Wednesday, March 14, 2012

A valid Search & Seizure beyond a Warrant...

Article III Section 2 of the 1987 Constitution states that " The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. "

The abovestated provision of the Constitution is very important. It safeguard each and every citizen from unlawful searches and seizures. This provision eliminates the use of general warrants which is often times abused by the authorities. Any evidence obtained in violation of this provision shall be inadmissible for any purpose in any proceeding, as mentioned in Article 3 Section 3 par. 2 of the same Constitution.

A search and seizure can only be done with a valid warrant, except in those instances specified under the law, to wit: a warrantless search incidental to a lawful arrest, search under plain view doctrine, search of a moving vehicle, consented warrantless searches, stop & frisk, custom searches, exigent & emergency circumstances and checkpoints. There will be no valid search and seizure if there is no probable cause and the warrant did not particularly specify the things to be seized.

In 2002, to keep abreast with the latest technological advancement, the Supreme Court promulgated A.M. No. 02-1-06-SC which provides for the Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property Rights. Section 2 of the said rule provides that " The writ of search and seizure - Where any delay is likely to cause irreparable harm to the intellectual property right holder or where there is demonstrable risk of evidence being destroyed, the intellectual property right holder or his duly authorized representative in a pending civil action for infringement or who intends to commence such an action may apply ex parte for the issuance of writ of search and seizure directing the alleged infringing defendant or expected adverse party to admit into his premises the persons named in the order and to allow search, inspection, copying, photographing, audio and audiovisual recording or seizure of any document and article specified in the order.Section 16 of the same rule further states that " Seizure of computer disks or other storage devices - The seizure of a computer disk or any storage device may be executed in any of the following manner: (a) by the physical taking thereof; (b) by copying its contents in suitable device or disk provided by the applicant; or (c) by printing out the contents of the disk or device with the use of a printer. When the computer disks or storage device cannot be readily removed from the computer to which they are fitted, the sheriff may take the subject computer from the custody of the alleged infringing defendant, expected adverse party or person in charge or in control of the premises or residing or working therein.

In conclusion, our existing laws recognizes technology as a tool in the commission of a crime, but this recognition is subject to limitations by the constitutional provisions on searches and seizures. Evidences acquired through a valid warrant can be used for any purposes in any proceedings as long as those items are particularly specified in the said warrant as required by law.

Wednesday, February 29, 2012

Right to PRIVACY in publication of JUDICIAL DECISIONS…

The Right to Privacy is a natural right. It is a fundamental human right and a cornerstone of a democratic society. It is the right to be let alone, in the absence of some "reasonable" public interest in a person's activities. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right. Its boundaries and contents varies among countries, cultures and individuals. The degree of exposure of private information depends on how the public will receive this information, which differs between places and over time.

In the Philippines, different laws protect the right to privacy of a person, such as the Bill of Rights under the Constitution and Article 26 of the Civil Code, which states that " every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. " But at this point in time, the spread of internet has great effect on the privacy issue. For instance with regards to the publication of judicial decision, the use of internet significantly modified the traditional dissemination of judgements, increasing access and enabling easy retrieval capacity through websites, search engines and repositories managed by the Supreme Court and other organizations.

A question now arises as to whether a right to privacy can be invoke by a party-litigant against the publication of a judicial decisions.

In the instant case, my position will be in the negative. Although our laws uphold the right to privacy it does not mean that it has no limitations. Article 8 of the Civil Code provides that " judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. " Being part of the legal system those judicial decisions became public records vested with public interest. As provided in Section 7 of Article III of the Constitution " the right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. "

Therefore an apparent conflict between the right to privacy of a person in this case should yield to the general welfare and interest of the public since these judicial decisions are already public records and they form part of the legal system.

The person or individual is not left without any remedy. Congress enacted laws which protect right to privacy of those individuals involved in a case and whose names where mentioned in the court decisions and proceedings. Some of these laws are the following:

Section 29 of Republic Act 7610 which states: " Confidentiality - At the instance of the offended party, his name may be withheld from the public until the court acquires jurisdiction over the case.
It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio broadcasting, producer and director of the film in case of the movie industry, to cause undue and sensationalized publicity of any case of violation of this Act which results in the moral degradation and suffering of the offended party. "

Section 44 of Republic Act 9262 which similarly provides: " Confidentiality - All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics to hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter's consent, shall be liable to the contempt power of the court.
Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred Thousand pesos (P500,000.00). "

Likewise, Section 40 of the Rule on Violence Against Women and their Children states: Privacy and confidentiality of proceedings. - " All hearings of cases of violence against women and their children shall be conducted in a manner consistent with the dignity of women and their children and respect for their privacy.
Records of the cases shall be treated with utmost confidentiality. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer or other identifying information of the parties or an immediate family or household member, without their consent or without authority of the court, shall be liable for contempt of court and shall suffer the penalty of one year imprisonment and a fine of not more than Five Hundred Thousand (P500,000.00) Pesos. "

The remedies are only available to offended parties who are children or women. This is based on the 14 February 2006 Resolution AM No. 99-7-06-SC of the Supreme Court entitled In Re Internet Web Page of the Supreme Court as provided by the court in the landmark case of People vs. Cabalquinto ( gr. no. 167693, September 19, 2006 ). It provides that:
" It is worth mentioning in this connection that the Court has resolved to refrain from posting in its Internet Web Page the full text of decisions in cases involving child sexual abuse in response to a letter from a mother of a child abuse victim addressed to the Chief Justice expressing anxiety over the posting of full text decisions of the Supreme Court on its Internet Web Page. The mother submitted that confidentiality and the best interest of the child must prevail over public access to information and pleaded that her daughter's cas as well as those of a similar nature, be excluded from the Web Page. "

It is now therefore the prevailing rule that if the offended person is NOT a child or a woman, the remedies granted by law cannot be applied and ultimately the provisions of the Constitution cannot be invoked. Expressio Unius Est Exclusio Alterius.

In conclusion, the right to privacy of an individual is not absolute it has its limitations and an individual cannot not invoke right to privacy if he is not covered of those limitations granted by law. There will be no rights violated and the person affected has no right to demand the removal of his name from the database keep by these websites and repositories.

Disclaimer: Please note that any views or opinions presented in this work are solely those of the author and do not necessarily represent anyone. This work is intended as a legal opinion for the satisfaction of the requirements in the subject Technology and the Law.

Thursday, December 08, 2011

Official Gazette of the Philippines Online!

Many legal practitioners have a knowledge of what is an Official Gazette and what it is for, but few are likely to have seen or held a hard copy of the publication. That was years back, as the Official Gazette is now available online at The administration of President Benigno Simeon C. Aquino III, through its Communication Group launches a beta version of the site. As of now, it features President's Speeches, Executive & Departmental Issuances, Historical Papers & Documents, Legal & Official Notices, as well as links to different government agencies' websites.

In 1941, Commonwealth Act No. 638 created the Official Gazette and Section 1 provides for its contents:

There shall be published in the Official Gazette (1) all important legislative acts and resolutions of a public nature of the Congress of the Philippines; (2) all executive and administrative orders and proclamations, except such as have no general applicability; (3) decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may deemed by said courts of sufficient importance to be published; (4) such documents or classes of documents as may be required so to be published by law; and (5) such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published: Provided, That for the purpose of this section every. order or document which shall prescribe a penalty shall be deemed to have general applicability and legal effect: And provided, further, That the term "document" as used in this section shall include any order, regulation, rule, certificate, license, notice, or similar instrument issued, prescribed, or promulgated by any executive department, bureau, office, commission, independent board, agency, or instrumentality of the administrative branch of the Government but not the legislative or judicial branch of the Government.

While Article 2 of Republic Act No. 386, the New Civil Code of the Philippines provides that "Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided...", a requirement which the Supreme Court reiterated in the case of Tanada vs. Tuvera (1986). However, in June 1987, during the transition government of President Corazon C. Aquino, exercising her then legislative power, amended Article 2 of the Civil Code through Executive Order No. 200, which provides that laws to be effective must be published either in the Official Gazette or in a newspaper of general circulation in the country. It shall take effect fifteen (15) days from the time it was published in the Official Gazette or the newspaper of general circulation.

The question now is Whether or not the publication in the Official Gazette Online at is a substantial compliance with publication in abovestated laws relating it to R.A. No. 8792 also known as E-Commerce Act of 2000?

No,there must be a law amending either Article 2 of the Civil Code or Commonwealth Act No. 638 so that publication in the Official Gazette online can be considered as substantial compliance with the requirement and that the date of the publication of laws in the same, would count as the reckoning point of the fifteen (15) day period. In the absence of such amendatory law, the claim that the publication in the Official Gazette online has met the requirement of law is inoperative.

Furthermore, the contention that R.A. No. 8792 or the E-Commerce Act of 2000 validated such online publication is null and void. Under this act, an electronic data message or an electronic document has the functional equivalent of a written document only for evidentiary purposes. The law merely recognizes the admissibility of electronic data messages and/or electronic documents as evidence. It does not make the internet a medium for publishing laws, rules and regulations.

Therefore, until there is an amendatory legislation passed by the Congress of the Philippines, the prudential measure remains to continue publishing laws on newspapers of general circulation and its effectivity reckon from the date of newspaper publication.

Disclaimer: Please note that any views or opinions presented in this work are solely those of the author and do not necessarily represent anyone. This work is intended as a legal opinion for the satisfaction of the requirements in the subject Technology and the Law.

Monday, November 07, 2011

1st assignment...Tech & the Law!

blog - check
twitter - check

just need to read e-commerce law & electronic evidence rule...