Imagine that you and a select group of only your most intimate friends decided to engage in unbridled but private correspondence in cyberspace. Once into it, your group begins an extensive but private exchange of views and comments, including hateful, discriminatory and threatening remarks directed at others and which one does not ordinarily hear in conventional conversations. In the entire process, you feel secure in the knowledge that what you write is not meant for the knowledge and consumption of others.
Now imagine the nightmare: an anonymous individual who obviously does not like your group hacks your private cyber chat room and thereafter posts on social media the entire litany of your group’s private correspondence for all and sundry to read and talk about.
How will you and your group feel?
Imagine further that your group is summarily condemned on cyberspace because of what is stated in your private cyber correspondence; your other friends are lumped up in one heap with your group and likewise condemned; and an angry, bloodthirsty mob demands that your group admit authorship of the cyber correspondence and apologize for the same.
None of those who condemned your group bothered to note that the privacy of your cyber correspondence was breached without your knowledge and consent.
Meanwhile, the one who caused the breach is basking in anonymity and amusement at your unexpected predicament.
To add insult to injury, the breach of privacy was precisely timed to publicly embarrass your group on the occasion of an important milestone in your lives.
How will you and your group feel?
That is precisely what happened a few weeks ago to the Upsilon Sigma Phi, the oldest Greek-letter student fraternity in the Philippines and in Asia. Based exclusively in the University of the Philippines, the Upsilon had just finished the culminating activity of its centennial year last 18 November.
The private cyber chat room of a batch of young Upsilonians had been hacked. A great deal of its contents is adulterated and eventually exposed in the social media for all to see.
Consequently, everyone who dislikes or envies the Upsilon had a grand time bashing the fraternity and its members.
The biggest irony is that many of those who condemned the private cyber space correspondence spoke of morality but were conveniently oblivious to the fact that a breach of privacy rights took place; that such breach was the reason why the private cyber correspondence ended up in social media and that the breach itself is morally questionable.
Correspondence intended by its authors to be private should remain private. If the private correspondence is revealed to the public without the consent of those involved in the correspondence, then there is an obvious breach of privacy rights and that breach violates ethical standards of moral behavior.
Privacy, according to the Supreme Court, is the cornerstone of all fundamental rights, including free speech and due process. Without privacy rights, the very essence of one’s being cannot be truly appreciated.
From a moral perspective, therefore, the public outrage should be directed not at the private cyber correspondence but at the deliberate and malicious breach of privacy.
Even if, for the sake of argument, the private cyber correspondence is attributed to Upsilonians, the latter are actually the victims because their privacy rights were violated by the hacker. When one’s right is violated, one should not be the one on trial. It is the one who violated the right who should be on trial.
In other words, if there is any explanation to be done, it should be by the one who hacked the private cyber correspondence and posted it on social media.
One will probably argue that the contents of the private cyber correspondence are patently offensive and, for this reason, the persons responsible for the correspondence should be made to explain and apologize or punished.
Not so fast there, please.
Hateful, discriminatory and threatening remarks directed at others are collectively referred to as “hate speech.” Jurisprudence indicates that hate speech, no matter how hateful, is entitled to constitutional protection as long as the hatred is confined to speech or to the private world of the mind. Once the hatred enters the realm of action, however, it loses constitutional protection.
That means the private cyber correspondence, even if posted on social media, cannot be a legal basis for demanding an explanation or apology from its purported authors or for the imposition of punishment.
Is there a moral basis to condemn the purported authors of the private cyber correspondence?
Quite frankly, there is none. To say otherwise is to say that the ends justifies the means. If the ends justifies the means, then we may as well throw away the Bill of Rights enshrined under the Constitution and let mob rule prevail.
It’s time to call a spade a spade. Who does not entertain private thoughts about just about anything under the sun? Should one be condemned for one’s private thoughts?
There will always be men and women with private thoughts about what the Supreme Court refers to as “the glandular promptings of the moment” and, as long as those thoughts remain private, whether in speech or in mind, those men and women cannot be compelled to explain and justify their thoughts before anyone — not to a school principal, college dean, university president, news reporter, policeman or court of law.
A contrary view is unthinkable in a free society. The moment citizens are penalized for what are obviously supposed to be their private thoughts, then freedom as the Constitution had contemplated it to be shall be no more.
When one’s private correspondence is hacked and is posted on social media, does the correspondence cease to be private?
No, it does not. Cyber correspondence intended by its authors to be private, remains private. A hacker’s breach of privacy does not alter the private character of the correspondence. The reckoning standard is the intention of the authors and not the outcome desired by the hacker. Since the right of privacy belongs to the authors of the correspondence, and not to the hacker, the acts of the hacker cannot affect the nature of the private correspondence.
May the alleged authors of the private cyber correspondence in issue be subjected to any civil suit, criminal prosecution or administrative complaint?
Certainly not, because the Constitution mandates that any evidence obtained in violation of the privacy of correspondence shall be inadmissible for any purpose in any proceeding. Since the private cyber correspondence in issue was hacked, and thus obtained in violation of the privacy of correspondence, the private cyber correspondence cannot be evidentiary basis for filing any case against the purported authors. Evidence illegally obtained cannot be used in a legal proceeding.
The language of the Constitution underscores the importance of privacy. From this perspective alone, it will certainly take more than an angry, opinionated mob to compel the purported authors of the private cyber correspondence to explain themselves or to apologize.
In fine, any case to be filed in court in relation to this cyber controversy should not be against any of the purported authors of the private cyber correspondence but against those careless and malicious individuals who joined the anti-Upsilon bashing brigades without reason or justification.
At the end of the day, there are many lessons to be learned from this incident.
First, private cyber correspondence should not be done on an insecure cyber site, not because those involved in the correspondence have no right to do that, but to avoid the annoying consequences that will certainly result if their correspondence is hacked.
Second, the social media phenomenon has created a large community of opinionated individuals who will not hesitate to disseminate their unfounded views and their sweeping conclusions, especially against persons or institutions they dislike, misunderstand, fear or are envious of. Because they are not professional journalists, they have no regard for ethical standards of accuracy, fairness and objectivity. Sadly, they equate freedom of expression to freedom to be irresponsible.
Third, some commentators in the mainstream news media pass off their unfounded views as sound opinions.
Finally, there will always be a sector in Philippine society that will believe what they like to believe and no amount of reason will change their biased dispositions.