Are social media posts

admissible in evidence?
By: Francis Lim - @inquirerdotnet
Philippine Daily Inquirer / 03:40 AM May 01, 2014
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 layman’s 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 “layman’s 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 people’s money.”
In practical terms, under the layman’s 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 layman’s 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.

PHOTOGRAPHS

QUESTION:

Are original photographs considered documentary evidence? and should the “Chain

of Custody” for these photographs be preserved with documentation?

_____

ANSWER:
A photograph of a crime scene would be considered “documentary evidence.”

The ultimate purpose of a “chain of custody” with evidence is to provide

“authentication” of that evidence so that it is admissible in court. The Federal Rules
of Evidence state, “the requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.” (USCS Fed. Rules Evid. R
901). This means that the person introducing the evidence must provide sufficient
proof that the evidence is what that person claims. Thus, the chain of custody is
typically used to ensure that evidence is not tampered with or altered and that the
“identity and integrity” of the evidence remains intact. This “authenticates” the
evidence in court so that it is admissible.

Photographs are typically authenticated by a person who is familiar with the scene
that was photographed providing testimony that the image in the photograph “fairly
and accurately depicts the scene as it was at the time in question.” Anyone familiar
with the scene can authenticate a photograph and it does not necessarily have to be
the photographer. That being said, the “chain of custody” is not usually part of
“authenticating” a photograph, rather, authentication of a photograph leans more
towards a person being able to testify that the photograph “fairly and accurately
depicts the scene as it was at the time in question.”

can You Use Chat Messages As Evidence?

Chat messages or text messages are often used as evidence in court. However,
presenting these electronic evidences has to meet the following requirements
stipulated on Republic Act No. 8792 otherwise known as the Electronic Commerce
Act of 2000.

RULE 3
ELECTRONIC DOCUMENTS
SECTION 1. Electronic documents as functional equivalent of paper-based
documents. – Whenever 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.

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

communications is not 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 is accurately reproduces the original, such copies or
duplicates shall be regarded as the equivalent of the original.

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) in the circumstances it would be unjust or inequitable to admit a copy in lieu of the
original.

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.

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.

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 verity 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 relation to electronic signature. – 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 verity 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;

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

(d) 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

(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.

Text (SMS), Facebook, Email, Messenger & CCTV as evidence

April 21, 2021

Facebook

Twitter

By Atty. Eduardo T. Reyes III

As the digital world is starting to mature, so too is the pervasiveness of the use of
digital platforms. Controversy erupts when they are misused (or, worse, abused) and
the victim scrambles to run after evidence that is not meant to be retained or saved,
or can be easily deleted given that they are ephemeral in nature.

When this happens, what comes to the fore are both the admissibility and probative
value of electronic evidence. How do we capture in its authentic form evidence which
exists only in passing on the internet or in an intangible platform?

A.M. No. 01-7-01-SC or the Rules on Electronic Evidence came into effect on July
17, 2001 without much fanfare. These rules serve as the counterpart of the rules on
evidence in the Rules of Court which traditionally contemplated only of documents
printed on paper. But the prevalence of digital communication calls for a more
conscious examination of the rules on electronic evidence to ensure their authenticity
and reliability especially when its contents are either libelous, inciteful of commission
of a crime, or indecent.

The significant provisions are highlighted as follows:

1. Section 1, Rule 3 of the Rules on Electronic Evidence provides that

“electronic documents are the functional equivalents of paper-based
documents”. This means that for all intents and purposes, the rules on
documentary evidence particularly the Best Evidence Rule (now known as
the Original Document Rule under the 2019 Revised Rules on Evidence)
and the Parol Evidence Rule, apply as well to electronically-generated
evidence which are in writing;

2. The “original document” pursuant to the Best Evidence Rule (now known as
the Original Document Rule under the 2019 Revised Rules on Evidence,
A.M. No. 19-08-15-SC), in so far as electronic evidence is concerned,
refers to any “printout or output readable by sight or other means, shown to
reflect the data accurately”;

3. The most common “electronic evidence” that is always rife for controversy
are the “electronic document” and “ephemeral electronic communication”
which are often generated from digital platforms such as text (SMS),
Facebook, email, messenger, or CCTV which are considered as
“ephemeral evidence” because they can easily be deleted from the
platform. These are defined by the rules as follows:
(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”.
(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.

4. The manner of “authentication” of electronic evidence can be done in three

(3) ways under Section 2, Rule 5, viz:
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.

5. In tandem with the preceding paragraph is Section 1, Rule 9 which, in

contrast to Section 2, Rule 5 which refers to the “manner of authentication”,
Section 1, Rule 9 refers to the “method of authentication”, viz:
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.

Lastly, in so far as audio, still photos, video and other similar recordings in a digital
platform which are likewise “ephemeral” or fleeting in nature are concerned, there are
three (3) requisites for their admission as evidence: (1) They must be shown,
presented, or displayed in court; (2) they must be identified, explained or
authenticated; and, (3) the person who must identify, explain or authenticate must be
either the person who made the recording or some other person competent to testify
on the accuracy thereof. It is submitted that the latter can refer to any person who
either saw the actual recording by another person or any person for that matter who,
although not actually present at the time of the recording, but is so familiar with the
place or event which was recorded that he can vouch for the accuracy and
faithfulness of the recording and that what is/ are depicted are fair and accurate
representations of the actual things, places or events captured in the recording.

This rule was applied by the Supreme Court in a recent case where it allowed the
CCTV footage of the killing of a person to prove that the same was done
treacherously and that the killing constituted as murder and not merely homicide,
even if the one who testified on such footage was not the actual person who made
the recording but it was enough that he had ample knowledge about such recording
and how it was transferred to a compact disc (CD) and eventually presented in court.
(People of the Philippines v. Eddie Manansala y Alfaro, G.R. No. 233104. September
2, 2020).

The key therefore is to save a copy of the message, recording or writing on a digital
platform by taking a screenshot or by downloading the same in its full text (not a
redacted or spliced version), and then to print or transfer the same in another
medium. It must also be authenticated by a competent person or one who had seen it
while still in its pristine electronic form by executing an affidavit of authentication.

As we surge on to a different dimension known as the digital world which is fast-

paced, amorphous and often timeless, it pays to know how electronic evidence is
preserved whether for purposes of presentation in court or for posterity’s sake. After
all, capturing such evidence while on flight might mean saving one’s reputation or
preserving his or her own rights.

(The author is the senior partner of ET Reyes III & Associates- a law firm based in
Iloilo City. He is a litigation attorney, a law professor and a law book author. His
website is etriiilaw.com).

Can a video be used as evidence in court Philippines?

- 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.