Privacy: Its Meaning and Aspects

The right to privacy gained recognition and prominent attention in 1890 when law
partners Samuel D Warren and (later) Justice Louis D Brandeis wrote their seminal article, ‘The
Right to Privacy’, which they described it as the ‘right to be let alone’, ‘a part of the more
general right to the immunity of a person -- the right to one's personality’ (Warren and Brandeis,
1890: 207). Following this definition, I also define privacy as the right to be let alone. This has
found jurisprudential recognition. Justice Douglas held: ‘Liberty in the constitutional sense must
mean more than freedom from unlawful governmental restraint; it must include privacy as well,
if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all
freedom’.1 Justice Brandeis stated that this right to be let alone is ‘the most comprehensive of
rights and the right most valued by civilized men
[sic]’.2
The two most important aspects of the right to privacy are its informational and decisional
aspects.

Decisional aspect
The decisional aspect of privacy stems from respect for a person as an autonomous being
with the right to decide for him or herself how to live life and conduct activities. This respect
acknowledges that another may be engaged in a kind of creative enterprise that can be disrupted,
distorted, or frustrated by intrusion. (Benn, 1971: 26). The value of privacy lies in our respect for
persons as autonomous beings with capacity to love, care and the like (Inness, 1993: 95; Solove,
2002: 1145). Hence, decisional privacy is the right to express one's personality and to decide
how to live one's personal life without undue interference from others. It contemplates decisions
that are of an intimate or significant nature, expressive of one's lifestyle. The Philippine case of
Imbong v Ochoa3 involving reproductive rights, discussed below, is an excellent example of
decisional privacy.

Violating the Right

There are two ways in which the right to privacy may be violated, by improper intrusions or
by unwarranted exposure or disclosure. Heyman claims:
Invasion of privacy takes two main forms: improper intrusion into an individual's private life
(e.g., through obscene or harassing telephone calls), and unwarranted exposure of that
private life to the world (through publication of highly personal information). Of course,
both forms of invasion of privacy can be committed through speech. (Heyman, 2002: 784;
emphasis in original)

1
Public Utilities Commission v Pollak, 343 US 451, 467 (1952).

2
Olmstead v United States, 277 US 438, 478 (1928).
3
GR No 204819, 08 April 2014; 721 SCRA 146.
 Improper intrusion

Improper intrusion, as previously mentioned, occurs when there is an unwanted access by

others to a person’s life. An individual has the right to: control what information about him or
herself will be made known to others; and to live his or her life without unwanted intrusion by
others (Benn, 1971: 2). An example of the right to intrusion privacy is art 26 of the New Civil
Code. It provides:
Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of
his neighbors and other persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action for damages, prevention and
other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life,
place of birth, physical defect, or other personal condition.

Unwarranted disclosure
Unwarranted exposure or disclosure occurs when aspects of a person's life is revealed to the
public. This may result not only in discomfort or embarrassment experienced by the intrude due
to this exposure but also in decisions that would not normally made were it not for the
unwarranted disclosure.
Privacy thus prevents interference, pressures to conform, ridicule, punishment, unfavorable
decisions, and other forms of hostile reaction. To the extent that privacy does this, it
functions to promote liberty of action, removing the unpleasant consequences of certain
actions and thus increasing the liberty to perform them. (Gavison, 1989: 448)

Privacy as a constitutional right came to the forefront in United States jurisprudence with the
case of Griswold v Connecticut (381 US 479 (1965)), in which the United States Supreme Court
affirmed the right of married couples to use contraceptives. This case concerned decisional
privacy. A married couple may not be prevented or disallowed from using contraception. It is
completely up to them to decide whether to use contraception or not. This decision thus protected
their decision privacy.

In the Philippines, the seminal case was Morfe v Mutuc,45 in which public officials challenged
a statute that required them to file their statements of assets and liabilities, claiming a violation of
their right to privacy. This concerned informational privacy.

The jurisprudential basis for seeing the right to privacy as divided into two aspects is found in
Whalen v Roe:8
4
Morfe, at 424.
5
US 589 (1977).
 The cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two
different kinds of interests. One is the individual interest in avoiding disclosure of personal
matters, and another is the interest in independence in making certain kinds of important
decisions.6
The former corresponds to the informational aspect and the latter to the decisional.

The Standard of Strict Scrutiny

Just as in United States law, privacy is a value highly treasured in Philippine law, such
that it is also considered to be a ‘preferred freedom’. That being the case, a standard of strict
scrutiny, and not rationality, is to be applied to determine whether the right to privacy has been
violated or not. The rationality standard only requires that the means used to achieve the purpose
of the legislation be a reasonable method to achieve it. It need not guarantee the realisation of the
purpose; it only requires that it is reasonable to expect that the purpose will be achieved. In strict
scrutiny, a higher standard is required: the purpose must be compelling and the means used be
the least restrictive. In other words, there may be no other means available that could achieve the
result with a lesser burden imposed on the individual.

Religious or marital privacy:

Estrada v Escritor was not decided on the basis of the right to privacy but on religious
conscientious objection grounds. Nonetheless, it could have been converted into a privacy
case, as indeed one separate opinion did.
In the case, the Office of the Court Administrator (OCA) recommended the suspension of a
court employee, a member of Jehovah’s Witnesses, from the Civil Service for disgraceful and
immoral conduct for six months. The employee who was married under the eyes of the law,
but validly divorced from the point of view of her religion, cohabited with another upon
remarriage under her religion. From her own perspective and that of her religion, there was
nothing immoral about her cohabitation. However, since her acts constituted the crime of
concubinage under Philippine law, her conduct was considered grossly immoral under Civil
Service Law.

The Court treated the case as one of conscientious objection and remanded the case to the
OCA to determine whether the defense of religious conscientious objection applied. It could
also have been considered a case of privacy. According to the Court, ‘More than religious
freedom, I look with partiality to the rights of due process and privacy’ (Escritor, 207, per
Davide, CJ, italics in original). If treated in this way, the employee could have argued that the
determination of whether she was validly divorced or not, and therefore able to remarry and
cohabit with another, was a private or internal matter to be decided in accordance with her
own conscience or that of her religion. From that perspective, it could be argued that the
choice imposed upon her by the law between family or marriage and her job was an
unconstitutional one.
6
Whalen v Roe, at 599-600.
 Justice Bellosillo, who wrote a separate opinion, was painfully aware of the woman’s
situation. He proclaimed:

Indeed, in light of these facts, what better institution is there to judge her morality than her
own church; what business does the government have to judge her conduct that is not
criminal in nature nor destructive of her efficiency in the service? (Escritor, 193)

He added the observations of Judge Maceda, who was directed by the OCA to investigate
the complaint.

Judge Maceda formulated the issue in terms of ‘whether the moral standards of the
Catholic faith, to which a great majority of us belongs, must be exacted of [the] respondent to
determine her administrative responsibility when she is a member of the Jehovah’s Witnesses’
(Escritor, 198)

Thereafter, he (Judge Maceda) ‘rendered his Report and Recommendation absolving the
respondent of the charge of immorality on the ground that her relationship has been well-
accepted by the religious sect to which she and her partner adhered’ (Escritor, 196). Justice
Bellosillo further concluded: ‘To be sure, there are matters that are best left to the conscience
and the moral beliefs of an individual, and matters of which public law may take cognizance’
(Escritor, 199). Clearly, the judge believed that this was a matter of private concern.

As Emerson (1973: 340) stated, ‘[…] the right of privacy consists of

protection for the three elements which are at the core of individuality. The
first is autonomy, which is necessary in order to retain control over one's
destiny as an individual’. Autonomy is personal sovereignty combined with
self-determination. According to Mill (1990: 135), the ‘only part of the
conduct of any one, for which he is amenable to society, is that which
concerns others. In the part which merely concerns himself, his
independence is, of right, absolute. Over himself, over his own body and
mind, the individual is sovereign’. Feinberg, a century later, developed this
concept: ‘Personal autonomy […] involves the idea of having a domain or
authority in which the self is sovereign’. He adds: ‘to say that I am sovereign
over my bodily territory is to say that I, and I alone, decide (so long as I am
capable of deciding) what goes on there. My authority is a discretionary
competence; an authority to choose and make decisions’ (Feinberg, 1986:
52-53). Raz (1986: 369) also explains autonomy as self-determination: ‘The
ruling idea behind the ideal of personal autonomy is that people should make
their own lives. The autonomous person is a (part) author of his own life. The
ideal of personal autonomy is the vision of people controlling to some
degree, their own destiny, fashioning it through successive decisions
throughout their lives’. In the Roe v Wade case, it was commented that the
right to autonomy includes ‘a specific right of personal choice in matters of
marriage and family life’.7 The right to privacy protects the individual from
interference in the making of personal decisions or life choices. This
decisional privacy is a right to autonomy.

It is true that privacy and autonomy are intimately related. One must
enjoy privacy to act autonomously. Autonomy concerns privacy of decision-
making, wherein an individual is allowed complete freedom, without
interference from the state, to make up his or her own mind to do as he or
she wills. In short, autonomy is an aspect of privacy and privacy serves the
value of autonomy.
The dilemma experienced by the defendant in this case was not that of a
violation of his autonomy. It was a violation of his privacy, an invasion of his
physical space. Decision-making was not involved.

In Eisenstadt,8 it was asserted:

[T]he marital couple is not an independent entity with a mind and
heart of its own, but an association of two individuals each with a
separate intellectual and emotional makeup. If the right of privacy means
anything, it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child.
(Eisenstadt, 453, italics in original)

Ilusorio v Bildner

A Motion for Reconsideration was filed after this decision, in which the wife, Erlinda,
asked the Court to enforce consortium between her and her husband. In resolving the case, the
court chose not to intrude into the privacy of the spouses in terms of the decision of whether to
live together or not. They had been living apart and she was fearful that her two children were
using their sick and frail father, whom she claimed to be mentally incapacitated, to sign away
conjugal property to companies controlled by the children.

. . . Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69 of the Family
Code support her position that as spouses, they (Potenciano and Erlinda) are duty bound to live
together and care for each other. We agree.

The law provides that the husband and the wife are obliged to live together, observe
mutual love, respect and fidelity. The sanction therefore is the ‘spontaneous, mutual affection
between husband and wife and not any legal mandate or court order’ to enforce consortium.
(Ilusorio, 2001: 432)
7
Roe v Wade, 410 US 113, 168 (1973).
25
405 US 438 (1972)
8
Eisenstadt v Baird, mentioned above.