‘Bikini girls’ didn’t kill privacy on Facebook!
Privacy is not dead on Facebook! The Supreme Court ruling rejecting the “bikini girls’” privacy claim against St. Theresa’s College in Cebu City has been exaggerated and taken out of context in some reports. The ruling is sound, but I wish it were clearer that it had little to do with Facebook or currently debated social media privacy issues.
The high court presented facts clearer than what we knew the last time I wrote on this (“Intellectual impunity vs the right to bikini photos,” Opinion, 4/3/2012). In January 2012, several STC high school seniors were changing for a beach party when one of them took pictures while they were all in their underwear. One of them uploaded these to Facebook, presumably with consent. Among the Facebook friends who could access the bikini (or rather, brassiere) pictures were other STC seniors who showed them to a teacher, along with others of the girls “drinking hard liquor and smoking cigarettes inside a bar” and “along the streets of Cebu wearing articles of clothing that show virtually the entirety of their black brassieres.”
The bikini girls were soon summoned to the principal’s office, allegedly “castigated and verbally abused by the STC officials” and told they would not join their graduation ceremony. They violated several handbook provisions, including “uploading pictures on the Internet that entail ample body exposure.” A Cebu court ordered STC to allow the girls to attend their graduation, but the court sheriff was prevented from entering until the ceremony ended.
The outrageous events evoked great sympathy for the girls and gave rise to a number of important debates, but none is the immediate subject of the high court ruling. The high court was not deciding whether the girls should have attended their graduation. Rather, it was a “habeas data” case that asked to declare that STC had obtained the pictures illegally.
Because the STC administrators were not the girls’ Facebook friends, did they not invade the girls’ privacy by viewing the pictures of the students in their underwear and, worse, later attaching these to a public court filing? The high court rejected this because it established that other students who were given access to the pictures had voluntarily provided copies to STC. Further, the high court accepted claims that for a time, the Facebook privacy settings on the bikini pictures were deactivated, meaning any person could have seen them.
Beyond what was strictly needed to decide the case, Justice Presbitero Velasco proposed that even if privacy settings restricted the photos to the girls’ Facebook friends only, it is difficult for a court to consider as strictly private photos that hundreds of people could access. Velasco would accept as private photos where only the owner or a select few persons were
given access through customized privacy settings. This has clear basis in law, logic and court practice in other countries. In comparison, in a criminal context, a court would not declare an illegal search where another person found evidence relating to a crime in someone’s home and voluntarily brought it out to policemen. Further, our Securities Regulation Code treats as private a securities offering made to less than 20 people. We are simply two decades past debates whether an e-mail sent to several hundred recipients is private and cannot be forwarded.
Thus, Velasco proposed a rule that photos can actually be considered private despite being posted on the Internet, but only if the privacy settings limited access to only a few people. The actual ruling was low-tech and did not touch on ongoing privacy debates such as whether Facebook should be prevented from mining users’ personal data, sending targeted advertisements to people based on their data, making public certain acts such as “liking” commercial pages, and making data available to governments.
Nevertheless, the STC case forces us to think of deeper privacy issues not brought squarely before the high court. First, if the right to “informational privacy” means being able to control access to one’s information, is it unreasonable to ask STC to destroy the (not illegally obtained) pictures of the girls in their underwear, given that they have served their sentence? Is it valid for a teenager to worry for the rest of her life who has access to pictures of her in her underwear kept by her high school principal and the local judge?
Second, the ultimate control over one’s information is the liberty to shape the identity one holds out to the world. Is it proper, just because of the Internet, to give a high school unlimited power to judge anything a student does outside the school? For example, may a strict Muslim school punish a girl photographed taking off her head scarf in public if this is against school policy, given STC’s action against its Catholic girls’ “ample body exposure”? Recall that parents defended their children all the way to court and argued they had no moral objection to the photos, in the context they were taken. May a high school dictate a girl’s identity to this extent, above her and her parents’ vehement objections?
Third, if this controversy was about upholding traditional Catholic values, what values have been demonstrated where teenage girls were publicly humiliated, a court sheriff was blocked from serving a judge’s order, and the girls will be associated with the controversy for life after Google detects their names and their parents’ names in a high court decision? This last is beyond the power of law to answer.
Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) published
“Articulating the Complete Philippine Right to Privacy, 82(4) PHIL. L.J. 78 (2008)).”
