The Rules on Electronic

Evidence
Understanding the Rule and the Technical Nature of its Terms
By: IAN DANIEL B. GALANG
3E- San Beda College of Law
 History
People v. Burgos, 200 SCRA 67
The SC, in this sedition case, had occasion to rule on whether evidence
submitted in electronic form could be admissible as evidence. Burgos
argued that the evidence- contained in diskettes- which the military had
sought to introduce against him could not be admissible as the military
could have been tampered with it. RTC Judge agreed with him and
disallowed the presentation of the evidence. In the SC, the lower court
was reversed and was directed to admit the evidence. But instead of
ruling, however, on whether an electronic- generated evidence was
admissible or not, it relied on the presumption of regularity in the
performance of public service. It allowed the introduction of the
evidence on the ground that there was no showing that the military had
tampered with the diskette. Thus the issue on electronically generated
documents/data as evidence was not squarely decided upon.
 The New Law RA8692
The e-commerce law expressly provides that for
evidentiary purposes, an electronic document shall be
the functional equivalent of a written document under
existing laws. Under this principle of “functional
equivalent” any electronic data message, document or
signature, which is the functional equivalent of a
written document or original signature, it is now clearly
admissible as evidence. The operative words for
admissibility are integrity, reliability and can be
authenticated.
 RULE 1- COVERAGE

What are the cases covered by the rules?

 A.M. 01-7-01-SC

Sec. 2. Cases Covered- These Rules shall apply to

all civil actions and proceedings, as well as quasi-
judicial and administrative cases.
 The Phantom Resolution
EN BANC

A.M. No. 01-7-01-SC

RE: EXPANSION OF THE COVERAGE OF THE

RULES ON ELECTRONIC EVIDENCE

RESOLUTION

Acting on the letter of the Chairman of the Committee on

Revision of the Rules of Court, the Court Resolved to
AMEND Section 2, Rule 1 of the Rules on Electronic
Evidence to read as follows:

"SEC. 2 Cases covered. - These Rules

shall apply to the criminal and civil
actions and proceeding, as well as quasi-
judicial and administrative cases."
The amendment shall take effect on October 14, 2002
following the publication of this Resolution in a newspaper
of general circulation.

September 24, 2002

 Rustan Ang v. CA
G.R.No. 182835, April 20, 2010.

In the ponencia of J. Abad, he said: “Besides, the

rules he cites do not apply to the present criminal
actions, quasi-judicial proceedings, and
administrative proceedings.”
Note: This ruling although decided in 2010 was decided by the RTC in
2001. Since the amendment of the En Banc resolution is only in
September 2002, the ruling made was favourable to the accused following
the doctrine of retroactivity in procedural laws. As it now stands, we
follow the A.M. amendment of the Supreme Court en banc.
Definition of Terms and
Construction
Electronically stored information includes electronic
documents / electronic data messages
Electronically Stored Information

Information generated using word processors, spreadsheets, presentation software (eg. MS Office, OpenOffice)

Information generated with the use of application software, eg., financial reports, bank statements, etc.

Scanned documents

Digital photos

Email

Text (SMS) Messages

Video / Audio recordings

Information held or stored in databases

System, audit, or event logs and other logs

Traffic Data
(d) "Computer" refers to any single or interconnected device
or apparatus, which, by electronic, electro-mechanical or
magnetic impulse, or by other means with the same function,
can receive, record, transmit, store, process, correlate, analyze,
project, retrieve and/or produce information, data, text,
graphics, figures, voice, video, symbols or other modes of
expression or perform any one or more of these functions.
Devices that hold Electronically Stored
Information

Computers

Volatile memory – RAM, EPROM

Printers, scanners, copiers

Storage Media: hard disks, magnetic tapes, CDs/DVDs, flash disks/

thumb drives

Mobile Phones, PDAs, Gaming Devices and similar devices

Network devices, including routers, bridges and similar devices

Network security devices, including firewalls, intrusion detection devices,

intrusion prevention devices
Paper Document Storage
From Paper to Electronic
 In Windows…
In Windows…

Electronic*Informa/on*
is*stored*in*a*
hierarchical*manner,*
grouped*in*folders/
subfolders*
Electronically Stored Information

Content: The electronic information

Eg. Information written on paper

Metadata: Characteristics of the virtual container of

the electronically stored information

Eg. The characteristics of the paper the

information is written on
 Phone records
Statement issued by provider shows

Calls made

SMS messages sent

Unfortunately, providers do not keep a record of calls and sms activities for prepaid
subscriptions

Mobile phone

Call logs

SMS messages sent/received

Content of calls not automatically record – ephemeral evidence, see REE

 

Technology Overview:

Digital Signing and Encryption

(e) "Digital signature" refers to an electronic signature consisting of a transformation of
an electronic document or an electronic data message using an asymmetric or public
cryptosystem such that a person having the initial untransformed electronic
document and the signer's public key can accurately determine:

i. whether the transformation was created using the private key that
corresponds to the signer's public key; and

ii. whether the initial electronic document had been altered after the
transformation was made.

(f) "Digitally signed" refers to an electronic document or electronic data

message bearing a digital signature verified by the public key listed in a
certificate.
 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 electronic
document x x x”

* Republic Act No. 8792, Electronic Commerce

Act, Sec. 5e
 Electronic Signature

“x x x or any methodology or procedures

Key
employed or adopted by a person and executed
or adopted by such person with the intention of
authenticating or approving an electronic data
message or electronic document.”
eSig

* Republic Act No. 8792, Electronic Commerce

Act, Sec. 5e
 Digital Signature

A class of electronic signatures

Universe of
Electronic
Signatures
Digital
Signatures
 Digital Signature
Technology implementation of electronic signature

Employs a procedure or methodology that generates a mark which

is logically associated with the identity of the signer

The mark is appended to the electronic document

Secures the electronic document

Enables verification of the identity of the signer

Involves a third party called “Certification Authority”

“Public Key Infrastructure”

PUBLIC KEY PRIVATE KEY

refers to the key of a key pair used refers to the key of a key pair used
to verify a digital signature to create a digital signature
KEY PAIR
in an asymmetryic cryptosystem refers to the private key and its mathematically related
public key such that the latter can verify the digital signature that the former creates
Example:
3048 0241 00C9 18FA CF8D EB2D EFD5 FD37 89B9 E069 EA97 FC20 5E35 F577
EE31 C4FB C6E4 4811 7D86 BC8F BAFA 362F 922B F01B 2F40 C744 2654 C0DD
2881 D673 CA2B 4003 C266 E2CD CB02 0301 0001
 Certification Authority

Operates a technology infrastructure that enables

digital signing

Infrastructure = “Public Key Infrastructure” (PKI)

Provides the procedure or methodology for digital

signing and verification
Public – Private Key Pair
ATM

Juan de la Cruz Name of holder

010973538879

Card Number
Card Number = Public Key
Public – Private Key Pair

Juan de la Cruz Juan de la Cruz

010973538879 010973538879

4559

Random Number: Personal

Identification Number
 Digital Signing

ATM

PIN is kept
PIN = Private Key here
 Digital Signing

This is Juan

Pu Pr
bli iva
c te
 Digital Signing
Message
Process Digest

Encryptio
n using
private
key
Pr
iva
te

Digital
Juan uses the signing procedure Signature
provided by the CA
 Digital Signing

Digital
Signature
Pr
iva
te
Document and Signature Verification
This is Pedro
Message
Process Digest

Digital Message
Signature Decrypts Digest
Pu
bli
c

Juan s Juan s Signed

Public Key eDocument

Pedro uses the document and signature

verification procedure provided by the CA
Verifying Signer’s Identity
This is Maria,
the CA

Juan s Info:
Name
Department
Cubicle Number
Certificate Info:
Expiration Date
Signs with
Serial Number Maria s
Juan's Public Key: !!! Key
Pu
Juan s Digital
bli
c Certificate
Verifying Signer’s Identity

Pu
Verify using
bli
c Maria s
Juan s Public Key Juan s Digital
Public Key Certificate
Pedro uses the identity verification
procedure provided by the CA
Securing Electronic Documents

Digitally signed plain text electronic documents may

still be changed by a third party BUT document and
signature verification allows detection if the plain
text has been changed after signing

Electronic documents may be encrypted to prevent

others from viewing and/or changing the contents of
the electronic documents.
Electronic Data Messages
“EDM’s”
(g) "Electronic data message" refers to information generated, sent,
received or stored by electronic, optical or similar means.
Note: Unlike an electronic document, this has reference to information electronically sent,
stored or transmitted, it does not necessarily mean that it will give rise to a right or extinguish an
obligation.

(h) "Electronic document" refers to 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 proved and affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced electronically. It includes
digitally signed documents and any print-out or output, readable by sight
or other means, which accurately reflects the electronic data message or
electronic document. For purposes of these Rules, the term "electronic
document" may be used interchangeably with "electronic data message”.
 MCC Industrial Corp. v. Ssangyong
G.R.No. 170633, October 17, 2007.

To be admissible in evidence as an electronic data message or to be

considered as the functional equivalent of an original document under the
Best Evidence Rule, the writing must foremost be an “ELECTRONIC
DATA MESSAGE” or an “ELECTRONIC DOCUMENT”.

The electronic document is admissible in evidence if it complies with the

rules on admissibility prescribed by the Rules of Court and related laws,
and is authenticated in the manner prescribed by the rules.

In the same case, it was held that EDM and electronic document may be
used interchangeably as this was part of the resolution of the bicameral
committee in the Congress.
 MCC Industrial Corp. v. Ssangyong
G.R.No. 170633, October 17, 2007.

In the words of Justice Nachura,

FACSIMILE transmissions are not “paperless” but verily are paper-based.

The case interprets the term “electronic data message” by looking back to the
discussions of the Congress upon formulation of the law. In this light, it held
that the intention is to have same meaning as the term “electronic record” in
the Canada Law, which construction of the term “electronic data message”
excludes telexes, or faxes, except computer generated faxes in harmony with
E-Commerce Law’s focus on “paperless” communications.

Note: It was also held that since fax cannot be considered as electronic evidence, with
greater reason is a photocopy of such a fax transmission not electronic evidence.
 Electronic Documents / Electronic Data
Messages as Documentary Evidence

“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 Sec. 1

 Electronic Documents / Electronic Data
Messages as Documentary Evidence

“Documents as evidence consist of writings or any

material containing letter, words, numbers, figures,
symbols or other modes of written expression offered
as proof of their contents”

ROC Rule 130 Sec. 2

 Electronic Documents / Electronic Data
Messages as Documentary Evidence

“For evidentiary purposes, an electronic document

shall be the functional equivalent of a written
document under existing laws. ”

ECA, Sec. 7

REE Rule 3, Sec. 1

 Admissibility
An electronic document is admissible in evidence if
it complies with the rules on admissibility prescribed
by the Rules of Court and related laws and is
authenticated in the manner prescribed by these
Rules

REE Rule 3, Section 2

 Admissibility

Nothing in the application of the rules on evidence

shall deny the admissibility of an electronic data
message or electronic document in evidence on the
sole ground that it is in electronic form or on the
ground that it is not in the standard written form

ECA Sec. 12
 Admissibility

The confidential character of a privileged

communication is not lost solely on the ground that it
is in the form of an electronic document.

REE Rule 3, Sec. 3

 Best Evidence
An electronic document shall be regarded as the
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data
accurately.

REE Rule 4 Sec. 1

 Best Evidence

Printout – electronic document printed on paper

Output readable by sight – electronic document is

displayed on computer monitor or screen or using a
LCD projector

Other means – Hologram? Braille?

 Best Evidence
Section 2. Copies as equivalent of the originals. – When a document is
in two or more copies executed at or about the same time with
identical contents, or is a counterpart produced by 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 which accurately reproduces the
original, such copies or duplicates shall be regarded as the
equivalent of the original.

REE Rule 4 Sec 2

 Best Evidence
(b) When a document is in two or more copies executed at or about
the same time, with identical contents, all such copies are equally
regarded as originals.

(c) When an entry is repeated in the regular course of business, one

being copied from another at or near the time of the transaction,
all the entries are likewise equally regarded as originals.

ROC Rule 130, Sec. 4

 Best Evidence
Is a photocopy an original?

Section 2. Copies as equivalent of the originals. – When a document is in

two or more copies executed at or about the same time with identical
contents, or is a counterpart produced by 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 which accurately reproduces the original, such copies
or duplicates shall be regarded as the equivalent of the original.

REE Rule 4
(k) "Ephemeral 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.

Note: Remember entrapment case of Nuez v. Cruz-Apao where a clerk of

the Court of Appeals asked for 1million and to prove this, text messages
were accepted as part of the electronic evidence. EEC are proved by the
testimony of a person (authentication) who was a party to the same or who
has personal knowledge thereof (Nuez v. Cruz-Apao, A.M.No.CA-05-18-P,
April 12, 2005).
Ephemeral Electronic Communications

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.

REE, Rule 11, Sec. 2

 Examination of Witnesses

Electronic Testimony now possible

Closed Circuit TV

Satellite TV

Video over IP

But left to the discretion of the Court

 CASES and APPLICABILITY in the
Practice of Law

Aznar v. Citibank

MCC Industrial Sales Corp. v. SSangyong

NPC v. Codilla

Nuez v. Cruz-Apao

Vidallon-Magtolis v. Salud

Rustan Ang v. CA

Department Administrative Order 11-01 Series of 2011

http://www.dti.gov.ph/uploads/DownloadableForms/ECO_DTI-
DAO_11-01_18Feb11.pdf
 !

Locally we have MySecureSign of PLDt Group which has been in the

market for the last 15 years.  The Information and Communication
Technology Office under the DOST (office is in CP Garcia in UP) is
working on a digital signing project (I think using PrimeKey as a
solution) which has long been scheduled by participants like the BIR.

To my knowledge, no other certification authority operates in country

although from what I learned some banks may have already set up
their own internally - but this is subject to verification.

 -Mr. Angel “Lito” Averia

 Special Thanks to:
Atty. Cesar Bacani, Head of NBI-Anti Fraud Division
Engr. Joey Narciso, Special Investigator III, Computer
Crimes Unit
Mr. Angel “Lito” Averia,
Co-drafter: Electronic Commerce Act Implementing Rules and
Regulations
Co-drafter: Rules on Electronic Evidence
Member, Supreme Court Subcommittee on Electronic Commerce
Member, Supreme Court Subcommittee on Electronic Notarization
ICT Consultant, Office of Commissioner Lagman, COMELEC
!
that in all things, God may be glorified