When public is private

In the middle of leisure time, or of an office meeting, a call is insisting to be picked up. To be sure, you interrupt yourself and answer the call. A telemarketer is on the other line. This common disturbance happens to almost anyone. How did they get your mobile number? The bigger question is: “Does this violate your right to privacy?”

The right to privacy is the favorite defense invoked in Senate inquiries. We have seen it used in the impeachment proceedings, and recently in the legislative investigation of the Makati City government. The “right to privacy” is not in the Bill of Rights of the Constitution. It is more of a derivative right from “unreasonable searches and seizures”. So if you can invoke your right against unreasonable search for evidence or information in your own house, you can also invoke it when someone is compelling you to produce the evidence or information – if that is a private matter.

Our Civil Code also recognizes the right to privacy, and even the right to “peace of mind”. Section 26 of the Civil Code mandates that “every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons.”

Then came the relatively recent Data Privacy Act of 2012, which criminalizes unauthorized access and use of personal data of individuals. Does this law improve the protection of privacy?

A good analogous case involving a Hollywood actress comes to mind. She brought a suit in relation to the unauthorized access and publication of her honeymoon sex tapes with her rocker husband. The approach of the defense was to show magazines she posed in and the movies she starred in, where she exposed herself. The defense against her claim to right to privacy is this: she is anything but private. This is a good defense, maybe. But does putting something private in public allow the public to do as they please with this disclosure?

Now, let’s go closer to home. Our individual details are scattered all around through our own fault. We would make it available in social media, through business cards we give out in meetings or those we drop in fish bowls for a chance to win a raffle prize. Even more mundane are contact details and addresses we voluntarily make available through the Yellow Pages.

True, the information we make public make it no longer private. Do our right and protection end where disclosure begins?

Publicly disclosed or voluntarily given information about an individual is not a free commodity. Such is the essence of the Data Privacy Law. It seeks to protect the individual by controlling the processing of information he discloses. The recipient of the information is effectively made a custodian. More importantly, it introduces the essential requirement of prior consent from the individual before the said “custodian” processes, disposes or exploits the information.

For example, if you give out your details to join a raffle, the raffle organizer cannot use your contact details, without your written consent, for distribution to their affiliates so that they can send you solicitation letters for sponsorships.

Have you experienced certain buildings’ lobby security requiring you to jot down your name, company and contact details?  It seems quite innocent but just a bit overdone. What assurance do we have that building administrators, or even these security guards, will not sell the information they gather from their visitors?

Under the Data Privacy Law, sale of this data without the consent of the data owner is made criminal. So even if done by the building administrator without malice, there can still be criminal liabilities because this special law says so.

When you give out your credit card details to purchase via phone or online, risk is created for credit card fraud. Sometimes, with sufficient information, the “custodian” can remotely use your credit card and enter into unauthorized transactions under your name. This illegal processing of your personal information is also the target of this law.

How do you protect yourself now, given the information you disclose?

1. Avoid posting mobile numbers in social media and other web sites.

2. Avoid giving business cards indiscriminately.

3. Whenever you give your details, make sure that you know the purpose and intent of the information “custodian” and how they are going to use or process your information.

4. Just for emphasis, provide a restriction statement that whatever information you disclose in social media or other web site may not be processed or used for any commercial purpose or gain without your consent.

I want to leave you with a thought that no amount of law will stop the infringement of privacy. No amount of risk will stop you either from disclosing personal information. As they say, we are social animals.

The right to privacy, just like any human right, is only made relevant if it’s relevant to you, or if fought for.

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Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the tax committee of the Management Association of the Philippines (MAP). Email your comments and questions to [email protected]. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.