Lawyers’ right to privacy is limited, especially when it comes to their social media accounts.
This is according to the Supreme Court of the Philippines, via a 26-page Per Curiam Decision that reprimanded Atty. Morgan Rosales Nicanor (Atty. Nicanor), Atty. Joseph Marion Peña Navarrete (Atty. Navarrete), Atty. Noel V. Antay, Jr. (Atty. Antay), and Atty. Israel P. Calderon (Atty. Calderon), and imposed a PhP25,000 fine on Atty. Ernesto A. Tabujara III (Atty. Tabujara), all for violating Rule 7.03 of the Code of Professional Responsibility. It also came with a warning that a repetition of the same or similar offense will be more severely dealt with.
This case started when – in 2021 – Antay initiated a Facebook conversation with a post stating that he had “(j)ust prosecuted and helped convict a member of the LGBTA community for large scale estafa. The new convict then began cussing at me accusing me of being a bigot. A first for me 😄,” adding: “The judge (who is somewhat effeminate) comes to my defense and warns the felon to behave. All in a day’s work. 😄 😄 😄”
Tabujara commented: “(S)ino yung bakla na judge…(n)aka eye liner and eye shadow pag nag hehearing. Ang taray pa!” Atty. Tabujara later on commented that the joke among lawyers is that in a certain courthouse, “sa 2nd floor puro may sira ulo mga judge, sa baba bakla at mga corrupt.”
Calderon then replied to Antay: “Baka type ka,” later on adding “Nakita n’ya intelligence mo given na good looks eh na convict mo pa s’ya. Tapos syempre di ka mapapasakamay n’ya kaya ayon imbyerna I. [sic]. Charot haha.”
Nicanor agreed: “(F)eel ko type ka bossing. Hehehe.”
Tabujara: “Dapat kinurot mo! Charot!”
Navarrete chimed in, saying that he remembered Nicanor’s client that the latter brought to the Ombudsman: “Pinatawag lang ako ng Prof Morgan Nicanor mga panahon nayan. Tapos bitbit nya kliyente niya. Ang natatandaan ko lang is malagkit tingin kay papa, este Prof. Morgan.”
Antay then posted: “Matikas kasi si Prof. Morgan eh, Habulin.”
In June 2021, the Court motu proprio resolved to require Antay, Tabujara, Calderon, Nicanor, and Navarrete to show cause why no administrative charges should be filed against them for these Facebook posts.
In August 2022, via its Report and Recommendation, the Office of the Bar Confidant (OBC) recommended that these lawyers be admonished, noting that their comments show that the main topic of their online conversation was LGBTQIA community members and judges. For the OBC, although no other names were mentioned, the comments of the five lawyers were made in a degrading and shameful manner, contrary to the duty of lawyers to “conduct themselves with the highest degree of propriety and decorum” and to “refrain from making remarks and conjectures that tend to ridicule a certain segment of the population such as the LGBTQIA+ community.”
The OBC recommended the penalty of admonition, taking into consideration that the lawyers concerned have apologized and appear to be remorseful.
In its decision, the SC first resolved whether the said lawyers can invoke their right to privacy in their online activities. But the court ruled that such right of lawyers to privacy is limited, especially when it concerns their social media accounts.
SC cited the 2016 case of Belo-Henares v. Guevarra, where it was made clear that “there can be no reasonable expectation of privacy as regards social media posts, regardless if the same are ‘locked,’ precisely because the access restriction settings in social media platforms do not absolutely bar other users from obtaining access to the same.”
The court reiterated that restricting the privacy of one’s Facebook posts to “Friends” only does not guarantee absolute protection. As such, it cannot give credence to the invocation of Antay, who started the post, of his right to privacy.
“His excuse—that his social media account is locked and the contents thereof cannot be accessed by outsiders—is a mere allegation at best. Allegations are not proof. Further, the fact that the exchanges leaked means that his social media account is not locked as he claims or that there is a rat amidst them,” stated the Court.
The lawyers were found to have violated Rule 7.03 of the Code of Professional Responsibility, which prohibits lawyers from engaging in conduct that adversely reflects on their fitness to practice law and prohibits them from behaving in a scandalous manner to the discredit of the legal profession. For the SC, inappropriate, disrespectful, and defamatory language of lawyers, even in the private sphere, are still within the Court’s disciplinary authority.
The SC also stressed that members of the legal profession must respect the freedom of LGBTQIA individuals to be themselves and express who they are, as part of their constitutionally guaranteed right to freedom of expression.
The SC similarly reiterated that the Philippines adheres to the internationally-recognized principle of non-discrimination and equality. “As such, every member of the legal profession is bound to observe and abide by them, especially when dealing with LGBTQIA individuals.”
Also, inappropriate, disrespectful, belligerent, or malicious language can be a source of criminal liability under the Safe Spaces Act. “Gender-based sexual harassment ‑ encompassing transphobic and homophobic slurs – in streets and public spaces as well as online, may warrant progressive penalties ranging from community service, fines and imprisonment,” stated the Court.
In the present case, SC found the Facebook posts laced with homophobic undertones, with descriptions of the convict and the judge that are “uncalled for and have no context in the narrative, thus showing gender bias.” These posts were also found to have statements propagating and enforcing an unfair and harmful stereotypes that are not representative of LGBTQIA individuals, and “there is no room for such stereotypes in conversations among lawyers.”
The SC held that Nicanor, Navarrete, Antay, and Calderon should thus be reprimanded for the language they used against the LGBTQIA community, adding that “their fixation on the respective sexual orientations of their subjects was uncalled for and they should be more circumspect in their choice of words and be mindful of gender-fair language.”
The court imposed a heavier penalty on Tabujara, stating that he was also unapologetic, with “no slightest hint of remorse,” that the court found disturbing. “What made his infraction worse…is that Atty. Tabujara III made a sweeping statement about the mental fitness of judges and implied that homosexual judges have the same degree of immorality as those of corrupt judges.”