8th International Organization for Judicial Training (IOJT) Conference

“Judicial Education 2025 Core Values and Future Innovations”

November 5–9 , 2017
Manila, Philippines

RULES ON
ELECTRONIC EVIDENCE
IBP Northern Luzon Regional Convention
Tuguegarao City, Cagayan
28 November 2018 – 01 December 2018

Atty. Francisco Ed. Lim

Vice Chair, PHILJA Department of Commercial Law
Senior Partner, Angara Abello Concepcion Regala & Cruz Law Offices
Bonifacio Global City, Taguig, Philippines
Email: felim@accralaw.com; francis.ed.lim@gmail.com
Tel: (632) 830-8000/8126/8127
 Historical Background
 ECA and REE Era
 14 June 2000
 The Electronic Commerce Act (R.A. 8792) (“ECA”) approved into law.
 13 July 2000
 DTI promulgated ECA’s Implementing Rules and Regulations
 17 July 2001
 SC En Banc approves Rules on Electronic Evidence (“REE”)
 01 August 2001
 REE went into effect.
 24 September 2000
 SC expanded REE’s coverage to include criminal cases (A.M. No. 01-07-01)

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Salient Features
of the ECA and REE
ECA
 Guiding principles –
1. Non-discrimination rule
2. Functional equivalent rule
3. Not a rule on automatic admissibility

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ECA’s 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.”

• “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 ground8 that it is in
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FUNCTIONAL EQUIVALENCE
Rule
• “Section 1. Electronic Documents as functional
equivalent of paper-based documents – Whenever a
rule of evidence refers to the term writing, document,
record, instrument, memorandum or any other form
of writing, such term shall be deemed to include an
electronic document as defined in these Rules. (REE
Rule 3)

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 ECA’s Functional Equivalent
Rule
 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.

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 ECA, Not a Rule on
“Auto-Admissibility”
“Sec. 7. xxx xxx 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)

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On REE’s Scope/Coverage

Scope of the Rules

 Apply to presentation of electronic documents
 Audio, photographic, video and ephemeral evidence
Note: In the case of Nuez v. Cruz-Apao (A.M. No. CA-05-18-
P, 12 April 2005), the SC ruled that SMS or text messages is
a form of electronic evidence, falling under the definition
of “ephemeral electronic communication” under Sec. 1(k)
of the REE. Under said rule, “ephemeral electronic
communication is defined as telephone conversations, text
messages, chatroom sessions, streaming audio, streaming
video, and other electronic forms of communication the
evidence of which is not recorded or retained. This ruling
was reiterated in Vidallon-Magtolis v. Salud
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On REE’s Scope/Coverage
Cases Covered
 Civil cases/proceedings
 Quasi-judicial proceedings
 Administrative proceedings
 Criminal proceedings (per SC AM No. 01-07-01, 24 September 2002)

Note: In the case of Ang v. Pascua (G.R. No. 182835, 20

April 2010), the SC said that the REE does not apply to
criminal actions. In this case, the accused, charged under
R.A. 9262 (Violence against Women & Children Act),
was questioning the admissibility of a text message as
electronic evidence.

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On REE’s Scope/Coverage
Note: In the case of People v. Enojas (G.R. No. 204894, 10
March 2014), the SC had the opportunity to rectify the
ruling made in the earlier Ang case, and ruled that due to
S.C. A.M. No. 01-7-01-SC (dated 24 September 2002) the
REE clearly applies to criminal cases. Hence, the Ang
case ruling on the non-applicability of REE to criminal
cases no longer holds “true”.

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On REE’s Definition
of Terms & Construction
 On “Electronic Signature”:
In the concurring opinion of Justice Velasco, Jr. in the case of
Capalla v. COMELEC (G.R. No. 201112, 13 June 2012), the SC
pointed out that an electronic signature may come in two forms: (a)
a distinctive mark, characteristic, or sound in electronic form; or
(b) a method or procedure employed by a person with the intention
of approving or authenticating an electronic document. In this
case, the SC held that there was compliance with legal
requirements on authentication of electronically transmitted
election results where each PCOS machine contained a built-in
certificate that was used to encrypt and digitally sign the election
returns upon transmission to the canvassing system.

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On REE’s Definition
of Terms & Construction
 On “Electronic Documents”
(Functional Equivalent Rule):
In the case of Garcillano v. House of Representatives
Committees (G.R. No. 170338, 23 December 2008), the validity
of the Rules of Procedure of the Senate was being questioned for
not being validly published (as the same was published online).
The SC held that the E-Commerce Act recognizes electronic
documents and electronic data messages as the functional
equivalent of a written document only for evidentiary purposes.
It does not make the Internet a medium for publishing laws,
rules, and regulations.
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 REE’s Rule on Admissibility
of Electronic Documents
 Requisites for Admissibility of Electronic Document:
(1) Complies with the rules on admissibility;
(2) Authenticated in the manner prescribed by the REE; and
(3) Requirement of integrity / built-in modes of authentication
Note: In the case of NAPOCOR v. Codilla (G.R. No. 170491, 04 April
2007, the SC ruled whether photocopies of documentary evidence
were admissible in evidence (in this case, the document contained
manual signatures). The SC held that a manual signature contained in a
print-out or photocopy of documents cannot be considered as
information electronically received, recorded, transmitted, stored,
processed, retrieved, or reproduced, as defined under the REE. The
earlier case of Aznar v. Citibank (G.R. No. 164273, 28 March 2007)
also held a similar ruling since the computer print-out in this case had
manual notations and signature. (continued to next slide)
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REE’s Rule on Admissibility
of Electronic Documents
 Note (continuation): With respect to fax transmissions, the
SC held in the case of MCC Industrial Sales Corporation
v. Ssangyong Corporation (G.R. No. 170633, 17 October
2007) that a facsimile transmission, by its very nature, is
not admissible as electronic evidence since it cannot be
considered an electronic document or electronic data
message. The same ruling was held in the obiter portion
of the decision in the SC case of Torres v. PAGCOR (G.R.
No. 193531, 14 December 2011).

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REE on Best Evidence Rule
 Original under the Best Evidence Rule if:
1) Any printout or other output;
2) Readable by sight or by other means; and
3) Shown to reflect the data accurately (Sec. 1,
Rule 4).
 Copies as originals if copies:
1) Executed at or about the same time; and
2) Contain identical contents.

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REE on Best Evidence Rule
 Counterparts
1) 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
2) Accurately reproduces the original.
Example: Scanned documents
 Exceptions:
1) Genuine question is raised as to authenticity of
original; and
2) Unfair to admit copy in lieu of original (Rule 4, Sec. 2)
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 REE on Authentication
of Electronic Documents
 Burden of proving authenticity (Rule 5, Sec. 1
- Person seeking to introduce an electronic document in any
legal proceeding
 Manner of authentication (any of the following means):
1) Digitally signed by the person purported to have signed the
same;
2) By evidence that other appropriate security procedure or device
as may be authorized by SC or by law specifically for
authentication of electronic documents was applied to the
document; or

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 REE on Authentication
of Electronic Documents

 Manner of authentication (continuation)

3) By other evidence showing the integrity and reliability of the electronic
document to the satisfaction of the judge
Examples:
 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 decrypted the document using the public key of the sender
 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;
 Circumstantial evidence, e.g. that the document contains information known to the
sender only, or that the document was replied to by the addressee.

Note: In the case of Aznar v. Citibank (G.R. No. 164273, 28 March 2007), the SC ruled
that to show the integrity and reliability of a private electronic document under Sec. 2(c),
Rule 5 of the REE, one must demonstrate how the information reflected in a computer
print-out was generated and how said information could be relied upon as true.
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 Affidavit Evidence
 All matters relating to the admissibility and evidentiary weight of an
electronic document may be established by an affidavit.
 The affidavit must state facts of direct personal knowledge of the
affiant or based on authentic records.
 The affidavit must affirmatively show the competence of the affiant to
testify on the matters contained therein. 
 The affiant shall be made to affirm the contents of the affidavit in
open court and may be cross-examined as a matter of right by the
adverse party.  (Rule 9, REE)
    

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-
 Some Issues/Challenges
on Digital Evidence
“Harvesting Off” Evidence from the Internet
Electronic evidence can simply be “harvested off” or
gathered from the Internet.
 Issue on admissibility (e.g., lack of integrity/authenticity,
subject to easy manipulation, etc.)
 Alternative remedies:
(1) Have a 3rd party conduct the “harvesting” of Internet-
based evidence and have him testify to authenticate the
materials (if needed); or
(2) Attempt to secure authentication from the other party via
Request for Admission
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 Some Issues/Challenges
on Digital Evidence

“Harvesting Off” Evidence from the Internet

Some sources:
1. Internet Archive / Wayback Machine (
http://archive.org/web/) – private digital library of
Internet sites and other artifacts in digital form
(searchable thru URL/web address, then by dates of the
specific record/page being searched); around 306 billion
archived web pages; in U.S., admissibility of this form
of evidence has gone both ways

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 Some Issues/Challenges
on Digital Evidence

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 Some Issues/Challenges
on Digital Evidence

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 Some Issues/Challenges
on Digital Evidence

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 Some Issues/Challenges
on Digital Evidence
“Harvesting Off” Evidence from the Internet
Some sources:
2. Library of Congress Web Archives (“LOCWA”) (
https://www.loc.gov/websites/) – government-owned;
collection of archived web sites selected by subject
specialists or contributors to represent web-based
information on a particular topic; limited in scope; for the
Philippines, the LOCWA archived 118 websites to date (3 rd
highest number outside of U.S.; 1st – Afghanistan, 1,052;
2nd – Sudan, 219); possible strong argument: “official
publication” of the U.S. government
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Some Issues/Challenges
on Digital Evidence

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Some Issues/Challenges
on Digital Evidence

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 Some Issues/Challenges
on Digital Evidence

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 Some Issues/Challenges
on Digital Evidence

 Archived Philippine websites in the LOCWA

List of Contributors from the Philippines:

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Some Issues/Challenges
on Digital Evidence
 Archived Philippine websites in the LOCWA
List of Contributors from the Philippines:

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 Some Challenges/Issues
on Digital Evidence

 Privacy
 Viveres vs. St. Theresa’s College (G.R. No. 202666; 29
September 2014)
 Senior HS female students of the St. Theresa’s College were
seen drinking liquor in public places and wearing revealing
outfit in public places in violation of the school’s rules.
 Students not allowed to join the commencement exercises for
violation of school policy.
 Evidence consisted of Facebook post (made by a friend) of
photos of the students.

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 Some Challenges/Issues
on Digital Evidence
 Privacy
 Arguments of the students:
1. privacy setting of their children’s Facebook
accounts was set at "Friends Only“, hence, they have a
reasonable expectation of privacy which must be respected.
2. subject photos belong to the students, thus, cannot
be used and reproduced without their consent.

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 Some Challenges/Issues
on Digital Evidence

 Ruling - 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 at ‘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.”

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 Some Challenges/Issues
on Digital Evidence
E-mails as Business Records Exception?
Generally, e-mails are more “casual” form of
communication that other records usually kept in the
course of business. However, there is a growing trend
that e-mails used for official/business communication, and
the more “formal” paper records are becoming unusual.
Trend in the U.S.: “More specificity is required
regarding the party’s business practices to show that a
particular e-mail in fact constitutes a reliable business
record.”
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 Some Challenges/Issues
on Digital Evidence

 Search and seizure

 Need of court warrant before search of computer
 Need for a court warrant before one can attach a GPS
tracking device to a defendant’s vehicle?​
 Need for a court warrant before one can search a cellphone
seized at the time of arrest?​
 Need for court warrant to obtain location where cellphone is
used based on historical cell site location data (i.e., based on
cell tower locations and not on actual location of
cellphone)?​

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 Some Challenges/Issues
on Digital Evidence
 Cybercrime Prevention Act of 2012
 Implementing Rules and Regulations of the Cybercrime Prevention Act of
2012
 Rule on Cybercrime Warrants and Related Issuances
(effectivity: 15 August 2018)
 S.C. A.M. No. 17-11-03-SC
 Governs procedure for the application and grant of warrants
and related issuances involving the (a) preservation of
computer data and subscriber’s information, disclosure,
interception, search and seizure, examination, custody, and
destruction of computer data.
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Mabbalo!

8th International Organization for Judicial Training (IOJT) Conference

November 5–9, 2017, Manila, Philippines