ELECTRONIC EVIDENCE OR VIOLATION OF CRIMINAL PRIVACY LAW?

Judge B charged Judge A with Conduct Unbecoming of a Judge through the

commission of the following: XXX (3) The crime of Unjust Vexation through stalking and
electronic intrusion. Judge B accused Judge A of sending to the former a 69 graphic
(by Felicien Rops) as well as emails containing alleged sexual undertones. As evidence,
Judge B attached the alleged typewritten emails of Judge A to prove the
administrative complaint against the latter.

Judge A counter-charged Judge B with repeated Serious Dishonesty and Violation of

the Right to Privacy under the Constitution and statutes.

Is Judge A liable for Conduct Unbecoming of a Judge? The answer is in the negative.

Judge B did not present a competent proof before the Court Administrator X and
Investigating Justice Y of the defamation against her by Judge A made to Atty. C,
friend of Judge B who is based in United States.

Judge B took out of context the online private communication Judge A had with Atty.
C who allegedly wrote defamatory things about Judge A that the latter dismissed the
same for being hearsays. The emails to Atty. C are not defamatory by a cursory
reading of them, one of them is the request to delete the purported emails that Judge
B is harboring and keeping due to their sentimental value or whatever motive she has
behind them.

In Judge A emails to Atty. C, there are written email disclaimers which is the
CONFIDENTIALITY NOTE: This email and any files transmitted with it are confidential
and intended solely for the use of the individual or entity to whom they are addressed. If
you have received this email in error please notify the system manager. This message
contains confidential information and is intended only for the individual named. If you
are not the named addressee you should not disseminate, distribute or copy this e-mail.
Please notify the sender immediately by e-mail if you have received this e-mail by
mistake and delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any action in reliance on
the contents of this information is strictly prohibited.
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It is an elementary principle in the Rules of Evidence that the presentation of an email
without the consent of the sender is covered by Exclusionary Rules. Not only the email
is inadmissible, it will subject the sendee or the presentor of email who did not obtain
prior consent from the sender to civil, criminal and administrative liabilities under the
1987 Philippine Constitution and statutes.

Judge A observed that Judge B was a bad friend to her as well as a bad friend to
Atty. C because when she received her Affidavit from the U.S.A., she has knowledge
of the criminal liability for violation of RA No. 8792, a special penal law with no available
defense, she still attached Atty. Cs Affidavit to expose her to possible criminal
prosecution for privacy law of electronic correspondences. Not only that, Judge B
presented the Affidavit of Atty. C containing emails purportedly coming from Judge A
with tampered name of sender, dates and time of sending them, to expose Atty. C for
criminal charge of Perjury. Judge B also quoted Atty. C private comments against
Judge A in her Affidavit that have no relevancy in this administrative case other than
defame Judge A to expose Atty. C to possible prosecution for Libel. This is a squid
tactic. It a sorry to describe it as nasty.

Judge B failed to summon Judge A to testify on the subject emails that lacked proper
identification and proper authentication before Investigating Justice Y. Thus, Judge
Bs complaint contained hearsays against Judge A. In PNOC Shipping and Transport
Corporation vs. CA et al. G.R. No. 107518, October 8, 1998: a letter may be offered in
evidence and admitted as such but its evidentiary weight depends upon the observance
of the rules on evidence. Accordingly, the author of the letter should be presented as
witness to provide the other party to the litigation the opportunity to question him on the
contents of the letter. Being mere hearsay evidence, failure to present the author of
the letter renders its contents suspect. As earlier stated, hearsay evidence, whether
objected to or not, has no probative value and and People vs. Carlos, G.R. No. L-
22948, March 17, 1925, The letter Exhibit L must, however, be excluded for reasons not
discussed in the briefs. The letter was written by the wife of the defendant and if she
had testified at the trial the letter might have been admissible to impeach her testimony,
but she was not put on the witness-stand and the letter was therefore not offered for
that purpose. If the defendant either by answer or otherwise had indicated his assent to
the statements contained in the letter it might also have been admissible, but such is not
the case here; the fact that he had the letter in his possession is no indication of
acquiescence or assent on his part. The letter is therefore nothing but pure hearsay.

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There are no actual computer print-outs attached to the complaint and shown to
Judge A to prove hearsay evidence. Judge A was not shown any actual
computer print-outs during the probe until its end.

There were unresolved issues on tampering or hacking. Judge B has no proof

who was the sender or author of the typewritten emails she attached to her
complaint submitted to the Office of the Court Administrator.

According to Judge A, the 69 graphic by Felicien Rops came from the Facebook
account of Judge B via gift section contrary to the false accusation of Judge B. This
was proven to be true before the termination of the investigation by the Investigating
Justice Y. The 69 graphic coming from Judge B is considered as an art work
nowadays not a pornography. It is already part of public dominion. Judge B did not
incur criminal, civil and administrative liabilities for sending the 69 graphic by Felicien
Rops to Judge A under Article III, Section 4, 1987 Constitution: No law shall be
passed abridging the freedom of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the government for redress of
grievances.

If it was all Judge B who emailed Judge A seriously in 2008 about the graphics that
came from her Facebook account, then she should re examine her sexual orientation
as a bisexual which she should not be ashamed of because it is not a transgression of
the Constitution, Code of Judicial Conduct and Code of Professional Responsibility. She
did not incur any criminal, civil and administrative liabilities in the expression of her
sexual orientation because it is her freedom to do so in this democratic country. But
when such expression is harmful to others like to Judge A, the subject of false and
defamatory letters, that Judge A felt there was a demolition job or hatchet job, this will
open up Judge B to suits to instill discipline on her. The filing of false, malicious and
baseless suits by a Judge against a Judge is in contravention of the laws. It is not
protected by freedom of speech in the Philippine Constitution or any other laws. Judge
B must comply with procedural aspects on authenticating electronic evidence without
violating the laws on privacy. This is not a matter of taking refuge on technicalities,
rather this ensures application of fair play and rule of law because of there are violations
of substantive rights of Judge A in this case, there is no real justice and ours is not of
government of laws but of men. These are not the characteristics of the Supreme Court
and our countrys judicial system.

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Also, a letter with caption Notice addressed to Court Administrator X that Judge B
accused Judge A of mocking the investigation does not mean belittling the
investigation of the administrative case. Notice has plenty of definitions, one of which is
to Comment On according to dictionaries.

There is no competent proof presented by Judge B that Judge A maligned

complainant to her sister-in-law Judge D whose allegations in her Affidavit are self-
serving without any testimonial and documentary evidence to corroborate her. There
was no police blotter of the crime of Grave Oral Defamation as well as the alleged
defamatory remarks that Judge A allegedly uttered against Judge B to Judge D. If
Judge D can present her text messages sent to Judge B that Judge A maligned the
latter during the Judges seminar, Judge A offered to tender her resignation effective
immediately.

There is no competent proof presented by Judge B before Court Administrator X and

the Investigating Justice Y that Judge A unjustly vexed her through stalking and
electronic intrusion.

Judge As emails are closed letters where only the senders name, subject matter and
date appear, these cannot stalk Judge B because she is not under obligation to read
and re-read them. If Judge B considered the emails as spam, she can simply delete
them as Judge A repeatedly requested from her long time ago, but she refused, so it is
not Judge As problem anymore. Judge A thought that Judge B was attempting to
blackmail her with respect to the emails that were employed to threaten her to have
committed libel against Judges since blackmailing can happen in any form not only
when monetary consideration is demanded. Judge As comments and replies to the
emails and graphics (consisting of Oscar Academy Awards photos) sent via Facebook
section were all made for purposes of sheer fun and entertainment from an
unauthorized reading of them.

Judge A gave Judge B a portrait of Mother of Perpetual Help and a rosary at different
occasions to thank her for praying her appointment in the judiciary, more or less six (6)
months prior to the filing of her false and malicious complaint.

Judge A dined with Judge B and her family members at a restaurant where Judge
B paid for the meal of Judge A, more or less five (5) months prior to the filing of her
false and malicious complaint.
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Judge B took pictures of Judge A who was on stage during the Judges seminar,
more or less a year after filing her administrative complaint to prove Bipolar disorder on
the part of Judge B.

Judge A wrote to the Supreme Court that she will resign as soon as possible if Judge
B can submit a certification from Facebook that the 69 graphic by Felicien Rops she
falsely mentioned in her letter-complaint against Judge A did not come from Judge
Bs Facebook account via Facebook gift section. Later on, Judge A submitted to the
Supreme Court a National Bank billing statement in 2008 showing the transaction
payment of $10 under JBL*FACEBK.GIFTIE 123-456789 US to prove that the $10 was
billed to Judge As credit card when she opened up the 69 graphic sent by Judge B
that was mentioned a few times in the emails of Judge A to Judge B where Judge A
demanded reimbursement of $10. This proof makes Judge B criminally liable for
Perjury in making false accusation under oath against Judge A.

Judge A did not stalk Judge B who falsely accused the former of it to the latters
family members, friends and co-workers in the judiciary that came to the attention of
Judge A that the latter preferred to ignore for being crazy and untrue. Judge A
bewailed that she did not stalk to anyone but she has bad experiences of being stalked
in elementary, high school, college, law schools and all the offices she has work
experiences that she do not want to talk them for being a waste of time.

The private communications were taken out of context by Judge B who has a big
problem with respect to the emails that are trashes. Judge B kept these trashes that
were deposited in her email account long time ago, years have passed, and refused to
delete them in a recycle bin, it is not Judge As problem anymore. Judge A does not
deserve any administrative penalty in this case because no wrongdoing was committed
to Judge B or to the Supreme Court.

Judge B wrote to Court Administrator X that she opened up a Facebook account in

the name of Cashew Nuts Joc-Joc to evade Judge A alleged stalking, for Judge A,
this is a fictitious account that she cringed with fear upon learning of it and the reason
behind it because only a nutty person will do it. In this administrative case, what Judge
B manifested is email stalking that is listed as DSM 5.

In A.M. No. 1 - 007, In all of these charges, it must be shown that there is flagrant
unlawful conduct, intentional purpose, manifest partiality or evident bad faith. However,
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the complainant merely presented her bare allegations. Similar to this complaint of
Judge B. Failure of the complainant to substantiate his claims will lead to the dismissal
of the administrative complaint for lack of merit because, in the absence of evidence to
the contrary, the presumption that a judge has regularly performed his duties will prevail
(Ever Emporium, Inc. vs. Judge Maceda, 483 Phil. 323, 339 (2004); Atty. Rex J.M.A.
Fernandez vs. Court of Appeals Associate Justices Eubolo G. Verzola, Martin S.
Villarama, Jr., and Mario L. Guaria III, 480 Phil. 1 (2004); Leonides T. Cortes vs.
Sandiganbayan Justices Minita V. Chico-Nazario, Ma. Cristina G. Cortez-Estrada and
Rodolfo G. Palattao, 467 Phil. 155). In this case, complainant has nothing but mere
assertions and conjectures to buttress his allegations. Time and again, the Supreme
Court has held that charges based on mere suspicion and speculation cannot be given
credence. It will not shirk from its responsibility of imposing discipline upon employees
of the Judiciary. At the same time, however, neither will we hesitate to shield the same
employees from unfounded suits that only serve to disrupt rather than promote the
orderly administration of justice (Francisco vs. Leyva, 364 Phil. 1, 4).

Judge B committed repeated Serious Dishonesty and a violation of Right to Privacy in

this administrative case. Dishonesty is defined as any act which shows lack of integrity
or a disposition to defraud, cheat, deceive or betray; It consists of an intent to violate the
truth, in a matter of fact relevant to ones office or connected with the performance of his
duties (See OCA vs. Angeles, et al. , A.M. No. P-11-2887 /A.M. No. P-10-2880, January
18, 2011).

Writing two (2) materially different letters with the same dates by Judge B
submitted to Court Administrator X is Dishonesty.

In two (2) long pages tabular presentation by Judge A, it was shown that Judge B
made material changes in the original letter, and presented an amended letter to the
Office of the Court Administrator. There are notable differences of the original letter and
amended letter both of the same dates by Judge B given to certain officials of the
Office of Court Administrator and Executive Judge Z to mislead them which is
Dishonesty.

In a twenty-five (25) long pages tabular presentation by Judge A, it was shown that
Judge B made false statements in the amended letter against the former which is
Serious Dishonesty.

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The hurling of false accusations under oath by Judge B against Judge A in the
notarized Affidavit is Dishonesty. The authentication of the subject emails in the
administrative case in relation with Judge Bs notarized Affidavit with attachments,
amended letter with attachments, and other letters will make her criminally liable for
multiple counts of Perjury and Obstruction of Justice. Canon 1 of the Code of
Professional Responsibility provides: A lawyer shall uphold the Constitution, obey the
laws of the land, and promote respect for law and legal processes. Its Rule 1.01
states: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
Judge B violated this Canon 1 of the Code of Professional Responsibility. In the
lawyers oath, it is provided I will do no falsehood, nor consent to the doing of any in
court. Judge B violated this lawyers oath.

Judge B committed violation of the Right to Privacy under Article III, Section 3
of the 1987 Constitution, violation of Article 723 of the New Civil Code and
violation of RA No. 8792, Section 32 which in turn are transgressions of her
lawyers oath, Code of Professional Responsibility and Code of Judicial Ethics in
the administrative case as evidenced by Exhibit 1.

While substantial evidence would ordinarily suffice to support a finding of guilt, the rule
is a bit different where the proceedings involve judges charged with grave offense.
Administrative proceedings against judges are by nature, highly penal in character and
are governed by the rules applicable to criminal cases (Alcuizar vs. Carpio, A.M. RTJ-
07-2068, August 7, 2007, 529 SCRA 216). Judge As Exhibit 1 attached to the letter
submitted to Court Administrator X is sufficient to prove Judge Bs Dishonesty and
Violation of the privacy laws under Article III, Section 3 of the 1987 Constitution,
violation of Article 723 of the New Civil Code and violation of RA No. 8792, Section 32
which in turn are transgressions of her lawyers oath, code of Professional responsibility
and Code of Judicial Ethics in this administrative.
A. What is Right to Privacy?

Right to privacy is synonymous with the right to be let alone. This touches on personal
matters and activities of a person which must not intruded upon unless it involves public
interest, among others. The invasion of the right to privacy can result to suit for
damages against anyone violating this right. This is a tort based in common law
allowing an aggrieved party to bring an action against another who unlawfully intrudes
into his private affairs, discloses private information about him, publicizes him in a false
light or appropriates him for a personal gain. It is but an assertion by the individual of his
inviolate personality (Reynato Puno, Legislative Investigations and the Right to Privacy,
The Court Systems Journal, Vol. 10, No. 1, March 2005, p. 109). To preserve his
7
identity, he has to maintain an inner self, safeguard his beliefs, and keep hidden certain
thoughts , judgments and desires (Cited in A.F. Westin, Privacy and Freedom 34,
1967). According to Chief Justice Reynato Puno, The concept of privacy has many
facets. It may be pictured as the individuals relations with other people in terms of a
series of zones or region of privacy leading to a core self. This core self is pictured as
an inner circle surrounded by a series of larger concentric circles. The inner circle
shelters the individuals Ultimate secrets those hopes, fears and prayers that are
beyond the sharing with anyone unless the individual comes under such stress that he
must put out these ultimate secrets to secure emotional relief. Under normal
circumstances, no one is admitted to this sanctuary of the personality. The next circle
outward contains ultimate secrets, those that can be willingly shared with close
relations, confessors, or strangers who pass by and cannot injure. The next circle opens
to members of the individuals friendship group. The series continues until it reaches the
outer circles of casual conversation and physical expression that are known to all
observers (Citing Konvitz and Rossiter, The Pattern of Liberty 33 at pages 11 to 13).
The right to privacy is an essential condition to the dignity and happiness and to the
peace and security of every individual, whether it be of home or of persons and
correspondence (Tanada and Carreon, Political Law of the Philippines, Vol. 2, 139
[1962]).

B. Violation of Right to Privacy is a Tort

Under the tort law, there are four categories of invasion of privacy: (1) Intrusion of
solitude which is the physical or electronic intrusion into one's private quarters; (2)
Public disclosure of private facts, which is the dissemination of truthful private
information which a reasonable person would find objectionable; (3) False light which is
the publication of facts which place a person in a false light, even though the facts
themselves may not be defamatory; and (4) Appropriation which is the unauthorized use
of a person's name or likeness to obtain some benefits (Warren and Brandeis, The
Right to Privacy, Harvard Law Review, Vol. IV, No. 5, December 15, 1890 cited
extensively in numerous court decisions and influenced the enactment of privacy
statutes). This invasion of right to privacy is an actionable wrong. It is an action of tort
for damages in all cases. According to legal scholars, If the invasion of privacy
constitutes a legal injuria, the elements for demanding redress exist, since already the
value of mental suffering, caused by an act wrongful in itself, is recognized as a basis
for compensation. They opined that casual and unimportant statements in a letter, if
handiwork, however inartistic and valueless, if possessions of all sorts are protected not
only against reproduction, but also against description and enumeration. In general,
then, the matters of which the publication should be repressed may be described as
those which concern the private life, habits, acts, and relations of an individual, and
have no legitimate connection with his fitness for a public office which he seeks or for
which he is suggested, or for any public or quasi- public position which he seeks or for
8
which he is suggested, and have no legitimate relation to or bearing upon any act done
by him in a public or quasi -public capacity. The foregoing is not designed as a wholly
accurate or exhaustive definition, since that which must ultimately in a vast number of
cases become a question of individual judgment and opinion is incapable of such
definition; but it is an attempt to indicate broadly the class of matters referred to. Some
things all men alike are entitled to keep from popular curiosity, whether in public life or
not, while others are only private because the persons concerned have not assumed a
position which makes their doings legitimate matters of public investigation. Also, legal
scholars say that the absence of malice in the publisher does not afford a defence in
violation of the right to privacy. Personal ill-will is not an ingredient of the offence, any
more than in an ordinary case of trespass to person or to property. Such malice is never
necessary to be shown in an action for libel or slander at common law, except in
rebuttal of some defense, e.g., that the occasion rendered the communication
privileged, or, under the statutes in this State and elsewhere, that the statement
complained of was true. The invasion of the privacy that is to be protected is equally
complete and equally injurious, whether the motives by which the speaker or writer was
actuated are taken by themselves, culpable or not; just as the damage to character, and
to some extent the tendency to provoke a breach of the peace, is equally the result of
defamation without regard to motives leading to its publication. Viewed as a wrong to
the individual, this rule is the same pervading the whole law of torts, by which one is
held responsible for his intentional acts, even though they care committed with no
sinister intent; and viewed as a wrong to society, it is the same principle adopted in a
large category of statutory offences.

C. Privacy of Letters and Communication in Writing

In our country, letters and communications in writing are guaranteed and protected by
the following laws:
1987 Philippine Constitution, Article III
Section 2. 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.
Section 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires otherwise
as prescribed by law. (2) Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
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(2) New Civil Code
Art. 723 of the New Civil Code. Letters and other private communications in writing are
owned by the person to whom they are addressed and delivered, but they cannot be
published or disseminated without the consent of the writer or his heirs. However, the
court may authorize their publication or dissemination if the public good or the interest of
justice so requires.
(3) Revised Penal Code
Article 226. Removal, concealment or destruction of documents. Any public officer
who shall remove, destroy or conceal documents or papers officially entrusted to him,
shall suffer:

The penalty of prision mayor and a fine not exceeding 1,000 pesos, whenever serious
damage shall have been caused thereby to a third party or to the public interest.
The penalty of prision correccional in its minimum and medium period and a fine not
exceeding 1,000 pesos, whenever the damage to a third party or to the public interest
shall not have been serious.
In either case, the additional penalty of temporary special disqualification in its
maximum period to perpetual disqualification shall be imposed.
Article 228. Opening of closed documents. Any public officer not included in the
provisions of the next preceding article who, without proper authority, shall open or shall
permit to be opened any closed papers, documents or objects entrusted to his custody,
shall suffer the penalties or arresto mayor, temporary special disqualification and a fine
of not exceeding 2,000 pesos.
(4) Special Laws
Section 2756 of the Revised Administrative Code provides that it is unlawful opening or
detention of mail matter by any person other than the officer or employee of the Bureau
of Posts.
The privacy of electronic mails and documents are protected by the above-quoted laws.
Moreover, violation of this privacy is not only a tortuous act but a criminal offense.
Republic Act No. 8792 (An Act Providing for the Recognition and Use of Electronic
Commercial and Non-Commercial Transactions and Documents, Penalties for Unlawful
Use Thereof and For Other Purposes) provides:
Section 32. Obligation of Confidentiality. - Except for the purposes authorized under this
Act, any person who obtained access to any electronic key, electronic data message, or
electronic document, book, register, correspondence, information, or other material

10
pursuant to any powers conferred under this Act, shall not convey to or share the same
with any other person.
Section 33. Penalties. - The following Acts shall be penalized by fine and/or
imprisonment, as follows: (d) Other violations of the provisions of this Act, shall be
penalized with a maximum penalty of One Million Pesos (P1,000,000.00) or six (6)
years imprisonment.

D. Remedies for the Invasion of Privacy 1. Injunction

The right to privacy was unrecognized at first because of misnomer as a property right ,
a contract right or breach of trust. To Warren and Brandeis, it was understandable to
base the right to enjoin the publication of letters as the enforcement of property right as
such physical things obviously have the attributes of property however they pointed out
that the value of publication the right to earn profits resulting from publication is not
the only right involved as it also involves the right of peace of mind arising from the
security that publication may be prevented (Reynato Puno, Legislative Investigations
and the Right to Privacy, The Court Systems Journal, Vol. 10, No. 1, March 2005, p.
115).

In 1741, an English court of chancery granted an order restraining the publication of

private letters.9 In 1811, the American court enjoined the publication of the letters
because of the right to privacy.10 Although for centuries, there had already been traces
of the right to privacy, it is the 1890 law review article, The Right to privacy, written by
Boston lawyers Louis D. Brandeis and Samuel D. Warren which is regarded as first in
place and importance in developing the legal concept of a right to privacy.

Private letters, the ownership of the paper belongs to the receiver who is entitled to
possession and can recover it from the writer whom it is lent; but publishing a letter
without the consent of the writer or the receiver threatened to publish such letter , the
writer may obtain relief of injunction from court because publication without the writers
consent is a breach of trust. The act is a violation or a tort of the owners or writers right
to do what he pleases with his own letter communication.
(2) Damages
The legal bases for damages of this violation of the right to privacy are:
Article 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.
11
Article 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
Article 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
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.

Art. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for damages:
xxx (11) The privacy of communication and correspondence xxx

The damages that are recoverable are as follows:

Article 2197 of the New Civil Code: Damages may be: (1) Actual or compensatory; (2)
Moral; (3) Nominal; (4) Temperate or moderate; (5) Liquidated; or (6) Exemplary or
corrective.
Article 2199 of the New Civil Code: Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss suffered by him as
he has duly proved. Such compensation is referred to as actual or compensatory
damages.
Article 2216 of the New Civil Code: No proof of pecuniary loss is necessary in order
that moral, nominal, temperate, liquidated or exemplary damages, may be adjudicated.
The assessment of such damages, except liquidated ones, is left to the discretion of the
court, according to the circumstances of each case.
Article 2217 of the New Civil Code: Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury. Though incapable of pecuniary computation, moral
12
damages may be recovered if they are the proximate result of the defendant's wrongful
act for omission.
Article 2221 of the New Civil Code: Nominal damages are adjudicated in order that a
right of the plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any
loss suffered by him.
Article 2229 of the New Civil Code: Exemplary or corrective damages are imposed, by
way of example or correction for the public good, in addition to the moral, temperate,
liquidated or compensatory damages.

E. Right to Privacy vis a vis Electronic Evidence

On July 20, 2001, our Supreme Court En Banc approved The Rules on Electronic
Evidence (A.M. NO. 01-7-01-SC) in accordance with Republic Act No. 8792, otherwise
known as the E-Commerce Act of 2000 which took effect on August 1, 2001. It shall
apply to all civil actions and proceedings. Likewise, it shall apply to quasi-judicial and
administrative cases.13 However, the admissibility of an electronic evidence is subject
to objections just like any other evidence such as testimonial, documentary or object.
Thus, it can be objected to in any proceedings under any of the following grounds,
among others: (1) Violation of the Right to Privacy; (2) Incompetency of evidence due to
violation of the laws and jurisprudence; (3) Self-incriminating; (4) Privileged
communication; (5) Unreasonable Search and seizure; (6) Irrelevancy and immateriality
(7) Violation of the original document rule; (8) It is unauthenticated; (9) Lacks proper
identification. However, if there is no objection interposed by the party as to the
inadmissibility of an electronic evidence, this constitute as a waiver thus the said
evidence is deemed admissible. An example is the case of Zaldy Nuez vs. Elvira Cruz-
Apao A.M. No. CA-05-18-P, 12 April 2005, the Supreme Court held that the text
messages sent by respondent Elvira Cruz-Apao to complainant Zaldy Nuez are
admissible in evidence. An analysis of the case reveals that said respondent did not
object to the admissibility of the said text messages. Neither did she deny that she is the
sender of the same since there are thousand possibilities that someone else used her
cell phone to extort money. Considering the difficulty in authentication of an electronic
evidence, ones objection to its admissibility must not be waived easily especially if what
is at stake is life, liberty, property even honor. In this Apao case, our Supreme Court
held that In administrative cases, technical rules of procedure and evidence are not
strictly applied. Hence, there is no doubt as to the probative value of the text messages
as evidence in determining the guilt or lack thereof of respondent Elvira Cruz-Apao in
this case. A closer scrutiny of the law and procedural laws, namely, RA No. 8792 and
A.M. NO. 01-7-01-SC require the authentication of the electronic evidence to be

13
admissible in any proceedings (Revisit the article Electronic Evidence published by The
Lawyers Review, Vol. XXIII, No. 3, March 31, 2009). There was a misconception about
the Apao case that an electronic evidence like text message is outright admissible. This
is not so. In IBM Phils. Inc. et al. vs. NLRC et al., G.R. No. 117221, April 13, 1999
penned by Justice Vicente Mendoza, our supreme Court ruled, The computer print-
outs must be authenticated to be admissible in evidence. Administrative agencies, such
as the NLRC, are not bound by the technical rules of procedure and evidence in the
adjudication of cases. However, this procedural rule should not be construed as a
license to disregard certain fundamental evidentiary rules. While the rules of evidence
prevailing in the courts of law or equity are not controlling in proceedings before the
NLRC, the evidence presented before it must at least have a modicum of admissibility
for it to be given some probative value. The computer print-outs which constitute the
only evidence of IBM Phils. Inc. afford no assurance of their authenticity because they
are unsigned. The decisions of our Supreme Court have required proof of authenticity or
reliability as condition for the admission of documents. Not one of the 18 print-out
copies submitted was ever signed, either by the sender or the receiver. There is no
guarantee that the message sent was the same message received. Neither were the
computer print-outs certified or authenticated by any company official who could
properly attest that these came from IBMs computer system or that the data stored in
the system were not and could not have been tampered with before the same were
printed out. It is noteworthy that the computer unit and system in which the contents of
the print-outs were stored were in the exclusive possession and control of IBM Phils.
Inc. Moreover, the Electronic Evidence is a procedural law promulgated by our
Supreme Court pursuant to its rule-making power under Article VIII, Section 5 of the
1987 Constitution: Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the admission to the
practice of law, the integrated bar, and legal assistance to the under-privileged. Such
rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless disapproved by the Supreme Court. A
limitation to this rule-making power it that it cannot diminish, increase, or modify
substantive rights thus an electronic evidence, being procedural, cannot defeat any
substantive laws dealing on the right to privacy that covers electronic intrusion into
someones personal space which publication is unnecessary. It cannot increase,
diminish and modify the Constitution and statutory laws on the right to privacy. In First
Lepanto Ceramics vs. CA G.R. No. 110571, 1994, our Supreme Court ruled that if it is
only procedural in character, there is no diminution, increase or modification of
substantive right. Our Supreme Court through its rule-making power cannot repeal
substantive right (Primicias vs. Ocampo 93 Phil 451).

14
F. Inadmissibility as Evidence of Private Communications and Private Correspondences

A violation of the right to privacy makes the letter and private communications in writing
including electronic mails and correspondences inadmissible as evidence in court
in all proceedings subject to the exceptions of public safety or order and upon lawful
order of the court. In A.M. No. P-08-2519 , November 19, 2008, penned by Justice
Alicia Austria Martinez: The two anonymous letters charge Atty. Morales with the
following offenses: attending to personal cases while using official time, office supplies,
equipment and utilities, leaving the office after logging-in in the morning only to return in
the afternoon, and playing computer games whenever he was at the office. It is
undisputed that pleadings for private cases were found in Atty. Morales's personal
computer in the MeTC-OCC and Atty. Morales could not provide any satisfactory
explanation therefor. Such fact, by itself, could already make Atty. Morales liable for
simple misconduct for it hints of impropriety on his part. The Court has always stressed
that all members of the judiciary should be free from any act of impropriety, not only with
respect to their duties in the judicial branch but also to their behavior outside the court
as private individuals, in order that the integrity and good name of the courts of justice
shall be preserved. Atty. Morales, in defense, argues that since the pleadings were
acquired from his personal computer which DCA Dela Cruz confiscated without any
valid search and seizure order, such evidence should be considered as the fruits of a
poisonous tree as it violated his right to privacy. Both the Investigating Justice and the
OCA failed to discuss this matter. The Court however finds it proper to squarely address
such issue, without prejudice to the outcome of the administrative case filed by Atty.
Morales against DCA Dela Cruz regarding the same incident. The finding of guilt or
exoneration of Atty. Morales hinges on this very crucial question:
Are the pleadings found in Atty. Morales's personal computer admissible in the present
administrative case against him?
The Court answers in the negative.
Enshrined in our Constitution is the inviolable right of the people to be secure in their
persons and properties against unreasonable searches and seizures, which is provided
for under Section 2, Article III thereof.43 The exclusionary rule under Section 3(2),
Article III of the Constitution also bars the admission of evidence obtained in violation of
such right. The fact that the present case is administrative in nature does not render the
above principle inoperative. As expounded in Zulueta v. Court of Appeals, any violation
of the afore-stated constitutional right renders the evidence obtained inadmissible for
any purpose in any proceeding.
There are exceptions to this rule one of which is consented warrantless search.
DCA Dela Cruz in his report claims that that they were able to obtain the subject
pleadings with the consent of Atty. Morales. The Court finds however that such
15
allegation on his part, even with a similar allegation from one of his staff, is not sufficient
to make the present case fall under the category of a valid warrantless search. Consent
to a search is not to be lightly inferred and must be shown by clear and convincing
evidence. It must be voluntary in order to validate an otherwise illegal search; that is,
the consent must be unequivocal, specific, intelligently given and uncontaminated by
any duress or coercion.50 The burden of proving, by clear and positive testimony, that
the necessary consent was obtained and that it was freely and voluntarily given lies with
the State. Acquiescence in the loss of fundamental rights is not to be presumed and
courts indulge every reasonable presumption against waiver of fundamental
constitutional rights. To constitute a valid consent or waiver of the constitutional
guarantee against obtrusive searches, it must be shown that (1) the right exists; (2) that
the person involved had knowledge, either actual or constructive, of the existence of
such right; and (3) the said person had an actual intention to relinquish the right. In this
case, what is missing is a showing that Atty. Morales had an actual intention to
relinquish his right. While he may have agreed to the opening of his personal computer
and the printing of files therefrom, in the presence of DCA Dela Cruz, his staff and some
NBI agents during the March 16, 2005 spot investigation, it is also of record that Atty.
Morales immediately filed an administrative case against said persons questioning the
validity of the investigation, specifically invoking his constitutional right against
unreasonable search and seizure. While Atty. Morales may have fallen short of the
exacting standards required of every court employee, unfortunately, the Court cannot
use the evidence obtained from his personal computer against him for it violated his
constitutional right. As the Supreme Court has staunchly declared: The Bill of Rights is
the bedrock of constitutional government. If people are stripped naked of their rights as
human beings, democracy cannot survive and government becomes meaningless. This
explains why the Bill of Rights, contained as it is in Article III of the Constitution,
occupies a position of primacy in the fundamental law way above the articles on
governmental power. The right against unreasonable search and seizure in turn is at the
top of the hierarchy of rights, next only to, if not on the same plane as, the right to life,
liberty and property, which is protected by the due process clause. This is as it should
be for, as stressed by a couple of noted freedom advocates, the right to personal
security which, along with the right to privacy, is the foundation of the right against
unreasonable search and seizure "includes the right to exist, and the right to enjoyment
of life while existing." Unreasonable searches and seizures are the menace against
which the constitutional guarantees afford full protection. While the power to search and
seize may at times be necessary to the public welfare, still it may be exercised and the
law enforced without transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the basic
principles of government. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court has no choice but to dismiss the charges herein
against him for insufficiency of evidence.

16
In Zulueta vs. Court of Appeals, G.R. No. 107383. February 20, 1996,penned by Justice
Vicente Mendoza: There is no question that the documents and papers in question
belong to private respondent, Dr. Alfredo Martin, and that they were taken by his wife,
the herein petitioner, without his knowledge and consent. For that reason, the trial court
declared the documents and papers to be properties of private respondent, ordered
petitioner to return them to private respondent and enjoined her from using them in
evidence. In appealing from the decision of the Court of Appeals affirming the trial
courts decision, petitioners only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1
this Court ruled that the documents and papers (marked as Annexes A-i to J-7 of
respondents comment in that case) were admissible in evidence and, therefore, their
use by petitioners attorney, Alfonso Felix, Jr., did not constitute malpractice or gross
misconduct. For this reason it is contended that the Court of Appeals erred in affirming
the decision of the trial court instead of dismissing private respondents complaint.
Petitioners contention has no merit. The case against Atty. Felix, Jr. was for disbarment.
Among other things, private respondent, Dr. Alfredo Martin, as complainant in that case,
charged that in using the documents in evidence, Atty. Felix, Jr. committed malpractice
or gross misconduct because of the injunctive order of the trial court. In dismissing the
complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty.
Felix, Jr. which it found to be "impressed with merit:" When respondent re-filed Cecilias
case for legal separation before the Pasig Regional Trial Court, there was admittedly an
order of the Manila Regional Trial Court prohibiting Cecilia from using the documents
Annex "A-I to J-7." On September 6, 1983, however having appealed the said order to
this Court on a petition for certiorari, this Court issued a restraining order on aforesaid
date which order temporarily set aside the order of the trial court. Hence, during the
enforceability of this Courts order, respondents request for petitioner to admit the
genuineness and authenticity of the subject annexes cannot be looked upon as
malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity of
the questioned annexes. At that point in time, would it have been malpractice for
respondent to use petitioners admission as evidence against him in the legal separation
case pending in the Regional Trial Court of Makati? Respondent submits it is- not
malpractice. Significantly, petitioners admission was done not thru his counsel but by
Dr. Martin himself under oath. Such verified admission constitutes an affidavit, and,
therefore, receivable in evidence against him. Petitioner became bound by his
admission. For Cecilia to avail herself of her husbands admission and use the same in
her action for legal separation cannot be treated as malpractice. Thus, the acquittal of
Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his
use of the documents and papers for the purpose of securing Dr. Martins admission as
to their genuineness and authenticity did not constitute a violation of the injunctive order
of the trial court. By no means does the decision in that case establish the admissibility
of the documents and papers in question. It cannot be overemphasized that if Atty.
Felix, Jr. was acquitted of the charge of violating the writ of preliminary injunction issued
17
by the trial court, it was only because, at the time he used the documents and papers,
enforcement of the order of the trial court was temporarily restrained by this Court. The
TRO issued by this Court was eventually lifted as the petition for certiorari filed by
petitioner against the trial courts order was dismissed and, therefore, the prohibition
against the further use of the documents and papers became effective again. Indeed
the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence to be inviolable"
is no less applicable simply because it is the wife (who thinks herself aggrieved by her
husbands infidelity) who is the party against whom the constitutional provision is to be
enforced. The only exception to the prohibition in the Constitution is if there is a "lawful
order from a court or when public safety or order requires otherwise, as prescribed by
law." Any violation of this provision renders the evidence obtained inadmissible "for any
purpose in any proceeding." The intimacies between husband and wife do not justify
any one of them in breaking the drawers and cabinets of the other and in ransacking
them for any telltale evidence of marital infidelity. A person, by contracting marriage,
does not shed his/her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her. The law insures absolute
freedom of communication between the spouses by making it privileged. Neither
husband nor wife may testify for or against the other without the consent of the affected
spouse while the marriage subsists. Neither may be examined without the consent of
the other as to any communication received in confidence by one from the other during
the marriage, save for specified exceptions. But one thing is freedom of communication;
quite another is a compulsion for each one to share what one knows with the other. And
this has nothing to do with the duty of fidelity that each owes to the other.

In People vs. Carlos, G.R. No. L-22948, March 17, 1925 penned by Justice Charles
Ostrand: Professor Wigmore states the rule as follows: For documents of
communication coming into the possession of a third person, a distinction should obtain,
analogous to that already indicated for a client's communications (ante, par. 2325,
2326); i. e., if they were obtained from the addressee by voluntary delivery, they should
still be privileged (for otherwise the privilege could by collusion be practically nullified for
written communications); but if they were obtained surreptitiously or otherwise without
the addressee's consent, the privilege should cease. (5 Wigmore on Evidence, 2nd ed.,
par. 2339.) The letter in question was obtained through a search for which no warrant
appears to have been issued and counsel for the defendant cites the causes of Boyd
and Boyd vs. United States (116 U.S., 616) and Silverthorne Lumber Co. and
Silverthorne vs. United States (251 U.S., 385) as authority for the proposition that
documents obtained by illegal searches of the defendant's effects are not admissible in
evidence in a criminal case. In discussing this point we can do not better than to quote
Professor Wigmore: The foregoing doctrine (i. e., that the admissibility of evidence is not
affected by the illegality of the means through which the party has been enabled to

18
obtain the evidence) was never doubted until the appearance of the ill-starred majority
opinion of Boyd vs. United States, in 1885, which has exercised unhealthy influence
upon subsequent judicial opinion in many States. x x x x x x x x x The progress
of this doctrine of Boyd vs. United States was as follows: (a) The Boyd Case remained
unquestioned in its own Court for twenty years; meantime receiving frequent disfavor in
the State Courts (ante, par. 2183). (b) Then in Adams vs. New York, in 1904, it was
virtually repudiated in the Federal Supreme Court, and the orthodox precedents
recorded in the State courts (ante, par. 2183) were expressly approved. (c) Next, after
another twenty years, in 1914 moved this time, not by erroneous history, but by
misplaced sentimentality the Federal Supreme Court, in Weeks vs. United States,
reverted to the original doctrine of the Boyd Case, but with a condition, viz., that the
illegality of the search and seizure should first have been directly litigated and
established by a motion, made before trial, for the return of the things seized; so that,
after such a motion, and then only, the illegality would be noticed in the main trial and
the evidence thus obtained would be excluded. ... (4 Wigmore on Evidence, 2nd ed.,
par. 2184.) In the Silverthorne Lumber Co. case the United States Supreme Court
adhered to its decision in the Weeks Case. The doctrine laid down in these cases has
been followed by some of the State courts but has been severely criticized and does not
appear to have been generally accepted. But assuming, without deciding, that it prevails
in this jurisdiction it is, nevertheless, under the decisions in the Weeks and Silverthorne
cases, inapplicable to the present case. Here the illegality of the search and seizure
was not "directly litigated and established by a motion, made before trial, for the return
of the things seized." The letter Exhibit L must, however, be excluded for reasons not
discussed in the briefs. The letter was written by the wife of the defendant and if she
had testified at the trial the letter might have been admissible to impeach her testimony,
but she was not put on the witness-stand and the letter was therefore not offered for
that purpose. If the defendant either by answer or otherwise had indicated his assent to
the statements contained in the letter it might also have been admissible, but such is not
the case here; the fact that he had the letter in his possession is no indication of
acquiescence or assent on his part. The letter is therefore nothing but pure hearsay and
its admission in evidence violates the constitutional right of the defendant in a criminal
case to be confronted with the witnesses for the prosecution and have the opportunity to
cross-examine them. In this respect there can be no difference between an ordinary
communication and one originally privileged.

G. Researches on the Principles of the Right to Privacy

From the researches, the principle of secrecy of correspondence or secrecy of letters, is

a fundamental legal principle enshrined in the constitutions of several European
countries. It guarantees that the content of sealed letters is never revealed and letters in

19
transit are not opened by government officials or any other third party. It is thus the main
legal basis for the assumption of privacy of correspondence. The principle has been
naturally extended to other forms of communication, including telephony and electronic
communications on the Internet as the constitutional guarantees are generally thought
to cover also these forms of communication. However, national telecommunications
privacy laws may allow lawful interception, i.e. wiretapping and monitoring of electronic
communications in cases of suspicion of crime. Paper letters have in most jurisdictions
remained outside the legal scope of law enforcement surveillance, even in cases of
"reasonable searches and seizures". When applied to electronic communication, the
principle protects not only the content of the communication, but also the information on
when and to whom any messages (if any) have been sent, and in the case of mobile
communication, the location information of the mobile units. As a consequence in
jurisdictions with a safeguard on secrecy of letters location data collected from mobile
phone networks has a higher level of protection than data collected by vehicle
telematics or transport tickets. A closed letter should not be opened by a sendee who
claims that the sender is a disliked stranger or a hated acquaintance. The appropriate
action is to return the closed letter to the sender or throw it to the garbage can. The
moment the sendee opens the closed letter, the secrecy of correspondence is
established and the right to privacy is expected because the act of opening it is a proof
of existence of trust between the sender and sendee. This trust is completed upon
reading of the closed letter. Thus, the closed letters contents cannot be divulged to
others without the senders consent. An email is like a closed letter.

In 2011, United States vs. Warshak is the first opinion to flat-out say e-mail may be
private and constitutionally privilege. That section of the decision stemmed from
government investigators' actions in secretly subpoenaing NuVox, the ISP that stored
Warshak's e-mail. The subpoena gave the government access to 27,000 of Warshak's
e-mails without his knowledge or a search warrant. E-mail stored with commercial
Internet service providers (ISP) has the same Fourth Amendment protection and
expectation of privacy as phone calls and letters.

In 1914, Weeks vs. United States citing Boyd vs. United States, 116 U. S. 616: As was
there shown, it took its origin in the determination of the framers of the Amendments to
the Federal Constitution to provide for that instrument a Bill of Rights, securing to the
American people, among other things, those safeguards which had grown up in
England to protect the people from unreasonable searches and seizures, such as were
permitted under the general warrants issued under authority of the government, by
which there had been invasions of the home and privacy of the citizens, and the seizure
of their private papers in support of charges, real or imaginary, make against them.
Such practices had also received sanction under warrants and seizures under the so-

20
called writs of assistance, issued in the American colonies. Resistance to these
practices had established the principle which was enacted into the fundamental law in
the Fourth Amendment, that a man's house was his castle, and not to be invaded by
any general authority to search and seize his goods and papers. Judge Cooley, in his
Constitutional Limitations, pp. 425, 426, in treating of this feature of our Constitution
said: "The maxim that 'every man's house is his castle' is made a part of our
constitutional law in the clauses prohibiting unreasonable searches and seizures, and
has always been looked upon as of high value to the citizen." Accordingly, says Lieber
in his work on Civil Liberty and Self-Government, 62, in speaking of the English law in
this respect, "no man's house can be forcibly opened, or he or his goods be carried
away after it has thus been forced, except in cases of felony; and then the sheriff must
be furnished with a warrant, and take great care lest he commit a trespass. This
principle is jealously insisted upon." In Ex parte Jackson, 96 U. S. 727, 96 U. S. 733,
this court recognized the principle of protection as applicable to letters and sealed
packages in the mail, and held that, consistently with this guaranty of the right of the
people to be secure in their papers against unreasonable searches and seizures, such
matter could only be opened and examined upon warrants issued on oath or affirmation,
particularly describing the thing to be seized, "as is required when papers are subjected
to search in one's own household."
The principles laid down in this opinion affect the very essence of constitutional liberty
and security. They reach farther than the concrete form of the case then before the
court, with its adventitious circumstances; they apply to all invasions on the part of the
government and its employees of the sanctity of a man's home and the privacies of life.
It is not the breaking of his doors and the rummaging of his drawers that constitutes the
essence of the offense, but it is the invasion of his indefeasible right of personal
security, personal liberty, and private property, where that right has never been forfeited
by his conviction of some public offense -- it is the invasion of this sacred right which
underlies and constitutes the essence of Lord Camden's judgment." The case in the
aspect in which we are dealing with it involves the right of the court in a criminal
prosecution to retain for the purposes of evidence the letters and correspondence of the
accused, seized in his house in his absence and without his authority, by a United
States marshal holding no warrant for his arrest and none for the search of his
premises. The accused, without awaiting his trial, made timely application to the court
for an order for the return of these letters, as well or other property. This application was
denied, the letters retained and put in evidence, after a further application at the
beginning of the trial, both applications asserting the rights of the accused under the
Fourth and Fifth Amendments to the Constitution. If letters and private documents can
thus be seized and held and used in evidence against a citizen accused of an offense,
the protection of the Fourth Amendment, declaring his right to be secure against such
searches and seizures, is of no value, and, so far as those thus placed are concerned,
might as well be stricken from the Constitution. The efforts of the courts and their
officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided
21
by the sacrifice of those great principles established be years of endeavor and suffering
which have resulted in their embodiment in the fundamental law of the land. The United
States marshal could only have invaded the house of the accused when armed with a
warrant issued as required by the Constitution, upon sworn information, and describing
with reasonable particularity the thing for which the search was to be made. Instead, he
acted without sanction of law, doubtless prompted by the desire to bring further proof to
the aid of the government, and, under color of his office, undertook to make a seizure of
private papers in direct violation of the constitutional prohibition against such action.
Under such circumstances, without sworn information and particular description, not
even an order of court would have justified such procedure; much less was it within the
authority of the United States marshal to thus invade the house and privacy of the
accused.
In Estrella vs. Uruguay, Human Rights Committee, Communication No. 74/1980: Many
cases regarding the right to private and family life concern the extent of protection
afforded to the individual from state surveillance such as interference with
correspondence, telephone tapping, secret video taping and searches. Censorship of
the correspondence of prisoners has generated numerous complaints before the
supervisory bodies. The Human Rights Committee has in General Comment 16
provided some guidance as to what privacy of correspondence entails: Integrity and
confidentiality of correspondence should be guaranteed de jure and de facto.
Correspondence should be delivered to the addressee without interception and without
being opened or otherwise read. Surveillance, whether electronic or otherwise,
interceptions of telephonic, telegraphic and other forms of communication, wire-tapping
and recording of conversations should be prohibited.

Tribunal de grande instance de Paris (17 e ch.), 2 novembre 2000 - Ministre public c/
Virieux , Fermigier et Hermann: For the first time to our knowledge, the Courts have
pronounced on the legal status of e-mail correspondence. The dispute was between a
research student in a laboratory, and the director and two IT network administrators at
the laboratory, charged with having violated the privacy of correspondence by reading
the student's e-mail correspondence without his knowledge. The defendants claimed
that e-mail messages could not have the benefit of the rules of confidentiality enjoyed
by postal correspondence since these messages, which were unencrypted, were
entrusted to intermediary servers which carried them with no protection and delivered
them to their addressees. It was therefore necessary, in view of the potential amount of
damage they could cause, to be able to check them on arrival in a network. The
regional criminal court of Paris did not accept these arguments, however. It held that
correspondence was protected by the law "as long as its content was exclusively sent
by one particular person to another particular person, unlike messages made available
to the public". The privacy of correspondence was governed by Articles 226-13 and
432-9 of the Criminal Code, embodied in the rule laid down in Article 1(1) of the Act of
22
10 July 1991 according to which "the privacy of correspondence effected by means of
telecommunications is guaranteed by law". It was therefore necessary to determine
whether the disputed electronic mail was protected by such privacy. The messages in
question were sent exclusively to a natural or legal person; they were sent to a specific
person (where the address was nominative) or to a person occupying a specific post
(where the address was functional) and were personalized in that they established a
relationship between the sender and the receiver. The Court concluded that "the
sending of electronic messages from one person to another constitutes private
correspondence". The plaintiff's mail was therefore entitled to the protection of privacy
of correspondence by means of telecommunications, violation of which was covered by
criminal law. The defendants were therefore ordered to pay fines of FRF 10 000 and
FRF 5 000.

In 2011, Pollo vs. CSC, the search of government computer was legal because, among
other reasons, petitioner failed to prove his actual (subjective) expectation of privacy
either in his office or government-issued computer which contained his personal files.
Petitioner did not allege that he had a separate enclosed office which he did not share
with anyone, or that his office was always locked and not open to other employees or
visitors. Neither did he allege that he used passwords or adopted any means to prevent
other employees from accessing his computer files. This administrative case is different
from the facts of the Pollo case, for one most of the emails containing private matters,
not crimes, were exchanged after office hours, there was no specific or government
issued computer to be searched without warrant. The Facebook and Yahoo accounts of
Judge B are private not public because she has the passwords of them. The
communications are private as indicated by the names of the sender and sendee
between Judge A and Judge B. The emails from Judge A are addressed to Judge
B alone and vice versa making their communications private. The repeated requests
to delete the emails of Judge A to Judge B are proofs that the emails are not
intended for others thus they are private communications. There is no proof that Judge
A ever sent lewd pictures to Judge B, the 69 graphic by Felicien Rops came from
Judge B Facebook Account as proven by a competent evidence. Judge A and Atty.
D did not show the alleged lewd graphics sent by Judge A to Investigating Justice Y
because there was none. What Judge A sent to Judge B were Oscars Academy
award graphics as proven by a competent evidence. Also, it was only Judge Bs dirty
mind that concluded Judge A sent the alleged lewd picture and messages with sexual
undertones, there is no proof about this false accusation. Judge B and Atty. D, the
husband and bedfellow of the former did not submit any evidence nor controvert the
counter-charges of Judge A for Serious Dishonesty and violation of privacy laws
against Judge B, including Atty. D. Also, Judge A sent emails to judge B after
office hours, any deviation of time suggested tampering and/ or hacking.

23
The following bedrocks of right to privacy should be considered:
Article 12 of the Universal Declaration of Human Rights provides that No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence,
nor to attacks upon his honor and reputation. Everyone has the right to the protection of
the law against such interference or attacks.
Article of the 17 International Covenant on Civil and Political Rights: 1. No one shall be
subjected to arbitrary or unlawful interference with his privacy, family, home, or
correspondence nor to unlawful attack to his honor or reputation. 2. Everyone has a
protection under the law against such interference attacks.
Article 8 of the European Convention on Human Rights: 1. Everyone has the right to
respect for his private and family life, his home and his correspondence. 2. There shall
be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
The government of the United States has been emphatically termed a government of
laws, and not of men. It will certainly cease to deserve this high appellation if the laws
furnish no remedy for the violation of a vested legal right declared U.S. Supreme Court
Justice John Marshall in the precedent-setting Marbury vs. Madison decision (1803).
The U.S. jurisprudences cited by Judge B in her notarized Affidavit are off-tangent and
inapplicable in the Philippines. This is because the U.S. Constitution has no specific
provision on right to privacy unlike in the Philippines.

The 1987 Philippine Constitution, Article III, Section 3 provides:

The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise, as
prescribed by law.
Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.
The foregoing constitutional precepts are unique in the Philippines that are not found in
U.S. Constitution.

Also, the questioned emails have contents that are Double Entendres. Such
unauthenticated emails cannot be considered the commission of any crime for anyone
to intrude and invade into Judge As right to privacy similar already to snooping of
24
mails by anyone that can be considered as highly unethical and grossly illegal. The
justifications are:

1. WiseGeek
Double entendre is a word or phrase which has dual meanings, one of which is often
sexual in nature. When someone incorporates a double entendre into a seemingly
innocent sentence, he or she is said to be making a double entendre. Such jokes have
been part of human existence probably almost as long as language has, and they show
no signs of dying out yet. It is also possible to make such as joke on accident, given the
wide variety of euphemisms and slang terms in many languages for sexual activity.
Because a double entendre is not explicitly or obviously sexual, such jokes often
appear in entertainment which in theory is appropriate for children, such as situation
comedies on television. Younger viewers may find these shows amusing or funny, but
not usually for the same reasons that adults do. Double entendres may also potentially
be used in polite conversation by jokesters, who can defend themselves by claiming
that the statement was purely innocent, implying that the sexual interpretation is the
result of a dirty mind. The word entendre is borrowed from the French, where it means
interpretation or meaning. The French themselves would be more likely to use sens,
for sense when discussing what English speakers call double entendres. In any case,
double entendres are among a larger family of plays on words known as puns, and
many people who pride themselves on being painfully punny have a number of double
entendres in their repertoires. Comprehension of a double entendre suggests a certain
amount of acquaintance with the subject; for people who do not understand the joke, it
can be disconcerting when listeners laugh at an apparently innocuous statement. It is of
course possible to come up with double entendres which are not related to sexuality,
like hunting for the best game, which could refer to game in the sense of game
animals or game in the sense of an activity. However, most enduring double entendres
are sexual in nature.
For students of word history, tracing double entendres can be quite entertaining.
Shakespeare, for example, used abundant double entendres in his plays, in keeping
with the preference for bawdy material among Elizabethans. These plays on words can
pop up in some surprising places; the Bible, for example, refers to Peter as the rock on
which the church stands, making a reference to the Greek word for rock, petras.

2. Your Dictionary

A double-entendre is a phrase or figure of speech that could have two meanings or that
could be understood in two different ways.Innocent or innocuous. Tawdry, bawdy or has
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some sexual overtone. There are many examples of double entendre found in
literature and in life. In fact, even William Shakespeare and Chaucer used double-
entendres.

Historical Use of Double-Entendre

One of the earliest known examples of a double-entre found in literature dates back to
the 14th century. In his famous work, The Canterbury Tales, Chaucer used many
different examples of double-entendres. One of the most famous, however, is the use of
the word "queynte" to describe both the domestic and womanly duties in the home as
well as the female genitalia. Double-entendre has been found in literature, movies and
daily speech ever since.
Some other examples of double-entendre include:
Mercutio's line from William Shakespeare's Romeo and Juliet: Tis no less [a good day],
I tell you; for the bawdy hand of the dial is now upon the prick of noon.
Charles Dickens character in Oliver Twist named Charley Bates but frequently referred
to as Master Bates (the term masturbate was already in use when Dickens wrote Oliver
Twist and had the same meaning then as it does today).
The name of the James Bond character Pussy Galore in Goldfinger (Pussy is a slang
name for the female genitalia)
The name of the Belamy Brother's song "If I Said You Had a Beautiful Body, Would You
Hold It Against Me." Would you hold it against me is an expression asking if you would
be offended, but in this case, it can also be read as asking the person with the nice
body to physically hold it against him.
Accidental Double-Entendres
Because double-entendres are words or phrases that can be interpreted in two ways,
they aren't always sexual in nature and sometimes they are not even intentional. Some
examples of accidental double-entendres that have been printed in newspapers or
published on the Internet include:
Panda mating fails: veterinarian takes over Miners refuse to work after death
New obesity study looks for larger test group Children make nutritious snacks
Criminals get nine months in violin case

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Judge A wrote to the Supreme Court copy furnished to Investigating Justice Y on the
issue of tampering of emails submitted by Judge B as evidence against the former.
Thus a computer forensic expert was required in the administrative case.

According to the personal opinion of Judge B the emails of Judge A contained sexual
undertones, the explanation to this is because the contents have double entendres.
Also, the subject emails have a lot of ellipses, meaning the subject emails interpreted by
Judge B for her to connote sexual undertones, are actually incomplete jokes with
missing parts, that had she inquired further, those emails are different from how she
interpreted them. These emails with plenty of ellipses are all clean fun that are really
funny when the ellipses are supplied with the missing sentences different from what
Judge B was thinking. Judge A volunteered to give an example if there will be an
authentication of the emails presented by her.

Ellipsis (plural ellipses; from the Ancient Greek: , lleipsis, "omission" or "falling
short") is a series of dots that usually indicate an intentional omission of a word,
sentence or whole section from the original text being quoted, and though necessary for
syntactical construction, is not necessary for comprehension. Ellipses can also be used
to indicate an unfinished thought or, at the end of a sentence, a trailing off into silence
(aposiopesis), example: "But I thought he was . . ." When placed at the beginning or end
of a sentence, the ellipsis can also inspire a feeling of melancholy or longing. It is used
to build tension or show that the sentence has been left unfinished or unstarted.

One of the graphics coming from the Facebook account of Judge B was a volcano.
Judge A did not think Judge B was promoting tourism in sending the volcano graphic
that did not even look like the Mayon volcano because the volcano was oozing with red
hot lava. The other graphic was a bracelet, it was a rainbow colored bracelet that Judge
B replied happily with Judge As comments that were obviously are jokes that can be
deduced from the purported emails. Also Judge B took pictures of Judge A while on
stage during the Judges out of town seminar, a year after filing her administrative
complaint, to prove that Judge B has a Bipolar Disorder. Judge B has many replies
to these subject emails which the computer forensics will agree thus the charge of email
stalking against Judge A is false, it is Judge B who deserves to be charged with
cyberstalking because she harassed Judge A here out of their online private
communications that happened long time ago. There are many emails in the possession
of Judge B that she suppressed before the Office of the Court Administrator, this is
another form of Dishonesty committed by Judge B in the administrative case.

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Judge B and her husband Atty. D, a school classmate of Judge A did not reply to all
the pleadings, motions and other papers totaling to more than fifteen (15) of Judge A
submitted to Investigating Justice Y copy furnished to them.

In Pros. Rodriguez vs. Ong et al., A. M. No. 08-19-SB-J, April 12, 2011: Unbecoming
conduct is defined as improper performance. Unbecoming conduct applies to a broader
range of transgressions of rules not only of social behavior but of ethical practice or
logical procedure or prescribed method. In Lastimoso et al. vs. Asayo, G.R. NO.
154243, March 6, 2007 citing Zacarias v. National Police Commission, 460 Phil. 555
(2003), the Supreme Court discussed the meaning of conduct unbecoming, in this
wise: Webster defines unbecoming conduct as improper performance. Such term
applies to a broader range of transgressions of rules not only of social behavior but of
ethical practice or logical procedure or prescribed method.

There is no competent proof adduced by Judge B or her husband Atty. D against

Judge A for the commission of the charge of Conduct Unbecoming of a Judge through
the commission of the following: (1) the crime of Libel by sending email messages
casting aspersion upon complainants name to the latters friend; (2) the crime of Grave
Oral defamation by uttering defamatory remarks against the complainant to the latters
sister-in-law; and (3) the crime of Unjust Vexation through stalking and electronic
intrusion.

In Agot vs. Atty. Rivera, A.C. No. 8000, August 5, 2014, respondent misrepresented
himself as an immigration lawyer, which resulted to complainant seeking his assistance
to facilitate the issuance of her US visa and paying him the amount of P350,000.00 as
down payment for his legal services. In truth, however, respondent has no specialization
in immigration law but merely had a contact allegedly with Pineda, a purported US
consul, who supposedly processes US visa applications for him. However, respondent
failed to prove Pinedas identity considering that the photographs and e-mails he
submitted were all self-serving and thus, as correctly observed by the Investigating
Commissioner, bereft of any probative value and consequently cannot be given any
credence.

In Vivares et al. vs STC et al., GR No. 220666, September 29, 2014: Had it been
proved that the access to the pictures posted were limited to the original uploader,
through the Me Only privacy setting, or that the users contact list has been screened
to limit access to a select few, through the Custom setting, the result may have been
different, for in such instances, the intention to limit access to the particular post, instead
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of being broadcasted to the public at large or all the users friends en masse, becomes
more manifest and palpable.

In Alcuizar vs. Judge Carpio, A.M.-RTJ-07-2068, August 7, 2007, the Supreme Court
held that: We start off with the matter of proof. In administrative or disciplinary
proceedings, the burden of proving the allegations in the complaint rests on the
complainant (Susa v. Pena, A.M. No. P-03-1740, September 17, 2003, 411 SCRA 182).
While substantial evidence would ordinarily suffice to support a finding of guilt, the rule
is a bit different where the proceedings involve judges charged with grave offense.
Administrative proceedings against judges are, by nature, highly penal in character and
are to be governed by the rules applicable to criminal cases. The quantum of proof
required to support the administrative charges or to establish the ground/s for the
removal of a judicial officer should thus be more than substantial; they must be proven
beyond reasonable doubt (Duduaco v. Laquindanum, A.M. No. MTJ-05-1601, August
11, 2005, 466 SCRA 428, citing In Re Impeachment of Horrilleno, 43 Phil. 212 [1922]).

To borrow from Reyes v. Mangino, 18 A.M. No. MTJ-05-1575, January 31, 2005, 450
SCRA 27, inasmuch as what is imputed against respondent Judge connotes a
misconduct so grave that, if proven, would entail dismissal from the bench, the quantum
of proof required should be more than substantial. xxx Going over the testimonial and
documentary evidence thus adduced during the investigation, the proof-beyond-
reasonable-doubt threshold required under the premises has not been hurdled. As it
were, circumstances obtained and/or credible evidence presented tended to cast a
heavy cloud on complainants credibility and, necessarily, her case. xxx With the view
we thus take of the case, complainant has failed to prove her charge against the
respondent judge with the quantum of proof required under the premises. Given this
perspective, the dismissal of the complaint as against respondent judge for insufficiency
of evidence is indicated. The Court, however, stresses that this ruling does not
necessarily reflect on the bona fides of the filing of the complainant, let alone what
complainant perceives to be the righteousness of her grievances. However, the facts of
the case and applicable jurisprudence leave no room for another kind of disposition.

Evidence, to be believed, must proceed not only from the mouth of a credible witness
but must be credible in itself as to hurdle the test of conformity with the knowledge and
common experience of mankind (Zapatos v. People of the Philippines, G.R Nos.
147814-15, September 16, 2003). The allegations of Judge B against Judge A are
not only falsity, they are incredible and illogical. One thing, Judge B alleged to have
closed her Facebook and Yahoo accounts, upon receipt of the infamous 69 graphic by
Felicien Rops (that was proven to come from her Facebook Account by the proofs

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submitted to the Investigating Justice), that is on June 12, 2008, it can be considered as
incredible and illogical on how she was able to present numerous emails from July 12,
2008 to March 22, 2009 allegedly coming from Judge A to the Supreme Court after the
closure of her Facebook and Yahoo accounts as alleged by her on June 12, 2008.

During the pendency of the administrative case, several months after the termination of
an investigation before the Investigating Justice, an email coming from the Yahoo
account of Judge B during the Araw ng mga Patay, a Philippine special day was sent
to Judge A. It has a Yahoo email heading looking like:
RE: Superstar Court No I dont think so said Hermione composedly I really want an owl
When Judge A opened the message, it contained: Click here to show this message
When the message was clicked, the internet link on how to lose a belly fat appeared.
Not only that, when Judge A opened an email msn account in the same day, there
was an email coming from the email Yahoo account of Judge B sent also during Araw
ng mga Patay, a Philippine special day that contained a strange visible title:
Fwd: [6]?
When Judge A opened the message, it contained: Pay attention to this information
When the message was clicked, the same internet link on how to lose a belly fat
appeared.
Out of curiosity, Judge A researched the visible title of RE: Superstar Court No I dont
think so said Hermione composedly I really want an owl, it was found out that the line
came from Chapter 4 of Harry Potter and the Prisoner of Azcaban novel.

A was informed by her father Atty. E that a certain Cashew Nuts Joc-Joc (the email
address of Judge B) emailed him that Judge A did not look at its contents because it
will be a violation of the privacy laws as the email purportedly coming from Judge B,
the email was not addressed to Judge A but to Atty. E who cannot forward it to
Ombudsman, DOJ and OCA because it is covered by confidentiality rule and privacy
laws with civil liabilities and penal sanctions in case of breaches.

What Judge B exhibited in this administrative case from the onset until now, more than
a sign of mental breakdown is Obsessive Compulsive Disorder (OCD), a mental
disorder that a certification of such by a clinical psychiatrist will render Judge B unfit to
stand any criminal trial. Obsessive Compulsive Disorder (OCD) is an anxiety disorder
characterized by uncontrollable, unwanted thoughts and repetitive, ritualized behaviors
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one feel compelled to perform. If one has an OCD, he or she probably will recognize
that his or her obsessive thoughts and compulsive behaviors are irrational but even
so, one feel unable to resist them and break free. Like a needle getting stuck on an old
record, obsessive-compulsive disorder (OCD) causes the brain to get stuck on a
particular thought or urge. Hoarders fear that something bad will happen if they throw
anything away. They compulsively hoard things that they dont need or use. Not
throwing away old emails that have no value other than trashes, despite the repeated
requests to delete them, is the doing of a hoarder exhibited by Judge B.

A meticulous analysis of the notarized Affidavit of Judge B showed signs of psychiatric

disorder of delusion aside from OCD and Bipolar disorder. Delusional disorder refers to
a condition associated with one or more non-bizarre delusions of thinkingsuch as
expressing beliefs that occur in real life such as being poisoned, being stalked, being
loved or deceived, or having an illness, provided no other symptoms of schizophrenia
are exhibited. Delusions may seem believable at face value, and patients may appear
normal as long as an outsider does not touch upon their delusional themes. Mood
episodes are relatively brief compared with the total duration of the delusional periods.
Also, these delusions are not due to a medical condition or substance abuse. Themes
of delusions may fall into the following types: erotomanic type (patient believes that a
person, usually of higher social standing, is in love with the individual); grandiose type
(patient believes that he has some great but unrecognized talent or insight, a special
identity, knowledge, power, self-worth, or special relationship with someone famous or
with God); jealous type (patient believes his partner has been unfaithful); persecutory
type (patient believes he is being cheated, spied on, drugged, followed, slandered, or
somehow mistreated); somatic type (patient believes he is experiencing physical
sensations or bodily dysfunctionssuch as foul odors or insects crawling on or under
the skinor is suffering from a general medical condition or defect); mixed type
(characteristics of more than one of the above types, but no one theme dominates); or
unspecified type (patient's delusions do not fall in described categories).

The actual case is A.M. MTJ 13-1821 Judge Emily L. San Gaspar Gito vs.
Judge Eliza B. Yu.

The Philippine Supreme Court sustained the legal arguments of Judge Eliza B.
Yu on appeal because the Office of the Court Administrator omitted them in its report
and recommendation dated February 11, 2016.

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