The Unwanted Gaze: Right To Privacy in Philippine Law

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By Atty. Rafael E. Khan 

One of the earliest conceptions of a “right to privacy” can be found in Jewish rabbinical law. The Jewish orthodoxy believed that it was proper to protect oneself from the “unwanted gaze” of others; so much so that you could charge your neighbor half the cost of building a fence to block a window in his view.

Modern incarnations of right-to-privacy laws are also meant to address cultural sensibilities. Our own Civil Code – descended from the Spanish one, and traceable to the Napoleonic Codes – prohibits “prying into the privacy of another’s residence;” “meddling with or disturbing the private life or family relations of another;” and “intriguing to cause another to be alienated from his friends.”

The Secrecy of Bank Deposits Act is another contemporary example of a privacy law. Tongue-in-cheek, we can argue that this law is grounded in religion; after all, the 11th Commandment states: “Thou Shalt Not Get Caught.”

But it’s important to emphasize that there is no black-letter “right to privacy” as such. The most our Constitution will say is that “[T]he privacy of communication and correspondence shall be inviolable.”

The usual example of this Constitutional right in action is the Anti-Wiretapping Act, which basically prohibits the warrantless surveillance or interception of a telephone conversation.

Clearly, the “right to privacy” is not as handy as, say, the right to free speech, which you can whip out in defense against the truncheon-wielding riot policeman bent on dispersing your rally.

In fact, the “right to privacy” is better defined in the breach than by observance. It’s easier to say which are “invasions of privacy,” rather than which are exercises of the “right to privacy.”

American tort law is the primary source for these “invasions of privacy.” A tort – related to our Philippine legal concept of a “quasi-delict” – is basically a civil wrong (as opposed to a criminal act) for which the injured party can claim damages.

The four types of “invasions of privacy” recognized by tort law include: (a) appropriation; (b) intrusion; (c) revelation of private facts; and (d) “false light.”

An “appropriation” occurs when one uses another’s name, likeness or even voice for commercial or trade purposes, without the latter’s consent. One of the first cases (in 1902) involved a young woman who found her picture on advertisements for a certain brand of flour. Because the courts did not yet recognize the right to privacy, she lost her case for damages.

Since then, however, individuals have sued successfully for the non-consensual use of their images. Their premise was that the right to privacy prohibited the use of their image for publicity, and violated their right to remain anonymous.

How then to explain that some of the largest awards of the past few years have been to celebrities whose image or voice was appropriated to advertise a product? In this case, the right to privacy is no longer predicated on a “right to anonymity,” but rather takes the form of a property right: the celebrities could demand compensation because the illegal use of their likeness to advertise a product denied them endorsement fees, or negatively affected a commercial image they sought to protect. Actor Dustin Hoffman , singer/actresses Cher and Bette Midler, and boxer Muhammad Ali have all filed, and won, cases like this.

Similar actions involving Filipino celebrities are pending in our regional trial courts: one involves a famous actor who alleges that his image was appropriated to make it appear that he endorsed the defendant’s alcoholic beverage. Another case involves an actress whose head was photographically grafted onto the nearly naked body of another model for a series of sexy calendars. From a purely academic perspective, one hopes these cases reach our Supreme Court, so that there’ll be some Philippine jurisprudence on this type of “invasion of privacy.”

The second invasion tort, “intrusion”, means what its name implies: an actual physical intrusion into a private space, akin to trespassing.

Early on, the paparazzi were the most frequent defendants for this tort. Celebrities – then the usual plaintiffs – usually sought moral damages for past intrusions, and an injunction against future ones.

But of late, “reality TV shows” have also become targets for intrusion suits. In one case, the California Supreme Court ruled that a road accident victim whose rescue by helicopter was broadcast over a reality television program could sue for intrusion, because she had a “reasonable expectation of privacy” while in the helicopter traveling to the hospital.

A “revelation of private facts” is the unauthorized disclosure of embarrassing personal facts about an individual. For it to be considered “tortious,” the fact must “offensive to a reasonable person” and unrelated to “a matter of legitimate public interest.”

Finally, a “false light” tort is one in which the defendant depicts the plaintiff in a “false light.” Fictionalization is a good example of how this right is violated. In the 1979 case of Lagunzad v. Soto Vda. de Gonzales, for instance, the Philippine Supreme Court declared that a public figure’s right to privacy extends to a “fictional or novelized representation of [the] person.” While not a “false light” case, the ruling’s significance is clear: anybody wanting to tell the fictionalized story of a real person has to get that person’s consent.

Despite all these cases, privacy law remains in flux. It is relatively young, tracing its beginnings to 1890, when later-to-be U.S. Supreme Court Justice Louis Brandeis, and Samuel Warren, wrote about the “The Right to Privacy”. This article is widely acknowledged as the first piece of legal scholarship defining the metes and bounds of a “right to privacy.”

Since then, discussions on privacy law have touched on reproductive health issues (a woman’s right to use contraception and seek an abortion, in Griswold v Connecticut , and Roe v Wade ); civil rights (Katz v. United States ); and even euthanasia (Washington v. Glucksberg, et al ).

In the Philippines, a legal article by U.P. College of Law Dean and later Philippine Supreme Court Justice Irene R. Cortes, “The Constitutional Foundations of a Right to Privacy,” is credited with raising awareness about the issue. But Philippine case law remains sparse.

The leading Philippine privacy case remains to be Ayer v. Capulong. Australian production company Ayer sought to film a “docu-drama” about the 1986 EDSA Revolution. One of the main figures of EDSA I, Sen. Juan Ponce Enrile, prohibited Ayer from using his name, image or likeness in the film, and secured an injunction against Ayer. The Supreme Court recognized Sen. Enrile’s right to prohibit a fictional depiction of his role in EDSA I. However, the Court also ruled that Enrile had no right to prohibit Ayer from portraying publicly-known facts about the EDSA Revolution, including his participation in it. Enrile, by playing a pivotal role in EDSA, was a “public figure”, and therefore had a limited right to privacy.

If the examples mentioned are to be any indication, the most frequent invaders of the “right to privacy” seem to be the mass media. This seems inevitable: the “right to be let alone” seems to be in natural conflict with the media’s need for information.

But these two conflicting interests are not irreconcilable. With just a little extra care – motivated by compassion toward the subject and a healthy aversion to litigation – media defendants will be in a position to deter or defeat an invasion-of-privacy damages claim.

The first, and best course of action, is to secure the consent of the subject. The fact that the person consented to be quoted or interviewed, revealed the private fact himself, or agreed to be the subject of a photograph or video, goes a long way to overcoming his claim that his privacy was violated.

Two corollaries to this rule: (a) get the consent in writing – this is the best evidence of the subject’s consent; and (b) bear in mind that not everybody can give consent. Minors, as a general rule, cannot give “knowing consent.” A person in the middle of a heart attack who gargles “Yes” to your request to document him for your reality TV show probably did not give “knowing consent” either.

Second – and because securing consent is not always a convenient or practical option – is to ensure that the document relates to a matter of legitimate public concern. A useful defense against a invasion-of-privacy tort is that the material was used for a “news and information purpose.” Then, the media organization can claim its own affirmative right – the right to free expression and to a free press, and in some cases the right to information on matters of public concern – versus the individual’s “right to privacy.”

Third: the media practitioner can take refuge in the fact that there are limited privacy rights (a) for “public figures”; and (b) in public places.

Public figures include the usual culprits: public officials and celebrities, and those who had “sought publicity and consented to it”. But the definition also includes those who have become “unwilling” public figures because of some circumstance or event, like crime or accident victims. As a general rule, these famous – or notorious – individuals do not have a privacy right in so far as those facts which made them a “public figure” are concerned.

Similarly, people in public places have a limited “right to privacy.” A person in a public place which can be viewed or accessed by other members of the public does not have a “reasonable expectation of privacy” there. Anything with a news or human interest value done in a public place, therefore, generally becomes a legitimate matter of public interest subject to coverage.

Finally, remember that privacy law is a dynamic, and – in the Philippines – largely unexplored field of legal practice. While American jurisprudence remains persuasive in the absence of Philippine cases and principles, Philippine courts will no doubt apply Philippine cultural practices, and Filipino social values, in determining whether damages are due for an invasion of privacy. Obviously, this can work against a Philippine media defendant, given that our need to “save face” and the Filipino sense of “hiya” are more stringent than American conceptions of privacy.

All told, there are compelling arguments for both sides of the privacy debate. But unlike disputes involving free speech, this conflict pits the media not against the state but against individuals. Where then, to look for better guidance in controversial situations involving these two preferred rights?

The best answer may not be legal, but rather ethical: the Journalist’s Code of Ethics provides useful guidelines for the treatment of private individuals and private facts. In many situations, the ethical solution will likely coincide with the legal one. When in doubt, then, “decency should be my watch word.” After all, what better than decency to avert an “unwanted gaze?”

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