ECA

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basic human rights

8.7 Electronic Commerce Act (RA 8792) It did not create substantive rights.
goal: electronic document will be at par doon sa mga in writing.
8.7.1 Principles form (evidentiary
functional equivalent of ordinary documents
neutrality technology cloud
media (medium) CD, flashdrive, etc.
Objective:
1. to facilitate domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storage
of information through the utilization of electronic, optical and similar medium, mode, instrumentality and technology.
2. to recognize the authenticity and reliability of electronic data messages or electronic documents related to such activities and
3. to promote the universal use of electronic transactions in the government and by the general public.

8.7.2 Application commercial domestic & international dealings


non-commercial activities transactions
to any kind of electronic document
arrangements
EDM - electronic data message exchange & storage of information
8.7.3 Definition of terms
ED - electronic document
does not include a person acting as an intermediary
(a) "Addressee" - intended by the originator to receive the EDM or ED.
(b) "Computer" - capable of receiving, recording, transmitting, storing, processing, retrieving, or producing information, data,
figures, symbols or other modes of written expression
(c) "Electronic Data Message" - information generated, sent, received or stored by electronic, optical or similar means.
Generating
(d) "Information and Communications System" Sending
or processing EDM or ED
Receipt
Storing

(e) "Electronic Signature" - any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person
with the intention of authenticating or approving an EDM or ED
(f) "Electronic Document" -information or the representation of information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may
be prove and affirmed, which is receive, recorded, transmitted, stored, processed, retrieved or produced electronically.

(g) "Electronic Key" - a secret code which secures and defends sensitive information that cross over public channels into a form
decipherable only with a matching electronic key.

(h) "Intermediary" in behalf of another person and with respect to a particular ED


sends, receives and/or stores, provides other services in respect of that EDM or ED
does not include a person acting as an intermediary
(i) "Originator" - by whom, or on whose behalf, the electronic document purports to have been created, generated and/or sent.

(j) "Service provider" - provider of


i. On-line services or network access or the operator of facilities designated or
ii. The necessary technical means by which ED of an originator may be stored and made accessible to undesignated third party
to modify or
have no authority
alter the content of the EDM or ED received
I to make any entry therein on behalf of the originator, addressee or any third party
unless specifically authorized to do so

retain the electronic document in accordance with the specific request or as necessary for the purpose of
performing the services it was engaged to perform.

8.7.4 Legal recognition and communication of electronic data messages and electronic documents

Legal recognition of EDM

Information shall not be denied validity or enforceability solely on the ground that it is in the form of EDM
Legal recognition of ED
shall have the legal effect, validity or enforceability as any other document or legal writing

a. where Law requires document to be in writing


maintains its integrity and reliability remain complete and unaltered
it is met by ED if
can be authenticated so as to be usable for subsequent reference reliable

b. applies whether the requirement therein is in the form of an obligation or whether the law simply provides
consequences for the document not being presented or retained in its original from.

(c) Where the law requires that a document be presented or retained in its original form
there exists a reliable assurance as to the integrity of the document from the time when it
it is met by ED if was first generated in its final form, as and ED is shown by evidence aliunde or otherwise; and
from another source
that document is capable of being displayed to the person to whom it is to be presented

no provision of E-Commerce Act shall apply to vary any and all requirements of existing
laws on formalities required in the execution of documents for their validity.

“E-Commerce Act does not modify any statutory rule relating to admissibility of EDM or ED,
except the rules relating to authentication and best evidence.”

Fax machine is not a source of electronic document.

hindi kasi siya “paperless”


Legal recognition of Electronic Signatures (ES)

equivalent to the signature of a signature is an ES


person on a written document if proved by showing that a prescribed procedure, not alterable by the
parties interested in the electronic document, existed under which:

identify the party sought to be bound and


(a) A method is used to consent or
to indicate said party's access to the ED necessary for his through the ES
approval

reliable and
(b) method is for the purpose of ED, including any relevant agreement
appropriate
(c) It is necessary for the party sought to be bound, in or order to proceed further with the transaction, to have
executed or provided the electronic signature; and

authorized and
(d) The other party is
enabled to verify the electronic signature and
to make the decision to proceed with the transaction

Presumption relating to ES
ES is the signature of the person to whom it correlates and
ES was affixed by that person with the intention of signing or approving the ED
unless: the person relying on the electronically signed electronic document knows or has
noticed of defects in or unreliability of the signature or reliance on the electronic
signature is not reasonable under the circumstances.
Authentication of EDM and ED

a. ES shall be authenticated by the proof that a letter, character, number or other symbol in electronic
form representing the persons named by the appropriate methodology or security procedures with
the intention of authenticating or approving.
b. EDM/ED shall be authenticated by proof that appropriate security procedure was adopted & employed for
verifying the originator
detecting error or alteration

The Supreme Court may adopt such use of electronic notarization systems as necessary and advisable
other authentication procedures certificate of authentication on printed or hard copies of the ED or EDM

Burden of Proof
The person seeking to introduce an EDM or ED in any legal proceeding

Integrity of Information and Communication System

In the absence of evidence to the contrary, its integrity may be established in any legal proceeding

By evidence that was operating in a manner that did not affect the integrity of the EDM or ED
at all material times there are no other reasonable grounds to doubt the integrity

by a party to the proceedings who is adverse in interest to the party using it; or
By showing that the EDM or
ED was recorded or stored in the usual and ordinary course of business by a person who is not a party to the
proceedings and who did not act under the control of the party using the record.
Admissibility and Evidential Weight of Electronic Data Message or Electronic Document

on the sole ground that it is in electronic form


nothing shall deny EDM or ED as evidence
that it is not in the standard written form

the following shall be given due regard: it was generated, stored or communicated
reliability of the manner in which its originator was identified
other relevant factors

Retention of EDM or ED
also satisfied by using the services of a third party, as long as conditions are met
certain documents be retained in their original form is satisfied by retaining them in the form of an EDM or ED which
remains accessible so as to be usable for subsequent reference
retained in the format in which it was generated, sent, or received
enables the identification of its originator/addressee

Formation of Validity of Electronic Contracts

the offer
acceptance of an offer may be express, demonstrated and proved by means of EDM or ED
other elements

deemed consummted upon actual dispensing of cash or debit/credit of account


electronic transactions made through
obligation of one bank, entity, or person shall be considered absolute and shall
networking among banks or linkages
not be subject to the process of preference of credits
Attribution of EDM
source
sent by originator himself
1. originator sent by a person who had the authority to act on behalf of the originator
sent by an information system programmed by, or on behalf of the originator to operate automatically

2. an addressee is entitled to regard an EDM or ED as being that of the originator, and to act on that assumption
in order to ascertain the addressee properly applied a procedure previously agreed to by the originator
if
the EDM or ED resulted from the actions of a person whose relationship with the originator or with any
agent of the originator enabled that person to gain access to a method used by the originator to identify
EDM as his own.

when the addressee notice from the originator that the EDM or ED is not that of the originator
has both received: and has reasonable time to act accordingly; or
does not apply
at any time when the addressee knew or should have known, had it exercised reasonable
care of used any agreed procedure, that the EDM or ED was not that of the originator
3. The addressee is entitled to regard each EDM or ED received as a separate EDM or ED and to act on that assumption

to the extent that it duplicates another EDM or ED and


except
the addressee knew or should have known, had it exercised reasonable care or used
any agreed procedure, that the EDM or ED was a duplicate.
Error on Electronic Data Message or Electronic Document
the addressee is entitled to regard the EDM or ED received as that which the originator intended to send

unless the addressee knew the transmission resulted in any error


or should have known sent to an information system which is not so designated by the addressee

Acknowledgement of Receipt of Electronic Data Messages or Electronic Documents

General rule: “No acknowledgment of receipt is necessary”


the parties agreed to it
Exception:
originator requested it in the EDM/ED

Modes of acknowledgement when required

1. agreement as to particular method - to be followed


any communication by the addressee
2. if there’s no agreement any conduct of the addressee sufficient to indicate the receipt to the originator

Instances when the originator can regard non-receipt since there was no acknowledgment
1. originator stated the effect or significance of acknowledgment or the ED is conditional upon receipt
2. no statement as to effect/significance - originator gave notice that no acknowledgment has been received and no
acknowledgment is still received within such reasonable time when specified

Time of Dispatch of Electronic Data Messages or Electronic Documents

General rule: “When it enters an information system outside the control of the originator or on his behalf”

Exception: when otherwise agreed upon


Time of Receipt of Electronic Data Messages or Electronic Documents

Yes -> upon entry in the designated IS

designated an if both participants in the IS


information system? -
upon retrieval by the addressee
enters not in the designated IS
(IS)

No upon entry in the designated information system of the addressee

Place of Dispatch and Receipt of Electronic Data Messages or Electronic Documents

dispatched - place of business of originator


Unless otherwise agreed if none, “habitual residence”
received - place of business of addressee

closest relationship to the transaction


if more than 1 place of business
if no transaction, principal place of business
‘usual place of residence’ - for corporate, place where it is incorporated or legally constituted

“rule shall apply even if the originator or addressee had used a laptop other portable device to transmit or received his
electronic data message or electronic document. This rule shall also apply to determine the tax situs of such transaction.”

Choice of Security Methods subject to laws/rules/guidelines promulgated by DTI with other government agencies

free to determine the type of level of electronic data message and electronic document
parties to any electronic security needed, and
transaction shall be
to select and use or implement appropriate technological methods that suit their need.
8.7.5 Electronic commerce in carriage of goods

Actions related to Contracts of Carriage of Goods


stating the nature or value
furnishing the marks, number, quantity or weight of goods; issuing a receipt
confirming that goods have been loaded
notifying a person of terms and conditions of the contract giving instructions to a carrier
authorizing release of goods
claiming delivery of goods giving notice of loss of, or damage to goods

giving any other notice or statement


undertaking to deliver goods to a named person or a person authorized to claim delivery
granting, acquiring, renouncing, surrendering, transferring or negotiating rights in goods
acquiring or transferring rights and obligations under the contract

Transport Documents
(1) Where the law requires that any action referred to contract of carriage of goods be carried out in writing or by using a paper document, that
requirement is met if the action is carried out by using one or more data messages or electronic documents.
(2) Paragraph (1) applies whether the requirement there in is in the form of an obligation or whether the law simply provides consequences for
failing either to carry out the action in writing or to use a paper document.
(3) If a right is to be granted to, or an obligation is to be acquired by, one person and no person, and if the law requires that, in order to effect
this, the right or obligation must be conveyed to that person by the transfer, or use of, a paper document, that requirement is met if the right or
obligation is conveyed by using one or more electronic data messages or electronic documents unique;
(4) For the purposes of paragraph (3), the standard of reliability required shall be assessed in the light of the purpose for which the right or
obligation was conveyed and in the light of all the circumstances, including any relevant agreement.
(5) Where one or more data messages are used to effect any action in subparagraphs (f) and (g) of Section 25, no paper document used to effect
any such action is valid unless the use of electronic data message or electronic document has been terminated and replaced by the used of paper
documents. A paper document issued in these circumstances shall contain a statement of such termination. The replacement of the electronic data
messages or electronic documents by paper documents shall not affect the rights or obligation of the parties involved.
(6) If a rule of laws is compulsorily applicable to a contract of carriage of goods which is in, or is evidenced by, a paper document, that rule shall
not be inapplicable to such a contract of carriage of goods which is evidenced by one or more electronic data messages or electronic documents by
reason of the fact that the contract is evidenced by such electronic data messages or electronic documents instead of by a paper document.
8.7.6 Electronic transactions in Government

Government Use of Electronic Data Messages, Electronic Documents and Electronic Signatures

within two (2) years from date of effectivity, they shall:


June 14, 2000

(a) accept the creation, filing or retention of such documents in the form of EDM or EDM;
(b) issue permits, licenses, or approval in the form of EDM or ED;
(c) require and/or accept payments, and issue receipts acknowledging such payments, through systems using EDM or ED; or
(d) transact the government business and/or perform governmental functions using EDM or ED, and for the purpose, are
authorized to adopt and promulgate, after appropriate public hearing and with due publication in newspapers of general
circulation, the appropriate rules, regulations, or guidelines, to, among others, specify -
1) the manner and format in which such EDM or EDshall be filed, created, retained or issued;
2) where and when such EDMor ED have to signed, the use of an ES, the type of ES required;
3) the format of an EDM or ED and the manner the ES shall be affixed to the EDM or ED;
4) the control processes and procedures as appropriate to ensure adequate integrity, security and confidentiality of
EDM or ED or records of payments;
5) other attributes required to EDM or ED or payments; and
6) the full or limited use of the documents and papers for compliance with the government requirements: Provided,
that E-Commerce Act shall be itself mandate any department of the government, organ of state or statutory
corporation to accept or issue any document in the form of EDM or ED upon the adoption, promulgation and
publication of the appropriate rules, regulations or guidelines.
Obligations under the E-Commerce Act

Extent of Liability of a Service Provider

General Rule: “No person or party shall be subject to any civil or criminal liability in respect of the
electronic data message or electronic document for which the person or party acting as a
service provider, merely provides access if such liability is founded on”

Including: The making, publication, dissemination or distribution of such material or any statement made in such
material, including possible infringement of any right subsisting in or in relation to such material
-does not have actual knowledge, or is not aware of the facts or circumstances that such material is unlawful
or infringes any rights
-does not knowingly receive a financial benefit directly attributable to the unlawful or infringing activity; and
-does not directly commit any infringement or other unlawful act and does not induce or cause another
person or party to commit any infringement or other unlawful act and/or does not benefit financially from
the infringing activity or unlawful act or another person or party

Exceptions:

obligations and liabilities of the parties under the electronic data message or electronic document
any obligation founded on contract
the obligation of a service provider as such under a licensing or other regulatory regime established under
written law; or
any obligation imposed under any written law
the civil liability of any party to the extent that such liability forms the basis for injunctive relief issued by
a court under any law requiring that the service provider take or refrain from actions necessary to remove,
block or deny access to any material, or to preserve evidence of a violation of law
Lawful Access

authorized and enforced in favor of the individual or entity having a legal right to the possession or the
use of plaintext, electronic signature or file or solely for the authorized purposes.

Obligation of Confidentiality
any person who obtained access shall not convey to or share the same with any other person

Unlawful Acts and Penalties

min - 100,000; max - damage incurred


Hacking or Crackling
6 months to 3 years imprisonment
unauthorized access, interference, authorized access without consent and bad intention, introduction of viruses

min - 100,000; max - damage incurred


Piracy
6 months to 3 years imprisonment
(infringement) - without prejudice to IPL, meaning pwede kang maging liable sa IPL and E-Commerce Act

max - 1,000,000
Others 6 years imprisonment
consumer products, etc.

Reciprocity?
Intermediary

--
Originator Electronic Data Message Addressee
Created/Generated/Sent Intended to Receive

ephemeral electronic communication (ecc) electronic document


data is not stored permanently ¨right is established
¨obligation is extinguished
example: text message ¨fact may be proven or affirmed
Globe/Smart does not have a copy

DISPATCH RECEIPT

with
it can be anything; not limited sa pirma mismo
Establish Authenticity and Integrity - Electronic Signature to identify the originator
password, voice, signature

electronic document in its Signature - does not refer to the wet signature or identification.
final form was not altered from It is a methodology of confirming your identity.
the time it was sent up to the What the law honors is Asymetric system which involves a pair of key
Digital
time it was received. private - remains in the originator
public - given to recipient or third party
Certificate - yung mga nasa website; a way of verifying the digital signature

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