Historical Background

Pre-Electronic Commerce Act (ECA) Era

- People vs. Burgos, 200 SCRA (1991)
Prosecution under the Anti-Subversion Act
Trial court disallowed the printing of date from
diskettes because the diskettes
were in the possession of the prosecution
Printing could be manipulated by prosecution
witness
 Historical Background

SC held that trial courts lack of confidence in

the witness should not have affected integrity
of the diskettes or prosecutions right to show
contents of the diskettes.
- IBM Philippines, Inc. vs. Pena, 305 SCRA 92 (1999)
Illegal termination case
Employer attached e-mails to Position Paper
showing absenteeism, tardiness and
sufficient warnings therefore.
 Historical Background

SC held that e-mails were inadmissible because:

They were not signed
Not certified or authenticated by company
official who could attest that
They came from IBMs computer system or
Data stored were not or could not have
been tampered with before they were printed
out.
 Historical Background

- Burgos and IBM cases highlight three (3) evidentiary

matters relating to computer-based documents:
Right to use the document as evidence
Integrity of the electronic document
Authentication of the document for evidentiary
purposes
 Historical Background
ECA ERA
- 14 June 2000
The Electronic Commerce Act (R.A. 8792)
approved into law.
Basically patterned after the UNCITRAL Model
Law.
Model Law for Electronic Commerce Laws
Adopted by the UN General Assembly in 1996
Other countries that adopted the UNCITRAL Model
Law e.g. Australia, Canada and Singapore.
 Historical Background
- 13 July 2000
DTI Implementing Rules and Regulations (IRR)
No detailed rules on evidence
- 1 March 20001
SC Administrative Circular No. 19-2001
constituting Committee on the Revision of Rules
of Court to draft the Rules on E-Commerce Law
Subcommittee on E-Commerce
 Historical Background
Limitations/Constraints
ECA technical in nature
No detailed rules of evidence under the UNCITRAL
Model law
Not much situational experience
First in the field of electronic evidence
No other country has yet adopted a detailed set
of evidentiary rules implementing
their own statutory version of
the UNCITRAL Model.
 The ECA

Non-discrimination rule
Functional equivalent rule
Not a rule on automatic admissibility
 The ECA

- 17 July 2001
SC En Banc approves Rules on
Electronic Evidence (REE)
- 1 August 2001
REE went into effect.
 Non-Discrimination Rule

Section 6. Legal Recognition of Electronic

data Message. Information shall not be
denied validity or enforceability solely on the
ground that is in the form of electronic data
message purporting to give rise to such legal
effect, or that it is merely incorporated by
reference in that electronic data message.
 Non-Discrimination Rule

Section 12. Admissibility and Evidential Weight of

Electronic Data Messages or Electronic Documents. In
any legal proceedings, nothing in the application of the
rules on evidence shall deny admissibility of an
electronic data message or electronic document in
evidence-
a. On the sole ground that it is in electronic form;
or
b. On the ground that it is not in the
standard form x x x
 Functional Equivalent Rule

- An electronic document is the

functional equivalent of a paper-
based document.
- An electronic signature is the
functional equivalent of a
handwritten signature.
 Functional Equivalent Rule

Section 7. Legal recognition of Electronic

Documents.
xxx
For evidentiary purposes, an electronic
document shall be the functional equivalent of
a written document under existing laws.
x x x
 Functional Equivalent Rule
Section 10. Original Documents (1) Where
the law requires information to be presented or
retained in its original form, that requirement is
met by an electronic data message or electronic
document if:
(a) the integrity of the document is shown
evidence aliunde or otherwise; and
(b) the document is capable of being
displayed to the person to whom it is
presented
 Functional Equivalent Rule

Section 8. Legal Recognition of Electronic

Signatures. An electronic signature on the
electronic document shall be the equivalent
to the signature of a person on a written
document if the signature is an electronic
signature and proved by showing that a
prescribed procedure, not alterable by the
parties interested in the electronic document,
existed
 ECA Not a Rule on Automatic
Admissibility

Section 7 x x x
xxx

The Act does not modify any statutory

rule relating to the admissibility of electronic
data messages or electronic documents,
except the rules relating to authentication and
best evidence. (underscoring supplied)
 The RULES on ELECTRONIC
EVIDENCE (REE)

Some Basic Things to remember

- REE is interim in nature
Will be improved as time and experience will dictate.
- REE simplified to facilitate its application to actual
court setting
Minimize use of technical terms in the ECA
Familiar terms and phrases found in
the present body of law used to the
maximum.
 Structure of the REE

Rule 1 - Coverage
Rule 2 Definition of Terms and Construction
Rule 3 Electronic Documents
Rule 4 Best Evidence Rule
Rule 5 Authentication of Electronic
Documents
Rule 6 Electronic Signatures
Rule 7 Evidentiary Weights of Electronic
Documents
 Structure of the REE

Rule 8 Business Record Exception to the

Hearsay Rule
Rule 9 Method of Proof
Rule 10 Examination of Witnesses
Rule 11 Audio, Photographic, Video and
Ephemeral Evidence
Rule 12 Final Provisions
 Rule 1
- Scope of the Rules
Apply to presentation of electronic
documents;
Audio, photographic, video and ephemeral
evidence.
- Cases Covered
Civil cases and Proceedings
Quasi-judicial
Administrative proceedings
Coverage
 Rule 1
- Suppletory application of other rules
Rules of Court, e.g., relevance, offer of
evidence;
Statutes containing rules of evidence, e.g.
Wiretapping Act (RA 4200) and Bank Secrecy
Law (R.A. 1405, as amended)
- Computer

Coverage
 Rule 2
- Electronic document anything generated,
processed, sent, retrieved, received or stored
electronically such as by computer, cellular phone
or fax machine, e.g.,
E-mails
Diskette or soft copy of document
Message in memory of fax machine
Hard copy of fax transmission
Computer screen copy
Message on Palm Pilot or HP Jornada
Print-outs
 Rule 2
- Electronic signature
- Digital signature
- Information and communication system
- Etc. key pair, private key, public key
- Construction
Liberally construed.
International origin of the ECA
Doubts should be resolved in favor of
admissibility.
Definition of Terms & Construction
 Rule 3
Functional equivalent rule
- Term writing, document, record,
instrument, memorandum or any other
form of writing under rules on evidence
includes electronic document, e.g.:
Documentary evidence (Sec. 2, Rule 130)
Best Evidence Rule (Secs. 3-4, Rule 130)
Parole Evidence Rule (Sec. 9, Rule 130)
Interpretation of Documents (Secs. 1-
19, Rule 130)
Electronic Documents
 Rule 3
Memorandum testimony (Sec. 16, Rule
132)
Present recollection recorded
Past recollection recorded
Tender of Excluded Evidence or Offer of
Proof (Sec. 40, Rule 132)
Statute of Fraud (Art. 1403, Civil Code)
Bank Secrecy Law (R.A. 1405, as
amended)
Electronic Documents
 Rule 3
Requisites for admissibility of Electronic Document
- Complies with the rules on admissibility, and
- Authenticated in the manner prescribed by the
REE.
Requirement of integrity built in the
modes of authentication.
Privileged communication
- Confidential character not lost solely on the
ground that it is in the form of an
electronic document.
Electronic Documents
 Rule 4

- Original under the Best Evidence Rule if:

Any printout or other output;
Readable by sight or by other means; and
shown to reflect the data accurately (Sec. 1).
- Copies as originals
Copies
executed at or about the same time
with identical contents.

Best Evidence Rule

 Rule 4

Counterparts
Produced from the same impression as the
original, or from the same matrix, or by
mechanical or electronic-re-recording, or by
chemical reproduction, or by other equivalent
techniques, and
accurately reproduces the original.
E.g. scanned documents, photocopies of
electronic documents.

Best Evidence Rule

 Rule 4

Exceptions
Genuine question is raised as
to authenticity of original;
Unfair to admit the copy in lieu
of original (Sec. 2)

Best Evidence Rule

 Rule 4
Addition of any
- endorsement
- Authorized change
- Change which arises in the normal course of
Communication
Storage, or
Display
does not affect the integrity of the electronic
document.

Best Evidence Rule

 Rule 5

ECA prescribes modes of authentication of electronic

documents and signatures (SEC. 11)
- Technical in nature algorithm, codes, encryption, etc.
Fortunately, ECA expressly grants the Supreme Court
power to modify the modes of authentication (Sec. 12)
- Until the Supreme Court by appropriate rules shall
have so provided, electronic documentsand electronic
signatures shall be authenticated by (Sec. 12)

Authentication of Electronic Documents

 Rule 5
- The Supreme Court may adopt other
authentication procedures(id.)
- Hence, the REE.
- Burden of proving authenticity.
Person seeking to introduce an
electronic document in any legal
proceeding (Sec. 1)

Authentication of Electronic Documents

 Rule 5
- Manner of authentication
Before any private electronic
document offered as authentic is received
in evidence, its authenticity must be
proved by any of the following
means:
Digitally signed by the person
purported to have signed the same;

Authentication of Electronic Documents

 Rule 5
By evidence that other appropriate security
procedure or device as may be authorized by the
Supreme Court or by law specifically for
authentication of electronic documents was
applied to the document; or
By other evidence showing the integrity and
reliability of the electronic document to the
satisfaction of the judge, e.g.:
Witness testifies of that he decrypted the
document using the public key of the sender;

Authentication of Electronic Documents

 Rule 5
Third party intermediary (e.g. document
escrow agent) testifies that the document is a
faithful copy of the document entrusted to it by
the contracting parties.
Witness testifies that he saw electronic
document executed and that the same has
remained unaltered from the time it was first
generated in its final form as an electronic
document.

Authentication of Electronic Documents

 ECA grants SC power to adopt electronic
notarization as a mode of authentication (Sec.
11)
Proof of electronically notarized documents
- Must be electronically notarized in accordance
with the
rules to be promulgated by the Supreme Court.
- If so:
Public document, and
Proved as a notarial document.
Electronically Notarized Documents
 Rule 6
Electronic signature as the functional equivalent
of a handwritten signature (Sec. 1)
Includes digital
Must be authenticated in the manner
prescribed by the Rules.
Authentication of electronic signatures
By evidence that a method of process was
utilized to established a digital signature and
verify the same;

Electronic Signatures
 Rule 6

By any other manner provided by law; or

By any other means satisfactory to the
judge as establishing the genuineness of the
electronic signature (Sec. 2)
Disputable presumptions relating to electronic
signatures. upon authentication, it shall be
presumed that:
The electronic signature is that of the
person to whom it correlates;

Electronic Signatures
 Rule 6
Affixed with the intention of
authenticating or approving the electronic
document to which it is related or to
indicate such persons consent to the
transaction memorialized therein; and,
The method or processes utilized to
affix or verify the electronic signatures
operated without error or fault
(Sec. 3).

Electronic Signatures
 Rule 6
Disputable presumptions relating to electronic
signatures. upon authentication, it shall be
presumed that:
The information contained in a digital
certificate is correct;
The digital signature was created during the
operational period of a valid certificate;
The message associated with a digital
signature has not been altered from the time it
was signed;
Electronic Signatures
 Rule 6
No cause to render a digital certificate
invalid or revocable; and,
A digital certificate had been issued by
the certificate authority indicated therein.
Note Presumptions are in addition
to the presumptions attaching to a duly
authenticated electronic signature.

Electronic Signatures
 Rule 7
Factors for assessing evidentiary weight
The reliability of the manner or
method in which it was generated, stored
or communicated;
The reliability of the manner in which
its originator was identified;
The integrity of the information and
communication system in which it is
recorded or stored;
Evidentiary Weight of Electronic Documents
 Rule 7
The familiarity of the witness or the person
who made the entry with the communication
and information system;
The nature and quality of the information
which went into the communicable and
information system upon which the electronic
date message or electronic document was based;
or
Other factors affecting accuracy or integrity
of the electronic document.

Evidentiary Weight of Electronic Documents

 Rule 8
Requisites to qualify as exception to the hearsay
rule:
Memorandum, report, record or data
compilation of
acts, events, conditions, opinion, or
diagnoses,
Made by
Electronic
Optical, or
similar terms
Business Record Exception to the Hearsay Rule
 Rule 8
At or near the time of or from transmission
or supply of information
by a person with knowledge thereof,
Kept in the regular course or conduct of a
business activity, and
such was the regular practice of that
business activity
to make the memorandum, report,
record, or data compilation
By electronic, optical or similar means.
Business Record Exception to the Hearsay Rule
 Rule 8
Example:
Accounting records evidence of amount of
delivery, payment made, outstanding balance,
without presenting a witness to prove the
amount of delivery.
How to prove by testimony of:
Custodian
Other qualified witness
Entrant or prepare of record need not
testify (U.S. vs. Fendley, 522 F.2d 181 [5th
Cor. 1975]; U.S. vs. Dawson, 400 F.2d 194
[2nd Cir. 1968])
 Inapplicability of Exception
- Untrustworthiness of
Source of information
Method of circumstances of
Preparation
Transmission
Storage

BUSINESS RECORDS EXCEPTION

 Changes from the current business record
exception
- Entrant need not be deceased or
unable to testify (cf. Sec. 43, Rule 130)
- Entrant need not have personal
knowledge (cf. Cangue vs. Court of
Appeals, 305 SCRA 579 1999), PHILAMLIFE
vs. Capital Assurance Corporation, [CA]
72 O.G. 349 [1975].
BUSINESS RECORDS EXCEPTION
 Rule 9
Affidavit evidence
Requisites for admissibility; and
Evidential weight of an electronic
document (Sec. 1).
Cross-examination
Affiant shall be made to affirm the
contents of the affidavit in open court;
May be cross-examined by adverse
party (Sec. 2).
Method of Proof
 Rule 10
Electronic
- Examples:
Closed-circuit television
Video conferencing
Satellite testimony
- Summary hearing
Necessity for presentation of testimonial
evidence by electronic means affidavit
testimony subject to cross examination pursuant
to Rule 9;
Examination of Witnesses
 Rule 10
- Transcript of electronic testimony
Entire proceedings shall be transcribed;
Transcript should reflect the fact that the
proceedings, either in whole or in part, had been
electronically recorded.
- Storage of Electronic Evidence
Constitute part of the records of the case.
Deemed prima face evidence of
proceedings.
Examination of Witnesses
 Rule 11
- Audio, video and similar evidence.
Audio, photographic, and video evidence
of events, acts or transactions shall be
admissible.
- Authentication identified, explained, or
authenticated by:
person who made the recording, or
or some other person competent to
testify on the accuracy thereof.
Audio, Photographic, Video, and
Ephemeral Evidence
 Rule 11
- Ephemeral electronic communications
Refer to telephone conversations, text
messages, chatroom sessions, etc. the
evidence of which is not recorded or retained.
Authentication
Person who was a party to the same, or
Person who has personal knowledge.
In the absence or unavailability
of such witnesses, other
evidence may be admitted.
 Rule 11

If the foregoing communications are

recorded or embodied in an electronic
document, then the provisions of Rule 5
(on authentication) shall also apply.

Audio, Photographic, Video, and

Ephemeral Evidence
 Rule 12

- Rules shall apply to electronic

evidence presented in pending cases after
the affectivity of the Rules.
- Rules took effect on 1 August
2001.

Final Provisions