"Is the act of a person, A, disclosing the mobile number of B, to a third person, without B's consent, considered a violation of RA 10173?"
No, the act of a person A, disclosing the mobile number of B to a third person, without B’s consent , is not considered a violation of RA 10173.
RA 10173, otherwise known as "Data Privacy Act of 2012″ , which was approved on August 15, 2012 by Benigno S. Aquino III, President of the Republic of the Philippines, provides for protection on individual personal information and communication system in the government and private sector.
This is in line with the policy of the State to protect the fundamental right of privacy, and of communication for the free flow of information of the public It is likewise intended to promote innovation and growth of the society as a whole. Information and communications technology is vital in nation-building. In achieving security and protection on the personal information in information and communication systems in the government and in the private sector, RA 10173 comes into being.
RA 10173 specifically defines personal information. “Section 3. (g) Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.”
Is the mobile number of B a personal information as defined in RA 10173 Section 3?
Varied opinions may trigger wide and explosive discussions on this query.
Was the mobile number of B apparently or reasonably and directly ascertain the entity holding that information?
Was the mobile number of B when assessing altogether the information would directly and certainly identify an individual?
These questions can put to a test whether or not the act of a person, A, disclosing the mobile number of B, to a third person, without B's consent constitute a culpable violation of RA 10173.
Was the consent of B necessary in order that anyone can disclose B’s mobile number?
RA 10173 Section 3 further defines consent of the subject data. RA 10173 Section 3 “(b) Consent of the data subject refers to any freely given, specific, informed indication of will, whereby the data subject agrees to the collection and processing of personal information about and/or relating to him or her. Consent shall be evidenced by written, electronic or recorded means. It may also be given on behalf of the data subject by an agent specifically authorized by the data subject to do so.”
RA 10173 Section 3 also defines Data subject . RA 10173 Section 3 “(c) Data subject refers to an individual whose personal information is processed.”
We may ask now, was the mobile number of B freely given to A which was specific and informed indication of will?
Another very important aspect of query is that , is B considered as data subject as defined under RA 10173.
Why all of these too many questions?
If B and all its surrounding circumstances negate the afore-mentioned questions , necessarily , all the attending information does not fall within the purview of RA 10173.
Does the act of a person, A, disclosing the mobile number of B, to a third person, without B's consent, considered as privileged communication?
RA 10173 Section 3 also defines privileged communication . RA 10173 Section 3 “(k) Privileged information refers to any and all forms of data which under the Rules of Court and other pertinent laws constitute privileged communication.”
In THE UNITED STATES vs. SIMEON CAÑETE, ET AL., the Court held that the doctrine of privileged communications rests upon public policy.,
There are instances which afford an immunity to the evil-disposed and malignant slander.
Privilege is either absolute or qualified. Qualified privilege suggests a prima facie privilege which may be lost by proof of malice.
Communications which are bona fide upon any subject matter in which the party communicating has an interest even if it contained criminatory matter which without this privilege is slanderous and actionable.
An example of a qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter.
Statements that are false, when there is probable cause to believe for its truthfulness while the charge is made in good faith, the clout of privilege encompasses the mistake of the individual.
Statements which have been made under an honest sense of duty; any person having an ill motive is destructive. Personal injury is not necessary.
In this case, if A is a public official when addressing to an officer B, would there be probable cause if the mobile number shared to a third person, was made in good faith?
Is the mobile number a sensitive information as defined under RA 10173?
RA 10173 Section 3 also defines sensitive information .
In this case, the mobile number was not specifically enumerated in RA 10173 Section 3. The personal information about an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations does not include mobile number.
The second paragraph of RA 10173 Section 3 provides individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings.
The third paragraph relates to that which is ssued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, and tax returns.
The fourth paragraph points to that which are specifically established by an executive order or an act of Congress to be kept classified.”
RA 10173 Section 3 also provides for the scope of the law.
The law applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines.
The law does not apply to information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual.
Further, the law does not title, business address and office telephone number of the individual.
Moreover, the law does not include the classification, salary range and responsibilities of the position held by the individual.
The name of the individual on a document prepared by the individual in the course of employment with the government is not also included.
The Law specifically excludes information about any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit.
Personal information processed for journalistic, artistic, literary or research purposes.
RA 10173 excludes information necessary in order to carry out the functions of public authority as well as the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions.
Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines are explicitly excluded.
RA 10173 specifically provides under Section 38 with regards to interpretation which states that any doubt in the interpretation of any provision of the law shall be liberally interpreted in a manner mindful of the rights and interests of the individual about whom personal information is processed.
The question is that : is the mobile number of A one of those information processed as enunciated under the Data Privacy Act?
"Is the act of a person, A, disclosing the mobile number of B, to a third person, without B's consent, considered as Unauthorized Disclosure under Section 32 of RA 10173 ?
Is the mobile number of B considered as any personal information as defined in Section 31 of RA 10173 as disclosed to a third party personal information tenable as Malicious Disclosure for it was done with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information?
Is the act of A falls within the purview of RA 10173 Section 29. Unauthorized Access or Intentional Breach?
Is the act of A considered as knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored under RA 10173 Section 29?
Is the act of A covered under RA 10173 Section 28 Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes?
Is the act of A an act of processing of personal information for unauthorized purposes
Is the act of A concstitute as an act punishable under RA 10173 Section 27. Improper Disposal of Personal Information and Sensitive Personal Information?
Is the act of A an improper disposal of personal information which be penalized for knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection.?
Is the act of A punishable under RA 10173 Section 26. Accessing Personal Information and Sensitive Personal Information Due to Negligence?
Is the act of A relates to accessing personal information due to negligence provided access to personal information without being authorized under this Act or any existing law.
Is the act of A punishable under RA 10173 Section 25. Unauthorized Processing of Personal Information and Sensitive Personal Information.?
Is the act of A covered under unauthorized processing of personal information without the consent of the data subject, or without being authorized under this Act or any existing law?
Is the act of A punishable under RA 10173 Section 24. Applicability to Government Contractors?
Is the act of A , an act as entering into any contract that may involve accessing or requiring sensitive personal information that requires a contractor and its employees to register their personal information processing system with the Commission in accordance with this Act and to comply with the other provisions of this Act including the immediately preceding section, in the same manner as agencies and government employees comply with such requirements?
Can RA 10173 Section 17. Transmissibility of Rights of the Data Subject. Be used as cloak of protection by A?
Is A one of the lawful heirs and assigns of the data subject who can invoke the rights of the data subject for, which he or she is an heir or assignee at any time after the death of the data subject or when the data subject is incapacitated or incapable of exercising the rights ?
Is B covered under RA 10173 Section 16. Rights of the Data Subject.?
Is B a data subject who is entitled to b e informed whether personal information pertaining to him or her shall be, are being or have been processed or be furnished the information before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity or that the description of the personal information to be entered into the system .
Is B entitled to the purposes for which they are being or are to be processed and to the scope and method of the personal information processing or to that the recipients or classes of recipients to whom they are or may be disclosed?
Can B legally claim that the methods utilized for automated access, if the same is allowed by the data subject, and the extent to which such access is authorized or that the identity and contact details of the personal information controller or its representative?
Can B hold that the period for which the information will be stored; and the existence of their rights, i.e., to access, correction, as well as the right to lodge a complaint before the Commission.
Can B claim that any information supplied or declaration made to the data subject on these matters shall not be amended without prior notification of data subject: Provided, That the notification under subsection (b) shall not apply should the personal information be needed pursuant to a subpoena or when the collection and processing are for obvious purposes, including when it is necessary for the performance of or in relation to a contract or service or when necessary or desirable in the context of an employer-employee relationship, between the collector and the data subject, or when the information is being collected and processed as a result of legal obligation?
Is B entitled to the reasonable access to, upon demand, the following:
(1) Contents of his or her personal information that were processed;
(2) Sources from which personal information were obtained;
(3) Names and addresses of recipients of the personal information;
(4) Manner by which such data were processed;
(5) Reasons for the disclosure of the personal information to recipients;
(6) Information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the data subject;
(7) Date when his or her personal information concerning the data subject were last accessed and modified; and
(8) The designation, or name or identity and address of the personal information controller;
(d) Dispute the inaccuracy or error in the personal information and have the personal information ?
Can B be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.
Under the rules on statutory construction, what the law does not include is deemed excluded
Further, what the law excludes are deemed not included.
RA 10173 Section 3” (l) Sensitive personal information refers to personal information:
(1) About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations;
(2) About an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings;
(3) Issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, and tax returns; and
(4) Specifically established by an executive order or an act of Congress to be kept classified.”
In THE UNITED STATES vs. SIMEON CAÑETE, ET AL., the Court held that:
“In the case of the United States vs. Bustos (37 Phil. Rep., 731), in which the defendants were charged with libel of a public official for statements made in a petition for his removal addressed to his administrative superior, Mr. Justice Malcolm, writing the opinion of the court, said:
Public policy, the welfare of society, and the orderly administration of government, have demanded protection for public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege.
"The doctrine of privileged communications rests upon public policy, which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slander." (Abbot vs. National Bank of Commerce, Tacoma , 175 U.S., 409, 411.)
Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to qualified privilege, it is as the words suggest a prima facie privilege which may be lost by proof of malice. The rule is thus states by Lord Campbell, C.J.
"A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable." (Harrison vs.Bush, 5 E.& B., 334; 1 Jur. [N. S.], 846; 25 L. J. Q. B., 25 W. R., 474; 85 E. C. L., 344.)
A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. Even when the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the individual. But the statements must be made under an honest sense of duty; a self-seeking motive is destructive. Personal injury is not necessary. All persons have an interest in the pure and efficient administration of justice and of public affairs. The duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in good faith believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere fact that the communication is made in intemperate terms. A further element of the law of privilege concerns the person to whom the complaint should be made. The rule is that if a party applies to the wrong person through some natural and honest mistake as to the respective functions of various officials such unintentional error will not take the case out of the privilege.
In the usual case malice can be presumed from defamatory words. Privilege destroys that presumption. The plaintiff must bring home to the defendant the existence of malice as the true motive of his conduct. Falsehood and the absence of probable cause will amount to proof of malice. (See White vs. Nicholls , 3 How. 266.)
A privileged communication should not be subject to microscopic examination to discover grounds of malice or falsity. Such excessive scrutiny would defeat the protection which the law throws over privileged communications. The ultimate test is that of bona fides.
It is true that the communication in the Bustos case (supra) was addressed to a government official, but the American and British courts have extended the qualified privilege by analogy to include cases like the present, in which a member of a church makes a complaint regarding his minister to their common ecclesiastical superior.