In the digital age, the unauthorized posting of photos featuring minors has become a prevalent legal and ethical issue in the Philippines. Parents and guardians often find themselves seeking redress when a child’s privacy is compromised. Philippine law provides several layers of protection for minors, ranging from privacy statutes to criminal laws against exploitation.
1. The Right to Privacy and Parental Consent
Under Philippine law, the right to privacy is a protected interest. For minors, this right is primarily exercised through their legal guardians. Generally, any person who publishes or posts an image of a minor on social media or any public platform must obtain the express consent of the parents or legal guardians.
Without this consent, the act may be considered an intrusion into the minor’s privacy and a violation of their personal rights.
2. Applicable Laws and Legal Bases
Several statutes can be invoked when filing charges or seeking legal remedies for the unauthorized posting of a minor's photo:
A. Republic Act No. 10173 (Data Privacy Act of 2012)
The Data Privacy Act (DPA) protects "personal information," which includes any information from which the identity of an individual is apparent. An image of a child is considered personal data.
- Unauthorized Processing: Posting a photo without consent can be classified as unauthorized processing of personal information.
- Penalties: Violators may face imprisonment and substantial fines if the act is proven to have caused harm or if the data was used for malicious purposes.
B. Republic Act No. 7610 (Special Protection of Children Against Abuse, Exploitation and Discrimination Act)
This is one of the most potent laws in the Philippines regarding minors.
- Child Abuse: Under Section 3(b), child abuse includes any act by deeds or words which debases, degrades, or demeans the intrinsic worth and dignity of a child.
- Context Matters: If a photo is posted in a way that mocks, bullies, or exposes the child to public ridicule, it may fall under the definition of child abuse.
C. Republic Act No. 10175 (Cybercrime Prevention Act of 2012)
If the unauthorized posting includes defamatory comments or is intended to damage the child’s or the family’s reputation, it may constitute Cyber Libel.
- Elements: The post must be public, malicious, and identifiable to the minor.
- Penalty: Cyber libel carries a higher penalty than traditional libel because of the use of information and communications technology.
D. Republic Act No. 9995 (Anti-Photo and Video Voyeurism Act of 2009)
If the photo captures the minor in a private act or shows private parts without consent, the perpetrator can be charged under this Act. This applies even if the person who took the photo was originally permitted to do so but did not have permission to distribute or post it.
3. Remedies and Actions to Take
If a minor's photo has been posted without consent, the following steps are typically recommended:
| Action | Description |
|---|---|
| Cease and Desist | Send a formal request or a lawyer's letter to the uploader demanding the immediate removal of the photo. |
| Report to Platform | Use the reporting tools on social media platforms (Facebook, Instagram, TikTok) citing "Privacy Violation" or "Harassment involving a minor." |
| National Privacy Commission (NPC) | File a formal complaint for violation of the Data Privacy Act. |
| Law Enforcement | Report the incident to the PNP Anti-Cybercrime Group (ACG) or the NBI Cybercrime Division for the preservation of evidence and filing of criminal charges. |
| Civil Indemnity | Under the Civil Code, the parents may sue for moral damages for the emotional distress and violation of the child's right to privacy. |
4. Evidentiary Requirements
To successfully pursue a legal case, the complainant must gather:
- Screenshots: Clear captures of the post, including the timestamp, the uploader's profile, and any engagement (likes, shares, comments).
- URL/Link: The direct link to the post or the profile of the individual.
- Proof of Relationship: Birth certificates to prove the minor's age and the complainant's parental authority.
- Affidavits: Sworn statements from witnesses or the parents detailing how the post was discovered and its impact on the child.
5. Important Considerations
- Public Interest vs. Privacy: Philippine courts often weigh the right to privacy against "public interest." However, when minors are involved, the "Best Interests of the Child" principle usually takes precedence, making it difficult for respondents to justify unauthorized postings.
- Intent: While the lack of "malice" is a common defense, the Data Privacy Act focuses on the lack of consent rather than just the intent behind the post.