Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user, x x x, manifest the intention to keep certain posts private, through the employment of measures to prevent access thereto or to limit its visibility. x x x setting a post’s or profile detail’s 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. -SC
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 user’s "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 user’s profile31 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 user’s information, these privacy settings are not foolproof."33
For instance, a Facebook user canregulate the visibility and accessibility of digital images (photos), posted on his or her personal bulletin or "wall," except for the user’sprofile 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 user’s Facebook friends and their friends can view the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of the Facebook user; and
(d) 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 user’s 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 one’s 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 user’s particular post.
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 whomthey 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 inall 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 keepcertain 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 OSN’s privacy tools. In other words, utilization of these privacy tools is the manifestation,in cyber world, of the user’s 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 orprofile detail should not be denied the informational privacy right which necessarily accompanies said choice. 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 photo’s 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.
APPLICATION
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 suchwere 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 suchas 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
That the photos are viewable by "friends only" does not necessarily bolster the petitioners’ contention.
It is well to emphasize at this point that setting a post’s or profile detail’s 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 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 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, A’s Facebook friend, tags B in A’s post, which is set at "Friends," the initial audience of 100 (A’s own Facebook friends) is dramatically increased to 300 (A’s 100 friends plus B’s 200 friends or the public, depending upon B’s 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 Facebook’s 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.
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It is important to note, however, that the case does not apply to posts made within a private group.