G.R. No.
202666 September 29, 2014 Upon discovery, Escudero reported the matter and, through
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID
SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and
JOHN DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since
participation in society is an equally powerful desire. Thus each
individual is continually engaged in a personal adjustment
process in which he balances the desire for privacy with the
desire for disclosure and communication of himself to others,
in light of the environmental conditions and social norms set
by the society in which he lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45
of the Rules of Court, in relation to Section 19 of A.M. No. 08-1-
16-SC,1 otherwise known as the "Rule on the Writ of Habeas
Data." Petitioners herein assail the July 27, 2012 Decision 2 of
the Regional Trial Court, Branch 14 in Cebu City (RTC) in SP.
Proc. No. 19251-CEB, which dismissed their habeas data
petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne),
both minors, were, during the period material, graduating high
school students at St. Theresa's College (STC), Cebu City.
Sometime in January 2012, while changing into their swimsuits
for a beach party they were about to attend, Julia and Julienne,
along with several others, took digital pictures of themselves
clad only in their undergarments. These pictures were then
uploaded by Angela Lindsay Tan (Angela) on her
Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a
computer teacher at STC’s high school department, learned
from her students that some seniors at STC posted pictures
online, depicting themselves from the waist up, dressed only in
brassieres. Escudero then asked her students if they knew who
the girls in the photos are. In turn, they readily identified Julia,
Julienne, and Chloe Lourdes Taboada (Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their
respective personal Facebook accounts and showed her photos
of the identified students, which include: (a) Julia and Julienne
drinking hard liquor and smoking cigarettes inside a bar; and
(b) Julia and Julienne along the streets of Cebu wearing articles
of clothing that show virtually the entirety of their black
brassieres. What is more, Escudero’s students claimed that
there were times when access to or the availability of the
identified students’ photos was not confined to the girls’
Facebook friends,4but were, in fact, viewable by any Facebook
user.5
one of her student’s Facebook page, showed the photosto
Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for
appropriate action. Thereafter, following an investigation, STC
found the identified students to have deported themselves in a
manner proscribed by the school’s Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school
campus;
2. Engaging in immoral, indecent, obscene or lewd
acts;
3. Smoking and drinking alcoholicbeverages in
public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour;
depicts obscenity; contains sexually suggestive
messages, language or symbols; and 6. Posing and
uploading pictures on the Internet that entail ample
body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other
students in the pictures in question, reported, as required, to
the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STC’s
high school principal and ICM6 Directress. They claimed that
during the meeting, they were castigated and verbally abused
by the STC officials present in the conference, including
Assistant Principal Mussolini S. Yap (Yap), Roswinda Jumiller,
and Tigol. What is more, Sr. Purisima informed their parents
the following day that, as part of their penalty, they are barred
from joining the commencement exercises scheduled on March
30, 2012.
A week before graduation, or on March 23, 2012, Angela’s
mother, Dr. Armenia M. Tan (Tan), filed a Petition for Injunction
and Damages before the RTC of Cebu City against STC, et al.,
docketed as Civil Case No. CEB-38594. 7In it, Tan prayed that
defendants therein be enjoined from implementing the
sanction that precluded Angela from joining the
commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares),
the mother of Julia, joined the fray as an intervenor. On March
28, 2012, defendants inCivil Case No. CEB-38594 filed their
memorandum, containing printed copies of the photographs in
issue as annexes. That same day, the RTC issued a temporary
restraining order (TRO) allowing the students to attend the
graduation ceremony, to which STC filed a motion for
reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the
sanctioned students from participating in the graduation rites,
arguing that, on the date of the commencement exercises, its
adverted motion for reconsideration on the issuance ofthe TRO
remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the
Issuance of a Writ of Habeas Data, docketed as SP. Proc. No.
19251-CEB8 on the basis of the following considerations:
 1. The photos of their children in their
undergarments (e.g., bra) were taken for posterity
before they changed into their swimsuits on the
occasion of a birthday beach party;
2. The privacy setting of their children’s Facebook
accounts was set at "Friends Only." They, thus, have a
reasonable expectation of privacy which must be
respected.
On July 27, 2012, the RTC rendered a Decision dismissing the
petition for habeas data. The dispositive portion of the Decision
pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is
hereby DISMISSED.
The parties and media must observe the aforestated
confidentiality.

3. Respondents, being involved in the field of

xxxx
education, knew or ought to have known of laws that
safeguard the right to privacy. Corollarily,
respondents knew or ought to have known that the SO ORDERED.9
girls, whose privacy has been invaded, are the
victims in this case, and not the offenders. Worse,
To the trial court, petitioners failed to prove the existence of an
after viewing the photos, the minors were called
actual or threatened violation of the minors’ right to privacy,
"immoral" and were punished outright;
one of the preconditions for the issuance of the writ of habeas
data. Moreover, the court a quoheld that the photos, having
4. The photos accessed belong to the girls and, thus, been uploaded on Facebook without restrictions as to who may
cannot be used and reproduced without their view them, lost their privacy in some way. Besides, the RTC
consent. Escudero, however, violated their rights by noted, STC gathered the photographs through legal means and
saving digital copies of the photos and by for a legal purpose, that is, the implementation of the school’s
subsequently showing them to STC’s officials. Thus, policies and rules on discipline.
the Facebook accounts of petitioners’ children were
intruded upon;
Not satisfied with the outcome, petitioners now come before
this Court pursuant to Section 19 of the Rule on Habeas Data. 10
5. The intrusion into the Facebook accounts, as well
as the copying of information, data, and digital
The Issues
images happened at STC’s Computer Laboratory;
and
The main issue to be threshed out inthis case is whether or not
a writ of habeas datashould be issued given the factual milieu.
6. All the data and digital images that were extracted
Crucial in resolving the controversy, however, is the pivotal
were boldly broadcasted by respondents through
point of whether or not there was indeed an actual or
their memorandum submitted to the RTC in
threatened violation of the right to privacy in the life, liberty, or
connection with Civil Case No. CEB-38594. To
security of the minors involved in this case.
petitioners, the interplay of the foregoing constitutes
an invasion of their children’s privacy and, thus,
prayed that: (a) a writ of habeas databe issued; (b) Our Ruling
respondents be ordered to surrender and deposit
with the court all soft and printed copies of the
We find no merit in the petition.
subjectdata before or at the preliminary hearing;
and (c) after trial, judgment be rendered declaring
all information, data, and digital images accessed, Procedural issues concerning the availability of the Writ of
saved or stored, reproduced, spread and used, to Habeas Data
have been illegally obtained inviolation of the
children’s right to privacy. The writ of habeas datais a remedy available to any person
whose right to privacy in life, liberty or security is violated or
Finding the petition sufficient in form and substance, the RTC, threatened by an unlawful act or omission of a public official or
through an Order dated July 5, 2012, issued the writ of habeas employee, or of a private individual or entity engaged in the
data. Through the same Order, herein respondents were gathering, collecting or storing of data or information
directed to file their verified written return, together with the regarding the person, family, home and correspondence of the
supporting affidavits, within five (5) working days from service aggrieved party.11 It is an independent and summary remedy
of the writ. designed to protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a forum
to enforce one’s right to the truth and to informational privacy.
In time, respondents complied with the RTC’s directive and
It seeks to protect a person’s right to control information
filed their verified written return, laying down the following
regarding oneself, particularly in instances in which such
grounds for the denial of the petition, viz: (a) petitioners are
information is being collected through unlawful means in order
not the proper parties to file the petition; (b) petitioners are
to achieve unlawful ends.12
engaging in forum shopping; (c) the instant case is not one
where a writ of habeas data may issue;and (d) there can be no
violation of their right to privacy as there is no reasonable In developing the writ of habeas data, the Court aimed to
expectation of privacy on Facebook. protect an individual’s right to informational privacy, among
others. A comparative law scholar has, in fact, defined habeas
dataas "a procedure designed to safeguard individual freedom
Ruling of the Regional Trial Court
from abuse in the information age." 13 The writ, however, will
not issue on the basis merely of an alleged unauthorized access
to information about a person.Availment of the writ requires
the existence of a nexus between the right to privacy on the one
hand, and the right to life, liberty or security on the
other.14 Thus, the existence of a person’s right to informational
privacy and a showing, at least by substantial evidence, of an
actual or threatened violation of the right to privacy in life,
liberty or security of the victim are indispensable before the
privilege of the writ may be extended.15
Without an actionable entitlement in the first place to the right
to informational privacy, a habeas datapetition will not prosper.
Viewed from the perspective of the case at bar,this requisite
begs this question: given the nature of an online social network
(OSN)––(1) that it facilitates and promotes real-time
interaction among millions, if not billions, of users, sans the
spatial barriers,16 bridging the gap created by physical space;
and (2) that any information uploaded in OSNs leavesan
indelible trace in the provider’s databases, which are outside
the control of the end-users––is there a right to informational
privacy in OSN activities of its users? Before addressing this
point, We must first resolve the procedural issues in this case.
a. The writ of habeas data is not only confined to cases of
extralegal killings and enforced disappearances
Contrary to respondents’ submission, the Writ of Habeas
Datawas not enacted solely for the purpose of complementing
the Writ of Amparoin cases of extralegal killings and enforced
disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. – Any aggrieved party may file a petition
for the writ of habeas data. However, in cases of extralegal
killings and enforced disappearances, the petition may be filed
by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse, children and
parents; or
(b) Any ascendant, descendant or collateral relative
of the aggrieved party within the fourth civil
degreeof consanguinity or affinity, in default of those
mentioned in the preceding paragraph. (emphasis
supplied)
Had the framers of the Rule intended to narrow the operation
of the writ only to cases of extralegal killings or enforced
disappearances, the above underscored portion of Section 2,
reflecting a variance of habeas data situations, would not have
been made.
Habeas data, to stress, was designed "to safeguard individual
freedom from abuse in the information age." 17 As such, it is
erroneous to limit its applicability to extralegal killings and
enforced disappearances only. In fact, the annotations to the
Rule preparedby the Committee on the Revision of the Rules of
Court, after explaining that the Writ of Habeas Data
complements the Writ of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an
independent remedy to enforce one’s right to privacy, more
specifically the right to informational privacy. The remedies
against the violation of such right can include the updating,
rectification, suppression or destruction of the database or
information or files in possession or in control of
respondents.18 (emphasis Ours) Clearly then, the privilege of
the Writ of Habeas Datamay also be availed of in cases outside
of extralegal killings and enforced disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing
of data or information
Respondents’ contention that the habeas data writ may not
issue against STC, it not being an entity engaged in the
gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the
aggrieved party, while valid to a point, is, nonetheless,
erroneous.
To be sure, nothing in the Rule would suggest that the habeas
data protection shall be available only against abuses of a
person or entity engaged in the businessof gathering, storing,
and collecting of data. As provided under Section 1 of the Rule:
Section 1. Habeas Data. – The writ of habeas datais a 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. (emphasis
Ours)
The provision, when taken in its proper context, as a whole,
irresistibly conveys the idea that habeas data is a protection
against unlawful acts or omissions of public officials and of
private individuals or entities engaged in gathering, collecting,
or storing data about the aggrieved party and his or her
correspondences, or about his or her family. Such individual or
entity need not be in the business of collecting or storing data.
To "engage" in something is different from undertaking a
business endeavour. To "engage" means "to do or take part in
something."19 It does not necessarily mean that the activity
must be done in pursuit of a business. What matters is that the
person or entity must be gathering, collecting or storing said
data or information about the aggrieved party or his or her
family. Whether such undertaking carries the element of
regularity, as when one pursues a business, and is in the nature
of a personal endeavour, for any other reason or even for no
reason at all, is immaterial and such will not prevent the writ
from getting to said person or entity.
To agree with respondents’ above argument, would mean
unduly limiting the reach of the writ to a very small group, i.e.,
private persons and entities whose business is data gathering
and storage, and in the process decreasing the effectiveness of
the writ asan instrument designed to protect a right which is
easily violated in view of rapid advancements in the
information and communications technology––a right which a
great majority of the users of technology themselves are not
capable of protecting.
Having resolved the procedural aspect of the case, We now
proceed to the core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with
technological advancements having an influential part therein.
This evolution was briefly recounted in former Chief Justice
Reynato S. Puno’s speech, The Common Right to
Privacy,20 where he explained the three strands of the right to
privacy, viz: (1) locational or situational privacy; 21(2)
informational privacy; and (3) decisional privacy. 22 Of the three,
what is relevant to the case at bar is the right to informational
privacy––usually defined as the right of individuals to control
information about themselves. 23
With the availability of numerous avenues for information
gathering and data sharing nowadays, not to mention each
system’s inherent vulnerability to attacks and intrusions, there
is more reason that every individual’s right to control said flow
of information should be protected and that each individual
should have at least a reasonable expectation of privacy in
cyberspace. Several commentators regarding privacy and social
networking sites, however, all agree that given the millions of
OSN users, "[i]n this [Social Networking] environment, privacy
is no longer grounded in reasonable expectations, but rather in
some theoretical protocol better known as wishful thinking." 24
It is due to this notion that the Court saw the pressing need to
provide for judicial remedies that would allow a summary
hearing of the unlawful use of data or information and to
remedy possible violations of the right to privacy. 25 In the same
vein, the South African High Court, in its Decision in the
landmark case, H v. W,26promulgated on January30, 2013,
recognized that "[t]he law has to take into account the changing
realities not only technologically but also socially or else it will
lose credibility in the eyes of the people. x x x It is imperative
that the courts respond appropriately to changing times, acting
cautiously and with wisdom." Consistent with this, the Court,
by developing what may be viewed as the Philippine model of
the writ of habeas data, in effect, recognized that, generally
speaking, having an expectation of informational privacy is not
necessarily incompatible with engaging in cyberspace
activities, including those that occur in OSNs.
The question now though is up to whatextent is the right to
privacy protected in OSNs? Bear in mind that informational
privacy involves personal information. At the same time, the
very purpose of OSNs is socializing––sharing a myriad of
information,27 some of which would have otherwise remained
personal.
b. Facebook’s Privacy Tools: a response to the clamor for
privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the
ability to interact and to stay connected to other members of
the same or different social media platform through the
sharing of statuses, photos, videos, among others, depending
on the services provided by the site. It is akin to having a room
filled with millions of personal bulletin boards or "walls," the
contents of which are under the control of each and every user.
In his or her bulletin board, a user/owner can post anything––
from text, to pictures, to music and videos––access to which
would depend on whether he or she allows one, some or all of
the other users to see his or her posts. Since gaining popularity,
the OSN phenomenon has paved the way to the creation of
various social networking sites, includingthe one involved in
the case at bar, www.facebook.com (Facebook), which,
according to its developers, people use "to stay connected with
friends and family, to discover what’s going on in the world,
and to share and express what matters to them."28
Facebook connections are established through the process of
"friending" another user. By sending a "friend request," the
user invites another to connect their accounts so that they can
view any and all "Public" and "Friends Only" posts of the
other.Once the request is accepted, the link is established and
both users are permitted to view the other user’s "Public" or
"Friends Only" posts, among others. "Friending," therefore,
allows the user to form or maintain one-to-one relationships
with other users, whereby the user gives his or her "Facebook
friend" access to his or her profile and shares certain
information to the latter.29
To address concerns about privacy, 30 but without defeating its
purpose, Facebook was armed with different privacy tools
designed to regulate the accessibility of a user’s profile 31 as well
as information uploaded by the user. In H v. W, 32 the South
Gauteng High Court recognized this ability of the users to
"customize their privacy settings," but did so with this caveat:
"Facebook states in its policies that, although it makes every
effort to protect a user’s information, these privacy settings are
not foolproof."33
For instance, a Facebook user canregulate the visibility and
accessibility of digital images(photos), posted on his or her
personal bulletin or "wall," except for the user’sprofile picture
and ID, by selecting his or her desired privacy setting:
(a) Public - the default setting; every Facebook user
can view the photo;
(b) Friends of Friends - only the user’s Facebook
friends and their friends can view the photo;
(b) Friends - only the user’s Facebook friends can
view the photo;
(c) Custom - the photo is made visible only to
particular friends and/or networks of the Facebook
user; and
(d) Only Me - the digital image can be viewed only by
the user.
The foregoing are privacy tools, available to Facebook users,
designed to set up barriers to broaden or limit the visibility of
his or her specific profile content, statuses, and photos, among
others, from another user’s point of view. In other words,
Facebook extends its users an avenue to make the availability
of their Facebook activities reflect their choice as to "when and
to what extent to disclose facts about [themselves] – and to put
others in the position of receiving such confidences." 34 Ideally,
the selected setting will be based on one’s desire to interact
with others, coupled with the opposing need to withhold
certain information as well as to regulate the spreading of his
or her personal information. Needless to say, as the privacy Angelawho uploaded the subjectphotos which were only
setting becomes more limiting, fewer Facebook users can view viewable by the five of them,40 although who these five are do
that user’s particular post. not appear on the records.

STC did not violate petitioners’ daughters’ right to privacy
Without these privacy settings, respondents’ contention that
there is no reasonable expectation of privacy in Facebook
would, in context, be correct. However, such is not the case. It is
through the availability of said privacy tools that many OSN
users are said to have a subjective expectation that only those
to whomthey grant access to their profile will view the
information they post or upload thereto. 35
This, however, does not mean thatany Facebook user
automatically has a protected expectation of privacy inall of his
or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN
activity, it is first necessary that said user, in this case the
children of petitioners,manifest the intention to keepcertain
posts private, through the employment of measures to prevent
access thereto or to limit its visibility. 36 And this intention can
materialize in cyberspace through the utilization of the OSN’s
privacy tools. In other words, utilization of these privacy tools
is the manifestation,in cyber world, of the user’s invocation of
his or her right to informational privacy. 37
Therefore, a Facebook user who opts to make use of a privacy
tool to grant or deny access to his or her post orprofile detail
should not be denied the informational privacy right which
necessarily accompanies said choice. 38Otherwise, using these
privacy tools would be a feckless exercise, such that if, for
instance, a user uploads a photo or any personal information to
his or her Facebook page and sets its privacy level at "Only Me"
or a custom list so that only the user or a chosen few can view
it, said photo would still be deemed public by the courts as if
the user never chose to limit the photo’s visibility and
accessibility. Such position, if adopted, will not only strip these
privacy tools of their function but it would also disregard the
very intention of the user to keep said photo or information
within the confines of his or her private space.
Escudero, on the other hand, stated in her affidavit 41 that "my
students showed me some pictures of girls cladin brassieres.
This student [sic] of mine informed me that these are senior
high school [students] of STC, who are their friends in
[F]acebook. x x x They then said [that] there are still many
other photos posted on the Facebook accounts of these girls. At
the computer lab, these students then logged into their
Facebook account [sic], and accessed from there the various
photographs x x x. They even told me that there had been times
when these photos were ‘public’ i.e., not confined to their
friends in Facebook."
In this regard, We cannot give muchweight to the minors’
testimonies for one key reason: failure to question the
students’ act of showing the photos to Tigol disproves their
allegation that the photos were viewable only by the five of
them. Without any evidence to corroborate their statement
that the images were visible only to the five of them, and
without their challenging Escudero’s claim that the other
students were able to view the photos, their statements are, at
best, self-serving, thus deserving scant consideration. 42
It is well to note that not one of petitioners disputed Escudero’s
sworn account that her students, who are the minors’ Facebook
"friends," showed her the photos using their own Facebook
accounts. This only goes to show that no special means to be
able to viewthe allegedly private posts were ever resorted to by
Escudero’s students,43 and that it is reasonable to assume,
therefore, that the photos were, in reality, viewable either by
(1) their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts
is"Public," it can be surmised that the photographs in question
were viewable to everyone on Facebook, absent any proof that
petitioners’ children positively limited the disclosure of the
photograph. If suchwere the case, they cannot invoke the
protection attached to the right to informational privacy. The
ensuing pronouncement in US v. Gines-Perez 44 is most
instructive:

We must now determine the extent that the images in question

[A] person who places a photograph on the Internet precisely
were visible to other Facebook users and whether the
intends to forsake and renounce all privacy rights to such
disclosure was confidential in nature. In other words, did the
imagery, particularly under circumstances suchas here, where
minors limit the disclosure of the photos such that the images
the Defendant did not employ protective measures or devices
were kept within their zones of privacy? This determination is
that would have controlled access to the Web page or the
necessary in resolving the issue of whether the minors carved
photograph itself.45
out a zone of privacy when the photos were uploaded to
Facebook so that the images will be protected against
unauthorized access and disclosure. Also, United States v. Maxwell 46 held that "[t]he more open the
method of transmission is, the less privacy one can reasonably
expect. Messages sent to the public at large inthe chat room or
Petitioners, in support of their thesis about their children’s
e-mail that is forwarded from correspondent to correspondent
privacy right being violated, insist that Escudero intruded upon
loses any semblance of privacy."
their children’s Facebook accounts, downloaded copies ofthe
pictures and showed said photos to Tigol. To them, this was a
breach of the minors’ privacy since their Facebook accounts, That the photos are viewable by "friends only" does not
allegedly, were under "very private" or "Only Friends" setting necessarily bolster the petitioners’ contention. In this regard,
safeguarded with a password. 39 Ultimately, they posit that their the cyber community is agreed that the digital images under
children’s disclosure was only limited since their profiles were this setting still remain to be outside the confines of the zones
not open to public viewing. Therefore, according to them, of privacy in view of the following:
people who are not their Facebook friends, including
respondents, are barred from accessing said post without their
knowledge and consent. Aspetitioner’s children testified, it was
 (1) Facebook "allows the world to be more open and
connected by giving its users the tools to interact
and share in any conceivable way;" 47
(2) A good number of Facebook users "befriend"
other users who are total strangers;48
(3) The sheer number of "Friends" one user has,
usually by the hundreds; and
(4) A user’s Facebook friend can "share" 49 the
former’s post, or "tag"50 others who are not
Facebook friends with the former, despite its being
visible only tohis or her own Facebook friends.
It is well to emphasize at this point that setting a post’s or
profile detail’s privacy to "Friends" is no assurance that it can
no longer be viewed by another user who is not Facebook
friends with the source of the content. The user’s own
Facebook friend can share said content or tag his or her own
Facebook friend thereto, regardless of whether the user tagged
by the latter is Facebook friends or not with the former. Also,
when the post is shared or when a person is tagged, the
respective Facebook friends of the person who shared the post
or who was tagged can view the post, the privacy setting of
which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has
200. A and B are not Facebook friends. If C, A’s Facebook friend,
tags B in A’s post, which is set at "Friends," the initial audience
of 100 (A’s own Facebook friends) is dramatically increased to
300 (A’s 100 friends plus B’s 200 friends or the public,
depending upon B’s privacy setting). As a result, the audience
who can view the post is effectively expanded––and to a very
large extent.
This, along with its other features and uses, is confirmation of
Facebook’s proclivity towards user interaction and
socialization rather than seclusion or privacy, as it encourages
broadcasting of individual user posts. In fact, it has been said
that OSNs have facilitated their users’ self-tribute, thereby
resulting into the "democratization of fame." 51Thus, it is
suggested, that a profile, or even a post, with visibility set at
"Friends Only" cannot easily, more so automatically, be said to
be "very private," contrary to petitioners’ argument.
As applied, even assuming that the photos in issue are visible
only to the sanctioned students’ Facebook friends, respondent
STC can hardly be taken to task for the perceived privacy
invasion since it was the minors’ Facebook friends who showed
the pictures to Tigol. Respondents were mere recipients of
what were posted. They did not resort to any unlawful means
of gathering the information as it was voluntarily given to them
by persons who had legitimate access to the said posts. Clearly,
the fault, if any, lies with the friends of the minors. Curiously
enough, however, neither the minors nor their parents imputed
any violation of privacy against the students who showed the
images to Escudero.
Furthermore, petitioners failed to prove their contention that
respondents reproduced and broadcasted the photographs. In
fact, what petitioners attributed to respondents as an act of
offensive disclosure was no more than the actuality that
respondents appended said photographs in their memorandum
submitted to the trial court in connection with Civil Case No.
CEB-38594.52 These are not tantamount to a violation of the
minor’s informational privacy rights, contrary to petitioners’
assertion.
In sum, there can be no quibbling that the images in question,
or to be more precise, the photos of minor students scantily
clad, are personal in nature, likely to affect, if indiscriminately
circulated, the reputation of the minors enrolled in a
conservative institution. However, the records are bereft of any
evidence, other than bare assertions that they utilized
Facebook’s privacy settings to make the photos visible only to
them or to a select few. Without proof that they placed the
photographs subject of this case within the ambit of their
protected zone of privacy, they cannot now insist that they have
an expectation of privacy with respect to the photographs in
question.
Had it been proved that the access tothe pictures posted were
limited to the original uploader, through the "Me Only" privacy
setting, or that the user’s contact list has been screened to limit
access to a select few, through the "Custom" setting, the result
may have been different, for in such instances, the intention to
limit access to the particular post, instead of being broadcasted
to the public at large or all the user’s friends en masse,
becomes more manifest and palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your
children’s ears."53 This means that self-regulation on the part of
OSN users and internet consumers ingeneral is the best means
of avoiding privacy rights violations. 54 As a cyberspace
communitymember, one has to be proactive in protecting his or
her own privacy.55 It is in this regard that many OSN users,
especially minors, fail.Responsible social networking or
observance of the "netiquettes" 56 on the part of teenagers has
been the concern of many due to the widespreadnotion that
teenagers can sometimes go too far since they generally lack
the people skills or general wisdom to conduct themselves
sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating
lessons on good cyber citizenship in its curriculum to educate
its students on proper online conduct may be mosttimely. Too,
it is not only STC but a number of schools and organizations
have already deemed it important to include digital literacy and
good cyber citizenshipin their respective programs and
curricula in view of the risks that the children are exposed to
every time they participate in online activities. 58 Furthermore,
considering the complexity of the cyber world and its
pervasiveness,as well as the dangers that these children are
wittingly or unwittingly exposed to in view of their
unsupervised activities in cyberspace, the participation of the
parents in disciplining and educating their children about
being a good digital citizen is encouraged by these institutions
and organizations. In fact, it is believed that "to limit such risks,
there’s no substitute for parental involvement and
supervision."59
As such, STC cannot be faulted for being steadfast in its duty of
teaching its students to beresponsible in their dealings and
activities in cyberspace, particularly in OSNs, whenit enforced
the disciplinary actions specified in the Student Handbook,
absenta showing that, in the process, it violated the students’
rights.
OSN users should be aware of the risks that they expose
themselves to whenever they engage incyberspace
activities.1âwphi1 Accordingly, they should be cautious enough
to control their privacy and to exercise sound discretion
regarding how much information about themselves they are
willing to give up. Internet consumers ought to be aware that,
by entering or uploading any kind of data or information
online, they are automatically and inevitably making it
permanently available online, the perpetuation of which is
outside the ambit of their control. Furthermore, and more
importantly, information, otherwise private, voluntarily
surrendered by them can be opened, read, or copied by third
parties who may or may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due
diligence in their online dealings and activities and must not be
negligent in protecting their rights. Equity serves the vigilant.
Demanding relief from the courts, as here, requires that
claimants themselves take utmost care in safeguarding a right
which they allege to have been violated. These are
indispensable. We cannot afford protection to persons if they
themselves did nothing to place the matter within the confines
of their private zone. OSN users must be mindful enough to
learn the use of privacy tools, to use them if they desire to keep
the information private, and to keep track of changes in the
available privacy settings, such as those of Facebook, especially
because Facebook is notorious for changing these settings and
the site's layout often.
In finding that respondent STC and its officials did not violate
the minors' privacy rights, We find no cogent reason to disturb
the findings and case disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other
assigned errors.
WHEREFORE, premises considered, the petition is hereby
DENIED. The Decision dated July 27, 2012 of the Regional Trial
Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is
hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.
DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where
one party is later naturalized as a foreign citizen and obtains a
valid divorce decree capacitating him or her to remarry, can the
Filipino spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court
to make a definite ruling on this apparently novel question,
presented as a pure question of law.
In this petition for review, the Solicitor General assails
the Decision1 dated May 15, 2002, of the Regional Trial Court
of Molave, Zamboanga del Sur, Branch 23 and
its Resolution2 dated July 4, 2002 denying the motion for
reconsideration. The court a quo had declared that herein
respondent Cipriano Orbecido III is capacitated to remarry.
The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second
paragraph of Art. 26 of the Family Code and by reason of the
divorce decree obtained against him by his American wife, the
petitioner is given the capacity to remarry under the Philippine
Law.
IT IS SO ORDERED.3
The factual antecedents, as narrated by the trial court, are as
follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M.
Villanueva at the United Church of Christ in the Philippines in
Lam-an, Ozamis City. Their marriage was blessed with a son
and a daughter, Kristoffer Simbortriz V. Orbecido and Lady
Kimberly V. Orbecido.
In 1986, Cipriano’s wife left for the United States bringing along
their son Kristoffer. A few years later, Cipriano discovered that
his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife
had obtained a divorce decree and then married a certain
Innocent Stanley. She, Stanley and her child by him currently
live at 5566 A. Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for
authority to remarry invoking Paragraph 2 of Article 26 of the
Family Code. No opposition was filed. Finding merit in the
petition, the court granted the same. The Republic, herein
petitioner, through the Office of the Solicitor General (OSG),
sought reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER
ARTICLE 26 OF THE FAMILY CODE4
The OSG contends that Paragraph 2 of Article 26 of the Family
Code is not applicable to the instant case because it only
applies to a valid mixed marriage; that is, a marriage celebrated
between a Filipino citizen and an alien. The proper remedy,
according to the OSG, is to file a petition for annulment or for
legal separation.5 Furthermore, the OSG argues there is no law
that governs respondent’s situation. The OSG posits that this is
a matter of legislation and not of judicial determination. 6
For his part, respondent admits that Article 26 is not directly
applicable to his case but insists that when his naturalized alien
wife obtained a divorce decree which capacitated her to
remarry, he is likewise capacitated by operation of law
pursuant to Section 12, Article II of the Constitution. 7
At the outset, we note that the petition for authority to remarry
filed before the trial court actually constituted a petition for
declaratory relief. In this connection, Section 1, Rule 63 of the
Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petition—Any person interested under
a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation,
ordinance, or other governmental regulation may, before
breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction
or validity arising, and for a declaration of his rights or duties,
thereunder.
...
The requisites of a petition for declaratory relief are: (1) there
must be a justiciable controversy; (2) the controversy must be
between persons whose interests are adverse; (3) that the
party seeking the relief has a legal interest in the controversy;
and (4) that the issue is ripe for judicial determination. 8
This case concerns the applicability of Paragraph 2 of Article 26
to a marriage between two Filipino citizens where one later
acquired alien citizenship, obtained a divorce decree, and
remarried while in the U.S.A. The interests of the parties are
also adverse, as petitioner representing the State asserts its
duty to protect the institution of marriage while respondent, a
private citizen, insists on a declaration of his capacity to
remarry. Respondent, praying for relief, has legal interest in the
controversy. The issue raised is also ripe for judicial
determination inasmuch as when respondent remarries,
litigation ensues and puts into question the validity of his
second marriage.
Coming now to the substantive issue, does Paragraph 2 of
Article 26 of the Family Code apply to the case of respondent?
Necessarily, we must dwell on how this provision had come
about in the first place, and what was the intent of the
legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law
Executive Order No. 209, otherwise known as the "Family
Code," which took effect on August 3, 1988. Article 26 thereof
states:
All marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family
Code, Executive Order No. 227 was likewise signed into law,
amending Articles 26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so amended, it now
provides:
ART. 26. All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in
this country, except those prohibited under Articles 35(1), (4),
(5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under
Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern
the situation presented by the case at hand. It seems to apply
only to cases where at the time of the celebration of the
marriage, the parties are a Filipino citizen and a foreigner. The
instant case is one where at the time the marriage was
solemnized, the parties were two Filipino citizens, but later on,
the wife was naturalized as an American citizen and
subsequently obtained a divorce granting her capacity to
remarry, and indeed she remarried an American citizen while
residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings 9 on the Family
Code, the Catholic Bishops’ Conference of the Philippines
(CBCP) registered the following objections to Paragraph 2 of
Article 26:
1. The rule is discriminatory. It discriminates against those
whose spouses are Filipinos who divorce them abroad. These
spouses who are divorced will not be able to re-marry, while the
spouses of foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of
divorce even for Filipino citizens. For those whose foreign
spouses validly divorce them abroad will also be considered to
be validly divorced here and can re-marry. We propose that this
be deleted and made into law only after more widespread
consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations
showed that the intent of Paragraph 2 of Article 26, according
to Judge Alicia Sempio-Diy, a member of the Civil Code Revision
Committee, is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the
1985 case of Van Dorn v. Romillo, Jr.10 The Van Dorncase
involved a marriage between a Filipino citizen and a foreigner.
The Court held therein that a divorce decree validly obtained
by the alien spouse is valid in the Philippines, and
consequently, the Filipino spouse is capacitated to remarry
under Philippine law.
Does the same principle apply to a case where at the time of the
celebration of the marriage, the parties were Filipino citizens,
but later on, one of them obtains a foreign citizenship by
naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita
v. Court of Appeals.11 In Quita, the parties were, as in this case,
Filipino citizens when they got married. The wife became a
naturalized American citizen in 1954 and obtained a divorce in
the same year. The Court therein hinted, by way of obiter
dictum, that a Filipino divorced by his naturalized foreign
spouse is no longer married under Philippine law and can thus
remarry.
Thus, taking into consideration the legislative intent and
applying the rule of reason, we hold that Paragraph 2 of Article
26 should be interpreted to include cases involving parties
who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized
as a foreign citizen and obtains a divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the other
party were a foreigner at the time of the solemnization of the
marriage. To rule otherwise would be to sanction absurdity and
injustice. Where the interpretation of a statute according to its
exact and literal import would lead to mischievous results or
contravene the clear purpose of the legislature, it should be
construed according to its spirit and reason, disregarding as far
as necessary the letter of the law. A statute may therefore be
extended to cases not within the literal meaning of its terms, so
long as they come within its spirit or intent.12
If we are to give meaning to the legislative intent to avoid the
absurd situation where the Filipino spouse remains married to
the alien spouse who, after obtaining a divorce is no longer
married to the Filipino spouse, then the instant case must be
deemed as coming within the contemplation of Paragraph 2 of
Article 26.
In view of the foregoing, we state the twin elements for the
application of Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated between a
Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the
time of the celebration of the marriage, but their citizenship at
the time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.
In this case, when Cipriano’s wife was naturalized as an
American citizen, there was still a valid marriage that has been
celebrated between her and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a valid divorce
capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this
case. Thus Cipriano, the "divorced" Filipino spouse, should be
allowed to remarry.
We are also unable to sustain the OSG’s theory that the proper
remedy of the Filipino spouse is to file either a petition for
annulment or a petition for legal separation. Annulment would
be a long and tedious process, and in this particular case, not
even feasible, considering that the marriage of the parties
appears to have all the badges of validity. On the other hand,
legal separation would not be a sufficient remedy for it would
not sever the marriage tie; hence, the legally separated Filipino
spouse would still remain married to the naturalized alien
spouse.
However, we note that the records are bereft of competent
evidence duly submitted by respondent concerning the divorce
decree and the naturalization of respondent’s wife. It is settled
rule that one who alleges a fact has the burden of proving it and
mere allegation is not evidence.13
Accordingly, for his plea to prosper, respondent herein must
prove his allegation that his wife was naturalized as an
American citizen. Likewise, before a foreign divorce decree can
be recognized by our own courts, the party pleading it must
prove the divorce as a fact and demonstrate its conformity to
the foreign law allowing it.14 Such foreign law must also be
proved as our courts cannot take judicial notice of foreign laws.
Like any other fact, such laws must be alleged and
proved.15 Furthermore, respondent must also show that the
divorce decree allows his former wife to remarry as specifically
required in Article 26. Otherwise, there would be no evidence
sufficient to declare that he is capacitated to enter into another
marriage.
Nevertheless, we are unanimous in our holding that Paragraph
2 of Article 26 of the Family Code (E.O. No. 209, as amended by
E.O. No. 227), should be interpreted to allow a Filipino citizen,
who has been divorced by a spouse who had acquired foreign
citizenship and remarried, also to remarry. However,
considering that in the present petition there is no sufficient
evidence submitted and on record, we are unable to declare,
based on respondent’s bare allegations that his wife, who was
naturalized as an American citizen, had obtained a divorce
decree and had remarried an American, that respondent is now
capacitated to remarry. Such declaration could only be made
properly upon respondent’s submission of the aforecited
evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines
is GRANTED. The assailed Decision dated May 15, 2002, and
Resolution dated July 4, 2002, of the Regional Trial Court of
Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
GERBERT R. CORPUZ, Petitioner,
vs.
DAISYLYN TIROL STO. TOMAS and The SOLICITOR Where a marriage between a Filipino citizen and a foreigner is
GENERAL, Respondents. validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have capacity to remarry
DECISION
under Philippine law.

BRION, J.:
Before the Court is a direct appeal from the decision 1 of the
Regional Trial Court (RTC) of Laoag City, Branch 11, elevated
via a petition for review on certiorari 2 under Rule 45 of the
Rules of Court (present petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen who
acquired Canadian citizenship through naturalization on
November 29, 2000.3 On January 18, 2005, Gerbert married
respondent Daisylyn T. Sto. Tomas, a Filipina, in Pasig City. 4 Due
to work and other professional commitments, Gerbert left for
Canada soon after the wedding. He returned to the Philippines
sometime in April 2005 to surprise Daisylyn, but was shocked
to discover that his wife was having an affair with another man.
Hurt and disappointed, Gerbert returned to Canada and filed a
petition for divorce. The Superior Court of Justice, Windsor,
Ontario, Canada granted Gerbert’s petition for divorce on
December 8, 2005. The divorce decree took effect a month
later, on January 8, 2006.5
Two years after the divorce, Gerbert has moved on and has
found another Filipina to love. Desirous of marrying his new
Filipina fianceé e in the Philippines, Gerbert went to the Pasig
City Civil Registry Office and registered the Canadian divorce
decree on his and Daisylyn’s marriage certificate. Despite the
registration of the divorce decree, an official of the National
Statistics Office (NSO) informed Gerbert that the marriage
between him and Daisylyn still subsists under Philippine law;
to be enforceable, the foreign divorce decree must first be
judicially recognized by a competent Philippine court, pursuant
to NSO Circular No. 4, series of 1982. 6
This conclusion, the RTC stated, is consistent with the
legislative intent behind the enactment of the second
paragraph of Article 26 of the Family Code, as determined by
the Court in Republic v. Orbecido III;10 the provision was
enacted to "avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino
spouse."11
THE PETITION
From the RTC’s ruling,12 Gerbert filed the present petition.13
Gerbert asserts that his petition before the RTC is essentially
for declaratory relief, similar to that filed in Orbecido; he, thus,
similarly asks for a determination of his rights under the
second paragraph of Article 26 of the Family Code. Taking into
account the rationale behind the second paragraph of Article
26 of the Family Code, he contends that the provision applies as
well to the benefit of the alien spouse. He claims that the RTC
ruling unduly stretched the doctrine in Orbecido by limiting the
standing to file the petition only to the Filipino spouse – an
interpretation he claims to be contrary to the essence of the
second paragraph of Article 26 of the Family Code. He
considers himself as a proper party, vested with sufficient legal
interest, to institute the case, as there is a possibility that he
might be prosecuted for bigamy if he marries his Filipina
fianceé e in the Philippines since two marriage certificates,
involving him, would be on file with the Civil Registry Office.
The Office of the Solicitor General and Daisylyn, in their
respective Comments,14 both support Gerbert’s position.

Essentially, the petition raises the issue of whether the second

Accordingly, Gerbert filed a petition for judicial recognition of
paragraph of Article 26 of the Family Code extends to aliens the
foreign divorce and/or declaration of marriage as dissolved
right to petition a court of this jurisdiction for the recognition
(petition) with the RTC. Although summoned, Daisylyn did not
of a foreign divorce decree.
file any responsive pleading but submitted instead a notarized
letter/manifestation to the trial court. She offered no
opposition to Gerbert’s petition and, in fact, alleged her desire THE COURT’S RULING
to file a similar case herself but was prevented by financial and
personal circumstances. She, thus, requested that she be
The alien spouse can claim no right under the second
considered as a party-in-interest with a similar prayer to
paragraph of Article 26 of the Family Code as the substantive
Gerbert’s.
right it establishes is in favor of the Filipino spouse

In its October 30, 2008 decision, 7 the RTC denied Gerbert’s

The resolution of the issue requires a review of the legislative
petition. The RTC concluded that Gerbert was not the proper
history and intent behind the second paragraph of Article 26 of
party to institute the action for judicial recognition of the
the Family Code.
foreign divorce decree as he is a naturalized Canadian citizen. It
ruled that only the Filipino spouse can avail of the remedy,
under the second paragraph of Article 26 of the Family The Family Code recognizes only two types of defective
Code,8 in order for him or her to be able to remarry under marriages – void15 and voidable16 marriages. In both cases, the
Philippine law.9 Article 26 of the Family Code reads: basis for the judicial declaration of absolute nullity or
annulment of the marriage exists before or at the time of the
marriage. Divorce, on the other hand, contemplates the
Art. 26. All marriages solemnized outside the Philippines, in
dissolution of the lawful union for cause arising after the
accordance with the laws in force in the country where they
marriage.17 Our family laws do not recognize absolute divorce
were solemnized, and valid there as such, shall also be valid in
between Filipino citizens. 18
this country, except those prohibited under Articles 35(1), (4),
(5) and (6), 36, 37 and 38.
Recognizing the reality that divorce is a possibility in marriages
between a Filipino and an alien, President Corazon C. Aquino,
in the exercise of her legislative powers under the Freedom
Constitution,19 enacted Executive Order No. (EO) 227,
amending Article 26 of the Family Code to its present wording,
as follows:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in
this country, except those prohibited under Articles 35(1), (4),
(5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have capacity to remarry
under Philippine law.
Through the second paragraph of Article 26 of the Family Code,
EO 227 effectively incorporated into the law this Court’s
holding in Van Dorn v. Romillo, Jr.20 and Pilapil v. Ibay-
Somera.21 In both cases, the Court refused to acknowledge the
alien spouse’s assertion of marital rights after a foreign court’s
divorce decree between the alien and the Filipino. The Court,
thus, recognized that the foreign divorce had already severed
the marital bond between the spouses. The Court reasoned in
Van Dorn v. Romillo that:
To maintain x x x that, under our laws, [the Filipino spouse] has
to be considered still married to [the alien spouse] and still
subject to a wife's obligations x x x cannot be just. [The Filipino
spouse] should not be obliged to live together with, observe
respect and fidelity, and render support to [the alien spouse].
The latter should not continue to be one of her heirs with
possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice
are to be served.22
As the RTC correctly stated, the provision was included in the
law "to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse." 23 The
legislative intent is for the benefit of the Filipino spouse, by
clarifying his or her marital status, settling the doubts created
by the divorce decree. Essentially, the second paragraph of
Article 26 of the Family Code provided the Filipino spouse a
substantive right to have his or her marriage to the alien
spouse considered as dissolved, capacitating him or her to
remarry.24 Without the second paragraph of Article 26 of the
Family Code, the judicial recognition of the foreign decree of
divorce, whether in a proceeding instituted precisely for that
purpose or as a related issue in another proceeding, would be
of no significance to the Filipino spouse since our laws do not
recognize divorce as a mode of severing the marital
bond;25 Article 17 of the Civil Code provides that the policy
against absolute divorces cannot be subverted by judgments
promulgated in a foreign country. The inclusion of the second
paragraph in Article 26 of the Family Code provides the direct
exception to this rule and serves as basis for recognizing the
dissolution of the marriage between the Filipino spouse and his
or her alien spouse.
Additionally, an action based on the second paragraph of
Article 26 of the Family Code is not limited to the recognition of
the foreign divorce decree. If the court finds that the decree
capacitated the alien spouse to remarry, the courts can declare
that the Filipino spouse is likewise capacitated to contract
another marriage. No court in this jurisdiction, however, can
make a similar declaration for the alien spouse (other than that
already established by the decree), whose status and legal
capacity are generally governed by his national law. 26
Given the rationale and intent behind the enactment, and the
purpose of the second paragraph of Article 26 of the Family
Code, the RTC was correct in limiting the applicability of the
provision for the benefit of the Filipino spouse. In other words,
only the Filipino spouse can invoke the second paragraph of
Article 26 of the Family Code; the alien spouse can claim no
right under this provision.
The foreign divorce decree is presumptive evidence of a right
that clothes the party with legal interest to petition for its
recognition in this jurisdiction
We qualify our above conclusion – i.e., that the second
paragraph of Article 26 of the Family Code bestows no rights in
favor of aliens – with the complementary statement that this
conclusion is not sufficient basis to dismiss Gerbert’s petition
before the RTC. In other words, the unavailability of the second
paragraph of Article 26 of the Family Code to aliens does not
necessarily strip Gerbert of legal interest to petition the RTC for
the recognition of his foreign divorce decree. The foreign
divorce decree itself, after its authenticity and conformity with
the alien’s national law have been duly proven according to our
rules of evidence, serves as a presumptive evidence of right in
favor of Gerbert, pursuant to Section 48, Rule 39 of the Rules of
Court which provides for the effect of foreign judgments. This
Section states:
SEC. 48. Effect of foreign judgments or final orders.—The effect
of a judgment or final order of a tribunal of a foreign country,
having jurisdiction to render the judgment or final order is as
follows:
(a) In case of a judgment or final order upon a
specific thing, the judgment or final order is
conclusive upon the title of the thing; and
(b) In case of a judgment or final order against a
person, the judgment or final order is presumptive
evidence of a right as between the parties and their
successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
To our mind, direct involvement or being the subject of the
foreign judgment is sufficient to clothe a party with the
requisite interest to institute an action before our courts for the
recognition of the foreign judgment. In a divorce situation, we
have declared, no less, that the divorce obtained by an alien
abroad may be recognized in the Philippines, provided the
divorce is valid according to his or her national law. 27
The starting point in any recognition of a foreign divorce
judgment is the acknowledgment that our courts do not take
judicial notice of foreign judgments and laws. Justice Herrera
explained that, as a rule, "no sovereign is bound to give effect
within its dominion to a judgment rendered by a tribunal of
another country."28 This means that the foreign judgment and
its authenticity must be proven as facts under our rules on
evidence, together with the alien’s applicable national law to
show the effect of the judgment on the alien himself or
herself.29 The recognition may be made in an action instituted
specifically for the purpose or in another action where a party
invokes the foreign decree as an integral aspect of his claim or
defense.
In Gerbert’s case, since both the foreign divorce decree and the
national law of the alien, recognizing his or her capacity to
obtain a divorce, purport to be official acts of a sovereign
authority, Section 24, Rule 132 of the Rules of Court comes into
play. This Section requires proof, either by (1) official
publications or (2) copies attested by the officer having legal
custody of the documents. If the copies of official records are
not kept in the Philippines, these must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer
in the Philippine foreign service stationed in the foreign
country in which the record is kept and (b) authenticated by
the seal of his office.
The records show that Gerbert attached to his petition a copy
of the divorce decree, as well as the required certificates
proving its authenticity, 30 but failed to include a copy of the
Canadian law on divorce.31 Under this situation, we can, at this
point, simply dismiss the petition for insufficiency of
supporting evidence, unless we deem it more appropriate to
remand the case to the RTC to determine whether the divorce
decree is consistent with the Canadian divorce law.
We deem it more appropriate to take this latter course of
action, given the Article 26 interests that will be served and the
Filipina wife’s (Daisylyn’s) obvious conformity with the
petition. A remand, at the same time, will allow other
interested parties to oppose the foreign judgment and
overcome a petitioner’s presumptive evidence of a right by
proving want of jurisdiction, want of notice to a party,
collusion, fraud, or clear mistake of law or fact. Needless to
state, every precaution must be taken to ensure conformity
with our laws before a recognition is made, as the foreign
judgment, once recognized, shall have the effect of res
judicata32 between the parties, as provided in Section 48, Rule
39 of the Rules of Court.33
In fact, more than the principle of comity that is served by the
practice of reciprocal recognition of foreign judgments between
nations, the res judicata effect of the foreign judgments of
divorce serves as the deeper basis for extending judicial
recognition and for considering the alien spouse bound by its
terms. This same effect, as discussed above, will not obtain for
the Filipino spouse were it not for the substantive rule that the
second paragraph of Article 26 of the Family Code provides.
Considerations beyond the recognition of the foreign divorce
decree
As a matter of "housekeeping" concern, we note that the Pasig
City Civil Registry Office has already recorded the divorce
decree on Gerbert and Daisylyn’s marriage certificate based on
the mere presentation of the decree. 34 We consider the
recording to be legally improper; hence, the need to draw
attention of the bench and the bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and
judicial decrees concerning the civil status of persons shall be
recorded in the civil register." The law requires the entry in the
civil registry of judicial decrees that produce legal
consequences touching upon a person’s legal capacity and
status, i.e., those affecting "all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not."35
A judgment of divorce is a judicial decree, although a foreign
one, affecting a person’s legal capacity and status that must be
recorded. In fact, Act No. 3753 or the Law on Registry of Civil
Status specifically requires the registration of divorce decrees
in the civil registry:
Sec. 1. Civil Register. – A civil register is established for
recording the civil status of persons, in which shall be entered:
(a) births;
(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces;
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;
(i) naturalization; and
(j) changes of name.
xxxx
Sec. 4. Civil Register Books. — The local registrars shall keep
and preserve in their offices the following books, in which they
shall, respectively make the proper entries concerning the civil
status of persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered not
only the marriages solemnized but also divorces and
dissolved marriages.
(3) Legitimation, acknowledgment, adoption, change
of name and naturalization register.
But while the law requires the entry of the divorce decree in
the civil registry, the law and the submission of the decree by
themselves do not ipso facto authorize the decree’s
registration. The law should be read in relation with the
requirement of a judicial recognition of the foreign judgment
before it can be given res judicata effect. In the context of the
present case, no judicial order as yet exists recognizing the
foreign divorce decree. Thus, the Pasig City Civil Registry Office SO ORDERED.
acted totally out of turn and without authority of law when it
annotated the Canadian divorce decree on Gerbert and
Daisylyn’s marriage certificate, on the strength alone of the
foreign decree presented by Gerbert.

Evidently, the Pasig City Civil Registry Office was aware of the
requirement of a court recognition, as it cited NSO Circular No.
4, series of 1982,36 and Department of Justice Opinion No. 181,
series of 198237 – both of which required a final order from a
competent Philippine court before a foreign judgment,
dissolving a marriage, can be registered in the civil registry, but
it, nonetheless, allowed the registration of the decree. For being
contrary to law, the registration of the foreign divorce decree
without the requisite judicial recognition is patently void and
cannot produce any legal effect.1avvphi1

Another point we wish to draw attention to is that the

recognition that the RTC may extend to the Canadian divorce
decree does not, by itself, authorize the cancellation of the
entry in the civil registry. A petition for recognition of a foreign
judgment is not the proper proceeding, contemplated under
the Rules of Court, for the cancellation of entries in the civil
registry.

Article 412 of the Civil Code declares that "no entry in a civil
register shall be changed or corrected, without judicial order."
The Rules of Court supplements Article 412 of the Civil Code by
specifically providing for a special remedial proceeding by
which entries in the civil registry may be judicially cancelled or
corrected. Rule 108 of the Rules of Court sets in detail the
jurisdictional and procedural requirements that must be
complied with before a judgment, authorizing the cancellation
or correction, may be annotated in the civil registry. It also
requires, among others, that the verified petition must be filed
with the RTC of the province where the corresponding civil
registry is located; 38that the civil registrar and all persons who
have or claim any interest must be made parties to the
proceedings;39and that the time and place for hearing must be
published in a newspaper of general circulation. 40 As these
basic jurisdictional requirements have not been met in the
present case, we cannot consider the petition Gerbert filed with
the RTC as one filed under Rule 108 of the Rules of Court.

We hasten to point out, however, that this ruling should not be

construed as requiring two separate proceedings for the
registration of a foreign divorce decree in the civil registry –
one for recognition of the foreign decree and another
specifically for cancellation of the entry under Rule 108 of the
Rules of Court. The recognition of the foreign divorce decree
may be made in a Rule 108 proceeding itself, as the object of
special proceedings (such as that in Rule 108 of the Rules of
Court) is precisely to establish the status or right of a party or a
particular fact. Moreover, Rule 108 of the Rules of Court can
serve as the appropriate adversarial proceeding 41 by which the
applicability of the foreign judgment can be measured and
tested in terms of jurisdictional infirmities, want of notice to
the party, collusion, fraud, or clear mistake of law or fact.

WHEREFORE, we GRANT the petition for review on certiorari,

and REVERSE the October 30, 2008 decision of the Regional
Trial Court of Laoag City, Branch 11, as well as its February 17,
2009 order. We order the REMAND of the case to the trial court
for further proceedings in accordance with our ruling above.
Let a copy of this Decision be furnished the Civil Registrar
General. No costs.