A.M. NO. 01-7-01-SC.-
RE: RULES ON ELECTRONIC EVIDENCE
EN BANC
RESOLUTION
Acting on the Memorandum dated 18 June 2001 of the Committee on
the Revision of the Rules of Court to Draft the rules on E-Commerce
Law [R.A. No. 8792] submitting the Rules on Electronic Evidence for
this Court’s consideration and approval, the Court Resolved to APPROVED the
same.
The
Rules on Electronic Evidence shall apply to cases pending after their effectivity.
These Rules shall take effect on the first day of August 2001 following their
publication before the 20th of July in two newspapers of general circulation in
the Philippines
RULES ON ELECTRONIC
EVIDENCE
RULE 1
COVERAGE
SECTION
1. Scope. - Unless otherwise provided herein, these Rules shall apply
whenever an electronic data message, as defined in Rule 2 hereof, is offered or
used in evidence.
SEC.
2. Cases covered. - These Rules shall apply to all civil actions and
proceedings, as well as quasi-judicial and administrative cases.
SEC.
3. Application of the other rules on evidence. - In all matters not
specifically covered by these Rules, the Rules
of Court and pertinent provisions of statues 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.
(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 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, characteristics 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 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 message or
electronic document.
(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.
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 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 authenticate din 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 authenticate 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 tot he
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 ot 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 or
hearsay evidence.
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 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.
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 circumstance, 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, stenotypes 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 is 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 communication. – 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.
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.
RULE 12
EFFECTIVITY
SECTION 1. Applicability to pending case. – These Rules shall apply to cases pending after their effectivity.
SEC.
2. Effectivity. – These Rules shall take effect on the first day of
August 2001 following their publication before the 20th day of July 2001 in two
newspapers of general circulation in the Philippines
(Sgd.) HILARIO G. DAVIDE JR.
Chief Justice
