Rules On Electronic Evidence

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The Rules on Electronic Evidence

Prof. JJ Disini
Assistant Professor, UP College of Law Director, Institute on Government & Law Reform, UP Law Center Director, UP Law Internet & Society Program Principal Drafter, EE-Commerce Act Implementing Rules CoCo-Drafter, Rules on Electronic Evidence Managing Partner, Disini & Disini Law Office Member, Supreme Court SubSub-Committee on E E-Commerce Member, Philippine Software Industry Association Member, Internet Mobile & Marketing Assn of the Philippines
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Overview
n n n n n n n
Misconceptions Coverage Electronic Documentary Evidence Electronic Signatures:Authentication Examination of Witnesses Audio, Video, Photos, etc. Ephemeral Electronic Communication
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Misconceptions
n
Electronic evidence is new to theElectronic evide Philippine legal system
The REE makes electronic evidenceThe REE ma admissible The REE allows electronic notarization
n n
The REE permits electronic filing ofThe REE per pleadings
The REE is the final word on electronicThe REE evidence
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Coverage (Sec. 2, Rule 1, REE)

n n n n
Civil Cases QuasiQuasi-judicial Cases Administrative Cases NOW Criminal Cases v Life and Liberty v Fear of electronic evidence v Not in original draft
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Underlying Principles
FUNCTIONAL EQUIVALENT
n n
Examine functions of documents and signatures
Anything in electronic form that performs theAnything same function will be sufficient Ex.: Handwritten vs. Electronic Signatures
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TECHNOLOGY NEUTRAL
n n n
As opposed to technologytechnology-specific To accommodate emerging and non non-existing technology (Durability of the Statute)
To avoid market distortions arising fromTo avoid mark endorsing one technology (kills innovation andendorsin entrenches the incumbent)
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MEDIA NEUTRAL
n
Recognizes and accommodates changes inRecog the course of transmission
Implicit in the definition of electronicImplicit in document when it refers to information
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NONNON-DISCRIMINATION
n n n
No disparity in legal treatment betweenNo dispa paper and electronic documentspaper and electro Section 12, ECA (worded in the negative) Example: fake or forged documents
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Electronic Documents: Pre-REE

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What are Electronic Documents? What are Electronic Data Messages?

(Sec. 5c, ECA)
refers to informationrefers generated, to information sent, received orgenerated, s stored by electronic, optical or similar meansby electronic, op n
Wine not the Bottle
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Electronic Documents: Faxes

MCC Industrial Sales Corp v Ssangyong Corp.
G.R. No. 170633, October 17, 2007
nHolding: Faxes nVariance

nECA:
are not electronic documents.
between ECA and IRR
Electronic Data Message refers to informationECA: Electronic generated, sent, received or similar means.
nIRR:
: Electronic Data Message refers to informationIRR: : Electronic generated, sent, received or stored by electronic, optical orgenerated, sent, r similar means, but not limited to, electronic data interchangebut not limited (EDI), electronic mail, telegram, telex or telecopy. ThroughoutThroughout these Rules, the term electronic data message shall bethese Rules, the term equivalent to and be used interchangeably with electronicequivalent to and document.
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G.R. No. 170633, October 17, 2007 nbut
not limited to, electronic data interchange (EDI),but not lim electronic mail, telegram, telex or telecopy
nIntentionally nResort
dropped by Congress
to quotation from Sen. Miriam DefensorDefensor-Santiago during the floor deliberations:during As drafted, the floor it would deliberations: not applyAs drafted, i to telexes or faxes, except computer computer-generated faxes, unlike the United Nations model law on electronic commerce. faxes were expressly excluded.
nHence, nThe
IRR definition went beyond the parameters of the law. Sen. Santiago relied on Canadian law for her quotation.
nNote:
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G.R. No. 170633, October 17, 2007
nComment
nDid nCan
the inclusion of the phrase change the definition?
it be denied that faxes are transmitted by electronic,Can it be denied optical or similar means?
A fax machine is essentially an image scanner, a modem and a computer printer combinedA fax machine is e into a highly specialized package.into Theascanner highly specialized converts the package. content of a physicalThe scanner converts the document into a digital image, the modem sends the image data over a phone line, anddocument into a d the printer at the other end makes a duplicate of the original document.
A facsimile or fax transmission is a process involving the transmission and reproduction ofA facsimile or fax printed and graphic matter by scanning an original copy, one elemental area at a time, andprinted and graphic m representing the shade or tone of each area by a specified amount of electric current. Therepresenting the shade current is transmitted as a signal over regular telephone lines or via microwave relay and iscurrent is transmitte used by the receiver to reproduce an image of the elemental area in the proper position andused by the receiver the correct shade. The receiver is equipped with a stylus or other device that produces athe correct shade. The r printed record on paper referred to as a facsimile.
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G.R. No. 170633, October 17, 2007
nComment
nSen.
Santiagos reliance on Canadian Law:
electronic record means data that iselectronic recorded or record storedmeans on any data medium that is in or by aon any medium in or by computer system or other similar device, that can be read or perceived by a person or acomputer system or o computer system or other similar device. It includes a display, printout or other output ofcomputer system o that data, other than a printout referred to in SubSub-section 4(2).
nNote
that the Canadian law explicitly excluded the termNote that the Cana transmitted while our law does not.transmitted while our law does not.
nFurthermore,
the Sen. Santiagio quotation was lifted from theFurthermore comments on the Canadian Uniform Electronic Evidence Act.comments o It was based on a differently worded statute.
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Best Evidence Rule: Pre-REE

Isnt every electronic copy equal to the original?
PARADIGM SHIFT
Is the original in the ECA an original for theIs the origi best evidence rule?best Reliability evidence and Integrity rule?
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Best Evidence Rule: REE
Original = printout or output readable by sight or= prin other means,other shown means, to reflect shown the to data reflect accurately the data accur
(Sec. 1, Rule 4, REE)
NO DIFFERENCE BET ECA &REE
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Best Evidence Rule: Duplicates

(Sec. 2, Rule 4, REE)
a counterpart whicha accurately counterpart reproducesaccurately which the original reproduc
Includes photocopies & scanned documents Recognition of new technologies Called for by ambiguities in situations involvingCalled for b paper paper-based documents which have been scanned
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Best Evidence: Photocopies

Nat l Power Corp. v Codilla
G.R. No. 170491, April 4, 2007
nHolding: Photocopies are
not duplicateHolding: Photoc
originals
nTrue
only if the original is not an electronicTrue only i document

By no stretch of the imagination can a persons signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. produced. Hence, the argument of petitioner that since these paper printouts were produced through an electronic process, then these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. law. Having thus declared that the offered photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of their original as decreed in the law. law.
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Electronic Docs: Authentication

n
Modes under ROCModes (Sec. 20, Rule under 132) ROC

by anyone who saw the documentby anyone who saw the docu executed or written by evidence of the genuineness of theby evidence of the genuin signature x x x of the maker Other documents are merely identified
Modes under REEModes (Sec. 2, Rule under 5) REE

digitally signed application of authorized authenticationapplication of author procedures (Sec. 11, ECA) evidence showing integrity andevidence showing integrity and reliability to the satisfaction of the judge
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Electronic Docs: Authentication

n
Internet Email

Can be manufactured Reliability depends on the ability andReliability depends on t motivation of person presenting Susceptible of third party proof
Text Messages

Usually not available from telcos Have to rely on cellphone May be manufactured (but detectable)
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Electronic Signatures
n
Electronic Signatures under the ECA

"Electronic signature" refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic document (Sec (Sec. . 5[e], ECA).
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A prescribed procedure, not alterable by the parties interested in the electronic document or electronic data message, existed under which which: : (i) A method is used to identify the party sought to be bound and to indicate said partys access to the electronic document or electronic data message necessary for his consent or approval through the electronic signature; signature; (ii) Said method is reliable and appropriate for the purpose for which the electronic document or electronic data message was generated or communicated, in the light of all circumstances, including any relevant agreement; agreement; (iii) It is necessary for the party sought to be bound bound, , in order to proceed further with the transaction, to have executed or provided the electronic signature; signature; and, (iv) The other party is authorized and enabled to verify the electronic signature and to make the decision to proceed with the transaction authenticated by the same (Sec. (Sec. 8, ECA).
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n
What are valid electronic signatures?What are val
Digital Signatures
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Elec. Signatures: Authentication

n
Digital Signatures

Method to prove Existence Method to Verify
n n
As Provided by LawAs Provided by Law ECA E-Signatures: By other means satisfactory to the judge
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Business Records Exception

n
Old Rule required that the person be dead orOld Rule re unable to testify
Entries in the course of business.Entries - Entries inmade the course at, or of busine near the time of the transactions to which they refer,near by athe time o person deceased, or unable to testify, testify who was in a position, who w to know the facts therein stated, may be received as primato know t facie evidence, if such person made the entries in hisfacie evidence professional capacity or in the performance of duty and inprofessio the ordinary or regular course of business or duty (Sec.the ordinar 43, Rule 130, ROC).43, Rule 130, ROC).
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Business Records Exception

n
New Rule lifted the requirement but applies onlyNew R to electronic documents
Inapplicability of the hearsay rule.Inapplicability A memorandum, of the report, hearsay rule. record or data compilation of acts, events, conditions, opinions, orrecord or data diagnoses, made by electronic, optical or other similar means at or neardiagnoses the time of or from transmission or supply of information by a personthe time of with knowledge thereof, and kept in the regular course or conduct of awith know business activity, and such was the regular practice to make thebusiness activity, memorandum, report, record, or data compilation by electronic, opticalmemoran or similar means,or all similar of which means, are shown by the testimony of theall of which a custodian or other qualified witnesses, is excepted from the rule on, is excepte hearsay evidence. (Sec. 43, Rule 130, ROC).hearsay evidence. (Sec. 43, Rule
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Examination of Witnesses
n
Electronic testimony

ClosedClosed-circuit TV Satellite TV
Video over IP
Left to the Discretion of the Court
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Audio, Photo, Video, etc.

n
The evidence must be identified or authenticatedThe ev by a competent witness ONLY to prove events,by a com acts or transactions contained therein
No authentication is necessary if the photo orNo authen recording is (a) used for demonstrative purposes;record or (b) presented as object evidence
Rules will allow authentication by someoneRules will other than the person who created the recordingother th or photo
Identification of persons in the recording orIdentificatio photo is necessary (self(self-identification is hearsay)
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Ephemeral Electronic Comm.
Ephemeral electronic communication refers toEphem telephone conversations, text messages, chatroomtelepho sessions, streaming audio, streaming video, andsessions, other electronic forms of communication theother electro evidence of whichevidence is not recorded of which or retained.
(Section 1[k], Rule 2, REE).
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Ephemeral Electronic Comm.
Essentially, a rule on secondary evidenceEssentially, a ru absence of a recording or an original document,absence o the event will be established through testimonialthe even evidence. Identification of person on the other endIdentification of identification is hearsay
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REE and ECA
Essentially, the ECA sets forth substantiveEssentially, the E provisions as to what constitutes:
n n n n
Writings Originals Other Documents Signatures
While the REE provides the manner of presentingWhile th them in court.
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Proving a Digitally Signed E-Mail
Using a Verisign Digital ID
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Using PGP Message Encrypted
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Using PGP Message Not Encrypted
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Proving a Digitally Signed Doc.
Using PGP
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Rules On Electronic Evidence

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The Rules on Electronic Evidence

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Electronic evidence is new to theElectronic evide Philippine legal system

The REE permits electronic filing ofThe REE per pleadings

The REE is the final word on electronicThe REE evidence

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Coverage (Sec. 2, Rule 1, REE)

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Examine functions of documents and signatures

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Recognizes and accommodates changes inRecog the course of transmission

Implicit in the definition of electronicImplicit in document when it refers to information

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Electronic Documents: Pre-REE

What are Electronic Documents? What are Electronic Data Messages?

Wine not the Bottle

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Electronic Documents: Faxes

nHolding: Faxes nVariance

are not electronic documents.

between ECA and IRR

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Electronic Documents: Faxes

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Electronic Documents: Faxes

the inclusion of the phrase change the definition?

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Electronic Documents: Faxes

Santiagos reliance on Canadian Law:

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Best Evidence Rule: Pre-REE

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Best Evidence Rule: REE

NO DIFFERENCE BET ECA &REE

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Best Evidence Rule: Duplicates

a counterpart whicha accurately counterpart reproducesaccurately which the original reproduc

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