Belo-Henares vs. Atty.

Guevarra
Maria Victoria G. Belo-Henares vs. Atty. Roberto "Argee" C. Guevarra
A.C. No. 11394. December 1, 2016

Facts
This instant administative case arose from a verified complaint for disbarment filed by
complainant complainant Maria Victoria G. Belo-Henares (complainant) against respondent
Atty. Roberto "Argee" C. Guevarra (respondent) for alleged violations of the Code of
Professional Responsibility.

Complainant is the Medical Director and principal stockholder of the Belo Medical Group, Inc.
(BMGI), a corporation duly organized and existing under Philippine laws 2 and engaged in
the specialized field of cosmetic surgery.3 On the other hand, respondent is the lawyer of a
certain Ms. Josefina "Josie" Norcio (Norcio ), who filed criminal cases against complainant for
an allegedly botched surgical procedure on her buttocks in 2002 and 2005, purportedly
causing infection and making her ill in 2009.

In 2009, respondent wrote a series of posts on his Facebook account insulting and verbally
abusing complainant. The complaint further alleged that respondent posted remarks on his
Facebook account that were intended to destroy and ruin BMGI's medical personnel, as well
as the entire medical practice of around 300 employees for no fair or justifiable cause. His
posts include the following excerpts:

Argee Guevarra Quack Doctor Becky Belo: I am out to get Puwitic Justice here! Kiss My
Clients Ass, Belo. Senator Adel Tamano, dont kiss Belos ass. Guys and girls, nagiisip na
akong tumakbo sa Hanghalan 2010 to Kick some ass!!! I will launch a national campaign
against Plastic Politicians -No guns, No goons, No gold -IN GUTS I TRUST!

Argee Guevarra Dr. Vicki Belo, watch out for Josefina Norcios Big Bang on Friday -You will go
down in Medical History as a QUACK DOCTOR!!!! QUACK QUACK QUACK QUACK. CNN, FOX
NEWS, BLOOMBERG, CHICAGO TRIBUNE, L.A. TIMES c/o my partner in the U.S., Atty. Trixie
Cruz-Angeles (September 22 at 11:18pm)

Argee Guevarra is amused by a libel case filed by Vicki Belo against me through her office
receptionist in Taytay Rizal. Haaaaay, style-bulok at style-duwag talaga. Lalakarin ng Reyna
ng Kaplastikan at Reyna ng Payola ang kaso si Imelda Marcos nga sued me for P300
million pesos and ended up apologizing to me, si Belo pa kaya? (September 15 at 12:08pm

Argee Guevarra get vicki belo as your client!!! may extra-legal budget yon. Kaya Lang,
bistado ko na kung sino-sino ang tumatanggap eh, pag nalaman mo, baka bumagsak pa
isang ahensya ng gobyerno dito, hahaha (August 9 at 10:31pm)

Argee Guevarra ATTENTION MGA BA TCHMATES SA DOJ: TIMBREHAN NJYO AKO KUNG
MAGKANONG PANGSUHOL NJ BELO PARA MADIIN AKO HA???? I just [want] to know how much
she hates me, ok? Ang payola budget daw niya runs into tens of millions . (September 15
at 3:57pm) xxx xxx xxx
Asserting that the said posts, written in vulgar and obscene language, were designed to
inspire public hatred, destroy her reputation, and to close BMGI and all its clinics, as well as
to extort the amount of P200 Million from her as evident from his demand letter dated
August 26, 2009, complainant lodged the instant complaint for disbarment against
respondent before the Integrated Bar of the Philippines (IBP), docketed as CBD Case No. 09-
2551.

In defense, respondent claimed that the complaint was filed in violation of his
constitutionally-guaranteed right to privacy, asserting that the posts quoted by complainant

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were private remarks on his private account on Facebook, meant to be shared only with his
circle of friends of which complainant was not a part. He also averred that he wrote the posts
in the exercise of his freedom of speech, and contended that the complaint was filed to
derail the criminal cases that his client, Norcio, had filed against complainant. He denied
that the remarks were vulgar and obscene, and that he made them in order to inspire public
hatred against complainant. He likewise denied that he attempted to extort money from her,
explaining that he sent the demand letter as a requirement prior to the filing of the criminal
case for estafa, as well as the civil case for damages against her. Finally, respondent pointed
out that complainant was a public figure who is, therefore, the subject of fair comment.

Issues:
Whether respondent can validly invoke his right to privacy.
Whether respondent can validlyn invoke freedom of speech.

SC Ruling
Respondent never denied that he posted the purportedly vulgar and obscene remarks about
complainant and BMGI on his Facebook account. In defense, however, he invokes his right to
privacy, claiming that they were "private remarks" on his "private account" that can only be
viewed by his circle of friends. Thus, when complainant accessed the same, she violated his
constitutionally guaranteed right to privacy.
The defense is untenable. Before, can have an expectation of privacy in his or her online
social networking activity -in this case, Facebook -it is first necessary that said user
manifests the intention to keep certain posts private, through the employment of measures
to prevent access thereto or to limit its visibility. This intention can materialize in cyberspace
through the utilization of Facebook's privacy tools. In other words, utilization of these privacy
tools is the manifestation, in the cyber world, of the user's invocation of his or her right to
informational privacy.
The bases of the instant complaint are the Facebook posts maligning and insulting
complainant, which posts respondent insists were set to private view. However, the latter
has failed to offer evidence that he utilized any of the privacy tools or features of Facebook
available to him to protect his posts, or that he restricted its privacy to a select few.
Therefore, without any positive evidence to corroborate his statement that the subject posts,
as well as the comments thereto, were visible only to him and his circle of friends,
respondent's statement is, at best, self-serving, thus deserving scant consideration.

Moreover, even if the Court were to accept respondent's allegation that his posts were
limited to or viewable by his "Friends" only, there is no assurance that the same -or other
digital content that he uploads or publishes on his Facebook profile -will be safeguarded as
within the confines of privacy, in light of the following:
Facebook "allows the world to be more open and connected by giving its users the tools to
interact and share in any conceivable way";
A good number of Facebook users "befriend" other users who are total strangers;
The sheer number of "Friends" one user has, usually by the hundreds; and
A user's Facebook friend can "share" the former's post, or "tag" others who are not Facebook
friends with the former, despite its being visible only to his or her own Facebook friends.

Thus, restricting the privacy of one's Facebook posts to "Friends" does not guarantee
absolute protection from the prying eyes of another user who does not belong to one's circle
of friends. The user's own Facebook friend can share said content or tag his or her own
Facebook friend thereto, regardless of whether the user tagged by the latter is Face book
friends or not with the former. Also, when the post is shared or when a person is tagged, the
respective Facebook friends of the person who shared the post or who was tagged can view
the post, the privacy setting of which was set at "Friends." Under the circumstances,
therefore, respondent's claim of violation of right to privacy is negated.

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As to the second issue, it has been held that the freedom of speech and of expression, like
all constitutional freedoms, is not absolute. As such, the constitutional right of freedom of
expression may not be availed of to broadcast lies or half-truths, insult others, destroy their
name or reputation or bring them into disrepute.

A punctilious scrutiny of the Facebook remarks complained of disclosed that they were
ostensibly made with malice tending to insult and tarnish the reputation of complainant and
BMGI. Calling complainant a "quack doctor," "Reyna ng Kaplastikan," "Reyna ng Payola," and
"Reyna ng Kapalpakan," and insinuating that she has been bribing people to destroy
respondent smacks of bad faith and reveals an intention to besmirch the name and
reputation of complainant, as well as BMGI. Respondent also ascribed criminal negligence
upon complainant and BMGI by posting that complainant disfigured ( "binaboy ") his client
Norcio, labeling BMGI a "Frankenstein Factory," and calling out a boycott of BMGI's services
-all these despite the pendency of the criminal cases that Norcio had already filed against
complainant. He even threatened complainant with conviction for criminal negligence and
estafa -which is contrary to one's obligation "to act with justice."

In view of the foregoing, respondent's inappropriate and obscene language, and his act of
publicly insulting and undermining the reputation of complainant through the subject
Facebook posts are, therefore, in complete and utter violation of the following provisions in
the Code of Professional Responsibility:
Rule 7.03 -A lawyer shall not engage in conduct that adversely reflects on his fitness to
practice law, nor shall he, whether in public or private life, behave in a scandalous manner
to the discredit of the legal profession.
Rule 8.01 -A lawyer shall not, in his professional dealings, use language which is abusive,
offensive or otherwise improper.
Rule 19.01 -A lawyer shall employ only fair and honest means to attain the lawful objectives
of his client and shall not present, participate in presenting or threaten to present unfounded
criminal charges to obtain an improper advantage in any case or proceeding.

By posting the subject remarks on Facebook directed at complainant and BMGI, respondent
disregarded the fact that, as a lawyer, he is bound to observe proper decorum at all times,
be it in his public or private life. He overlooked the fact that he must behave in a manner
befitting of an officer of the court, that is, respectful, firm, and decent. Instead, he acted
inappropriately and rudely; he used words unbecoming of an officer of the law, and
conducted himself in an aggressive way by hurling insults and maligning complainant's and
BMGI' s reputation.

That complainant is a public figure and/or a celebrity and therefore, a public personage who
is exposed to criticism does not justify respondent's disrespectful language. It is the cardinal
condition of all criticism that it shall be bona fide, and shall not spill over the walls of
decency and propriety. In this case, respondent's remarks against complainant breached the
said walls, for which reason the former must be administratively sanctioned.
WHEREFORE, respondent Atty. Roberto "Argee" C. Guevarra is found guilty of violation of
Rules 7.03, 8.01, and 19.01 of the Code of Professional Responsibility. He is hereby
SUSPENDED from the practice of law for a period of one (1) year, effective upon his receipt
of this Decision, and is STERNLY WARNED that a repetition of the same or similar acts will be
dealt with more severely.

Rhonda Vivares vs St. Theresas College

Political Law Constitutional Law Bill of Rights Right to Privacy Online Privacy (Social
Media)

Remedial Law Special Proceedings Writ of Habeas Data

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In January 2012, Angela Tan, a high school student at St. Theresas College (STC), uploaded
on Facebook several pictures of her and her classmates (Nenita Daluz and Julienne Suzara)
wearing only their undergarments.

Thereafter, some of their classmates reported said photos to their teacher, Mylene Escudero.
Escudero, through her students, viewed and downloaded said pictures. She showed the said
pictures to STCs Discipline-in-Charge for appropriate action.

Later, STC found Tan et al to have violated the students handbook and banned them from
marching in their graduation ceremonies scheduled in March 2012.

The issue went to court but despite a TRO (temporary restraining order) granted by the Cebu
RTC enjoining the school from barring the students in the graduation ceremonies, STC still
barred said students.

Subsequently, Rhonda Vivares, mother of Nenita, and the other mothers filed a petition for
the issuance of the writ of habeas data against the school. They argued, among others, that:

1. The privacy setting of their childrens Facebook accounts was set at Friends Only. They,
thus, have a reasonable expectation of privacy which must be respected.

2. The photos accessed belong to the girls and, thus, cannot be used and reproduced
without their consent. Escudero, however, violated their rights by saving digital copies of the
photos and by subsequently showing them to STCs officials. Thus, the Facebook accounts of
the children were intruded upon;

3. The intrusion into the Facebook accounts, as well as the copying of information, data, and
digital images happened at STCs Computer Laboratory;

They prayed that STC be ordered to surrender and deposit with the court all soft and printed
copies of the subject data and have such data be declared illegally obtained in violation of
the childrens right to privacy.

The Cebu RTC eventually denied the petition. Hence, this appeal.

ISSUE: Whether or not the petition for writ of habeas data is proper.

HELD: Yes, it is proper but in this case, it will not prosper.

Contrary to the arguments of STC, the Supreme Court ruled that:

1. The petition for writ of habeas data can be availed of even if this is not a case of
extralegal killing or enforced disappearance; and

2. The writ of habeas data can be availed of against STC even if it is not an entity engaged in
the business of gathering, collecting, or storing data or information regarding the person,
family, home and correspondence of the aggrieved party.

First, the Rule on Habeas Data does not state that it can be applied only in cases of
extralegal killings or enforced disappearances. Second, nothing in the Rule would suggest
that the habeas data protection shall be available only against abuses of a person or entity
engaged in the business of gathering, storing, and collecting of data.

Right to Privacy on Social Media (Online Networking Sites)

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The Supreme Court ruled that if an online networking site (ONS) like Facebook has privacy
tools, and the user makes use of such privacy tools, then he or she has a reasonable
expectation of privacy (right to informational privacy, that is). Thus, such privacy must be
respected and protected.

In this case, however, there is no showing that the students concerned made use of such
privacy tools. Evidence would show that that their post (status) on Facebook were published
as Public.

Facebook has the following settings to control as to who can view a users posts on his wall
(profile page):

(a) Public the default setting; every Facebook user can view the photo;

(b) Friends of Friends only the users Facebook friends and their friends can view the photo;

(c) Friends only the users Facebook friends can view the photo;

(d) Custom the photo is made visible only to particular friends and/or networks of the
Facebook user; and

(e) Only Me the digital image can be viewed only by the user.

The default setting is Public and if a user wants to have some privacy, then he must
choose any setting other than Public. If it is true that the students concerned did set the
posts subject of this case so much so that only five people can see them (as they claim),
then how come most of their classmates were able to view them. This fact was not refuted
by them. In fact, it was their classmates who informed and showed their teacher, Escudero,
of the said pictures. Therefore, it appears that Tan et al never use the privacy settings of
Facebook hence, they have no reasonable expectation of privacy on the pictures of them
scantily clad.

STC did not violate the students right to privacy. The manner which the school gathered the
pictures cannot be considered illegal. As it appears, it was the classmates of the students
who showed the picture to their teacher and the latter, being the recipient of said pictures,
merely delivered them to the proper school authority and it was for a legal purpose, that is,
to discipline their students according to the standards of the school (to which the students
and their parents agreed to in the first place because of the fact that they enrolled their
children there).

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 202666 September 29, 2014

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,

vs.

ST. THERESAS COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents.

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 DECISION

VELASCO, JR., J.:

The individuals desire for privacy is never absolute, since participation in society is an equally powerful desire. Thus each individual is
continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and
communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.

Alan Westin, Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to Section 19 of A.M. No. 08-1-16-
SC,1 otherwise known as the Rule on the Writ of Habeas data. Petitioners herein assail the July 27, 2012 Decision 2 of the Regional Trial
Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which dismissed their habeas data petition.

The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the period material, graduating high school
students at St. Theresas College (STC), Cebu City. Sometime in January 2012, while changing into their swimsuits for a beach party they
were about to attend, Julia and Julienne, along with several others, took digital pictures of themselves clad only in their undergarments.
These pictures were then uploaded by Angela Lindsay Tan (Angela) on her Facebook 3 profile.

Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STCs high school department, learned from her students
that some seniors at STC posted pictures online, depicting themselves from the waist up, dressed only in brassieres. Escudero then asked
her students if they knew who the girls in the photos are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes Taboada (Chloe),
among others.

Using STCs computers, Escuderos students logged in to their respective personal Facebook accounts and showed her photos of the
identified students, which include: (a) Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia and Julienne
along the streets of Cebu wearing articles of clothing that show virtually the entirety of their black brassieres. What is more, Escuderos
students claimed that there were times when access to or the availability of the identified students photos was not confined to the girls
Facebook friends,4 but were, in fact, viewable by any Facebook user.5

Upon discovery, Escudero reported the matter and, through one of her students Facebook page, showed the photos to Kristine Rose Tigol
(Tigol), STCs Discipline-in-Charge, for appropriate action. Thereafter, following an investigation, STC found the identified students to have
deported themselves in a manner proscribed by the schools Student Handbook, to wit:

1. Possession of alcoholic drinks outside the school campus;

2. Engaging in immoral, indecent, obscene or lewd acts;

3. Smoking and drinking alcoholic beverages in public places;

4. Apparel that exposes the underwear;

5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually suggestive messages, language or symbols; and

6. Posing and uploading pictures on the Internet that entail ample body exposure.

On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question, reported, as required, to the office of Sr.
Celeste Ma. Purisima Pe (Sr. Purisima), STCs high school principal and ICM 6 Directress. They claimed that during the meeting, they were
castigated and verbally abused by the STC officials present in the conference, including Assistant Principal Mussolini S. Yap (Yap), Roswinda
Jumiller, and Tigol. What is more, Sr. Purisima informed their parents the following day that, as part of their penalty, they are barred from
joining the commencement exercises scheduled on March 30, 2012.

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A week before graduation, or on March 23, 2012, Angelas mother, Dr. Armenia M. Tan (Tan), filed a Petition for Injunction and Damages
before the RTC of Cebu City against STC, et al., docketed as Civil Case No. CEB-38594. 7 In it, Tan prayed that defendants therein be
enjoined from implementing the sanction that precluded Angela from joining the commencement exercises.

On March 25, 2012, petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray as an intervenor. On March 28, 2012,
defendants in Civil Case No. CEB-38594 filed their memorandum, containing printed copies of the photographs in issue as annexes. That
same day, the RTC issued a temporary restraining order (TRO) allowing the students to attend the graduation ceremony, to which STC filed
a motion for reconsideration.

Despite the issuance of the TRO, STC, nevertheless, barred the sanctioned students from participating in the graduation rites, arguing that,
on the date of the commencement exercises, its adverted motion for reconsideration on the issuance of the TRO remained unresolved.

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas data, docketed as SP. Proc. No. 19251-CEB 8 on
the basis of the following considerations:

1. The photos of their children in their undergarments (e.g., bra) were taken for posterity before they changed into their swimsuits on the
occasion of a birthday beach party;

2. The privacy setting of their childrens Facebook accounts was set at Friends Only. They, thus, have a reasonable expectation of privacy
which must be respected;

3. Respondents, being involved in the field of education, knew or ought to have known of laws that safeguard the right to privacy. Corollarily,
respondents knew or ought to have known that the girls, whose privacy has been invaded, are the victims in this case, and not the offenders.
Worse, after viewing the photos, the minors were called immoral and were punished outright;

4. The photos accessed belong to the girls and, thus, cannot be used and reproduced without their consent. Escudero, however, violated
their rights by saving digital copies of the photos and by subsequently showing them to STCs officials. Thus, the Facebook accounts of
petitioners children were intruded upon;

5. The intrusion into the Facebook accounts, as well as the copying of information, data, and digital images happened at STCs Computer
Laboratory; and

6. All the data and digital images that were extracted were boldly broadcasted by respondents through their memorandum submitted to the
RTC in connection with Civil Case No. CEB-38594.

To petitioners, the interplay of the foregoing constitutes an invasion of their childrens privacy and, thus, prayed that: (a) a writ of habeas
data be issued; (b) respondents be ordered to surrender and deposit with the court all soft and printed copies of the subject data before or at
the preliminary hearing; and (c) after trial, judgment be rendered declaring all information, data, and digital images accessed, saved or
stored, reproduced, spread and used, to have been illegally obtained in violation of the childrens right to privacy.

Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012, issued the writ of habeas data. Through
the same Order, herein respondents were directed to file their verified written return, together with the supporting affidavits, within five (5)
working days from service of the writ.

In time, respondents complied with the RTCs directive and filed their verified written return, laying down the following grounds for the denial
of the petition, viz: (a) petitioners are not the proper parties to file the petition; (b) petitioners are engaging in forum shopping; (c) the instant
case is not one where a writ of habeas data may issue; and (d) there can be no violation of their right to privacy as there is no reasonable
expectation of privacy on Facebook.

Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The dispositive portion of the Decision pertinently
states:

WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.

The parties and media must observe the aforestated confidentiality.

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 xxxx

SO ORDERED.9

To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the minors right to privacy, one of the
preconditions for the issuance of the writ of habeas data. Moreover, the court a quo held that the photos, having been uploaded on Facebook
without restrictions as to who may view them, lost their privacy in some way. Besides, the RTC noted, STC gathered the photographs
through legal means and for a legal purpose, that is, the implementation of the schools policies and rules on discipline.

Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the Rule on Habeas data.10

The Issues

The main issue to be threshed out in this case is whether or not a writ of habeas data should be issued given the factual milieu. Crucial in
resolving the controversy, however, is the pivotal point of whether or not there was indeed an actual or threatened violation of the right to
privacy in the life, liberty, or security of the minors involved in this case.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the availability of the Writ of Habeas data

The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of the aggrieved party. 11 It is an independent and summary
remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to
enforce ones right to the truth and to informational privacy. It seeks to protect a persons right to control information regarding oneself,
particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. 12

In developing the writ of habeas data, the Court aimed to protect an individuals right to informational privacy, among others. A comparative
law scholar has, in fact, defined habeas data as a procedure designed to safeguard individual freedom from abuse in the information
age.13 The writ, however, will not issue on the basis merely of an alleged unauthorized access to information about a person. Availment of
the writ requires the existence of a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the
other.14 Thus, the existence of a persons right to informational privacy and a showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of the victim are indispensable before the privilege of the writ may be
extended.15

Without an actionable entitlement in the first place to the right to informational privacy, a habeas data petition will not prosper. Viewed from
the perspective of the case at bar, this requisite begs this question: given the nature of an online social network (OSN)(1) that it facilitates
and promotes real-time interaction among millions, if not billions, of users, sans the spatial barriers, 16 bridging the gap created by physical
space; and (2) that any information uploaded in OSNs leaves an indelible trace in the providers databases, which are outside the control of
the end-usersis there a right to informational privacy in OSN activities of its users? Before addressing this point, We must first
resolve the procedural issues in this case.

a. The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances

Contrary to respondents submission, the Writ of Habeas data was not enacted solely for the purpose of complementing the Writ
of Amparo in cases of extralegal killings and enforced disappearances.

Section 2 of the Rule on the Writ of Habeas data provides:

Sec. 2. Who May File. Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and
enforced disappearances, the petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or

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(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default
of those mentioned in the preceding paragraph. (emphasis supplied)

Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal killings or enforced disappearances, the
above underscored portion of Section 2, reflecting a variance of habeas data situations, would not have been made.

Habeas data, to stress, was designed to safeguard individual freedom from abuse in the information age. 17 As such, it is erroneous to limit
its applicability to extralegal killings and enforced disappearances only. In fact, the annotations to the Rule prepared by the Committee on the
Revision of the Rules of Court, after explaining that the Writ of Habeas data complements the Writ of Amparo, pointed out that:

The writ of habeas data, however, can be availed of as an independent remedy to enforce ones right to privacy, more specifically
the right to informational privacy. The remedies against the violation of such right can include the updating, rectification, suppression or
destruction of the database or information or files in possession or in control of respondents. 18 (emphasis Ours)

Clearly then, the privilege of the Writ of Habeas Data may also be availed of in cases outside of extralegal killings and enforced
disappearances.

b. Meaning of engaged in the gathering, collecting or storing of data or information

Respondents contention that the habeas data writ may not issue against STC, it not being an entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home and correspondence of the aggrieved party, while valid to a point, is,
nonetheless, erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only against abuses of a person or
entity engaged in the business of gathering, storing, and collecting of data. As provided under Section 1 of the Rule:

Section 1. Habeas Data. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved
party. (emphasis Ours)

The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data is a protection against unlawful
acts or omissions of public officials and of private individuals or entities engaged in gathering, collecting, or storing data about the aggrieved
party and his or her correspondences, or about his or her family. Such individual or entity need not be in the business of collecting or storing
data.

To engage in something is different from undertaking a business endeavour. To engage means to do or take part in something. 19 It does
not necessarily mean that the activity must be done in pursuit of a business. What matters is that the person or entity must be gathering,
collecting or storing said data or information about the aggrieved party or his or her family. Whether such undertaking carries the element of
regularity, as when one pursues a business, and is in the nature of a personal endeavour, for any other reason or even for no reason at all, is
immaterial and such will not prevent the writ from getting to said person or entity.

To agree with respondents above argument, would mean unduly limiting the reach of the writ to a very small group, i.e., private persons and
entities whose business is data gathering and storage, and in the process decreasing the effectiveness of the writ as an instrument designed
to protect a right which is easily violated in view of rapid advancements in the information and communications technologya right which a
great majority of the users of technology themselves are not capable of protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

The concept of privacy has, through time, greatly evolved, with technological advancements having an influential part therein. This evolution
was briefly recounted in former Chief Justice Reynato S. Punos speech, The Common Right to Privacy,20 where he explained the three
strands of the right to privacy, viz: (1) locational or situational privacy; 21 (2) informational privacy; and (3) decisional privacy.22 Of the three,
what is relevant to the case at bar is the right to informational privacyusually defined as the right of individuals to control information
about themselves.23

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With the availability of numerous avenues for information gathering and data sharing nowadays, not to mention each systems inherent
vulnerability to attacks and intrusions, there is more reason that every individuals right to control said flow of information should be protected
and that each individual should have at least a reasonable expectation of privacy in cyberspace. Several commentators regarding privacy
and social networking sites, however, all agree that given the millions of OSN users, [i]n this [Social Networking] environment, privacy is no
longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking. 24

It is due to this notion that the Court saw the pressing need to provide for judicial remedies that would allow a summary hearing of the
unlawful use of data or information and to remedy possible violations of the right to privacy. 25 In the same vein, the South African High Court,
in its Decision in the landmark case, H v. W,26 promulgated on January 30, 2013, recognized that [t]he law has to take into account the
changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people. x x x It is imperative that the
courts respond appropriately to changing times, acting cautiously and with wisdom. Consistent with this, the Court, by developing what may
be viewed as the Philippine model of the writ of habeas data, in effect, recognized that, generally speaking, having an expectation of
informational privacy is not necessarily incompatible with engaging in cyberspace activities, including those that occur in OSNs.

The question now though is up to what extent is the right to privacy protected in OSNs? Bear in mind that informational privacy involves
personal information. At the same time, the very purpose of OSNs is socializingsharing a myriad of information, 27 some of which would
have otherwise remained personal.

b. Facebooks Privacy Tools: a response to the clamor for privacy in OSN activities

Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to other members of the same or
different social media platform through the sharing of statuses, photos, videos, among others, depending on the services provided by the
site. It is akin to having a room filled with millions of personal bulletin boards or walls, the contents of which are under the control of each
and every user. In his or her bulletin board, a user/owner can post anythingfrom text, to pictures, to music and videosaccess to which
would depend on whether he or she allows one, some or all of the other users to see his or her posts. Since gaining popularity, the OSN
phenomenon has paved the way to the creation of various social networking sites, including the one involved in the case at bar,
www.facebook.com (Facebook), which, according to its developers, people use to stay connected with friends and family, to discover whats
going on in the world, and to share and express what matters to them. 28

Facebook connections are established through the process of friending another user. By sending a friend request, the user invites another
to connect their accounts so that they can view any and all Public and Friends Only posts of the other. Once the request is accepted, the
link is established and both users are permitted to view the other users Public or Friends Only posts, among others. Friending,
therefore, allows the user to form or maintain one-to-one relationships with other users, whereby the user gives his or her Facebook friend
access to his or her profile and shares certain information to the latter.29

To address concerns about privacy,30 but without defeating its purpose, Facebook was armed with different privacy tools designed to regulate
the accessibility of a users profile 31 as well as information uploaded by the user. In H v. W,32 the South Gauteng High Court recognized this
ability of the users to customize their privacy settings, but did so with this caveat: Facebook states in its policies that, although it makes
every effort to protect a users information, these privacy settings are not foolproof. 33

For instance, a Facebook user can regulate the visibility and accessibility of digital images (photos), posted on his or her personal bulletin
or wall, except for the users profile picture and ID, by selecting his or her desired privacy setting:

(a) Public the default setting; every Facebook user can view the photo;

(b) Friends of Friends only the users Facebook friends and their friends can view the photo;

(c) Friends only the users Facebook friends can view the photo;

(d) Custom the photo is made visible only to particular friends and/or networks of the Facebook user; and

(e) Only Me the digital image can be viewed only by the user.

The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden or limit the visibility of his or her specific
profile content, statuses, and photos, among others, from another users point of view. In other words, Facebook extends its users an avenue
to make the availability of their Facebook activities reflect their choice as to when and to what extent to disclose facts about [themselves]
and to put others in the position of receiving such confidences. 34 Ideally, the selected setting will be based on ones desire to interact with
others, coupled with the opposing need to withhold certain information as well as to regulate the spreading of his or her personal information.
Needless to say, as the privacy setting becomes more limiting, fewer Facebook users can view that users particular post.

10
STC did not violate petitioners daughters right to privacy

Without these privacy settings, respondents contention that there is no reasonable expectation of privacy in Facebook would, in context, be
correct. However, such is not the case. It is through the availability of said privacy tools that many OSN users are said to have a
subjective expectation that only those to whom they grant access to their profile will view the information they post or upload
thereto.35

This, however, does not mean that any Facebook user automatically has a protected expectation of privacy in all of his or her Facebook
activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user, in this case the children of
petitioners, manifest the intention to keep certain posts private, through the employment of measures to prevent access thereto or
to limit its visibility.36 And this intention can materialize in cyberspace through the utilization of the OSNs privacy tools. In other
words, utilization of these privacy tools is the manifestation, in cyber world, of the users invocation of his or her right to
informational privacy.37

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post or profile detail should not be
denied the informational privacy right which necessarily accompanies said choice. 38 Otherwise, using these privacy tools would be a feckless
exercise, such that if, for instance, a user uploads a photo or any personal information to his or her Facebook page and sets its privacy level
at Only Me or a custom list so that only the user or a chosen few can view it, said photo would still be deemed public by the courts as if the
user never chose to limit the photos visibility and accessibility. Such position, if adopted, will not only strip these privacy tools of their function
but it would also disregard the very intention of the user to keep said photo or information within the confines of his or her private space.

We must now determine the extent that the images in question were visible to other Facebook users and whether the disclosure was
confidential in nature. In other words, did the minors limit the disclosure of the photos such that the images were kept within their zones of
privacy? This determination is necessary in resolving the issue of whether the minors carved out a zone of privacy when the photos were
uploaded to Facebook so that the images will be protected against unauthorized access and disclosure.

Petitioners, in support of their thesis about their childrens privacy right being violated, insist that Escudero intruded upon their childrens
Facebook accounts, downloaded copies of the pictures and showed said photos to Tigol. To them, this was a breach of the minors privacy
since their Facebook accounts, allegedly, were under very private or Only Friends setting safeguarded with a password. 39 Ultimately, they
posit that their childrens disclosure was only limited since their profiles were not open to public viewing. Therefore, according to them,
people who are not their Facebook friends, including respondents, are barred from accessing said post without their knowledge and consent.
As petitioners children testified, it was Angela who uploaded the subject photos which were only viewable by the five of them,40 although
who these five are do not appear on the records.

Escudero, on the other hand, stated in her affidavit 41 that my students showed me some pictures of girls clad in brassieres. This student [sic]
of mine informed me that these are senior high school [students] of STC, who are their friends in [F]acebook. x x x They then said [that] there
are still many other photos posted on the Facebook accounts of these girls. At the computer lab, these students then logged into their
Facebook account [sic], and accessed from there the various photographs x x x. They even told me that there had been times when these
photos were public i.e., not confined to their friends in Facebook.

In this regard, We cannot give much weight to the minors testimonies for one key reason: failure to question the students act of showing the
photos to Tigol disproves their allegation that the photos were viewable only by the five of them. Without any evidence to corroborate their
statement that the images were visible only to the five of them, and without their challenging Escuderos claim that the other students were
able to view the photos, their statements are, at best, self-serving, thus deserving scant consideration. 42

It is well to note that not one of petitioners disputed Escuderos sworn account that her students, who are the minors Facebook friends,
showed her the photos using their own Facebook accounts. This only goes to show that no special means to be able to view the allegedly
private posts were ever resorted to by Escuderos students, 43 and that it is reasonable to assume, therefore, that the photos were, in reality,
viewable either by (1) their Facebook friends, or (2) by the public at large.

Considering that the default setting for Facebook posts is Public, it can be surmised that the photographs in question were viewable to
everyone on Facebook, absent any proof that petitioners children positively limited the disclosure of the photograph. If such were the case,
they cannot invoke the protection attached to the right to informational privacy. The ensuing pronouncement in US v. Gines-Perez44 is most
instructive:

[A] person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to such imagery, particularly
under circumstances such as here, where the Defendant did not employ protective measures or devices that would have controlled access
to the Web page or the photograph itself.45

11
Also, United States v. Maxwell46 held that [t]he more open the method of transmission is, the less privacy one can reasonably expect.
Messages sent to the public at large in the chat room or e-mail that is forwarded from correspondent to correspondent loses any semblance
of privacy.

That the photos are viewable by friends only does not necessarily bolster the petitioners contention. In this regard, the cyber community is
agreed that the digital images under this setting still remain to be outside the confines of the zones of privacy in view of the following:

(1) Facebook allows the world to be more open and connected by giving its users the tools to interact and share in any conceivable way; 47

(2) A good number of Facebook users befriend other users who are total strangers; 48

(3) The sheer number of Friends one user has, usually by the hundreds; and

(4) A users Facebook friend can share 49 the formers post, or tag 50 others who are not Facebook friends with the former, despite its being
visible only to his or her own Facebook friends.

It is well to emphasize at this point that setting a posts or profile details privacy to Friends is no assurance that it can no longer be viewed
by another user who is not Facebook friends with the source of the content. The users own Facebook friend can share said content or tag
his or her own Facebook friend thereto, regardless of whether the user tagged by the latter is Facebook friends or not with the former. Also,
when the post is shared or when a person is tagged, the respective Facebook friends of the person who shared the post or who was tagged
can view the post, the privacy setting of which was set at Friends.

To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook friends. If C, As Facebook friend, tags B in As
post, which is set at Friends, the initial audience of 100 (As own Facebook friends) is dramatically increased to 300 (As 100 friends plus
Bs 200 friends or the public, depending upon Bs privacy setting). As a result, the audience who can view the post is effectively expanded
and to a very large extent.

This, along with its other features and uses, is confirmation of Facebooks proclivity towards user interaction and socialization rather than
seclusion or privacy, as it encourages broadcasting of individual user posts. In fact, it has been said that OSNs have facilitated their users
self-tribute, thereby resulting into the democratization of fame. 51 Thus, it is suggested, that a profile, or even a post, with visibility set at
Friends Only cannot easily, more so automatically, be said to be very private, contrary to petitioners argument.

As applied, even assuming that the photos in issue are visible only to the sanctioned students Facebook friends, respondent STC can hardly
be taken to task for the perceived privacy invasion since it was the minors Facebook friends who showed the pictures to Tigol. Respondents
were mere recipients of what were posted. They did not resort to any unlawful means of gathering the information as it was voluntarily given
to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously
enough, however, neither the minors nor their parents imputed any violation of privacy against the students who showed the images to
Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced and broadcasted the photographs. In fact, what
petitioners attributed to respondents as an act of offensive disclosure was no more than the actuality that respondents appended said
photographs in their memorandum submitted to the trial court in connection with Civil Case No. CEB-38594. 52 These are not tantamount to a
violation of the minors informational privacy rights, contrary to petitioners assertion.

In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor students scantily clad, are personal
in nature, likely to affect, if indiscriminately circulated, the reputation of the minors enrolled in a conservative institution. However, the records
are bereft of any evidence, other than bare assertions that they utilized Facebooks privacy settings to make the photos visible only to them
or to a select few. Without proof that they placed the photographs subject of this case within the ambit of their protected zone of privacy, they
cannot now insist that they have an expectation of privacy with respect to the photographs in question.

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 of being broadcasted to the public at large or all the users
friends en masse, becomes more manifest and palpable.

On Cyber Responsibility

It has been said that the best filter is the one between your childrens ears.53 This means that self-regulation on the part of OSN users
and internet consumers in general is the best means of avoiding privacy rights violations. 54 As a cyberspace community member, one has to

12
be proactive in protecting his or her own privacy.55 It is in this regard that many OSN users, especially minors, fail. Responsible social
networking or observance of the netiquettes56 on the part of teenagers has been the concern of many due to the widespread notion that
teenagers can sometimes go too far since they generally lack the people skills or general wisdom to conduct themselves sensibly in a public
forum.57

Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its curriculum to educate its students on
proper online conduct may be most timely. Too, it is not only STC but a number of schools and organizations have already deemed it
important to include digital literacy and good cyber citizenship in their respective programs and curricula in view of the risks that the children
are exposed to every time they participate in online activities. 58 Furthermore, considering the complexity of the cyber world and its
pervasiveness, as well as the dangers that these children are wittingly or unwittingly exposed to in view of their unsupervised activities in
cyberspace, the participation of the parents in disciplining and educating their children about being a good digital citizen is encouraged by
these institutions and organizations. In fact, it is believed that to limit such risks, theres no substitute for parental involvement and
supervision.59

As such, STC cannot be faulted for being steadfast in its duty of teaching its students to be responsible in their dealings and activities in
cyberspace, particularly in OSNs, when it enforced the disciplinary actions specified in the Student Handbook, absent a showing that, in the
process, it violated the students rights.

OSN users should be aware of the risks that they expose themselves to whenever they engage in cyberspace activities. Accordingly, they
should be cautious enough to control their privacy and to exercise sound discretion regarding how much information about themselves they
are willing to give up. Internet consumers ought to be aware that, by entering or uploading any kind of data or information online, they are
automatically and inevitably making it permanently available online, the perpetuation of which is outside the ambit of their control.
Furthermore, and more importantly, information, otherwise private, voluntarily surrendered by them can be opened, read, or copied by third
parties who may or may not be allowed access to such.

It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and activities and must not be negligent in
protecting their rights. Equity serves the vigilant. Demanding relief from the courts, as here, requires that claimants themselves take utmost
care in safeguarding a right which they allege to have been violated. These are indispensable. We cannot afford protection to persons if they
themselves did nothing to place the matter within the confines of their private zone. OSN users must be mindful enough to learn the use of
privacy tools, to use them if they desire to keep the information private, and to keep track of changes in the available privacy settings, such
as those of Facebook, especially because Facebook is notorious for changing these settings and the sites layout often.

In finding that respondent STC and its officials did not violate the minors privacy rights, We find no cogent reason to disturb the findings and
case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other assigned errors.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27, 2012 of the Regional Trial Court, Branch
14 in Cebu City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

LORENZANA vs AUSTRIA

The Court held that the truth about Judge Austrias alleged partiality cannot be determined
by simply relying on the verified complaint. Bias and prejudice cannot be presumed, in light
especially of a judges sacred obligation under his oath of office to administer justice
without respect to the person, and to give equal right to the poor and rich. There should be
clear and convincing evidence to prove the charge; mere suspicion of partiality is not
enough. In this case, aside from being speculative and judicial in character, the
circumstances cited by the complainant were grounded on mere opinion and surmises. The
complainant also failed to adduce proof indicating the judges predisposition to decide the

13
case in favor of one party. Antonio M. Lorenzana v. Judge Ma. Cecilia I. Austria, RTC, Br. 2,
Batangas City, A.M. No. RTJ-09-2200, April 2, 2014.

A.M. No. RTJ-09-2200 April 2, 2014

(formerly OCA I.P.I. No. 08-2834-RTJ)

ANTONIO M. LORENZANA, Complainant,

vs.
JUDGE MA. CECILIA I. AUSTRIA, Regional Trial Court, Branch 2, Batangas City,
Respondent.

DECISION

BRION, J.:

We resolve in this Decision the administrative complaints1 filed by Antonio M. Lorenzana

(complainant) against Judge Ma. Cecilia I. Austria (respondent), Regional Trial Court (RTC),
Branch 2, Batangas City.

The records show that the administrative complaints arose from the case "In the Matter of
the Petition to have Steel Corporation of the Philippines Placed under Corporate
Rehabilitation with Prayer for the Approval of the Proposed Rehabilitation Plan," docketed as
SP. Proc. No. 06-7993, where the respondent was the presiding judge. The complainant was
the Executive Vice President and Chief Operating Officer of Steel Corporation of the
Philippines (SCP), a company then under rehabilitation proceedings.

i. Complaint

In his verified complaint dated January 21, 2008, the complainant alleged that in the course
of SP. Proc. No. 06-7993, the respondent committed Gross Ignorance of the Law, Grave
Abuse of Authority, Gross Misconduct, Grave Incompetence, Irregularity in the Performance
of Duty, Grave Bias and Partiality, Lack of Circumspection, Conduct Unbecoming of a Judge,
Failure to Observe the Reglementary Period and Violation of the Code of Professional
Responsibility, as shown by the following instances:

1. The respondent appointed Atty. Santiago T. Gabionza, Jr. as rehabilitation receiver over
SCPs objections and despite serious conflict of interest in being the duly appointed
rehabilitation receiver for SCP and, at the same time, the external legal counsel of most of
SCPs creditors; he is also a partner of the law firm that he engaged as legal adviser.

2. The respondent conducted informal meetings (which she termed as "consultative

meetings" in her Order2 dated May 11, 2007) in places outside her official jurisdiction (i.e., a
first class golf club, a hotel and sports club facilities in Metro Manila) and where she
arbitrarily dictated the terms, parameters and features of the rehabilitation plan she wanted
to approve for SCP. She also announced in the meetings that she would prepare the
rehabilitation plan for SCP.

3. The modified rehabilitation plan submitted by Atty. Gabionza is a replica of what the
respondent dictated to him. Thus, the respondent exceeded the limits of her authority and
effectively usurped and pre-empted the rehabilitation receivers exercise of functions.

4. The respondent ordered that the proceedings of the informal meetings be off-record so
that there would be no record that she had favored Equitable-PCI Bank (EPCIB).

14
5. The respondent had secret meetings and communications with EPCIB to discuss the case
without the knowledge and presence of SCP and its creditors.

6. The respondent appointed Gerardo Anonas (Anonas) as Atty. Gabionzas financial adviser
and, at the same time, as her financial adviser to guide her in the formulation and
development of the rehabilitation plan, for a fee of P3.5M at SCPs expense. Anonas is also
the cousin-in-law of the managing partner of Atty. Gabionzas law firm.

7. The respondent encouraged EPCIB to raise complaints or accusations against SCP, leading
to EPCIBs filing of a motion to create a management committee.

8. When requested to conduct an evidentiary meeting and to issue a subpoena (so that SCP
could confront EPCIBs witnesses to prove the allegation that there was a need for the
creation of a management committee), the respondent denied SCPs requests and delayed
the issuance of the order until the last minute.

9. At the hearing of September 14, 2007, the respondent intimidated SCPs counsel, Atty.
Ferdinand Topacio; blocked his every attempt to speak; refused to recognize his appearances
in court; and made condescending and snide remarks.

10. The respondent failed to observe the reglementary period prescribed by the Interim
Rules of Procedure on Corporate Rehabilitation (Rules). She approved the rehabilitation plan
beyond the 180 days given to her in the Rules, without asking for permission to extend the
period from the Supreme Court (SC).

11. The respondent erroneously interpreted and applied Section 23, Rule 4 of the Rules (the
courts power to approve the rehabilitation plan) to include the power to amend, modify and
alter it.

12. The respondent took a personal interest and commitment to decide the matter in
EPCIBs favor and made comments and rulings in the proceedings that raised concerns
regarding her impartiality.

13. The respondent adamantly refused to inhibit herself and showed special interest and
personal involvement in the case.

ii. Supplemental Complaint

The complainant likewise filed a supplemental complaint3 dated April 14, 2008 where he
alleged that the respondent committed an act of impropriety when she displayed her
photographs in a social networking website called "Friendster" and posted her personal
details as an RTC Judge, allegedly for the purpose of finding a compatible partner. She also
posed with her upper body barely covered by a shawl, allegedly suggesting that nothing was
worn underneath except probably a brassiere.

The Office of the Court Administrator (OCA) in its 1st Indorsement4 dated March 18, 2008,
referred the complaints to the respondent for comment.

a. Comment to January 21, 2008 Complaint

The respondent vehemently denied the allegations against her. While she admitted that she
crafted a workable, feasible rehabilitation plan best suited for SCP, she maintained that she
did so only to render fairness and equity to all the parties to the rehabilitation proceedings.
She also submitted that if indeed she erred in modifying the rehabilitation plan, hers was a
mere error of judgment that does not call for an administrative disciplinary action.

15
Accordingly, she claimed that the administrative complaints were premature because
judicial remedies were still available.5

The respondent also argued that the rules do not prohibit informal meetings and
conferences. On the contrary, she argued that informal meetings are even encouraged in
view of the summary and non-adversarial nature of rehabilitation proceedings. Since Section
21, Rule 4 of the Rules6 gives the rehabilitation receiver the power to meet with the
creditors, then there is all the more reason for the rehabilitation judge, who has the authority
to approve the plan, to call and hold meetings with the parties. She also pointed out that it
was SCP which suggested that informal meetings be called and that she only agreed to hold
these meetings on the condition that all the parties would attend.

As to her alleged failure to observe the reglementary period, she contended that she
approved the rehabilitation plan within the period prescribed by law. She argued that the
matter of granting extension of time under Section 11, Rule 4 of the Rules7 pertains not to
the SC, but to the rehabilitation court.

The respondent likewise refuted the allegations of bias and partiality. First, she claimed that
her denial of the complainants motion for inhibition was not due to any bias or prejudice on
her part but due to lack of basis. Second, she argued that her decision was not orchestrated
to favor EPCIB, as evidenced by the fact that EPCIP itself (as some other creditors did)
promptly appealed her decision to the Court of Appeals (CA). Third, she did not remove Atty.
Gabionza as SCPs rehabilitation receiver because she disagreed that the grounds the
complainant raised warranted his removal.

She also found no merit to the allegation of conflict of interest. Lastly, she maintained that
the rest of the complainants allegations were not substantiated and corroborated by
evidence.

The respondent further alleged that she did not gravely abuse her authority in not issuing a
subpoena as Section 1, Rule 3 of the Interim Rules on Corporate Rehabilitation of the Rules
specifically states that the court may decide matters on the basis of affidavits and other
documentary evidence.

On the allegation of conflict of interest, she maintained that the allegations were not proven
and substantiated by evidence. Finally, the respondent also believed that there was nothing
improper in expressing her ideas during the informal meetings.

b. Comment to April 14, 2008 Supplemental Complaint

In her comment8 on the supplemental complaint, the respondent submitted that the photos
she posted in the social networking website "Friendster" could hardly be considered vulgar
or lewd. She added that an "off-shouldered" attire is an acceptable social outfit under
contemporary standards and is not forbidden. She further stated that there is no prohibition
against attractive ladies being judges; she is proud of her photo for having been
aesthetically made. Lastly, she submitted that the ruling of the Court in the case of Impao v.
Judge Makilala9 should not be applied to her case since the facts are different.

On July 4, 2008, the complainant filed a reply,10 insisting that the respondents acts of
posting "seductive" pictures and maintaining a "Friendster" account constituted acts of
impropriety, in violation of Rules 2.01,11 2.0212 and 2.03,13 Canon 2 of the Code of Judicial
Conduct.

16
In a Resolution14 dated September 9, 2009, the Court re-docketed the complaints as regular
administrative matters, and referred them to the CA for investigation, report and
recommendation.

The CAs Report and Recommendation

On November 13, 2009, Justice Marlene Gonzales-Sison, the Investigating Justice, conducted
a hearing, followed by the submission of memoranda by both parties. In her January 4, 2010
Report and Recommendation,15 Justice Gonzales-Sison ruled that the complaints were partly
meritorious. She found that the issues raised were judicial in nature since these involved the
respondents appreciation of evidence.

She also added that while the CA resolved to set aside the respondents decision in the
rehabilitation proceedings, it was not by reason of her ignorance of the law or abuse of
authority, but because the rehabilitation plan could no longer be implemented in view of
SCPs financial predicament.

On the allegation of grave bias and partiality in handling the rehabilitation proceedings,
Justice Gonzales-Sison ruled that the complainant failed to present any clear and convincing
proof that the respondent intentionally and deliberately acted against SCPs interests; the
complaint merely relied on his opinions and surmises.

On the matter of the respondents inhibition, she noted that in cases not covered by the rule
on mandatory inhibition, the decision to inhibit lies within the discretion of the sitting judge
and is primarily a matter of conscience.

With respect to the respondents informal meetings, Justice Gonzales-Sison found nothing
irregular despite the out-of-court meetings as these were agreed upon by all the parties,
including SCPs creditors. She also found satisfactory the respondents explanation in
approving the rehabilitation plan beyond the 180-day period prescribed by the Rules.

The foregoing notwithstanding, Justice Gonzales-Sison noted the respondents unnecessary

bickering with SCPs legal counsel and ruled that her exchanges and utterances were
reflective of arrogance and superiority. In the words of the Justice Gonzales-Sison:

Rather than rule on the manifestations of counsels, she instead brushed off the matter with
what would appear to be a conceited show of a prerogative of her office, a conduct that falls
below the standard of decorum expected of a judge. Her statements appear to be done
recklessly and were uncalled for. xxx. Section 6[,] Canon 6 of the New Code of Judicial
Conduct for the Philippine Judiciary states that: judges shall maintain order and decorum in
all proceedings before the court and be patient, dignified and courteous in relation to
litigants, witnesses, lawyers and others whom the judge deals in an official capacity. Judicial
decorum requires judges to be temperate in their language at all times. Failure on this
regard amounts to a conduct unbecoming of a judge, for which Judge Austria should be held
liable.16

On the respondents Friendster account, she believes that her act of maintaining a personal
social networking account (displaying photos of herself and disclosing personal details as a
magistrate in the account) even during these changing times when social networking
websites seem to be the trend constitutes an act of impropriety which cannot be legally
justified by the publics acceptance of this type of conduct. She explained that propriety and
the appearance of propriety are essential to the performance of all the activities of a judge
and that judges shall conduct themselves in a manner consistent with the dignity of the
judicial office.

17
Finally, Justice Gonzales-Sison noted the CAs May 16, 2006 Decision17 in CA-G.R. SP No.
100941 finding that the respondent committed grave abuse of discretion in ordering the
creation of a management committee without first conducting an evidentiary hearing in
accordance with the procedures prescribed under the Rules. She ruled that such professional
incompetence was tantamount to gross ignorance of the law and procedure, and
recommended a fine of P20,000.00. She also recommended that the respondent be
admonished for failing to observe strict propriety and judicial decorum required by her
office.

The Action and Recommendation of the OCA

In its Memorandum18 dated September 4, 2013, the OCA recommended the following:

RECOMMENDATION: It is respectfully recommended for the consideration of the Honorable

Court that:

1) the Report dated January 4, 2010 of Investigating Justice Marlene Gonzales-Sison be

NOTED;

2) respondent Judge Ma. Cecilia I. Austria, Branch 2, Regional Trial Court, Batangas City,
Batangas, be found GUILTY of conduct unbecoming a judge and for violation of Section 6,
Canon 4 of the New Code of Judicial Conduct;

3) respondent Judge Austria be FINED in the amount of Twenty Thousand Pesos

(Php20,000.00); and

4) respondent Judge Austria be ADMONISHED to refrain from further acts of impropriety with
a stern warning that a repetition of the same or any similar act will be dealt with more
severely.19

In arriving at its recommendation the OCA found that the respondent was not guilty of gross
ignorance of the law as the complainant failed to prove that her orders were motivated by
bad faith, fraud, dishonesty or corruption.

The OCA also found that the charges of bias and partiality in handling the rehabilitation
proceedings were not supported by evidence. It accepted the respondents explanation in
the charge of failure to observe the reglementary period.

Lastly, the OCA maintained that the allegations of grave abuse of authority and gross
incompetence are judicial in nature, hence, they should not be the subject of disciplinary
action. On the other hand, on allegations of conduct unbecoming of a judge, violation of the
Code of Professional Responsibility (Code), lack of circumspection and impropriety, the OCA
shared Justice Gonzales-Sisons observations that the respondents act of posting seductive
photos in her Friendster account contravened the standard of propriety set forth by the
Code.

The Courts Ruling

We agree with the recommendation of both Justice Gonzales-Sison and the OCA for the
imposition of a fine on the respondent but modify the amount as indicated below. We sustain
Justice Gonzales-Sisons finding of gross ignorance of the law in so far as the respondent
ordered the creation of a management committee without conducting an evidentiary
hearing. The absence of a hearing was a matter of basic due process that no magistrate
should be forgetful or careless about.

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On the Charges of Grave Abuse of Authority;
Irregularity in the Performance of Duty; Grave
Bias and Partiality; and Lack of Circumspection

It is well settled that in administrative cases, the complainant bears the onus of proving the
averments of his complaint by substantial evidence.20 In the present case, the allegations of
grave abuse of authority, irregularity in the performance of duty, grave bias and partiality,
and lack of circumspection are devoid of merit because the complainant failed to establish
the respondents bad faith, malice or ill will. The complainant merely pointed to
circumstances based on mere conjectures and suppositions. These, by themselves, however,
are not sufficient to prove the accusations. "[M]ere allegation is not evidence and is not
equivalent to proof."21

"[U]nless the acts were committed with fraud, dishonesty, corruption, malice or ill-will, bad
faith, or deliberate intent to do an injustice, [the] respondent judge may not be held
administratively liable for gross misconduct, ignorance of the law or incompetence of official
acts in the exercise of judicial functions and duties, particularly in the adjudication of
cases."22

Even granting that the respondent indeed erred in the exercise of her judicial functions,
these are, at best, legal errors correctible not by a disciplinary action, but by judicial
remedies that are readily available to the complainant. "An administrative complaint is not
the appropriate remedy for every irregular or erroneous order or decision issued by a judge
where a judicial remedy is available, such as a motion for reconsideration or an appeal."23
Errors committed by him/her in the exercise of adjudicative functions cannot be corrected
through administrative proceedings but should be assailed instead through judicial
remedies.24

On the Charges of Grave Bias and Partiality

We likewise find the allegations of bias and partiality on the part of the respondent baseless.
The truth about the respondents alleged partiality cannot be determined by simply relying
on the complainants verified complaint. Bias and prejudice cannot be presumed, in light
especially of a judges sacred obligation under his oath of office to administer justice without
respect to the person, and to give equal right to the poor and rich.25 There should be clear
and convincing evidence to prove the charge; mere suspicion of partiality is not enough.26

In the present case, aside from being speculative and judicial in character, the
circumstances cited by the complainant were grounded on mere opinion and surmises. The
complainant, too, failed to adduce proof indicating the respondents predisposition to decide
the case in favor of one party. This kind of evidence would have helped its cause. The bare
allegations of the complainant cannot overturn the presumption that the respondent acted
regularly and impartially. We thus conclude that due to the complainants failure to establish
with clear, solid, and convincing proof, the allegations of bias and partiality must fail.

On the Charges of Grave Incompetence

and Gross Ignorance of the Law

We agree with the findings of the OCA that not every error or mistake of a judge in the
performance of his official duties renders him liable.27 "[A]s a matter of policy, in the
absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are not
subject to disciplinary action even though such acts are erroneous."28

In the present case, what was involved was the respondents application of Section 23, Rule
4 of the Rules, which provides:

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Sec. 23. Approval of the Rehabilitation Plan. - The court may approve a rehabilitation plan
even over the opposition of creditors holding a majority of the total liabilities of the debtor if,
in its judgment, the rehabilitation of the debtor is feasible and the opposition of the creditors
is manifestly unreasonable.29

The respondent approved the rehabilitation plan submitted by Atty. Gabionza, subject to the
modifications she found necessary to make the plan viable. The complainant alleged that in
modifying the plan, she exceeded her authority and effectively usurped the functions of a
rehabilitation receiver. We find, however, that in failing to show that the respondent was
motivated by bad faith or ill motives in rendering the assailed decision, the charge of gross
ignorance of the law against her should be dismissed. "To [rule] otherwise would be to
render judicial office untenable, for no one called upon to try the facts or interpret the law in
the process of administering justice can be infallible in his judgment."30

To constitute gross ignorance of the law, it is not enough that the decision, order or
actuation of the judge in the performance of his official duties is contrary to existing law and
jurisprudence. It must also be proven that he was moved by bad faith, fraud, dishonesty or
corruption31 or had committed an error so egregious that it amounted to bad faith.

In the present case, nothing in the records suggests that the respondent was motivated by
bad faith, fraud, corruption, dishonesty or egregious error in rendering her decision
approving the modified rehabilitation plan. Besides his bare accusations, the complainant
failed to substantiate his allegations with competent proof. Bad faith cannot be presumed32
and this Court cannot conclude that bad faith intervened when none was actually proven.

With respect to the action of the respondent in ordering the creation of a management
committee without first conducting an evidentiary hearing for the purpose, however, we find
the error to be so egregious as to amount to bad faith, leading to the conclusion of gross
ignorance of the law, as charged.

Due process and fair play are basic requirements that no less than the Constitution
demands. In rehabilitation proceedings, the parties must first be given an opportunity to
prove (or disprove) the existence of an imminent danger of dissipation, loss, wastage or
destruction of the debtor-companys assets and properties that are or may be prejudicial to
the interest of minority stockholders, parties-litigants or the general public.33 The
rehabilitation court should hear both sides, allow them to present proof and conscientiously
deliberate, based on their submissions, on whether the appointment of a management
receiver is justified. This is a very basic requirement in every adversarial proceeding that no
judge or magistrate can disregard.

In SCPs rehabilitation proceedings, SCP was not given at all the opportunity to present its
evidence, nor to confront the EPCIB witnesses. Significantly, the CA, in its May 16, 2006
decision, found that the respondents act of denying SCP the opportunity to disprove the
grounds for the appointment of a management committee was tantamount to grave abuse
of discretion. As aptly observed by Justice Gonzales-Sison:

[T]he acts of the respondent judge (Judge Austria) in creating a MANCOM without observing
the procedures prescribed under the IRPGICC clearly constitute grave abuse of discretion
amounting to excess of jurisdiction.34

Indeed, while a judge may not be held liable for gross ignorance of the law for every
erroneous order that he renders, this does not mean that a judge need not observe due care
in the performance of his/her official functions.35 When a basic principle of law is involved
and when an error is so gross and patent, error can produce an inference of bad faith,

20
making the judge liable for gross ignorance of the law.36 On this basis, we conclude that the
respondents act of promptly ordering the creation of a management committee, without the
benefit of a hearing and despite the demand for one, was tantamount to punishable
professional incompetence and gross ignorance of the law.

On the Ground of Failure to Observe

the Reglementary Period

On the respondents failure to observe the reglementary period prescribed by the Rules, we
find the respondents explanation to be satisfactory.

Section 11, Rule 4 of the previous Rules provides:

Sec. 11. Period of the Stay Order. xxx

The petition shall be dismissed if no rehabilitation plan is approved by the court upon the
lapse of one hundred eighty (180) days from the date of the initial hearing. The court may
grant an extension beyond this period only if it appears by convincing and compelling
evidence that the debtor may successfully be rehabilitated. In no instance, however, shall
the period for approving or disapproving a rehabilitation plan exceed eighteen (18) months
from the date of filing of the petition.37

Under this provision, the matter of who would grant the extension beyond the 180-day
period carried a good measure of ambiguity as it did not indicate with particularity whether
the rehabilitation court could act by itself or whether Supreme Court approval was still
required. Only recently was this uncertainty clarified when A.M. No. 00-8-10-SC, the 2008
Rules of Procedure on Corporate Rehabilitation, took effect.

Section 12, Rule 4 of the Rules provides:

Section 12. Period to Decide Petition. - The court shall decide the petition within one (1) year
from the date of filing of the petition, unless the court, for good cause shown, is able to
secure an extension of the period from the Supreme Court.38

Since the new Rules only took effect on January 16, 2009 (long after the respondents
approval of the rehabilitation plan on December 3, 2007), we find no basis to hold the
respondent liable for the extension she granted and for the consequent delay.

On the Ground of Conduct

Unbecoming of a Judge

On the allegation of conduct unbecoming of a judge, Section 6, Canon 6 of the New Code of
Judicial Conduct states that:

SECTION 6. Judges shall maintain order and decorum in all proceedings before the court and
be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with
whom the judge deals in an official capacity. Judges shall require similar conduct of legal
representatives, court staff and others subject to their influence, direction or control.39

A judge should always conduct himself in a manner that would preserve the dignity,
independence and respect for himself/herself, the Court and the Judiciary as a whole. He
must exhibit the hallmark judicial temperament of utmost sobriety and self-restraint.40 He
should choose his words and exercise more caution and control in expressing himself. In
other words, a judge should possess the virtue of gravitas.41

21
As held in De la Cruz (Concerned Citizen of Legazpi City) v. Judge Carretas,42 a judge should
be considerate, courteous and civil to all persons who come to his court; he should always
keep his passion guarded. He can never allow it to run loose and overcome his reason.
Furthermore, a magistrate should not descend to the level of a sharp-tongued, ill-mannered
petty tyrant by uttering harsh words, snide remarks and sarcastic comments.

Similarly in Attys. Guanzon and Montesino v. Judge Rufon,43 the Court declared that
"although respondent judge may attribute his intemperate language to human frailty, his
noble position in the bench nevertheless demands from him courteous speech in and out of
court.

Judges are required to always be temperate, patient and courteous, both in conduct and in
language."

Accordingly, the respondents unnecessary bickering with SCPs legal counsel, her
expressions of exasperation over trivial procedural and negligible lapses, her snide remarks,
as well as her condescending attitude, are conduct that the Court cannot allow. They are
displays of arrogance and air of superiority that the Code abhors.

Records and transcripts of the proceedings bear out that the respondent failed to observe
judicial temperament and to conduct herself irreproachably. She also failed to maintain the
decorum required by the Code and to use temperate language befitting a magistrate. "As a
judge, [she] should ensure that [her] conduct is always above reproach and perceived to be
so by a reasonable observer. [She] must never show conceit or even an appearance thereof,
or any kind of impropriety."44

Section 1, Canon 2 of the New Code of Judicial Conduct states that:

SECTION 1. Judges shall ensure that not only is their conduct above reproach, but that it is
perceived to be so in the view of a reasonable observer.

In these lights, the respondent exhibited conduct unbecoming of a judge and thus violated
Section 6, Canon 6 and Section 1, Canon 2 of the New Code of Judicial Conduct.

On the Ground of Impropriety

We are not unaware of the increasing prevalence of social networking sites in the Internet
a new medium through which more and more Filipinos communicate with each other.45
While judges are not prohibited from becoming members of and from taking part in social
networking activities, we remind them that they do not thereby shed off their status as
judges. They carry with them in cyberspace the same ethical responsibilities and duties that
every judge is expected to follow in his/her everyday activities. It is in this light that we
judge the respondent in the charge of impropriety when she posted her pictures in a manner
viewable by the public.

Lest this rule be misunderstood, the New Code of Judicial Conduct does not prohibit a judge
from joining or maintaining an account in a social networking site such as Friendster. Section
6, Canon 4 of the New Code of Judicial Conduct recognizes that judges, like any other citizen,
are entitled to freedom of expression. This right "includes the freedom to hold opinions
without interference and impart information and ideas through any media regardless of
frontiers."46 Joining a social networking site is an exercise of ones freedom of expression.
The respondent judges act of joining Friendster is, therefore, per se not violative of the New
Code of Judicial Conduct.

22
Section 6, Canon 4 of the New Code of Judicial Conduct, however, also imposes a correlative
restriction on judges: in the exercise of their freedom of expression, they should always
conduct themselves in a manner that preserves the dignity of the judicial office and the
impartiality and independence of the Judiciary.

This rule reflects the general principle of propriety expected of judges in all of their
activities, whether it be in the course of their judicial office or in their personal lives. In
particular, Sections 1 and 2 of Canon 4 of the New Code of Judicial Conduct prohibit
impropriety and even the appearance of impropriety in all of their activities:

SECTION 1. Judges shall avoid impropriety and the appearance of impropriety in all of their
activities.

SECTION 2. As a subject of constant public scrutiny, judges must accept personal restrictions
that might be viewed as burdensome by the ordinary citizen and should do so freely and
willingly. In particular, judges shall conduct themselves in a way that is consistent with the
dignity of the judicial office.

Based on this provision, we hold that the respondent disregarded the propriety and
appearance of propriety required of her when she posted Friendster photos of herself
wearing an "off-shouldered" suggestive dress and made this available for public viewing.

To restate the rule: in communicating and socializing through social networks, judges must
bear in mind that what they communicate regardless of whether it is a personal matter or
part of his or her judicial duties creates and contributes to the peoples opinion not just of
the judge but of the entire Judiciary of which he or she is a part. This is especially true when
the posts the judge makes are viewable not only by his or her family and close friends, but
by acquaintances and the general public.

Thus, it may be acceptable for the respondent to show a picture of herself in the attire she
wore to her family and close friends, but when she made this picture available for public
consumption, she placed herself in a situation where she, and the status she holds as a
judge, may be the object of the publics criticism and ridicule. The nature of cyber
communications, particularly its speedy and wide-scale character, renders this rule
necessary.

We are not also unaware that the respondents act of posting her photos would seem
harmless and inoffensive had this act been done by an ordinary member of the public. As
the visible personification of law and justice, however, judges are held to higher standards of
conduct and thus must accordingly comport themselves.47

This exacting standard applies both to acts involving the judicial office and personal
matters.1wphi1 The very nature of their functions requires behavior under exacting
standards of morality, decency and propriety; both in the performance of their duties and
their daily personal lives, they should be beyond reproach.48 Judges necessarily accept this
standard of conduct when they take their oath of office as magistrates.

Imposable Penalty

Under Section 8, Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, gross
ignorance of the law or procedure is classified as a serious charge. Under Section 11(A) of
the same Rule, a serious charge merits any of the following sanctions:

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may
determine, and disqualification from reinstatement or appointment to any public office,

23
including government-owned or controlled corporations; provided, however, that the
forfeiture of benefits shall in no case include accrued leave credits;

2. Suspension from office without salary and other benefits for more than three (3), but not
exceeding six (6), months; or

3. A fine of more than P20,000.00, but not exceeding P40,000.00.

On the other hand, conduct unbecoming of a judge is classified as a light offense under
Section 10, Rule 140 of the Rules of Court. It is penalized under Section 11(C) thereof by any
of the following: (1) A fine of not less than P1,000.00 but not exceeding P10,000.00; (2)
Censure; (3) Reprimand; and ( 4) Admonition with warning.

Judge Austria's record shows that she had never been administratively charged or found
liable for any wrongdoing in the past. Since this is her first offense, the Court finds it fair and
proper to temper the penalty for her offenses.

WHEREFORE, the Court finds Judge Ma. Cecilia I. Austria guilty of GROSS IGNORANCE OF THE
LAW for which she is FINED Twenty-One Thousand Pesos (P21,000,00). Judge Austria is
likewise hereby ADMONISHED to refrain from further acts of IMPROPRIETY and to refrain from
CONDUCT UNBECOMING OF A JUDGE, with the STERN WARNING that a repetition of the same
or similar acts shall be dealt with more severely.

SO ORDERED.
----

24