The Philippine Rules on Electronic Evidence: An Outline by Jaime N. Soriano -------------------------------------------------------------------------------The Philippine Supreme Court, through A. M. No.

01-7-01-SC, approved en banc the Rules of Electronic Evidence on July 20, 2001 in accordance with Republic Act No. 8792, otherwise known as the "e-Commerce Act of 2000". Scope and effectivity The Rules became effective on 1 August 2001 and initially applied to civil, quasijudicial and administrative proceedings pending after that date. On 24 September 2002, it was amended to include from its coverage criminal cases effective 24 October 2002. Electronic signature vs. digital signature Electronic signature refers to any distinctive mark or characteristic in electronic form representing the identity of a person and associated with an electronic data message or electronic document and therefore includes digital signature. Electronic signatures have the "functional equivalent" of the signature of a person on a written document. Digital signature refers to an electronic signature consisting of a transformation of an electronic data message or electronic document using a cryptographic system: asymmetric or symmetric through a certification authority. Recognition of electronic evidence Whenever the rules on evidence refer to a written document it shall include electronic documents (or any information sent, received, or stored by electronic, optical or similar means as electronic data). Thus: An electronic evidence is admissible in evidence provided it is competent, relevant and can be authenticated in the manner provided for by the rules. The fact that it is in electronic form will not diminish the confidential nature of a privileged communication. Best evidence rule in electronic documents Electronic documents refer to information or representation of information that establishes a right or extinguishes an obligation and is received, recorded, transmitted, stored, processed, or retrieved in electronic form. All copies of an electronic document executed at or about the same time with the same impression and identical in contents are regarded as equivalent of the original, unless there is a question on the authenticity of the original or it would be unjust to admit the copy in lieu of the original.

Exception to the Hearsay Rule Records, data or information kept in electronic form in the regular course of business are excepted from the hearsay rule, provided (i) they are proven or shown by the testimony of the custodian or other qualified witness and (ii) it is proven that compilation of such data, records or information is a regular practice. To overcome this, the adverse parry must present proof of the untrustworthiness of the source of information, or the method or circumstance of the preparation, transmission or storage. Authentication of electronic documents Burden of proving authenticity: The party introducing the electronic evidence. Manner of proving authenticity of private documents: The electronic evidence must be proved before it is offered as authentic in any of the following manner: (i) evidence that it has been signed digitally by the person, (ii) evidence that appropriate security procedures were applied as may be authorized by law or the SC, or (iii) other evidence showing integrity and reliability to the satisfaction of the court. Manner of proving authenticity of public document: To be proven as an electronically notarized document in accordance with SC rules (NB: No such rule at the moment) Manner of authenticating electronic signature: (i) evidence to prove the method to establish and verify a digital signature, (ii) other means provided by law, (iii) any means to satisfy the court of its genuineness. Methods of proving electronic documents By Affidavit Evidence: based on personal knowledge and indication of the competence of the affiant to testify on the matters contained therein. The contents of the affidavit shall be affirmed in open court and may be cross-examined as a matter of right by the adverse party in a summary hearing. Electronic testimony: When an examination of a witness is done electronically, the entire proceedings shall be transcribed stenographically. The transcript must be certified and indicate that the proceedings were electronically recorded. The electronic evidence, the recording and the transcript shall form part of the records of the case and shall be deemed as prima facie evidence of the proceedings. Disputable presumptions (after authentication is proved) Electronic signature: (i) it correlates to the identity of the person, (ii) it was affixed with intent to authenticate, (iii) it was affixed to indicate consent to the transaction, and (iv) the process to affix the signature operated without error or fault. Digital signature: In addition to the above, (i) information contained in the certificate (of the certification authority) is correct, (ii) the signature was created during the operational period of the certificate, (iii) there is no cause to render certificate revocable or invalid, (iv) the message associated to the signature has not been altered from the time of signing, and (v) it has duly issued by the certification authority.

Factors to consider in determining evidentiary weight of electronic documents Reliability of manner or method in which it was generated, stored or communicated. Reliability of the manner in which the originator was identified. Integrity of the information and communication system in which it is recorded or stored. Familiarity of the system by the person who made the entry. The nature and quality of the information that went into the communication system where the electronic document was based. Other factors affecting accuracy and integrity of the electronic documents. Admissibility and proof of ephemeral electronic evidence Ephemeral electronic evidence refers to telephone conversation, text messages, chat sessions, streaming audio or video or other forms of communication that is not recorded or retained. It should be proven by the testimony of the person who was a party to the same, or has personal knowledge of the same, or in the absence thereof, by other competent evidence. If the communication is recorded, it shall be proven as an electronic document. Admissibility and proof of audio, video or photographic evidence The evidence is admissible provided they are shown, presented or displayed to the court and identified, explained or authenticated by the person who produced the same or by a competent testimony on the accuracy thereof.