With the enhanced community quarantine announced by the Philippines government on the 3rd week of March 2020, a Senator posted on his social media a call on the common Juan to practice the selfless act of responsibility and make a public admission of their COVID-19 infection status. An opinion writer from a newspaper appealed to the government for full public disclosure of the names of COVID-19 positive patients. They cited common good and public welfare as basis for their bidding. The writer even suggested that the COVID-19 pandemic is no longer a privacy issue and she went as far as to recommend the “National Privacy Commission be made accountable for sacrificing general public welfare over privacy of a few individuals”. She stated that data privacy should be least priority by the government. The writer also opined that the majority is suffering the consequences of not knowing who the positive patients are. She writes that there will be less disruption to the lives of the majority and that it is down to simple economics, the greater good for the greatest number. Individuals from politics and entertainment were cited as examples of those who have publicly declared their affliction status. Reading the comments from their publish opinions in social media, we can surmise that there is a lot of people who agrees with them.
The pleading is well meaning but is contrary to the fundamental human rights of the individual. In Article 12 of the Universal Declaration of Human Rights, 1948 (UDHR) ratified by the United Nations General Assembly, it states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”. Furthermore, the UDHR Article 2 asserts freedom from discrimination, that everyone is entitled to all the rights and freedoms without distinction of any kind. The Data Privacy Act of 2012 in its declaration of policy affirms the policy of the State to protect the fundamental human right of privacy. Data privacy protects the rights of the individual from collection, use, processing, sharing, retention and most particularly disclosure of personal information. This elemental right does not vary depending on situations.
Data privacy and protection is a human right. A birthright. It is indivisible. A person cannot be denied of his data privacy right and protection because somebody decides its less important. Governments, organizations and individuals need to recognize a person’s data privacy and protect his right to choose when to disclose his or her personal information. Individuals cannot be denied of this inalienable right for expediency. In these circumstances, critical as it is, we need to be constantly vigilant to protect and strive to promote data privacy rights. We need to strike a balance on the society’s needs vis-a-vis individual rights as a yardstick to measure what is morally right or wrong. One cannot ask an individual to give up his data privacy right simply because it has caused inconvenience to another person’s way of life.
When the COVID-19 started showing evidence of community transmission, the government categorized individuals into person under investigation (PUI) and person under monitoring (PUM). Somehow the characterization though useful in medical terms portrayed a tsunami of misrepresentation and stigma with the larger public. The deluge of different information in social media created confusion and hysteria. People sharing reports and bulletins without confirming the sources contributed to a frenzy of misunderstanding about the virus and about the people inflicted with it. It was as if, the patient chose to get sick and harm others.
In a public advisory by one hospital, a health care worker on his way to work near a public market was attacked by unknown individuals splattering him with bleach. In another case, some 50 nurses were barred from their home district and disallowed entry to their boarding houses. The health care workers were discriminated against for being in the frontline of the virus pandemic.
A doctor who contracted the virus, his son bemoaned, that her mother’s death was already circulated in social media while still battling the disease in a hospital. He felt some people treated them like a pariah. A daughter of a CODI-19 fatality spoke on television “about rumors and malicious misinformation that circulated on social media about her parents, which she said has resulted in panic, violence, threats and stigmatization of our family and loved ones.” She further said that “fear really makes people do things they probably normally wouldn’t do. And I understand that in the absence of information, people will fill the gaps with misinformation”. She also expressed, “we just hope that this message inspires people to choose a different road — one of empathy, sympathy, care and compassion”.
The theory of utilitarianism holds that the most ethical choice is the one where it will produce the greatest good for the greatest number. However, it is also a form of consequentialism, where the right action is understood entirely in terms of relevant consequences produced. There needs to be impartiality and neutrality. It must not be peculiar to one person or group. A person’s good counts for no more than anyone else's good. This is similar to a “positive-sum, not zero-sum” concept in Privacy by Design principle within the data privacy environment. The right to life and right to data privacy can be both achieved without sacrificing the other. The prejudice on data privacy rights is ill-grounded. Respect for data privacy and protection does not hinder the State or organizations from implementing data sharing and crisis response in these trying times. The Data Privacy Act of 2012 does not limit the ability of the government or organizations to process the personal information of COVID-19 patients. The law in fact promotes the free flow of information. Just follow the principles and rules.
Overriding the rights to privacy of individuals, for practicality of the current health and economic situations, can lead to a social crisis. The view that data privacy and protection is not essential in critical times will lead to the dissolution of basic human rights as we know it. The high risk of negative consequences in setting aside data privacy and protection will diminish the social fabric of our society. We must continue to be a community of law connected in a relationship that respect our individual rights. Society must be allowed to thrive on the relationship of rights and obligations much more in trying times.
In the difficult situation we find ourselves in today, deducing data privacy and protection rights as hindrance to the implementation of the government and organizations strategy of reducing community transmission is detrimental to helping the most vulnerable group in this pandemic, the patients. Some questions we need to ask ourselves are: “How would the government or a company ensure the safety of COVID-19 patients from discrimination? What about from arbitrary and unjust persecution?” The desire to protect the majority at the expense of the defenseless exposes the “survival of the fittest” culture. Data privacy rights as collateral damage. The most vulnerable group in our society needs more than ever the support and protection of both the government and organizations from the virus including the human right to privacy. It is not and either or. Right to life and right to data privacy are not mutually exclusive.
Eleanor Roosevelt, 1958 said: “Where, after all, do universal human rights begin? In small places, close to home - so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seek equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.”
The patients are already a victim of the unforgiving virus, let us not make them more a victim of data privacy rights.
Article contributed by: Edwin Concepcion, FIP, CIPM, CIPT, CIPP/E
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