case digests part 3

G.R. No. 182835               April 20, 2010

RUSTAN ANG y PASCUA, Petitioner, 
vs.
THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents.

Facts:

                Complainant and herein petitioner were former classmates during college when petitioner courted the complainant and had a relationship with her. It was ended when complainant found out that petitioner had a live-in partner whom he had impregnated. Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and told Rustan to take on his responsibility to the other woman and their child. Irish changed her cellphone number but Rustan somehow managed to get hold of it and sent her text messages.

                In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a picture of a naked woman with spread legs and with Irish’s face superimposed on the figure threatening her that it would be very easy for him to upload the picture in the internet. Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada, Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the waiting police officers intercepted and arrested him. They searched him and seized his Sony Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police station, he shouted at Irish: "Malandi ka kasi!"

Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in information technology and computer graphics. He said that it was very much possible for one to lift the face of a woman from a picture and superimpose it on the body of another woman in another picture. Pictures can be manipulated and enhanced by computer to make it appear that the face and the body belonged to just one person.

Issue:

Whether or not accused Rustan sent Irish by cellphone message the picture with her face pasted on the body of a nude woman, inflicting anguish, psychological distress, and humiliation on her in violation of Section 5(h) of R.A. 9262.

Held:

                R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of acts committed by any person against a woman x x x with whom the person has or had a sexual or dating relationship." Clearly, the law itself distinguishes a sexual relationship from a dating relationship. Indeed, Section 3(e) above defines "dating relationship" while Section 3(f) defines "sexual relations." The latter "refers to a single sexual act which may or may not result in the bearing of a common child." The dating relationship that the law contemplates can, therefore, exist even without a sexual intercourse taking place between those involved.

Rustan also claims that since the relationship between Irish and him was of the "on-and-off" variety (away-bati), their romance cannot be regarded as having developed "over time and on a continuing basis." But the two of them were romantically involved, as Rustan himself admits, from October to December of 2003. That would be time enough for nurturing a relationship of mutual trust and love. Rustan argues that the one act of sending an offensive picture should not be considered a form of harassment. He claims that such would unduly ruin him personally and set a very dangerous precedent. But Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes violence against women. This means that a single act of harassment, which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones.

A.M. No. RTJ-07-2092             December 8, 2008
Formerly OCA I.P.I. No. 07-2685-RTJ

EVA LUCIA Z. GEROY, complainant, 
vs.
HON. DAN R. CALDERON, Presiding Judge, Branch 26 of the Regional Trial Court of Medina, Misamis Oriental, respondent.

Facts:

                Complainant alleged that she was introduced by her cousin Cesar Badilas (Badilas) to respondent in a Rotary Club dinner on November 30, 2002. Thereafter, respondent always communicated with her, visited her at her house and showered her with food and gifts, making her believe that he was single or separated as he acted like a bachelor towards her. They spent most of their time in his house in Upper Balulang, Cagayan de Oro City where complainant would sleep over during weekdays and spend entire weekends with respondent. They would dine in public places, watch movies, go to malls, groceries and hear mass together. Respondent lent her money and she ran errands for him such as making reservations for his trips and purchasing items for his house, encode decisions, pay bills and encash checks for him. Respondent paid her tuition in a caregiver course and gave her a cell phone for an e-load business.

There were times, however, when complainant felt she was being abused by respondent, such as when he wanted to take a picture of them naked after they had sexual contact, when he asked her to buy abortive pills because his son impregnated his girlfriend, and when he (respondent) forced her to utter vulgar words during their intercourse. In August 2005, complainant went to Xavier University where respondent was a professor, and respondent uttered hurtful words towards her. On December 24, 2005, complainant received a call from respondent and his wife degrading and threatening her. She also received a text message from respondent on December 29, 2005 saying that she had made herself a "despicable disease." Respondent's wife and daughter also called complainant, confronting and threatening her. On March 21, 2007, complainant saw respondent in a restaurant with a woman and when she approached respondent, he cursed and looked angrily at her and asked the guard to drive her out. Respondent then went to his car and locked the doors. Complainant knocked at the window near the driver's seat but respondent arrogantly looked at her and maneuvered his car, nearly hitting her, as he sped past her.

Issue:

                Whether or not the act of the petitioner is immoral and deserves necessary disciplinary actions

Held:

                The Court held in the affirmative.

As the Court held in Madredijo v. Layao, Jr.:

[I]mmorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity and dissoluteness; or is willful, flagrant, or shameless conduct showing moral indifference to opinions of respectable members of the community and an inconsiderate attitude toward good order and public welfare.

Immorality under Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC dated September 11, 2001 on the discipline of Justices and Judges, is a serious charge which carries any of the following sanctions: (1) dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations, provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; (2) suspension from office without salary and other benefits for more than three but not exceeding six months; or (3) a fine of more than P20,000.00 but not exceeding P40,000.00.

In recommending the penalty of suspension for six months without salary and other benefits, instead of the ultimate penalty of dismissal from the service, the Investigating Justice gave weight to the fact that complainant was equally, if not more guilty in the whole sordid affair. He also considered respondent's length of service and the fact that this was the first time respondent had been charged with immorality, and it did not appear from the records that he had been previously charged with any offense or that there was any pending administrative case against him.

case digests part 2

[G.R. No. 193531, December 06, 2011] 

ELLERY MARCH G. TORRES, PETITIONER, VS. PHILIPPINE AMUSEMENT AND GAMING CORPORATION, REPRESENTED BY ATTY. CARLOS R. BAUTISTA, JR., RESPONDENT

Facts: 

Petitioner is a slot machine operations supervisor of PACGOR. Respondent's Corporate Investigation Unit conducted an investigation and discovered the scheme of CMR padding which was committed by adding zero after the first digit of the actual CMR of a slot machine or adding a digit before the first digit of the actual CMR. On May 4, 2007, the CIU served petitioner with a Memorandum of Charges. Petitioner was then required to explain in writing within seventy-two (72) hours from receipt thereof why he should not be sanctioned or dismissed. Petitioner was placed under preventive suspension effective immediately until further orders. 

Petitioner received a copy of the letter/notice of dismissal on August 4, 2007; thus, the motion for reconsideration should have been submitted either by mail or by personal delivery on or before August 19, 2007.  However, records do not show that petitioner had filed his motion for reconsideration.  In fact, the CSC found that the non-receipt of petitioner's letter reconsideration was duly supported by certifications issued by PAGCOR employees.

Petitioner received a copy of the letter/notice of dismissal on August 4, 2007; thus, the motion for reconsideration should have been submitted either by mail or by personal delivery on or before August 19, 2007.  However, records do not show that petitioner had filed his motion for reconsideration.  In fact, the CSC found that the non-receipt of petitioner's letter reconsideration was duly supported by certifications issued by PAGCOR employees.

Petitioner filed a complaint for illegal dismissal against respondents. The complaint alleged among others: (1) that he denied all the charges against him; (2) that he did ask for a formal investigation of the accusations against him and for PAGCOR to produce evidence and proofs to substantiate the charges, but respondent PAGCOR did not call for any formal administrative hearing; (3) that he tried to persuade respondent PAGCOR to review and reverse its decision in a letter of reconsideration dated August 13,  2007 addressed to the Chairman, the members of the Board of Directors and the Merit Systems Protection Board; and (4) that no resolution was issued on his letter reconsideration, thus, the filing of the complaint. Petitioner claimed that as a result of  his unlawful, unjustified and illegal termination/dismissal, he was compelled to hire the services of a counsel in order to protect his rights.

Issue: 

Whether or not sending the Motion for Reconsideration be considered duly filed if sent thru facsimile. 

Held: 

SC held in the negative. Citing different provisions from the Rules of Court which clearly provide that it can only be sent thru two ways, which is personal delivery or delivery by mail. 

Clearly, a motion for reconsideration may either be filed by mail or personal delivery.  When a motion for reconsideration was sent by mail, the same shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case. On the other hand, in case of personal delivery, the motion is deemed filed on the date stamped thereon by the proper office.  And the movant has 15 days from receipt of the decision within which to file a motion for reconsideration or an appeal therefrom.

Even assuming arguendo that petitioner indeed submitted a letter reconsideration which he claims was sent through a facsimile transmission,  such letter reconsideration  did not toll the period to appeal. The mode used by petitioner in filing his reconsideration is not sanctioned by the Uniform Rules on Administrative Cases in the Civil Service. As we stated earlier, the motion for reconsideration may be filed only in two ways, either by mail or personal delivery.

 A.M. No. MTJ-06-1659

ANNA JANE D. LIHAYLIHAY,   petitioner

vs 

JUDGE ALEJANDRO T. CANDA, respondent

Facts: 

The Sheriff IV of RTC of Branch 28, Liloy, Zamboanga del Norte retired thus his position became vacant and respondent become interested to said post for a certain Emmanuel Tenafrancia. To the dismay of Judge Canda, a certain Jesus V. Alimpolo (Alimpolo) applied for the vacated position.  Judge Canda strongly opposed Alimpolo’s application.

         Judge Canda was of the impression that Lihaylihay was assisting Alimpolo in his application for the position of Sheriff IV.  On 5 January 2006, Judge Canda sent a text message to Lihaylihay stating, “Maayo tingali modistansya ka anang mga tawhana kay basin masabit ka, pakiusap lang ni.”  Taking the text message as a threat, Lihaylihay reported it to the police and requested that a blotter entry be made.  On 6 January 2006, Judge Canda sent another text message stating, “For maliciously causing it to appear as threatening in the police blotter of what is otherwise a very harmless text message of appeal I consider the same as declaration of war, don’t worry you will have your owned [sic] fair share of trouble in due time.” 

Thus respondent sent a letter alleging that petitioner is no longer fit to her position since she is bias and cant maintain neutrality by supporting Alimpolo. He even caused said letters to be published in the local news paper. In her reply, petitioner denied all allegations by respondent and filed a complaint against respondent judge. 

Issue: 

Whether or not the respondent judge was liable for gross misconduct. 

Held: 

The SC held in the affirmative. 

Judge Canda harassed and publicly humiliated Lihaylihay: (1) he asked her to stay away from Alimpolo; (2) when she reported the matter to the police, he took it as a “declaration of war” and warned her that she will have her “fair share of trouble in due time”; (3) indeed, three days after sending the threatening text message, he filed a complaint with Judge Tomarong accusing her of several things, asking that she be disciplined and removed from the service, and describing her as a “GRO,” “undignified,”     a “whore,” “disgusting,” “repulsive,” and “pakialamera”; (4) two days after filing the first complaint, he filed another complaint accusing her of violating office rules and describing her as “offensive,” “demeaning,” “inappropriate,” a “GRO,” “undignified,” “repulsive,” and a “whore”;       (5) still unsatisfied, he had his second complaint published in the newspaper; and (6) when she published her comment in the newspaper, he filed a criminal case for libel against her.   

         Section 1, Canon 2 of the New Code of Judicial Conduct for the Philippine Judiciary states that “Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer.”  Section 2, Canon 2 of the Code states that “The behavior and conduct of judges must reaffirm the people’s faith in the integrity of the judiciary.”  Section 2, Canon 4 of the Code states that “As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.  In particular,judges shall conduct themselves in a way that is consistent with the dignity of the judicial office.”  Section 6, Canon 4 of the Code states that “Judges, like any other citizen, are entitled to freedom of expression x x x, but in exercising such [right], they shall always conduct themselves in such a manner as to preserve the dignity of the judicial office.”  Section 6, Canon 6 of the Code states that “Judges shall x x x be x x x dignified and courteous.”  Judge Canda violated these provisions.

case digests part 1

A.C. No. 7204             March 7, 2007

CYNTHIA ADVINCULA, Complainant,

vs.

ATTY. ERNESTO M. MACABATA, Respondent

Facts:

                The case is a disbarment case against respondent on the ground of gross immorality. It was alleged that sometime in December 2004, complainant seek for legal advice from peitioner regarding her collectibles from a travel company. Respondent sent Demand Letter and sometime in February 2005, they met at Zensho Restaurant to discuss the possibility of filing complaint against the travel company because the latter failed to settle the accounts. That after that said meeting, the respondent "held her arm and kissed her on the cheek while embracing her very tightly."

                The two met again to finalize the draft for the complaint and while on their way home after the said meeting, the respondent suddenly stopped the car and things went out of hand. Thus she decided to refer the case to another lawyer.

Issue:

                Whether or not the respondent committed acts are grossly immoral which would warrant the disbarment or suspension from the practice of law.

Held:

                The Code of Professional Responsibility provides:

CANON I – x x x

Rule 1.01-- A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

CANON 7-- A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the Integrated Bar.

x x x x

Rule 7.03-- A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

                The SC held that lawyers are expected to abide the tenets of morality, not only upon admission to the Bar but all throughtout their legal career as lawyers belong to an exclusive and honored fraternity. Lawyers are called upon to safeguard the integrity of the legal profession and should adhere to the unwaveringly to the highest standard of morality. The respondent admitted to the act of kissing the complainant on the lips as evidenced as well of his asking for apology from complainant in his text message. Regardless of the fact that the respondent admitted that he kissed the complainant but the Court held that this was not accompanied by malice because the respondent immediately asked for forgiveness after sensing the annoyance of the respondent after texting him. Thus the Court held that this is not grossly immoral nor highly reprehensible which will warrant disbarment or suspension. But the Court reprimanded respondent to be more prudent and cautious.

G.R. No. 164273             March 28, 2007

EMMANUEL B. AZNAR, Petitioner,

vs.

CITIBANK, N.A., (Philippines), Respondent.

Facts:

                Petitioner is a holder of a credit card issued by respondent with credit limit of P150 000. He increased his limit to P635 000 since they have the plan to go on an Asian Tour. They purchased their plane tickets using said card but upon arriving with the intention to purchase something in the countries that they went to, the said card was dishonored. They also tried to use the card to purchase their return ticket but the same was dishonored and was informed that the card was blacklisted. Thus they purchased their tickets in cash. Upon returning to the Philippines, petitioner instituted a complaint for damages against Citibank claiming that respondent with fraud and gross negligence blacklisted his card which caused mental anguish, serious anxiety, wounded feelings, besmirched reputation and social humiliation.

Issue:

                Whether or not petitioner was able to establish his claim against respondent.

Held:

                The SC held in the negative. It is basic in civil cases that the burden of proof lies on the plaintiff. The party that alleges the fact has the burden of proving it. Aznar in his testimony admitted that he had no personal knowledge that his Mastercard was blacklisted by Citibank and only presumed such fact from the dishonor of his card. It is settled that in order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff – a concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law; thus there must first be a breach before damages may be awarded and the breach of such duty should be the proximate cause of the injury. (BPI Express Card Corporation v. Court of Appeals, 357 Phil. 262, 276 (1998)

                In culpa contractual or breach of contract, moral damages are recoverable only if the defendant has acted fraudulently or in bad faith, or is found guilty of gross negligence amounting to bad faith, or in wanton disregard of his contractual obligations. The breach must be wanton, reckless, malicious or in bad faith, oppressive or abusive. (Equitable Banking Corp. v. Calderon, G.R. No. 156168, December 14, 2004, 446 SCRA 271, 276)

Is downloading really illegal?

Downloading from the internet is such a common trend right now that all of us are guilty of. As a matter of fact, I am guilty of downloading some stuff from the internet like reviewers and songs. After taking up the Copyright Law as part of my curriculum in law school it turned out I could have been guilty of copyright infringement, if not for one provision therein. I am referring to the provision of the law which tackles the "Fair Use" of the copyrighted work. As what the law states, "(T)he fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright." So it only means that if I will be downloading something from the internet which is a copyrighted work, my purpose of downloading it will make a big difference. 

The question now is that, will the act of downloading the article from the internet which was posted by another person who is not the author of said work a copyright infringement? Well, it will depend. Since Article 85 of the law on Copyright does not distinguish who will be the one who will be downloading the work. If the purpose is still for scholastic reasons, then it could not be classified as an infringement regardless if the person who posted it is not the author himself. It will be a different case for the person who posted this material over the internet. Because the fact that he posted it for everyone to have access to, then it is as if he is the actual author of said work. 

In arguendo, if the the act of downloading is to be considered as infringement, will it be appropriate for our government to adopt the infamous SOPA/ PIPA law of the United States? Before I answer that, I would like to give a short discussion first why I considered such law as infamous. The bills were intended to control online infringement but were not accepted by the majority of websites in the US thus there was even a time when wikipedia.com was blocked out and showing only its protest against SOPA. Most of the critics of said bill had their positions focused on one issue which is false accusation. There are provisions in the bill which grant immunity to payment processors and ad networks that cut off sites based on a reasonable belief of infringement, so even if claims turn out to be false, only the site suffers. How will the court appreciate what is reasonable belief?  If we are to apply such bill in our country, isn't the bill unconstitutional? Revisiting our Bill of Rights in the 1987 Constitution warrants that due process should be observed because no person shall be deprived of his life, liberty and property without due process, (emphasis supplied). I emphasized on property because having your own website wherein one can freely express himself is already a intellectual property as such is to be considered as a copyrighted law. Going back to the question earlier posted, it is my opinion that it is not appropriate for the SOPA to be applied here in the country. Some of the provisions are vague and this is important as they are given the power to shut down a website who is suspected to be an infringement. Reasonable belief could still be based on the appreciation of the judge thus this is very problematic as we will end up with closing down a website, an intellectual property, of another person and decisions would vary. 

The Legality of Fan Art

I am sure everyone of us have already encountered or seen a fan art. This is the type of artwork that is based   on a famous character or story. This is called a fan art because the artist is not the artist who actually created these famous characters. If you haven't seen one, you just need to type in "fan art" in your search engines and voila! you will be provided of more than a million samples of this art. But is it actually legal?

Before I answer that question, let me first define what is a derivative work. In layman's term, it is a new form of an already copyrighted work. There could be a hint of existence of some parts of the original work but it is considered as totally new. Examples of which are provided for by Section 173. 1 of the law on Copyright. It could either be an adaptation or a collection. Now lets go back to the previous posted question, is fan art illegal? It would depend on the purpose of such fan art. Section 185.1 of the Copyright Law provided requisites for it to be considered as a fair use of the copyright work and one of which is the purpose and the character of the use, which includes whether the use is of commercial nature or non-profit and educational in nature. This is related to another requisite which is the amount and substantiality of the portion used in the copyrighted work. Thus if the purpose is for commercialization of the fan art such as using it as t-shirt prints that will be marketed to the public then it is no longer fair use of the copyright. But if the fan art is just for private hobby of the person or just as personal collection then it could still fall under the category for fair use. 

To sum it up, the government and the law does not totally restrict the freedom of expression as it is one of the rights being protected by the Bill of Rights but we should also take note of the fair usage of the copyright so as not to incur any infringement. 

Data Protection Bill of 2011

"Communication is two-sided - vital and profound communication makes demands also on those who are to receive it... demands in the sense of concentration, of genuine effort to receive what is being communicated. "

 ~ Roger Sessions ~

Freedom of expression and communication goes hand in hand. It is one of the rights that the 1987 Constitution protects. But as the old saying goes, anything in extreme is toxic. Too much freedom of expression will lead to misunderstanding and sometimes fatal disputes. With the passing to Third Reading by the Senate of Data Privacy Act of 2011, the State is simply exercising its police power. However, I am reluctant with some of the provisions of this bill. I have two points that I would like to tackle. Take for example the excessive penalty for violating this bill. General penalty of imprisonment from 1 year and six months to 5 years and penalty of not less than Php1,000,000 but not more than Php 2,000,000 is definitely excessive. As provided by the Constitution under Section 19 of the Bill of Rights, that excessive fines shall not be imposed x x x unless for compelling reasons involving heinous crimes. Although the Supreme Court have already held in various cases questioning how to determine what is an excessive penalty, it was generally held that the determination  will depend on the situation and the sound discretion of court. It will depend on how the court will appreciate the evidence to arrive with the decision. For me, although violating one's privacy could not be quantified as to provide a standard amount of award for damages, the Php 2,00,000 as maximum fine is very excessive. How do I say so? First and foremost, we need to determine first what was the violation. Was that considered as a heinous crime. Going back again to Section 19 of Article 3, excessive fines shall only be given for compelling reasons that involve HEINOUS CRIMES. This could be defined as those crimes  or offenses that are exceedingly or flagrantly bad or evil or those committed with extreme cruelty as to shock the general moral sense. Now is the violation that flagrant or offensive? It is not as shocking as that of a crime of rape or murder. As a matter of fact, the violation is providing one's personal information to another without his or her consent? In layman's term the act of gossiping is now being punishable of a maximum of 5 years imprisonment and Php 2,000,000 as fine. Which leads me to my second point which is the act of providing the information to another without the subject's consent. As I have already mentioned, does the act of gossiping falls under this act as well? In gossiping definitely the consent of the subject is not freely given. Although in gossiping most of the time it is just rumors about the person. In this Bill, what is being protected is the personal information of the person. It is admirable that our dear legislators only wants the people to be protected and not to be harassed by others because their personal information shall only be taken and provided if there is a justified reason. As provided by Section 26 of Article VI, for a bill to be passed it shall only embrace one subject. Although the Title of the Bill is clear on what it wants to be protected, the act that could fall under it is very general and it is a catch all subject. As I have already discussed, the simple act of gossiping could fall under this topic. 

To sum it all up, the Bill is definitely going to be beneficial to us all. But just like any other laws created by men, there are loopholes that could still be amended to better cater its purpose to the public in general.