From SyCip Salazar Hernandez & Gatmaitan's Employment & Immigration Update 2012 3Q.
The constitutional right to privacy was discussed in the decision promulgated on 18 October 2011 by the Philippine Supreme Court (SC) in the case of Briccio “Ricky” A. Pollo v. Chairperson Karina Constantino-David, et al. (G.R. No. 181881), which involved a search of an office computer assigned to a government employee who was charged administratively and eventually dismissed from the service and where the employee’s personal files stored in the computer were used by the government employer as evidence of misconduct.
The majority of the SC, composed of eleven justices headed by Associate Justice Martin S. Villarama, Jr. as the ponente, upheld the government employer’s policy of no expectation of privacy and waiver of privacy rights that put its employees on notice that they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the government employer may monitor the use of the computer resources using both automated or human means which implies that on-the-spot inspections may be done to ensure that the computer resources were used only for legitimate business purposes.
On the other hand, Associate Justice Lucas P. Bersamin (joined by three other justices) submitted a concurring and dissenting opinion which, while upholding the legality of the government employer’s policy, held that the government employee concerned was entitled to a reasonable expectation of privacy in respect of the communications created, stored, sent or received after office hours through the office computer as to which he must be protected, considering that OM No. 10 (the office memorandum containing the government employer’s policy) contained an exception that actually gave the employee concerned privileged access to the Internet for knowledge search, information exchange, and others; and has explicitly allowed him to use the office’s computer resources for personal purposes after office hours, such that he could rightfully invoke the constitutional protection to the privacy of his communication and correspondence.
Regarding the impact of technological changes to the right of privacy, Justice Bersamin voiced his apprehension that the majority ruling about the decreased expectation of privacy in the workplace may generate an unwanted implication for employers in general to henceforth consider themselves authorized, without risking a collision with the constitutionally-protected right to privacy, to probe and pry into communications made during work hours by their employees through the use of their computers and other digital instruments of communication. Thus, the employers may possibly begin to monitor their employees’ phone calls, to screen incoming and outgoing emails, to capture queries made through any of the Internet’s efficient search engines (like Google), or to censor visited websites (like Yahoo, Facebook or Twitter) in the avowed interest of ensuring productivity and supervising use of business resources, which will be unfortunate.
Justice Bersamin voted to deny the petition subject to the qualification that the employee’s right to privacy should be respected as to the files created, stored, sent or received after office hours; and to the further qualification that the decision be held to apply pro hac vice (“for this one particular occasion”).