing that, in the process, it violated the students’ rights.”
The decision of the court stated that the students cannot invoke the protection attached to the right to informational privacy because the photos were seen by other STC students, who in turn showed them to the computer teacher who reported the incident to the school authorities. In the language of the court, “the photos, having been uploaded on Facebook without restrictions as to who may view them, lost their privacy in some way.” The court further added in its ruling that setting post privacy to ‘Friends Only’ is not an assurance that it can no longer be viewed by another user who is not Facebook friends with the source of the content. The decision read that, “Without proof that they placed the photographs subject of this case within the ambit of their protected zone of privacy, they cannot now insist that they have an expectation of privacy with respect to the photographs in question.”
The decision of the court puts the burden of ensuring safeguarding privacy online users and expects them to exercise due diligence in their online dealings and activities. According to the court, not discounting the role of schools and parents in disciplining and educating their children to be good digital citizens, self-regulation is the “best means of avoiding privacy rights violations.”
Social Media Usage and Privacy Practices of Adolescent Girls
Facebook is the primary online gathering place for adolescent girls
Social media sites have become primary gathering places for Filipina adolescents. In the Philippines, interviews and FGDs with teenagers aged 10-17 revealed that most of them are in Facebook. Their participation in the social networking site was encouraged by their friends where they connect with others, ’hang out’ and otherwise feel part of a community. Many joined or formed groups to keep each other updated of school activities and share common interest. Facebook as well has become a convenient way to stay connected with family members in distant provinces or abroad. Most of the participants use mobile phone to access Facebook, saying telecommunication companies provide promo or at times unlimited access to Facebook for a very cheap price.
Adolescent Girls have both good and bad experiences in using Facebook
The FGD revealed girls have both good and bad experiences in using Facebook. Many shared it facilitated group activities such as school works in which creating a Facebook group serves as a forum to discuss a certain project, providing real time feedback. One girl who came from a broken family shared, it is also a safe space to communicate with her mom without the knowledge of her father. However, some also talked about the harassment they suffered in using Facebook including violations of their privacy. One shared that a certain person grabbed the photo of her former boyfriend and edited it alongside her photo. The edited photo was circulated online and she started receiving demeaning comments. Another girl said her photo was used without her consent in a Facebook contest called “Face-Off”, a game wherein two photos of girls are placed alongside each other and the girl with the most number of likes is declared as the winner or the most beautiful. People started posting comments including offensive remarks and eventually led to physical fight.
Adolescent Girls do not diligently practice privacy in Facebook
The FGD revealed varying privacy practices in Facebook. As a response to the harassment the girls experienced in Facebook, their action is to either block, ignore or unfriend people on their friends list. Adjusting the privacy setting of their Facebook account was not intuitive for them. Majority was aware of privacy concerns in Facebook but did not see the importance of meticulously applying privacy settings in their accounts.
Majority of the girls have over thousand friends in Facebook. Some said they add only people they know, either they have a close relationship with the person or know them by name. However, they shared as well that they do not mind adding another person in their network as long as they have a common friend. One girl for example admitted she has over 4,000 Facebook friends but only 20% of them are known to her personally. Like other studies of teenagers’ social media practices, they are even happy to overshare information online. The girls’ personal homepages contained information about their daily activities with friends and families ranging from important occasions such as birthdays, school events to activities they do on their idle time. They also post status about their relationship may it be with friends or romantic ones.
Is privacy still present in social media? An Analysis of the Philippine Experience
Perspectives on Privacy
The overview of the legal landscape of privacy in social media and the lived experiences of adolescent girls in the Philippines showed contrasting views on privacy online in the Philippines, it is either an anomaly or a human right.
Privacy is an Anomaly
The very purpose of the Internet and the Web is to increase the accessibility of persons to information. Social media are created primarily for communication, often interpersonal communication. It embeds itself into the lives of users and plays many roles, providing entertainment, supporting friendships, and hosting debates. Facebook identifies members of an online extended social community as “friends,” though often the social connection may be rather loose, such as a classmate or “friend of a friend.” Thus, a Facebook profile, which makes the user’s friend base visible to others, provides a means of creating and displaying the person’s social sphere. Facebook also links its users to others in the same “network”, or example, a university or place of employment. Social networking platforms encourage users to post and share personal information as part of their online social interactions.
The term hyper-sharing has been used to describe the rapid sharing and exchange of information in the use of social media. In Facebook, everybody can track a person by just following likes and shares. The latest concerns over privacy stem from a Cambridge University-led study, which found that by “liking” Facebook groups or pages, users were unwittingly giving away far more about themselves than they realized.[12] As the Guardian reported, the researchers were able to infer “race, IQ, sexuality, substance use, personality or political views” from the data – and so could anyone else who wanted to.[13] The prevalence of federated authentication in which one has to use Facebook account to be able to use a certain service has resulted as well to the movement of information across border. Many are also in the habit of snacking in which one access mobile net when there is an opportunity to do so, allowing one to keep track of online behavior. In some instances context aware applications force many into behavior that actually allows people to collect more information about them. It goes right away to one’s computer. The pieces of information people routinely collect are location, browsing behavior, relationship status, pictures and facial recognition and contacts. The era of social media has seen personal data collected everywhere and every time with many saying that privacy nowadays is an anomaly.[14]
Privacy is a fundamental human right.
The right to privacy is a human right and an element of various legal traditions, which may restrain both government and private party action that threatens the privacy of individuals. The international human rights law provides the universal framework against which any interference in individual privacy rights must be assessed. In 2013, the United Nations General Assembly adopted a resolution affirming that the rights held by people offline, must also be protected online. It called upon all States to respect and protect the right to privacy in digital communication.[15]
According to some privacy lawyers, the Supreme Court’s decision contradicted a person’s rights to privacy and a dangerous precedent as well as it appears the court lacked understanding of the context and dynamics of social media interaction. Privacy advocates underscore the existence of privacy in social media which is the person’s right to selectively control who accesses his/her personal information, including contact information and personal communication, and control over the contexts in which the information can be used. The control over the contexts in which information is used should be emphasized because of the ease with which web content can be recycled or forwarded. This is particularly relevant in the STC case. One lawyer shared that STC did not violate privacy of the students as the school was merely a recipient of information. The school acted based on the photos presented to them. The photos showed acts that were contrary to the school’s policy regarding students’ conduct. The posting on the photos online, constituting a different act, was a repeat violation. According to her, it was the friends of the students who violated the privacy. She questioned the extent of authority of the friends to share and use the photos.
Policy Gap
Gender perspectives are significantly missing
Women’s ability to take advantage of social media is dependent on enabling policies and environment that takes into account their lived experiences. For instance, women were not consulted in the creation of the Cybercrime Prevention Act of 2012, thus, they called for the removal of the cybersex provision as it discriminates women. The elements of the crime are not well-defined, too vague and overboard that it endangers women’s sexual rights and freedoms. The crimino-legal approach to online violations experienced by women generally looks at these online spaces as site of women’s oppression and does not consider it a space for women’s empowerment. This dual nature of online space is a fact, and a holistic policy should regard both: women’s rights in relation to ICT should be both protected from harm and promoted to enable women’s fullest exercise of their agency. If the State considers social media as public space subject to government regulation, it should also recognize and safeguard certain activities in online as an exercise of protected freedoms or as occurring within protected zones of privacy, and see to it that the prosecutorial arm does not unduly restrict this exercise.
For women’s rights advocates, the decision of the Supreme Court disproportionately affects women and girls. Gender is important for understanding privacy in social media. Women and girls’ vulnerability to privacy problems are rooted to the perceived notion that they are inferiors, ancillaries and safe targets. Women’s privacy is sometimes probed by others who implicitly assume that they should be more accountable for their private conduct than their male counterparts. This attitude stemmed off from the historically unequal power relations between women and men in public and private life, patriarchy and men’s desire to control women’s sexuality.[16] Women’s privacy online is often violated and policed due to imposed modesty and chastity and to ensure that ‘women stay in their place’. The case of high school students from a Catholic school, who were not allowed to graduate or participate in graduation rites due to their alleged immodest posts in Facebook, is just one of the many examples. STC legal counsel shared this view and justified their action to discipline the students as guardian of Filipino society’s moral.
Under the law schools have some form of authority over the students more so if they are minors. They shed their right to privacy once they enter school. Internet blurs the line as to when a student is inside or outside of school. However, one should question the extent of authority the school has over the students. The school’s intention of disciplining them is suspicious as well. Are they after the welfare of the students or the reputation of the school as Catholic institution?
Conclusions and Recommendations
Affordability and Accessibility to Internet
Despite increasing trend in Internet penetration in the country, many areas have limited or at times no access at all to Internet and broadband services. There is an inadequate communal/collective public access to ICT facilities throughout the country. For those living in urban poor communities or rural areas, their means of access are public Internet shops where they have to pay five pesos for every 10 minutes. Everybody should have access to affordable Internet as this is a precursor to a person’s other rights such as right to information. The FGD with Cebu students revealed that lack of access to ICT/internet resulted to vulnerability of young people to privacy breaches. One gay student shared, many times his Facebook account was vandalized and hacked due to accessing it in Internet shops. He said, “The computer closes before I could log out. I don’t check the time always as it takes away my Internet time for Facebooking.” Further, he shared that his lack of knowledge for privacy measures in Facebook is due to lack of regular access to Internet. Adding,
“The time I spent on Facebook is talking with friends rather than checking on privacy settings. I have limited money and limited time.”
Social Media Education and Etiquette
Being considered social media capital of the world, there is a need to stress for social media education and etiquette. The interview conducted with parents and teachers of high school students underscored the need to use social media responsibly. All agreed for the inclusion of social media etiquette in the education curriculum either as a separate subject or integrated in good manners and right conduct. Social media can attain many can things in terms of social good. How can social media be use to affect positive change?
“Protection of teens is a parental responsibility. But the education of teens and their parents to the growing privacy problem will require an educational effort that involves schools, social networking organizations, and government agencies.”[17]
Women and Girls’ Safe Participation in Social Media
Ensuring women’s safety and privacy online requires the involvement of all online users, Internet intermediaries, organizations, the state and the media. For women, the first defense in protecting their privacy online is the awareness that both in an online and offline environment they are entitled to have their human rights respected, protected and fulfilled. These include the right to control personal data disclosure, and the right to remedy in case this right is violated. It is important as well that women are responsible social media users. There are precautionary measures women can exercise when engaging in social media such as keeping their passwords safe, checking privacy and security settings and making sure to log out of any accounts when finished surfing the net.
Internet and mobile providers have a responsibility in ensuring the privacy and safety of women using their services. It is imperative that they adequately inform users of available safety features such as privacy mechanisms. There should also be an effective redress mechanism that allows users to report violations they experience in social networks and that women should be involved in developing such a mechanism.
A Woman-Centered Privacy Policy and Legislation
The availability of multiple platforms for posting and re-posting information and the speed to which information is being shared has affected women’s privacy. Viral circulation of private pictures and videos is a common problem in social media along with unwanted comments, sexual solicitation, obscenity and stalking. A woman-centered perspective on privacy is necessary because only with such a perspective can we begin to evaluate how the proliferation of social media has affected the privacy predicament. A central challenge to governance is the need to strengthen data privacy and security measures that benefits women and allows them to better engagement online. There has to be a principle based ecosystem that ensures the protection of privacy of individuals but at the same one that is fluid enough to make sure there are no hindrances to the exchange of information whether that is cross border or within the country.
In addition, capacity building in the form of education and trainings for judges and lawyer is essential to help them understand gender concerns. A regular training on women’s rights, gender perspectives and women’s issues would be valuable in their legal practice as it would give them a nuanced understanding of women’s problems and concerns, therefore, it would result to better judgement.
New technologies as well presented new legal challenges. Cyber-related crimes such as violence against women and invasion of privacy have implication on jurisdiction and sometimes definition of the crime is not adequately defined or it is not defined at all. There is a need too to conduct capacity-building on how law can catch up with new technologies. Legal professionals themselves should take an effort to understand these new technologies so that they are better guided in their decisions.
References:
[1] For this paper social media or social networking sites refers to Facebook, Twitter, Tumbler, Instagram etc.
[2] http://wave.umww.com/assets/pdf/wave_6-2011_international_results.pdf
[3] http://www.comscore.com/Insights/Presentations-and-Whitepapers/2013/2013-Southeast-Asia-Digital-Future-in-Focus
[4]http://qz.com/333313/milliions-of-facebook-users-have-no-idea-theyre-using-the-internet/
[5] http://www.academia.edu/9642794/Political_Participation_through_Social_Media_in_the_Philippines
[6] https://lawphilreviewer.wordpress.com/tag/constitutional-law-chapter-v-the-right-to-privacy/
[7] http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1819&context=facpub
[8]Supreme Court Resolution, GR No. 202666 of 2014.
[9] http://ojs.st-andrews.ac.uk/index.php/jtr/article/view/226/243
[10] http://pinoyspy.com/judge-ma-cecilia-austria-sexy-photos-on-friendster-account-tickles-congressman-padillas-fantasies/
[11]Supreme Court Resolution, GR No. 202666 of 2014.
[12] http://www.theguardian.com/technology/2013/mar/11/facebook-users-reveal-intimate-secrets
[13] http://www.theguardian.com/commentisfree/2013/mar/12/privacy-facebook-lesbians-relax-online
[14] http://firstmonday.org/ojs/index.php/fm/article/viewArticle/1394/1312%2523
[15] The Right to Privacy in the Digital Age, Report of the Office of the United Nations High Commissioner for Human Rights. http://www.ohchr.org/EN/Issues/DigitalAge/Pages/DigitalAgeIndex.aspx
[16] WLB’s Unpublished paper on ICT, VAW and Sexuality
[17] http://firstmonday.org/ojs/index.php/fm/article/viewArticle/1394/1312%2523
