Privacy Rights of The Deceased


Early last year, social media giant, Facebook, finally created a policy for its deceased users. A legacy contact, or a person designated by the user, can manage his account after his death. He can pin a post on the latter’s timeline, accept friend requests, update his profile picture, or download an archive of photos. What he couldn’t do however, is to read private messages. “We respect the privacy of those contacts. It didn’t make sense to include those messages,” Facebook product manager Vanessa Callison-Burch explained.

In a way, Facebook is being instrumental in the move towards digital estate management, something that is increasingly being popular in many states in the U.S.

Turning to the Philippines, the Data Privacy Act includes provisions that protect the digital privacy rights of deceased persons by providing for the transmissibility of rights of the data subject.

According to the law, the lawful heirs and assigns of the data subject may invoke the rights of the data subject after the latter’s death or incapacity. [1] These rights include being informed of whether personal information pertaining to him shall be or have been processed, being furnished relevant information before his personal information is processed, and reasonable access to the contents, sources, or addresses of such personal information. [2]

This provision, however, challenges the prevailing view that civil and juridical personality is extinguished by death. [3] Given these conflicting views, does the deceased have privacy rights in the digital arena?

Personality extinguished through death

It is settled under civil law that civil and juridical personality is extinguished by death. [4] Therefore, the corpse itself has no personality and no legal rights. Even under the Rules of Court, the estate replaces the person upon death during the pendency of a lawsuit. [5]

The case of the late congressman Iggy Arroyo is illustrative. Shortly after his death, his legal wife, Alicia Rita “Aleli” Arroyo filed a case against Grace Ibuna, Iggy’s common law wife for the custody of his remails. Iggy and Aleli have been estranged since 2006, and he and Aleli have been living together prior to his death. Grace filed another suit claiming her rights over the body by virtue of a last will and testament purportedly signed in California.

While the parties reached a settlement regarding Iggy’s remains, the focal issue is still who, between the legal and the common law wives, have the better right to bury the corpse, with little regard to the wishes of the deceased.

Residual rights of the deceased

Although the Civil Code is clear that civil personality is extinguished by death, still, certain rights and obligations are transmitted to their heirs by law, by contract or by will, giving residual rights to a deceased person. [6]

Prior to death, a person can determine how his funeral shall be conducted and draft a will to whom his properties will be given. The memories of those who passed away are still protected under the Revised Penal Code. Libel can be committed by blackening the memory of a deceased person and his heirs have standing to sue for this crime. [7] The law on trademarks, on the other hand, provides that a mark could not be registered if consists of a portrait of a deceased president of the Philippines, seemingly protecting his privacy and honor. [8]

These residual rights, however, do not extend to his right to privacy. A case decided by the Supreme Court in 2015 illustrates that the writ of habeas data, or the remedy available to a person whose right to privacy in life, liberty or security is violated or threatened is not available to the heirs of a deceased person.

The case of Zarate vs. Aquino III involved a petition for the issuance of a writ of habeas data in favor of several persons, who are allegedly in the target list of the military and are subject to surveillance. The heirs of Crispin Beltran, former Bayan Muna and Anakpawis Party-list Representative, joined the petition to determine what documents are in the possession of state agents.

In ruling that the heirs have no legal standing to file the petition, the Court reasoned that Section 6 of the Rule on the Writ of Habeas Data presuposses that the aggrieved party is still alive. This is because it requires the petitioner to show how the violation of the aggrieved party’s right to privacy of threats of such violation affect the aggrieved party’s right to life, liberty, or security. [9] No such threat can exist if the person already passed away.[10]

The Court’s ruling in Zarate, however, ignores the fact that there could be information that can threaten not only the life and liberty of the person who died, but also of his family members.

Transmissibility of rights of the Data Subject

The ruling of the court in Zarate seems to provide a different view from Section 17 of the Data Privacy Act which provides for the transmissibility, and hence, the preservation, of rights of the data subject. While the Court in Zarate ruled that the right to privacy is only available to a living person, the Data Privacy Act still allows for his heirs to enforce the data rights of a data subject even after his death.

With the enactment of the Data Privacy Act, it seems that the deceased are now granted privacy rights, at least for his individual personal information contained in information and communication systems. Under this provision, Beltran’s heirs would have standing to request for his digital personal information subject to collection by the government, if any.

The problem, however, is on the technicalities. Section 17 is broad in giving this right to “lawful heirs and assigns.” From the foregoing, it is not clear who exactly among them has the right to bring the suit. It could be the surviving spouse, his children, or any other person designated by the deceased. The law is also silent on whether the remedy when the heirs and assigns do not agree on the enforcement of this right.

The provision in the Data Privacy Act has yet to be invoked in a case to test its application, but standing laws and jurisprudence today seem to be a hindrance in protecting the right to privacy of a person after his death.

[1] Section 17, RA 10173, August 15, 2012.

[2] Section 16, RA 10173, August 15, 2012.

[3] Art. 37, 42, Civil Code of the Philippines.

[4] Id.

[5] Section 16, Rule 3, Revised Rules of Civil Procedure.

[6] Article 305, New Civil Code, RA 386, June 18, 1949.

[7] Article 353, Revised Penal Code.

[8] Section 123.1(c), RA 8293, June 6, 1997.

[9] Zarate, et. al. vs. Aquino III, et. al., G.R. No. 220028, November 10, 2015.

[10] The Rule on the Writ of Habeas Data, A.M. No. 08-1-16-SC, January 22, 2008.

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