COMMENTS ON THE

RULES ON ELECTRONIC EVIDENCE

By: CAESAR S. EUROPA

RULE 1 COVERAGE

SECTION 1. Scope. – Unless otherwise provided herein, these Rules

shall apply whenever an electronic document or electronic data message, as
defined in Rule 2 hereof, is offered or used in evidence.

SECTION. 2. Cases covered. – These Rules shall apply to all civil

actions and proceedings, as well as quasi-judicial and administrative cases.

AMENDED BY A.M. No. 01-7-01-SC, Re: Expansion of the Coverage of the

Rules on Electronic Evidence, September 24, 2002.

Sec. 2. Cases covered. — These Rules shall apply to the criminal and
civil actions and proceeding, as well as quasi-judicial and administrative
cases.

People vs. Noel Enojas, Et Al,

G.R. No. 204894, March 10, 2014

As to the admissibility of the text messages, the RTC admitted them in

conformity with the Court’s earlier Resolution applying the Rules on
Electronic Evidence to criminal actions. Text messages are to be proved by
the testimony of a person who was a party to the same or has personal
knowledge of them.16 Here, PO3 Cambi, posing as the accused Enojas,
exchanged text messages with the other accused in order to identify and
entrap them. As the recipient of those messages sent from and to the mobile
phone in his possession, PO3 Cambi had personal knowledge of such
messages and was competent to testify on them.

NOTE: The Supreme Court made reference to A.M. No. 01-7-01-SC,

September 24, 2002, expanding the coverage of the Rules on Electronic
Evidence

SECTION. 3. Application of other rules on evidence. – In all matters not

specifically covered by these Rules, the Rules of Court and pertinent provisions of
statutes containing rules on evidence shall apply.

RULE 2 DEFINITION OF TERMS AND CONSTRUCTION

SECTION 1. Definition of Terms. – For purposes of these Rules, the following

terms are defined, as follows:

(a) “Asymmetric or public cryptosystem” means a system capable of

generating a secure key pair, consisting of a private key for creating a
digital signature, and a public key for verifying the digital signature.
 2

(b) “Business records” include records of any business, institution,

association, profession, occupation, and calling of every kind, whether
or not conducted for profit, or for legitimate or illegitimate purposes.

(c) "Certificate" means an electronic document issued to support a digital

signature which purports to confirm the identity or other significant
characteristics of the person who holds a particular key pair.

(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.

(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.

(g) “Electronic data message” refers to information generated, sent,

received or stored by electronic, optical or similar means.

(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”.

(i) “Electronic key” refers to a secret code which secures and defends
sensitive information that crosses over public channels into a form
decipherable only with a matching electronic key.

(j) “Electronic signature” refers to any distinctive mark, characteristic

and/or sound in electronic form, representing the identity of a person
 3

and attached to or logically associated with the electronic data

message or electronic document or any methodology or procedure
employed or adopted by a person and executed or adopted by such
person with the intention of authenticating, signing or approving an
electronic data message or electronic document. For purposes of
these Rules, an electronic signature includes digital signatures.

(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.

(l) “Information and Communication System” refers to a system for

generating, sending, receiving, storing or otherwise processing
electronic data messages or electronic documents and includes the
computer system or other similar devices by or in which data are
recorded or stored and any procedure related to the recording or
storage of electronic data messages or electronic documents.

(m) “Key Pair” in an asymmetric 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.

(n) “Private Key” refers to the key of a key pair used to create a digital
signature.

(o) “Public Key” refers to the key of a key pair used to verify a digital
signature.

NOTES:

Assymetric Cryptosystem- one key (private key) is used to make the electronic
document while another (public key) is used to
open it. However, by applying a formula (hash
function) to the electronic message, one can
determine if it was sent by the particular person
identified with the public key.

What is the difference between an ELECTRONIC SIGNATURE and a DIGITAL

SIGNATURE?

a. A digital signature is a form of electronic signature.

b. However, with a digital signature in particular, through the use

of an Assymetric Cryptosystem can determine:

1. whether the electronic message was created using

the private key that corresponds to the signer’s
public key; and,

2. whether the initial electronic document had been altered

after being made by the sender.
 4

c. An electronic signature in general, on the other hand, is any

mark, sound, picture, or the like placed on an electronic
document to identify the purported sender. For example: If I
send an e-mail with the scanned image of my manual signature,
the scanned image is an electronic signature. I could also use
the scanned image of my face or an imbedded sound of my
voice.

SEC. 2. Construction. – These Rules shall be liberally construed to assist

the parties in obtaining a just, expeditious, and inexpensive determination of cases.

The interpretation of these Rules shall also take into consideration the
international origin of Republic Act No. 8792, otherwise known as the Electronic
Commerce Act.

RULE 3 ELECTRONIC DOCUMENTS

SECTION 1. Electronic Documents as functional equivalent of paperbased

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.

In election cases should the electronic images of ballots on CF Cards be

treated as original documents or only as secondary evidence to be used
when the original ballots are shown to have been tampered with?

Mayor Emmanuel L. Maliksi vs. COMELEC

G.R. No. 203302, March 12, 2013

“In the recent consolidated cases of Vinzons-Chato v.

House of Representatives Electoral Tribunal and Panotes and
Panotes v. House of Representatives Electoral Tribunal and
Vinzons-Chato, the Court ruled that "the picture images of
the ballots, as scanned and recorded by the PCOS, are
likewise ‘official ballots’ that faithfully capture in
electronic form the votes cast by the voter, as defined by
Section 2 (3) of R.A. No. 9369." The Court declared that the
printouts of the ballot images in the CF cards "are the
functional equivalent of the paper ballots filled out by the
voters and, thus, may be used for purposes of revision of
votes in an electoral protest." In short, both the ballot images
in the CF cards and the printouts of such images have the
same evidentiary value as the official physical ballots filled up
by the voters.

Xxxxx

Xxxxx
 5

Rule 4 of A.M. No. 01-7-01-SC36 is clear on this issue. It

states:

SECTION 1. Original of an Electronic Document. - 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.

Xxxx

xxxxxx

The ballot images, which are digital, are electronically

generated and written in the CF cards when the ballots are fed
into the PCOS machine. The ballot images are the counterparts
produced by electronic recording which accurately reproduce the
original, and thus are the equivalent of the original. As pointed
out by the COMELEC, "the digital images of the physical
ballots are electronically and instantaneously generated by
the PCOS machines once the physical ballots are fed into
and read by the machines." Hence, the ballot images are not
secondary evidence. The official physical ballots and the ballot
images in the CF cards are both original documents. The ballot
images in the CF cards have the same evidentiary weight as the
official physical ballots

SEC. 2. 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.

SEC. 3. Privileged communication – The confidential character of a

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

RULE 4 BEST EVIDENCE RULE

SECTION 1. Original of an Electronic Document. – 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.

SEC. 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.
 6

Notwithstanding the foregoing, copies or duplicates shall not be admissible

to the same extent as the original if:

(a) a genuine question is raised as to the authenticity of the original; or

(b) if in the circumstances it would be unjust or inequitable to admit the copy

in lieu of the original.

Are photocopies (Xerox copies) of documents, having been produced

electronically, functional equivalents of the originals as electronic
documents?

National Power Corporation vs. Hon. Ramon G. Codilla, et al

G.R. No. 170491, April 4, 2007

“an “electronic document” refers to information or the representation of

information, data, figures, symbols or other models 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 printout, readable by sight or other
means which accurately reflects the electronic data message or electronic
document.

The rules use the word “information” to define an electronic document

received, recorded, transmitted, stored, processed, retrieved or produced
electronically. This would suggest that an electronic document is relevant only in
terms of the information contained therein, similar to any other document which is
presented in evidence as proof of its contents. However, what differentiates an
electronic document from a paper-based document is the manner by which the
information is processed; clearly, the information contained in an electronic
document is received, recorded, transmitted, stored, processed, retrieved or
produced electronically.

A perusal of the information contained in the photocopies submitted

by petitioner will reveal that not all of the contents therein, such as the
signatures of the persons who purportedly signed the documents, may be
recorded or produced electronically. By no stretch of the imagination can a
person’s signature affixed manually be considered as information
electronically received, recorded, transmitted, stored, processed, retrieved
or 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. 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.”
 7

Is a telefax (facsimile) document an electronic document?

MCC Industrial Sales Corp. vs. Ssangyong Corporation

G.R. No. 170633, October 17, 2007

Thus, when the Senate consequently voted to adopt the term “electronic data
message,” it was consonant with the explanation of Senator Miriam
Defensor-Santiago that it would not apply “to telexes or faxes, except
computer-generated faxes, unlike the United Nations model law on
electronic commerce.” In explaining the term “electronic record” patterned after
the E-Commerce Law of Canada, Senator Defensor-Santiago had in mind the term
“electronic data message.” This term then, while maintaining part of the UNCITRAL
Model Law’s terminology of “data message,” has assumed a different context, this
time, consonant with the term “electronic record” in the law of Canada. It accounts
for the addition of the word “electronic” and the deletion of the phrase “but not
limited to, electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy.” Noteworthy is that the Uniform Law Conference of Canada, explains the
term “electronic record,” as drafted in the Uniform Electronic Evidence Act, in a
manner strikingly similar to Sen. Santiago’s explanation during the Senate
deliberations:

“There is no question then that when Congress formulated the term

“electronic data message,” it intended the same meaning as the term “electronic
record” in the Canada law. This construction of the term “electronic data message,”
which excludes telexes or faxes, except computer-generated faxes, is in harmony
with the Electronic Commerce Law’s focus on “paperless” communications and the
“functional equivalent approach”[82] that it espouses. In fact, the deliberations of
the Legislature are replete with discussions on paperless and digital transactions.

Facsimile transmissions are not, in this sense, “paperless,” but verily are
paper-based.

A facsimile machine, which was first patented in 1843 by Alexander Bain,[83] is

a device that can send or receive pictures and text over a telephone line. It works
by digitizing an image—dividing it into a grid of dots. Each dot is either on or off,
depending on whether it is black or white. Electronically, each dot is represented
by a bit that has a value of either 0 (off) or 1 (on). In this way, the fax machine
translates a picture into a series of zeros and ones (called a bit map) that can be
transmitted like normal computer data. On the receiving side, a fax machine reads
the incoming data, translates the zeros and ones back into dots, and reprints the
picture.[84] A fax machine is essentially an image scanner, a modem and a
computer printer combined into a highly specialized package. The scanner
converts the content of a physical document into a digital image, the modem sends
the image data over a phone line, and the printer at the other end makes a
duplicate of the original document”

“Clearly then, the IRR went beyond the parameters of the law when it adopted
verbatim the UNCITRAL Model Law’s definition of “data message,” without
considering the intention of Congress when the latter deleted the phrase “but not
limited to, electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy.” The inclusion of this phrase in the IRR offends a basic tenet in the
exercise of the rule-making power of administrative agencies. After all, the power
of administrative officials to promulgate rules in the implementation of a statute is
necessarily limited to what is found in the legislative enactment itself. The
 8

implementing rules and regulations of a law cannot extend the law or expand its
coverage, as the power to amend or repeal a statute is vested in the
Legislature.[91] Thus, if a discrepancy occurs between the basic law and an
implementing rule or regulation, it is the former that prevails, because the law
cannot be broadened by a mere administrative issuance—an administrative
agency certainly cannot amend an act of Congress.[92] Had the Legislature really
wanted ordinary fax transmissions to be covered by the mantle of the Electronic
Commerce Act of 2000, it could have easily lifted without a bit of tatter the entire
wordings of the UNCITRAL Model Law.”

Nota Bene: Citing the MCC Case above, the Supreme Court in the case of
Ellery March G. Torres vs. PAGCOR, (G.R. No. 193531, December 14, 2011)
ruled, which was sent through a facsimile machine was INADMISSIBLE, not only
that a letter reconsideration of the petitioner of his dismissal because it is not
sanctioned by the Revised Uniform Rules on the Administrative Cases in the Civil
Service but also because it is not considered as electronic evidence under the E-
Commerce Act.

RULE 5 AUTHENTICATION OF ELECTRONIC DOCUMENTS

SECTION 1. Burden of proving authenticity. – The person seeking to

introduce an electronic document in any legal proceeding has the burden of
proving its authenticity in the manner provided in this Rule.

SEC. 2. 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:

(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.

Interesting case: Emmanuel B. Aznar vs. Citibank, N.A. (Phils)

G.R. No. 164273 March 28, 2007

Aznar sued Citibank alleging that the bank had blacklisted his credit card
and for this reason the same was dishonored by different establishments in
Malaysia and forced him to pay in cash for his purchases.

To prove the fact of blacklisting, Aznar presented a computer printout entitled

“ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT” marked
as Exh. “G”, to prove that his Mastercard was dishonored for being blacklisted. On
said print-out appears the words “DECL OVERLIMIT” opposite Account No. 5423-
3920-0786-7012.
 9

Held:

Even if examined under the Rules on Electronic Evidence, which took effect
on August 1, 2001, and which is being invoked by Aznar in this case, the
authentication of Exh. “G” would still be found wanting.

Pertinent sections of Rule 5 read:

Section 1. Burden of proving authenticity. – The person seeking to introduce

an electronic document in any legal proceeding has the burden of proving its
authenticity in the manner provided in this Rule.

Section 2. 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:

(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) other evidence showing its integrity and reliability to the satisfaction of
the judge.

Aznar claims that his testimony complies with par. (c), i.e., it constitutes the
“other evidence showing integrity and reliability of Exh. “G” to the satisfaction of
the judge.” The Court is not convinced. Aznar’s testimony that the person from
Ingtan Agency merely handed him the computer print-out and that he thereafter
asked said person to sign the same cannot be considered as sufficient to show
said print-out’s integrity and reliability. As correctly pointed out by Judge Marcos
in his May 29, 1998 Decision, Exh. “G” does not show on its face that it was issued
by Ingtan Agency as Aznar merely mentioned in passing how he was able to
secure the print-out from the agency; Aznar also failed to show the specific
business address of the source of the computer print-out because while the name
of Ingtan Agency was mentioned by Aznar, its business address was not reflected
in the print-out.

Indeed, Aznar failed to demonstrate how the information reflected on the

print-out was generated and how the said information could be relied upon as true.

SEC. 3. Proof of electronically notarized document. – A document

electronically notarized in accordance with the rules promulgated by the Supreme
Court shall be considered as a public document and proved as a notarial document
under the Rules of Court.

RCBC Bankard Services Corp. v. Oracion, Jr., G.R. No. 223274, [June 19,
2019)

As to method of proof, Section 1, Rule 9 of the Rules on Electronic Evidence

provides:
 10

SECTION 1. Affidavit of evidence. — All matters relating to the admissibility and

evidentiary weight of an electronic document may be established by an affidavit
stating 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.

Evidently, petitioner could not have complied with the Rules on Electronic
Evidence because it failed to authenticate the supposed electronic
documents through the required affidavit of evidence. As earlier pointed out,
what petitioner had in mind at the inception (when it filed the complaint) was to
have the annexes admitted as duplicate originals as the term is understood in
relation to paper-based documents. Thus, the annexes or attachments to the
complaint of petitioner are inadmissible as electronic documents, and they cannot
be given any probative value.

RULE 6 ELECTRONIC SIGNATURES

SECTION 1. Electronic signature. – An electronic signature or a digital signature

authenticated in the manner prescribed hereunder is admissible in evidence as the
functional equivalent of the signature of a person on a written document.

SEC. 2. Authentication of electronic signatures. – An electronic signature

may be authenticated in any of the following manner:

(a) By evidence that a method or process was utilized to establish a digital

signature and verify the same;

(b) By any other means provided by law; or

(c) By any other means satisfactory to the judge as establishing the

genuineness of the electronic signature.

SEC. 3. Disputable presumptions relating to electronic signatures. – Upon

the authentication of an electronic signature, it shall be presumed that:

(a) The electronic signature is that of the person to whom it correlates;

(b) The electronic signature was affixed by that person with the intention of
authenticating or approving the electronic document to which it is related or
to indicate such person’s consent to the transaction embodied therein; and

(c) The methods or processes utilized to affix or verify the electronic signature
operated without error or fault.

SEC. 4. Disputable presumptions relating to digital signatures. – Upon the

authentication of a digital signature, it shall be presumed, in addition to those
mentioned in the immediately preceding section, that:

(a) The information contained in a certificate is correct;

(b) The digital signature was created during the operational period of a
certificate; r
 11

(c) No cause exists to render a certificate invalid or revocable;

(d) The message associated with a digital signature has not been altered from
the time it was signed; and,

(e) A certificate had been issued by the certification authority indicated therein.

RULE 7 EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS

SECTION 1. Factors for assessing evidentiary weight. – In assessing

the evidentiary weight of an electronic document, the following factors may be
considered:

(a) The reliability of the manner or method in which it was generated, stored or
communicated, including but not limited to input and output procedures,
controls, tests and checks for accuracy and reliability of the electronic data
message or document, in the light of all the circumstances as well as any
relevant agreement;

(b) The reliability of the manner in which its originator was identified;

(c) The integrity of the information and communication system in which it is

recorded or stored, including but not limited to the hardware and computer
programs or software used as well as programming errors;

(d) The familiarity of the witness or the person who made the entry with the
communication and information system;

(e) The nature and quality of the information which went into the
communication and information system upon which the electronic data
message or electronic document was based; or

(f) Other factors which the court may consider as affecting the accuracy or
integrity of the electronic document or electronic data message.

SEC. 2. Integrity of an information and communication system. – In any

dispute involving the integrity of the information and communication system in
which an electronic document or electronic data message is recorded or stored,
the court may consider, among others, the following factors:

(a) Whether the information and communication system or other similar device
was operated in a manner that did not affect the integrity of the electronic
document, and there are no other reasonable grounds to doubt the integrity
of the information and communication system;

(b) Whether the electronic document was recorded or stored by a party to the
proceedings with interest adverse to that of the party using it; or
 12

(c) Whether the electronic document was recorded or stored in the usual and
ordinary course of business by a person who is not a party to the proceedings
and who did not act under the control of the party using it.

RULE 8

BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE

SECTION 1. Inapplicability of the hearsay rule. – A memorandum, report,

record or data compilation of acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means at or near the time of or from
transmission or supply of information by a person with knowledge thereof, and
kept in the regular course or conduct of a business activity, and such was the
regular practice to make the memorandum, report, record, or data compilation by
electronic, optical or similar means, all of which are shown by the testimony of the
custodian or other qualified witnesses, is excepted from the rule on hearsay
evidence.

Cf with Section 43 of Rule 130

SECTION 43. Entries in the course of business. —

Entries made at, or near the time of the transactions to which they
refer, by a person deceased, or unable to testify, who was in a
position to know the facts therein stated, may be received as prima
facie evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or regular
course of business or duty. (37 a)

Are bank statements of account covered by the hearsay rule or exempt

from it?

Chan v. Bank of the Philippine Islands,

G.R. No. 247776 (Notice), [November 13, 2019

In this case, the CA held that the statements of account were

admissible in evidence. Pursuant to Section 1, Rule 8 of the Rules
on Electronic Evidence, a computer-generated statement of account, which
was a regular practice of BPI, is excluded from the rule on hearsay evidence
and, on this, the SC ruled: |

We agree with the CA that the hearsay evidence rule is inapplicable. Section
1, Rule 8 of the Rules on Electronic Evidence expressly exempts from the rule on
hearsay evidence memorandum, report, record or data compilation of acts, events,
conditions, opinions, or diagnoses, made by electronic, optical or other similar
means at or near the time of or from transmission or supply of information by a
person with knowledge thereof, and kept in the regular course or conduct of a
business activity, and such was the regular practice to make the memorandum,
report, record, or data compilation by electronic, optical or similar means, all of
which are shown by the testimony of the custodian or other qualified witnesses.
Coros, being an officer of BPI who had custody of the documents, was qualified to
testify thereon.
 13

SEC. 2. Overcoming the presumption. – The presumption provided for in

Section 1 of this Rule may be overcome by evidence of the untrustworthiness of
the source of information or the method or circumstances of the preparation,
transmission or storage thereof.

RULE 9 METHOD OF PROOF

SECTION 1. Affidavit evidence. – All matters relating to the admissibility

and evidentiary weight of an electronic document may be established by an
affidavit stating 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.

SEC. 2. Cross-examination of deponent. – 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 10 EXAMINATION OF WITNESSES

SECTION 1. Electronic testimony. – After summarily hearing the parties

pursuant to Rule 9 of these Rules, the court may authorize the presentation of
testimonial evidence by electronic means. Before so authorizing, the court shall
determine the necessity for such presentation and prescribe terms and conditions
as may be necessary under the circumstances, including the protection of the
rights of the parties and witnesses concerned.

SEC. 2. Transcript of electronic testimony. – When examination of a

witness is done electronically, the entire proceedings, including the questions and
answers, shall be transcribed by a stenographer, stenotypist or other recorder
authorized for the purpose, who shall certify as correct the transcript done by him.
The transcript should reflect the fact that the proceedings, either in whole or in part,
had been electronically recorded.

SEC. 3. Storage of electronic evidence. – The electronic evidence and

recording thereof as well as the stenographic notes shall form part of the record of
the case. Such transcript and recording shall be deemed prima facie evidence of
such proceedings.

RULE 11 AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE

SECTION 1. Audio, video and similar evidence. – Audio, photographic and

video evidence of events, acts or transactions shall be admissible provided it shall
be shown, presented or displayed to the court and shall be identified, explained or
authenticated by the person who made the recording or by some other person
competent to testify on the accuracy thereof .

SEC. 2. Ephemeral electronic communications. – Ephemeral electronic

communications shall be proven by the testimony of a person who was a party to
 14

the same or has personal knowledge thereof. In the absence or unavailability of

such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic

communication shall be covered by the immediately preceding section.

If the foregoing communications are recorded or embodied in an electronic

document, then the provisions of Rule 5 shall apply.

Are text messages (SMS short message service) admissible as evidence?

ZALDY NUEZ, vs. ELVIRA CRUZ-APAO

A.M. No. CA-05-18-P. April 12, 2005

“Complainant was able to prove by his testimony in conjunction with the text
messages from respondent duly presented before the Committee that the latter asked for
One Million Pesos (P1,000,000.00) in exchange for a favorable decision of the former’s
pending case with the CA. The text messages were properly admitted by the Committee
since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence
which provides:

“Ephemeral electronic communication” refers to telephone conversations, text

messages . . . and other electronic forms of communication the evidence of which is not
recorded or retained.”

Under Section 2, Rule 11 of the Rules on Electronic Evidence, “Ephemeral

electronic communications shall be proven by the testimony of a person who was a party
to the same or who has personal knowledge thereof . . . .” In this case, complainant who
was the recipient of said messages and therefore had personal knowledge thereof testified
on their contents and import. Respondent herself admitted that the cellphone number
reflected in complainant’s cellphone from which the messages originated was hers.
Moreover, any doubt respondent may have had as to the admissibility of the text messages
had been laid to rest when she and her counsel signed and attested to the veracity of the
text messages between her and complainant. It is also well to remember that in
administrative cases, technical rules of procedure and evidence are not strictly applied.
We have no doubt as to the probative value of the text messages as evidence in determining
the guilt or lack thereof of respondent in this case.

Will the admission of SMS messages violate the sender’s right to privacy?

ASSOCIATE JUSTICE DELILAH VIDALLON-MAGTOLIS vs.

CIELITO M. SALUD
A.M. No. CA-05-20-P September 9, 2005

The respondent’s claim that the admission of the text messages as

evidence against him constitutes a violation of his right to privacy is
unavailing. Text messages have been classified as “ephemeral electronic
communication” under Section 1(k), Rule 2 of the Rules on Electronic
Evidence, and “shall be proven by the testimony of a person who was a party
to the same or has personal knowledge thereof.” Any question as to the
 15

admissibility of such messages is now moot and academic, as the respondent

himself, as well as his counsel, already admitted that he was the sender of the
first three messages on Atty. Madarang’s cell phone.

HOW ARE TEXT MESSAGES INTRODUCED AS EVIDENCE IN A CRIMINAL

CASE?

Text messages are to be proved by the testimony of a person who was a party to
the same or has personal knowledge of them (People v. Enojas y Hingpit, G.R.
|||

No. 204894, March 10, 2014)

May a video call substitute for personal appearance for a notary public to
perform a notarial act?

Tabao v. Lacaba, A.C. No. 9269, [March 13, 2019]

In this case, the lawyer who notarized a counter-affidavit when the affiants
were not present, cited the Rules on Electronic Evidence, and alleged that the
video call conversation can be considered a "substitute of personal presence of a
person while physically absent from the place of the other party."

RULING:

A notary public is not allowed to notarize a document unless the persons

who signed the same are the very same persons who executed and personally
appeared before him to attest to the contents and truth of what are stated therein.
The purpose of this requirement is to enable the notary public to verify the
genuineness of the signature of the acknowledging party and to ascertain that the
document is the party's free act and deed. Thus, it is undeniable that Rosalina and
Felicitas could not validly sign for and in behalf of Marlin and Marie for the simple
reason that they do not have personal knowledge of the allegations in the Counter-
Affidavit, and therefore, could not attest to the truthfulness thereof.

It cannot be overemphasized that "notarization is not an empty,

meaningless routinary act, but one invested with substantive public interest.
Notarization converts a private document into a public document, making it
admissible in evidence without further proof of its authenticity. Thus, a notarized
document is, by law, entitled to full faith and credit upon its face. It is for this reason
that a notary public must observe with utmost care the basic requirements in the
performance of his notarial duties; otherwise, the public's confidence in the
integrity of a notarized document would be undermined." Atty. Lacaba cannot,
therefore, frivolously bend the rules to his benefit.

RULE 12 EFFECTIVITY

SECTION 1. Applicability to pending cases. – These Rules shall apply to

cases pending after their effectivity.
 16

SEC. 2. Effectivity. – These Rules shall take effect on the first day of
August 2001 following their publication before the 20th of July 2001 in two
newspapers of general circulation in the Philippines.

PERTINENT PROVISIONS OF THE E-COMMERCE ACT

CHAPTER II LEGAL RECOGNITION OF ELECTRONIC DATA MESSAGES

AND ELECTRONIC DOCUMENTS

Section 6. Legal Recognition of Electronic Data Messages- Information shall

not be denied validity or enforceability solely on the ground that it 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 7. Legal Recognition of Electronic documents- Electronic

documents shall have the legal effect, validity or enforceability as any other
document or legal writing, and-

(a) Where the law requires a document to be in writing, that requirement is

met by an electronic document if the said electronic document maintains its
integrity and reliability and can be authenticated so as to be usable for subsequent
reference, in that–

i. The electronic document has remained complete and unaltered,

apart from the addition of any endorsement and any authorized change, or
any change which arises in the normal course of communication, storage
and display; and

ii. The electronic document is reliable in the light of the purpose for
which it was generated and in the light of all relevant circumstances.

(b) Paragraph (a) applies whether the requirement therein is in the from of an
obligation or whether the law simply provides consequences for the document not
being presented or retained in its original from.

(c) Where the law requires that a document be presented or retained in its
original form, that requirement is met by an electronic document if-

i. There exists a reliable assurance as to the integrity of the document

from the time when it was first generated in its final from; and

ii. That document is capable of being displayed to the person to whom

it is to be presented: Provided, That no provision of this Act shall apply to
vary any and all requirements of existing laws on formalities required in the
execution of documents for their validity.

For evidentiary purposes, an electronic document shall be the functional equivalent

of a written document under existing laws.
 17

This Act does not modify any statutory any statutory rule relating to admissibility of
electronic data massages or electronic documents, except the rules relating to
authentication and best evidence.

Section 8. Legal Recognition of Electronic Signatures.- An electronic

signature on the electronic document shall be 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 under which-

(a) A method is used to identify the party sought to be bound and to indicate
said party's access to the electronic document necessary for his consent or
approval through the electronic signature;

(b) Said method is reliable and appropriate for the purpose for which the
electronic document was generated or communicated, in the light of all
circumstances, including any relevant agreement;

(c) It is necessary for the party sought to be bound, in or order to proceed

further with the transaction to have executed or provided the electronic
signature; and

(d) The other party is authorized and enable to verify the electronic signature
and to make the decision to proceed with the transaction authenticated by
the same.

Section 9. Presumption Relating to Electronic Signatures-In any

proceedings involving an electronic signature, it shall be presumed that,

(a) The electronic signature is the signature of the person to whom it correlates;
and

(b) The electronic signature was affixed by that person with the intention of
signing or approving the electronic document unless the person relying on
the electronically designed electronic document knows or has noticed of
defects in or unreliability of the signature or reliance on the electronic
signature is not reasonable under the circumstances.

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 information from the time when it was first
generated in its final form, as an electronic document is shown by
evidence aliunde or otherwise; and

(b) where otherwise it is required that information be resented, that the

information is capable of being displayed to the person to whom it is
to be presented.
 18

(2) Paragraph (1) applies whether the requirement therein is in

the form of an obligation or whether the law simply provides consequences
for the information not being presented or retained in its original form.

(3) For the purpose of subparagraph (a) of paragraph (1):

(a) the criteria for assessing integrity shall be whether the information
has remained complete and unaltered, apart from the addition of any
endorsement and any change which arises in the normal course of
communication, storage and display ; and

(b) the standard of reliability required shall be assessed in the light of

purposed for which the information was generated and in the light of
all the relevant circumstances.

Section 11. Authentication of Electronic Data Messages and Electronic

Documents.- Until the Supreme Court by appropriate rules shall have so provided,
electronic documents, electronic data messages and electronic signatures, shall
be authenticated by demonstrating, substantiating and validating a claimed identity
of a user, device, or another entity is an information or communication system,
among other ways, as follows;

(a) The electronic signatures shall be authenticated by proof than a letter

, character, number or other symbol in electronic form representing the
persons named in and attached to or logically associated with an
electronic data message, electronic document, or that the appropriate
methodology or security procedure s, when applicable, were employed
or adopted by such person, with the intention of authenticating or
approving in an electronic data message or electronic document;

(b) The electronic data message or electronic document shall be

authenticated by proof that an appropriate security procedure, when
applicable was adopted and employed for the purpose of verifying the
originator of an electronic data message or electronic document, or
detecting error or alteration in the communication, content or storage
of an electronic document or electronic data message from a specific
point, which, using algorithms or codes, identifying words or numbers,
encryptions, answers back or acknowledgement procedures, or similar
security devices.

The supreme court may adopt such other authentication procedures,

including the use of electronic notarization systems as necessary and advisable,
as well as the certificate of authentication on printed or hard copies of the electronic
documents or electronic data messages by electronic notaries, service providers
and other duly recognized or appointed certification authorities.

The person seeking to introduce an electronic data message or electronic

document in any legal proceeding has the burden of proving its authenticity by
evidence capable of supporting a finding that the electronic data message or
electronic document is what the person claims it on be.

In the absence of evidence to the contrary, the integrity of the information

and communication system in which an electronic data message or electronic
document is recorded or stored may be established in any legal proceeding –
 19

a.) By evidence that at all material times the information and

communication system or other similar device was operating in a
manner that did not affect the integrity of the electronic data message
or electronic document, and there are no other reasonable grounds to
doubt the integrity of the information and communication system,

b.) By showing that the electronic data message or electronic document

was recorded or stored by a party to the proceedings who is adverse
in interest to the party using it; or

c.) By showing that the electronic data message or electronic document

was recorded or stored in the usual and ordinary course of business by
a person who is not a party to the proceedings and who did not act
under the control of the party using the record.

Section 12. Admissibility and Evidential Weight of Electronic Data Message

or electronic document. – In any legal proceedings, nothing in the application of
the rules on evidence shall deny the 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 written form, and the
electronic data message or electronic document meeting, and
complying with the requirements under Sections 6 or7 hereof shall be
the best evidence of the agreement and transaction contained therein.

In assessing the evidential weight of an electronic data message or

electronic document, the reliability of the manner in which it was generated, stored
or communicated, the reliability of the manner in which its originator was identified,
and other relevant factor shall be given due regard.

Section 13, Retention of Electronic Data Message or Electronic Document.

– Notwithstanding any provision of law, rule or regulation to the contrary –

(a) The requirement in any provision of law that certain documents be

retained in their original form is satisfied by retaining them in the form of an
electronic data message or electronic document which –

(i) Remains accessible so as to be usable for subsequent reference;

(ii) Is retained in the format in which it was generated, sent or received, or

in a format which can be demonstrated to accurately represent the
electronic data message or electronic document generated, sent or
received;

(iii) Enables the identification of its originator and addressee, as well as the
detemination of the date and the time it was sent or received.

(b) The requirement referred to in paragraph (a) is satisfied by using the

services of a third party, provided that the conditions set fourth in subparagraph s
(I), (ii) and (iii) of paragraph (a) are met.
 20

Section 14. Proof by Affidavit, - The matters referred to in Section 12, on

admissibility and Section 9, on the presumption of integrity, may be presumed to
have been established by an affidavit given to the best of the deponent's
knowledge subject to the rights of parties in interest as defined in the following
section.

Section 15. Cross – Examination.

(1) A deponent of an affidavit referred to in Section 14 that has

been introduced in evidence may be cross-examined as of right by a party
who has introduced the affidavit or has caused the affidavit to be introduced.

(2) Any party to the proceedings has the right to cross-examine a

person referred to in section 11, Paragraph 4, sub paragraph c.