Tattoos and privacy – Manila Standard

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At last week’s Senate Blue Ribbon Committee investigation into the smuggling of P6.4 billion of narcotics at the Bureau of Customs two months ago, Davao City Vice Mayor Paolo Duterte, the son of President Rodrigo Duterte, and Manases Carpio, the president’s son-in-law, honored the invitation for them to appear before the committee. Both denied involvement in the illegal narcotics shipment.    

Senator Antonio Trillanes IV, a sworn enemy of the president, wanted Vice Mayor Duterte and Mr. Carpio to appear at the investigation because on an earlier occasion, the two were implicated by a purported customs broker, Mark Taguba, in the illegal drug haul.  Taguba, however, had already recanted his allegations against the two.  

Their denial notwithstanding, Trillanes challenged Vice Mayor Duterte to prove that he (the vice mayor) does not belong to a notorious Chinese drug triad whose members are supposedly identifiable by a distinguishing tattoo, in the image of a dragon, on their backs.  The vice mayor admitted that he had a tattoo on his back, but he refused to show it to the committee, citing his right to privacy.       

At any rate, there was no clear indication that if the tattoo on the back of Vice Mayor Duterte is not the Chinese drug triad tattoo Trillanes was hoping to reveal, Trillanes would have stopped his tirade against the two and, in the long run, against the President.

Vice Mayor Duterte correctly invoked his right to privacy when he refused to show his tattoo to any member of the committee.  As in the United States, the right to privacy is recognized in Philippine jurisdiction as a constitutional right.  In 1968, then Justice, later Chief Justice, Enrique Fernando of the Supreme Court defined privacy as the right to be let alone.  He emphasized that privacy itself is the beginning of all freedom.  Quoting from American constitutional authorities, Fernando said –

“The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen.  This is indeed one of the basic distinctions between absolute and limited government.  Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state.  In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control.  Protection of this private sector—protection, in other words, of the dignity and integrity of the individual—has become increasingly important as modern society has developed.  All the forces of a technological age—industrialization, urbanization, and organization—operate to narrow the area of privacy and facilitate intrusion into it.  In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.”

Through the years, the jurisprudence on the constitutional right to privacy expanded.  In 1977, the Supreme Court of the United States recognized the legal concept of “informational privacy” which refers to the interest an individual has in avoiding disclosure of personal matters.  Later in 2014, the Supreme Court of the Philippines adopted the same concept in a case involving privacy in the social media.  The Court defined “informational privacy” as the right of individuals to control information about themselves.

Jurisprudence, however, requires that before the right to privacy may be invoked, a “reasonable or objective expectation of privacy” should exist and be established.  This means that the person who invokes the right has exhibited an actual expectation of privacy, and that the expectation is one that society is prepared to recognize as “reasonable” in the circumstances.

As postulated in American case law, what a person knowingly exposes to the public, even in his own home or office, is not entitled to protection by law on privacy considerations, but what a person seeks to preserve as private, even in an area accessible to the public, is covered by the constitutional right to be let alone.    

The categorical refusal of Vice Mayor Duterte to show his tattoo to the Senate Blue Ribbon Committee because he considers the tattoo a personal matter, the absence of evidence to indicate that the vice mayor has on past occasions openly displayed his tattoo to the public, and the fact that decent society respects a person’s refusal to go bareback in public, are enough to establish a reasonable expectation of informational privacy in favor of the vice mayor.  

It has been argued that if the tattoo on the back of Vice Mayor Duterte is not the Chinese drug triad tattoo Trillanes mentioned, there seems to be no reason for the vice mayor not to show the tattoo to the committee.  That would have put a closure to the issue. 

The foregoing line of reasoning, however, mistakenly assumes that showing one’s tattoo on one’s back to the public is essentially no big deal.  That may be so for others, but it isn’t for Vice Mayor Duterte.  For the vice mayor, he simply isn’t comfortable showing to the public a part of his body which he is not accustomed to exhibiting in public in the first place.    

It is possible that although the tattoo in question has nothing to do with the so-called Chinese drug triad mentioned by Trillanes, the tattoo may be of such intimate or embarrassing nature that the vice mayor would rather keep the matter outside the realm of public knowledge.  If that is so, then the vice mayor is still well within his right to keep the tattoo private.   

The fact that Vice Mayor Duterte is a public official does not oblige him to show the tattoo to the committee.  Although a public official has less privacy rights compared to a private individual, a public official is still entitled to a reasonable degree of privacy.  That privacy covers any drawing affixed on any part of one’s body, permanently or otherwise, and which one has zealously kept away from the public’s eyes.  

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