FACTS
In 2019, the Office of the Court Administrator (OCA) received an anonymous complaint accompanied by printed copies of photographs allegedly posted on the Facebook account of Judge Romeo M. Atillo, Jr., the Executive Judge and Presiding Judge of the Regional Trial Court (RTC), Branch 31, in Agoo, La Union. The images depicted Judge Atillo half-dressed, showcasing tattoos on his upper body, and were used as cover photos and profile pictures on his public Facebook profile. The complainant argued that these posts were inappropriate for a sitting judge, potentially undermining the dignity and impartiality of the judiciary. The OCA initiated an investigation, prompting Judge Atillo to claim that his account was hacked in August 2019, switching its privacy settings from private to public without his consent. He argued that the photos were intended for private viewing among his Facebook friends and not for public consumption. The OCA found that the public accessibility of these images, regardless of the hacking claim, created a negative perception among the public, particularly litigants in his court, raising concerns about his propriety as a judge.
The anonymous complainant contended that Judge Atillo’s act of posting half-dressed photographs revealing his tattoos on a publicly accessible Facebook account violated Sections 1 and 2 of Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary, which require judges to avoid impropriety and the appearance of impropriety. The complainant argued that such images, visible to the general public and litigants, could lead to skepticism about Judge Atillo’s fitness as a judge, thereby eroding public trust in the judiciary. The complainant further asserted that the photographs were admissible as evidence, having been retrieved from a public social media platform, and were relevant to demonstrating the judge’s improper conduct.
Judge Atillo admitted to posting the photographs but claimed they were meant for private viewing among his Facebook friends, asserting that his account was hacked, resulting in the privacy settings being changed to public. He argued that the photographs were inadmissible under the exclusionary rule, as they were obtained without his consent, violating his constitutional right to privacy under Section 3, Article III of the Constitution. He further contended that the images did not inherently demonstrate misconduct, as they were personal in nature and not intended to affect his judicial duties.
ISSUES
- Whether or not Judge Atillo, Jr. breached his duty to avoid impropriety, or even just the appearance of impropriety.
- Whether or not the pictures are inadmissible in evidence under the exclusionary rule.
- Whether or not the penalty imposed is proper.
RULING
1. Whether or not Judge Atillo, Jr. breached his duty to avoid impropriety, or even just the appearance of impropriety.
YES, Judge Atillo, Jr. breached his duty to avoid impropriety, or even just the appearance of impropriety.
The Court has often reminded judges to always conduct themselves irreproachably and in a manner exemplifying integrity, honesty, and uprightness, not only in the discharge of their official duties, but also in their personal lives. In other words, “[t]heir conduct must be guided by strict propriety and decorum at all times in order to merit and maintain the public’s respect for and trust in the Judiciary.”
In the case of Lorenzana v. Judge Austria (Lorenzana), the Court found the respondent judge guilty of impropriety when she posted pictures of herself wearing an “off-shouldered” suggestive dress on a social networking site and made it available for public viewing. It explained that:
x x x While judges are not prohibited from becoming members of and from taking part in social networking activities, we remind them that they do not thereby shed off their status as judges. They carry with them in cyberspace the same ethical responsibilities and duties that every judge is expected to follow in his/her everyday activities. It is in this light that we judge the respondent in the charge of impropriety when she posted her pictures in a manner viewable by the public.
x x x x
To restate the rule: in communicating and socializing through social networks, judges must bear in mind that what they communicate – regardless of whether it is a personal matter or part of his or her judicial duties – creates and contributes to the people’s opinion not just of the judge but of the entire Judiciary of which he or she is a part. This is especially true when the posts the judge makes are viewable not only by his or her family and close friends, but by acquaintances and the general public.
The Court clarifies that the impropriety in this case relates solely on Judge Atillo, Jr.’s act of posting the subject pictures on social media, and it has absolutely nothing to do with his choice to have tattoos on his body. Simply put, by posting the pictures on Facebook, Judge Atillo, Jr. placed himself in a situation where he, and the status he holds as a sitting judge, became the object of the public’s criticism and ridicule. This is easily evinced by the very fact that an anonymous person saw fit to send the pictures to the OCA for appropriate disciplinary action.
2. Whether or not the pictures are inadmissible in evidence under the exclusionary rule.
NO, the pictures are NOT inadmissible in evidence under the exclusionary rule.
It is elementary that the exclusionary rule under Section 3(2),[18] Article III of the Constitution only applies as a restraint against the State and cannot be extended to acts committed by private individuals, save for instances where such individuals are shown to have acted under the color of a state-related function. Clearly, the exclusionary rule finds no application in the case because the State was in no way involved in the retrieval of the subject pictures from Judge Atillo, Jr.’s Facebook account.
Moreover, the OCA is correct that Judge Atillo, Jr. cannot simply evade administrative liability by relying on the “friends” only privacy setting of his Facebook account as a defense.
As the Court observed in the case of Vivares v. St. Theresa’s College (Vivares), setting a post’s or profile detail’s privacy to “‘friends” does not guarantee that the content will not be accessible to another user who is not Facebook friends with the source thereof, viz.:
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 as “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.
Thus, the Court in Vivares warned social media users of the risks involved when sharing content in cyberspace as follows:
[Online social network] users should be aware of the risks that they expose themselves to whenever they engage in cyberspace activities. 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 their parties who may or may not be allowed access to such.
The Court is not unaware that Judge Atillo, Jr.’s act of posting the subject pictures on his Facebook account would no doubt seem harmless and inoffensive if it was done by an ordinary member of the public. “As the visible personification of law and justice, however, judges are held to higher standards of conduct and thus must accordingly comport themselves.”
By doing so, Judge Atillo, Jr. likewise failed to adhere to the standard of propriety required of judges and court personnel under OCA Circular No. 173-2017, which mandates all members of the Judiciary who participate in social media to be cautious and circumspect in posting photographs, liking posts, and making comments in public on social networking sites like Facebook. Indeed, Judge Atillo, Jr. should have known better than to post highly personal content on his Facebook account that was viewable not only by his family and close friends, but also, by his “regular followers” or, in other words, members of the general public.
3. Whether or not the penalty imposed is proper.
YES, the penalty imposed is proper.
The Court finds that Judge Atillo, Jr.’s complained act constitutes Conduct Unbecoming of a Judge, which, under Section 24, in relation to Section 25(C), of Rule 140, as amended by A.M. No. 18-01-05-SC and A.M. No. 21-03-17-SC, is a light offense that is punishable by any of the following: (a) a fine of not less than P1,000.00 but not exceeding P35,000.00, and/or; (b) censure; (c) reprimand; or (d) admonition with warning. After a careful consideration of the peculiar circumstances of this case, the Court deems it proper to impose against Judge Atillo, Jr. the penalty of an admonition as this is his first offense.
DISPOSITIVE PORTION
WHEREFORE, the Court resolves as follows:
- The Letter dated January 28, 2020 of the Office of the Court Administrator is RE-DOCKETED as a regular administrative matter;
- Respondent Judge Romeo M. Atillo, Jr. is found GUILTY of Conduct Unbecoming of a Judge and is hereby ADMONISHED to be more circumspect in his professional and personal dealings in social media and STERNLY WARNED that a repetition of the same or similar acts shall be dealt with more severely; and
- The Comment dated February 11, 2020 submitted by Respondent Judge Romeo M. Atillo, Jr. is NOTED.
SO ORDERED.
Full text of OCA v. Hon. Atillo, Jr., A.M. No. RTJ-21-018, September 29, 2021.
