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POINT OF LAW

HTTP://WWW.ACCRALAW.COM/PUBLICATIONS/ARESOCIAL-MEDIA-POSTS-ADMISSIBLE-EVIDENCE

Are social media posts admissible in evidence?


Francisco Ed. Lim
May 23, 2014

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Social networking has become part of our daily life with 93 percent of Filipino
Internet users having their own Facebook account.
On the whole, this is an excellent social phenomenon. But there is also a bad
part of it.
Consider, for example, a Facebook post by Mr. Y that reads: Senator X is a
crook. He stole millions of taxpayers money from the PDAF. He is a certified
thief. He deserves all the public humiliation that he is now getting.
This kind of comment is definitely libelous. It may be the basis for a civil case
for damages and a criminal case for libel.
The post, in turn, is admissible in evidence not only in a civil case but also in
a criminal case. (SC En Banc Resolution dated September 24, 2002 in AM No.
01-07-01)
The Facebook post in question is considered a document pursuant to the
functional equivalence and non-discrimination principles under the E-

Commerce Act of 2000 (ECA) and the Rules on Electronic Evidence (REE),
which the Supreme Court promulgated in 2001 to implement the ECA in our
courts of law.
Under these principles, an electronic document is considered the functional
equivalent of a paper-based document and should not be discriminated
against as evidence solely on the ground that it is not in the standard paper
form.
In fact, Section 12 of the ECA expressly provides that nothing in the
application of the rules of evidence shall deny admissibility of an electronic
data message or electronic document on the sole ground that it is in
electronic form, or on the ground that it is not the standard form.
The REE further provides that [w]henever a rule of evidence refers to the
term of 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. (Section 1, Rule 3)
In laymans terms, the Facebook post in question should be treated as a
paper-based document. The legal question is how to prove or authenticate
this Facebook post as evidence in a court of law.
Electronic document
There are two possible situations.
The first is that a record of the Facebook post is retained. In such case, the
post is characterized as electronic document under the ECA and REE.
Section 2, Rule 5 of the REE provides that [b]efore any private electronic
document offered as authentic is received in evidence, its authenticity must
be proved by any of the following means: (a) by evidence that it had been
digitally signed by the person purported to have signed the same; (b) by
evidence that other appropriate security procedures or devices as may be
authorized by the Supreme Court or by law for authentication of electronic

documents were applied to the document; or (c) by other evidence showing


its integrity and reliability to the satisfaction of the judge.
The first two modes are technical. The first is authentication through digital
signatures which, although not well known when the REE was promulgated in
2001, is now fast becoming commonplace.
The second is authentication through other security procedures or devices
(retina scan, PDF-8, etc.) as may be authorized by the Supreme Court. No
such other procedures or devices have yet been authorized.
The third mode is what I normally refer to in my Ateneo Evidence class and
my MCLE and PHILJA lectures as the laymans approach to authenticating
electronic document.
Under the third mode of authenticating electronic documents, an electronic
document may be authenticated by any other evidence showing its integrity
and reliability to the satisfaction of the judge.
For example, the prosecution may present a witness to testify that he saw Y
write the post in his Facebook account because, according to him, he
hate[s] public officials feasting on the peoples money.
In practical terms, under the laymans approach, authenticating an electronic
document is just like authenticating a paper-based document under the
traditional rules of evidence. No more, no less.
Ephemeral communication
The second situation is that the Facebook post is deleted at a certain point,
as what often happens.
The REE has a provision specifically addressing the situation. If deleted or
removed, the post is considered ephemeral electronic communication under
the REE.

Section 1(k), Rule 2 of the REE provides that [e]phemeral electronic


communication refers to 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.
The REE provides for the method of proof of the Facebook post in question
when it states: Ephemeral electronic communications shall be proven by the
testimony of a person who was a party to the same or has personal
knowledge thereof. In the absence or unavailability of such witnesses, other
competent evidence may be admitted. (Section 2, par. 1, Rule 11).
In effect, this mode of authentication follows the laymans approach for
authenticating electronic evidence.
The author is a senior partner of the Angara Abello Concepcion Regala & Cruz Law
Offices and a law professor in the Ateneo Law School. The views expressed in this
column are solely his and should in no way be attributed to Accralaw or Ateneo Law
School. He may be contacted at francis.ed.lim@gmail.com.