The writ of habeas data
by Kathryn Roja G. Raymundo and Kristine Joyce G. Magadia
When government officials are constantly attacking the media for doing their job and even describe journalists as enemies of the state, are journalists the last to know when it comes to the legal remedies available?
No news organization or even any journalist has filed a petition for the writ of habeas data. More than two months after the Supreme Court promulgated the writ, journalists apparently have yet to familiarize themselves with this legal tool, much less appreciate its implications on the practice of journalism.
To test its effectiveness for the media, a media organization or a practitioner should act as the petitioner in a case. Harry Roque, lawyer and a University of the Philippines law professor, suggests that Dana Batnag of the Japanese wire service Jiji Press should file such a suit.
Roque, who is also the counsel for the journalists and media groups that filed a class suit against government officials for the arrest of journalists covering the Nov. 29 Manila Peninsula siege, recalled that Batnag became the subject of news reports when the police alleged that their investigation of the Manila Peninsula incident last year showed that one of the participants, Marine Capt. Nicanor Faeldon, escaped with the help of a female journalist. The journalist was later reported as Batnag. Faeldon, then on trial for involvement in the 2003 Oakwood mutiny, was among the protesters led by former Navy lieutenant, now Sen. Antonio Trillanes IV and a group of soldiers under trial for the alleged mutiny.
Roque said Batnag could demand that the police release information it has about her and her alleged involvement in Faeldon’s escape. The police could have been tracking Batnag and/or observing her movements to locate Faeldon. In this case, the police could have violated her “right to privacy in life, liberty, and security”. Roque said that such a suit would be ideal in testing how the writ of habeas data could be used by journalists as a “shield against intrusions” into press freedom.
Habeas data defined
The Supreme Court describes the writ of habeas data as “a judicial 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.”
The writ protects an individual’s right to privacy by allowing him/her to find out what data or information is being held about him/her and for what use and purpose it is being gathered, collected or stored. The petitioner could demand “the updating, rectification, suppression or destruction of the database or information or files kept” by the respondent. The writ is meant to establish the right to truth, and is especially relevant to those individuals, such as journalists, about whom state agencies compile derogatory information because they are, rightly or wrongly, considered as security risks. Such information can be and has been used to include people in military “orders of battle” and to label them without giving them the chance to question the information and to defend themselves.
Together with the writ of amparo and writ of habeas corpus, the High Court sees the writ of habeas data as a tool to address extrajudicial killings and enforced disappearances in the country. Promulgated last Feb. 2, the writ also entitles the families of victims of such killings and disappearances to know the circumstances behind the fate of their relatives. It compels government agencies to release information and allow access to official records otherwise closed to the victims.
Habeas data is the youngest of the three writs. It originated in the 1981 Council of Europe 108th Convention on Data Protection. The council aims to create defenses for individual privacy through the protection and regulation of personal data. Several Latin American countries like Brazil and Colombia also use the writ to protect individuals against human rights abuses.
Using the writ
Due to the relative newness of the writ, questions on its provisions and use have been many. PJR Reports interviewed several news media practitioners from print, TV, and online. While all the interviewees were aware of the writ of habeas data, most of them chose not to comment on the provisions of the writ and its effect on journalistic practice because of their limited understanding of the writ.
The writ of habeas data, as literally translated from Latin, means “you should have the data.” The information that could be retrieved using the writ is limited to the protection of the right to privacy, which is a personal right. Only the aggrieved person —or in cases of extrajudicial killings and disappearances, members of the family—may file petitions for the writ.
Roque said that a journalist can use the writ by cooperating with a person (or a family member of the victim) s/he is writing about, since that person can compel the source to release information. The person or relative could then choose to share the information with the media.
In cases where journalists would like to gather data beyond what the writ could provide, they can file a petition for a writ of mandamus which is considered a general remedy for access to information, said Roque.
A threat to press freedom?
As investigations surrounding impunity, increasing human rights violations, and exacting accountability from government authorities begin to catch the public’s attention, concerned groups see the writ of habeas data as another welcome development in the effort to bring these problems to a close.
Mass media in particular are affected by this newest remedy offered by the High Court to the burgeoning human rights problem.
Last Feb. 4, however, one report claimed that the writ of habeas data could work against the interests of journalists. The writ could hinder the daily tasks of journalists to search for or gather data, tap official and unofficial sources for information, and investigate the misdeeds of government officials, said journalist Aries Rufo.
In “Can Writ of Habeas Data Stifle Media?,” the Newsbreak reporter wrote that “While the writ of habeas data does not prevent the gathering of information per se and covers only the collection and dissemination of ‘erroneous’ data, the possibility exists that it can be abused, especially by government officials, to prevent journalists from conducting lifestyle checks or investigations on corrupt practices (http://www. newsbreak.com.ph/index.php?option= com_content&task= view&id=4139&Itemid =88889005).”
Roque does not share Rufo’s reservations. The writ is meant to protect the rights of the individual against the state and existing jurisprudence upholds protecting the work of journalists in matters of public interest. He added that, in the first place, unlike state agencies like the police and military intelligence, it is not the function of journalists to store or withhold information, thus disqualifying them as possible respondents in a habeas data case.
The rules on the writ of habeas data also recognize the limitations of the information that could be demanded from a respondent. A provision of the writ specifies “lawful defenses (against the writ) such as national security, state secrets, privileged communication, confidentiality of the source of information of media, and others (emphasis by PJR Reports).” The media are therefore protected by existing laws, among them the Shield Law (Republic Act 1477) which protects the confidentiality of their sources.
The role of journalists in information dissemination is also enshrined in the Bill of Rights of the 1987 Philippine Constitution. Article III, Section 4 of the Constitution states “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances (emphasis by PJR Reports).”
The writ itself is thus not a threat to press freedom, but a tool for exacting accountability. As journalists report on what the government is doing, the government compiles information on journalists, which may be accurate or otherwise. The journalist’s best defense is to be ethical and professional, thus preempting any use of the writ against his or her right to practice his or her profession. |
