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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

THE PHILIPPINE QUARTERLY THE OFFICIAL PUBLICATION OF THE


ARELLANO UNIVERSITY SCHOOL OF LAW

IT Law Journal E-LAW CENTER AND IT LAW SOCIETY

VOLUME 1, N UMBER 1

what’s
Inside
“HACKING” THE MERCANTILE LAW BAR EXAM QUESTIONS
by Michael Vernon M. Guerrero
1 “H
M
Q
ACKING ”
ERCANTILE
UESTION
THE
B AR E XAM

2 EP DITORIAL

4 EAA

7 TEO
HILIPPINE
FIGURES
L E C T R O N I C

B REAKTHROUGH IN
NOTARIZATION H
F ACTS

UTHENTICATION SYSTEM:

HE PHILIPPINE RULES ON
LECTRONIC EVIDENCE: AN
UTLINE
& Hacking?

acking what? Technical


people would argue that there is no such a
thing as “Hacking the Mercantile Law Bar
Exam Questions.” Cracking maybe, but not
hacking. Obviously, confusion will arise on
the usage of the word “hacking” if one is not
particular to one’s audience.
Nevertheless, similar to the failure of mass
media to distinguish between cracking and
hacking, the terms cracking and hacking
under the Philippine Electronic Commerce Act
(Republic Act No. 8792) are used
interchangeably. The Act provides specifically
that “hacking or cracking ... refers to
unauthorized access into or interference in a
computer system / server or information and
8 JC URISPRUDENCE
YBERLAW
IN

For the technically inclined, to hack means to


communication system; or any access in order
to corrupt, alter, steal, or destroy using a
computer or other similar information and
9 OP PTICAL MEDIA A CT :
ANACEA TO PIRACY?
A write a program code; or to modify a
program, often in an unauthorized manner, communication devices, without the
by changing the code itself. A hacker, thus, is knowledge and consent of the owner of the
10 SATHE
YSTEM
D OMAIN N AME
(DNS) AND
DMINISTERING THE ROOT
a computer enthusiast, or a person who enjoys computer or information and communications
learning programming languages and system, including the introduction of computer
CCTLD .PH
computer systems and can often be considered viruses and the like, resulting in the corruption,
destruction, alteration, theft or loss of
12 S PAMMING THE WORLD an expert on the subject(s). To crack, on the
other hand, is to break into a computer system electronic data messages or electronic
or to copy commercial software illegally by document.” [ 3 ]
14 AC S YNOPSIS OF THE E -
OMMERCE LAW breaking (cracking) the various copy-
O VERVIEW OF S ELECTED protection and registration techniques being The simplification of the definition of hacking,
16 LI EGAL AND REGULATORY
SSUES IN E LECTRONIC
used. A cracker, therefore, is distinct from a made synonymous to cracking, in the
Electronic Commerce Act, allows the
hacker. The sole aim of crackers is to break
COMMERCE (UNCTAD)
into secure systems, while hackers are more prosecution of a person, not necessarily a
interested in gaining knowledge about computer expert, who simply accessed
18 LT EXICON OF C YBERLAW
ERMINOLOGIES
computer systems and possibly using this another person‘s computer or electronic
knowledge for playful pranks. [ 1 ] documents without the latter’s permission.
19 91A NEW LAWYERS FROM THE
RELLANO U NIVERSITY
SCHOOL OF LAW To illustrate the technical distinction to the legal “Hacking the Mercantile Law Bar Exam
mind, decompilation allowed in Section 185 Questions,” therefore, may be technically an
22 [LL EGAL WEB]
AWPHIL . NET : A STEP IN
THE RIGHT DIRECTION
of the Philippine Intellectual Property Code incorrect title, but may be legally correct within
(Republic Act No. 8293) [ 2 ] is part and parcel Philippine jurisdiction.
of the technical concept of hacking. On the
24 DIC IGITAL LAW & THE
MPERATIVES OF THE E-LAW other hand, effecting transactions with one Leakage of the 2003 Mercantile Law
ENTER
or more access devices issued to another Bar Exams
THE BIRTH OF THE IT person or persons to receive payment or any
LAW SOCIETY other thing of value (Section 9 [n] of the Access The 21 September 2003 Mercantile Law Bar
Devices Regulation Act, Republic Act No. Examinations, one of the eight bar subjects
8484) – especially if construed in a virtual or and one given 15% weight, was annulled after
Internet transaction – constitutes cracking. >> [ 3 ] Mercantile Law Bar Exam

1
Message from the Dean

and Policy Review (ALPR), a journal


featuring mainly articles on
international law and policy

T
developments, was published starting
hree years ago, on 2001 to which the law libraries of Yale
the occasion of the centenary and Harvard are now subscribers. An
celebration of the Philippine Supreme Institute of Special Studies (ISS) was
Court, Arellano University School of opened to engage in research and
Law was invited to co-sponsor the law encourage discussion in the field of
and technology lecture. In the response international law, particularly
I delivered for the school, I announced international trade law. It holds monthly
to the distinguished members of the brown bag lectures mostly on the
Highest Court and their guests that as burning local and international legal
far back as 1997, the school had issues of the day.
already anticipated the need to develop
globally-oriented lawyers and In 2001, the ISS worked with the
professors. This can be gleaned from International Trade Centre, a technical With the establishment in 2003 of
the school’s vision statement drafted cooperation agency of the UNCTAD AUSL’s Center for e-Law, it is clear that
on th same year where we saw and the World Trade Organization the school is ready to meet the
ourselves as a globally competitive (WTO) in authoring a handbook entitled challenges posed by the advent of the
institution that harnesses world-class, “Arbitration and Alternative Dispute digital age. The formation of an IT Law
state-of-the-art technologies and Resolution,” now considered by many Society with members composed of
methodologies, responsive and attuned Philippine law schools as the most technologically proficient law students
to the demands of the times. authoritative on the subject. Changes is a most welcome development that
in the curriculum were made in the will set the school apart from even the
In 1999, true to our vision, we opened year 2000. Among them were the so-called elite law institutions.
an Information Technology Center introduction of courses like Alternative
(ITC) to handle all of the school’s Dispute Resolution, Environmental Law, I congratulate the movers behind the
computer requirements. On the same International Trade Law, Project Center for E-Law and the IT Law
year, we set up at least 30 computer Finance, CorporateFinance, Society for the work they have been
stations with Internet access for the Telecommunications Law, Technology doing, and in particular for coming out
exclusive use of law students. Lawphil and the Law, and Human Rights to with an ambitious project like the IT
was developed and introduced on the address the globalization of both Law Journal. May your tribe increase
web in the year 2000 and has become Commercial Law and Public Interest and may you indeed be at the forefront
the country ’s most visited legal Law. of law and technology concerns in the
research website. The Arellano Law country and beyond.

Editorial Board The Philippine Quarterly IT Law Philippine IT Facts and Figures
Journal is the official publication of the e-
C HAIRMAN Internet users (thousands), 2000-2002 1
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

Law Center and the IT Law Society of the


Atty. Jaime N. Soriano, CPA, MNSA Arellano University School of Law. It is 2000 1 540
published quarterly. 2001 and 2002 2 000
M EMBERS % change 2000-2001 29.87
Ailyn L. Cortez Contributions to the Philippine Quarterly IT
Charilyn A. Dee Law Journal express the views of their authors Internet users per 1000 person, 2000-2002 2
and not necessarily the views of the Arellano 2000 201
Jhonelle S. Estrada
University School of Law. 2001 and 2002 256
Peter Joseph L. Fauni
Carlyn Marie Bernadette C. Ocampo- For subscriptions, contact: Network Readiness Index (NRI) & Ranking by
Guerrero the Economist Intellegence Unit (EIU) 3
Michael Vernon M. Guerrero THE PHILIPPINE QUARTERLY NRI Score 3.25
Ma. Cristina A. Ramos It Law Journal NRI Rank 62
e-Law Center ERI Score 3.93
2/F Heilbronn Hall ERI Rank 47
Arellano University School of Law
Volume 1, Issue 1 Taft Avenue corner Menlo Street Sources:
Pasay City 1300 Philippines 1
ITU (2003a) and UNCTAD calculations
© 2004. All Rights Reserved. Tels. +63 2 404-3089, 404-3090, 404-3091 2
ITU (2003a) and UNCTAD calculations
Reconstituted November 2006. Proportions http://www.arellanolaw.net 3
Dutta, Lanvin and Paua (2003) and
may differ slightly from original printed copy. itlawjournal@arellanolaw.net Economist Intelligence Unit (2003).

2
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
<< [ 1 ] Mercantile Law Bar Exam Atty. Ivan Uy, chief information officer is not authorized to access. So if a file
of the Supreme Court, and his folder in Windows 98-based machine
a massive leakage – comprising 82 computer forensic experts were able has been shared, one can access said
percent of the questions asked in the to uncover De Guzman’s activities folder in another computer in the
bar subject – occurred. The nullification through his computer’s and the network. Unlike in Windows 2000, for
of the examination on the subject was network’s logs. Inasmuch as access to example, only one having
made in order to preserve the integrity Balgos’ computer was unauthorized, administrator capabilities can add a
and protect the sanctity of the De Guzman is deemed to have new user to the computer.
examination and avoid any doubt or committed “hacking” pursuant to the Furthermore, when a computer in a
suspicion on the outcome of said definition given by Section 33(a) of the network does not contain a similar user
examination. The Supreme Court, Electronic Commerce Act. profile as in the one accessed, a log-
instead of having the examinees retake in and password dialogue box appears
the Mercantile Law examination, Protecting files before one can access the other
distributed the weight assigned to computer. [ 4 ]
Mercantile Law to other Bar subjects. Interconnectivity and security are two
Examinees in 2003 numbered to opposing, but not necessarily Second. Find out if you’re sharing
5,349 law graduates. incompatible, concepts. Getting one more than you are willing to share.
step ahead of potential security threats Clicking on your computer’s name on
The Supreme Court, on 4 February would be a costly endeavor. But one Network Neighborhood would show
2004, disbarred Danilo de Guzman, must at least find ways to secure one’s the folder(s) or drive(s) your computer
a lawyer from the Balgos and Perez files from an unauthorized user, who is sharing over the network. Better
law firm and the one responsible for has basic knowledge of computers and unshare the folder(s) or drive(s) which
the Mercantile Law Bar Examination their systems. you are not really willing to share, or
leakage, and reprimanded Marcial OT otherwise create a specific folder
Balgos, examiner in the 2003 LAN may be practical in connecting a containing only the files that you would
Mercantile Law Exam, whose number of computers so as to share want to share. Furtther, you may want
negligence was the root cause of the peripherals and resources, such as to limit the number of people that can
said bar leakage. printers, hard disk storage, and even access the shared folders at one time.
[5]
Internet connection when applicable.
It appeared, on investigation, that File transfer between computers within
Balgos prepared three sets of test the network is made easier, especially Third. Password-protect your
questions on Mercantile Law on his if the file is above the 1.44MB diskette documents. If you are using Microsoft
personal computer in his law office. limit, or if the other computer does not Word and Excel, these documents and
His computer, running on Microsoft have or support a large removable spreadsheets may be protected from
Windows 98 operating system, is media drive. Unauthorized file access being opened by unauthorized
interconnected with other computers through shared folders, however, may personnel. [ 6 ]
in the law office through a local area occur if the user is unaware of means
network (LAN). De Guzman activitated to control access. Therefore, what Fourth. Don’t let your ultra-sensitive
file-sharing of pertinent file folder(s) should be done to control access? files stay in your computer. Better store
in Balgos’ computer without the latter’s them in reliable removable storage
knowledge, and was able to access First. Choose the proper operating devices, such as those heavy-duty
Balgos’ files using his own computer system. A lot of organizations purchase portable ones that can be plugged in
in the network. De Guzman faxed the “home-based” operating systems such your USB port.
questions to Ronan Garvina, a as Windows 95, 98, ME and XP Home
fraternity brother. Garvina, in turn for their personal computers as they Fifth. If you have money to spare, buy
faxed the questions to Randy Iñigo and are relatively cheaper than the more reliable software which would provide
James Bugain. Iñigo passed a copy of secure operating systems Windows NT, your computer personal firewall. It is
the questions to Allan Guiapal, who 2000, and XP Pro; or more popular additional protection to safeguard your
gave a copy to Ronald Collado. Collado than the various flavors of Linux or sensitive files.
ordered the printing of the questions, similar operating systems. The
with the logo and initials of the fraternity drawback in the use of Windows 98, These are some of the precautions one
and distributed copies to 30 Bar for example, is that one can access can do to safeguard one’s files from
candidates of the Manuel L. Quezon the computer by merely cancelling the the prying eyes of other people,
University (MLQU). login box and thus create an account especially if the security of documents
for oneself in the computer where one affect the lives of a lot of people.
>> [ 21 ] Mercantile Law Bar Exam

3
Features

ELECTRONIC AUTHENTICATION SYSTEM:


A BREAKTHROUGH IN NOTARIZATION
By Ma. Cristina A. Ramos

N Introduction

otaries public, as we
know them today, originated as scribes.
Scribes, Latin scribae, are literate clerks
who took notes of important events and
discussions and made copies both of
public and private documents. The role
of these scribes can be traced back to
pre-Biblical times in Ancient Egypt and
·

·
Revised Administrative Code of
the Philippines.

Section 11, Rule 141 of the Rules


of Court.

A.M. No 02-8-02-SC,
promulgated by the Supreme
Court (En Banc) on August 13,
2002 effective September 2,
of the affiants or the parties before a
notary public to satisfy the foregoing
warranties.

e-Notarization under the e-


Commerce Act

To keep pace with the global


developments in information
technology, Congress enacted into law
Greece. The importance of these 2002. Republic Act No. 8792, also known
scribes became more and more Notarization converts a private as the Electronic Commerce Act of
important when the value of official document into a public document and 2000) on June 14, 2000. The law
record-keeping was recognized and renders the document admissible in gave validity and legal recognition to
when societies began to formalize their court as evidence without need for electronic documents and electronic
rules and decisions. [ 1 ] further proof of its authenticity. A contracts as the functional equivalent
notarized document is entitled, by law, of paper-based documents. [ 5 ]
In Ancient Rome, scribes who to full faith and credit upon its face. [ 3 Corollary to this is the legal recognition
]
performed the function of the notary Notarization also vests upon the of electronic and digital signatures
were known as tabellions. Instead of document the presumption of affixed on electronic documents and
paper, these tabellions used tabulae or regularity unless it is impugned by electronic contracts. These signatures
tables or plates covered with wax. Later strong, complete and conclusive are now legally recognized as
on, a new system of shorthand writing proof.[4 ] equivalent to the signature of a person
called notae tironinae was developed. on a written document. [ 6 ] Electronic
It was a system of arbitrary marks or When a notary public affixes his contracts and documents would not be
signs called notae. The person who signature and notarial seal to an denied validity, enforceability and
adopted this method was called a instrument, after putting the affiants admissibility as evidence for as long
notarius. Although originally applied to under oath, he makes the following they preserved their integrity and
a shorthand writer, the term notarius warranties: reliability and can be
became used exclusively to a publicly authenticated in accordance with the
appointed official who performed the · The party or parties personally law and established rules of procedure.
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

functions similar to that of a present- appeared before him and signed


day notary. [ 2 ] the instrument in his presence Section 11 of the Electronic
Commerce Act of 2000 authorized the
The Philippine Notarial Law · The party or parties made Supreme Court to determine the
themselves known to him to be the appropriate rules governing the
In the Philippines, notaries public are same person or persons who authentication of electronic documents
members of the Bar commissioned by, executed, and whose names and electronic contracts "including the
and are under The supervision of, appeared in the instrument. use of electronic notarization systems
Executive Judges of the territory where as necessary and advisable, as well as
they perform their notarial functions. · In cases of acknowledgements, the the certificate of authentication on
The laws and regulation governing parties made known to him the printed or hard copies of the electronic
notaries public include the following: voluntary execution of the document or electronic data messages
instrument. by electronic notaries, service providers
· Sections 231 to 252 and Sections and other duly appointed certification
2632 to 2633 of the 1917 In short, notarization under existing authorities."
laws necessitates personal appearance

4
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Electronic notarization is the that MISO is preparing are intended finger. The computer would analyze
performance of a legal act that will for these two types of election the fingerprint to determine the identity
facilitate the conversion of private authentication system. of the person at the other end of the
documents in electronic form into screen. With this mechanism, the risk
"public documents" and provide them On-line authentication system of the digital signature being accessed
with the legal attributes and character or used without authority will be
as such. It is the digitalization" of the The first type or the on-line avoided.
performance of the function of a authentication system is intended to
notary public. cater to parties who are physically Another potential danger of this type
remote from each other but wish to of electronic authentication system is
Current efforts of the Supreme have their document authenticated to the risk that the owner of the digital
Court [ 7 ] convert the same as a public signature be coerced to put his digital
document. In this system, there would signature on the electronic document
At present, the Management be a virtual room where the parties without the notary public knowing of
Information System Office (MISO) of will meet on-line via NetMeeting or such fact. This danger is something that
the Supreme Court, headed by Atty. net conference. An officer duly the Electronic Authentication System
Ivan John Uy, has completed ninety authorized by the court to conduct may not resolve. However, It is worthy
percent (90%) of the Rules on electronic authentication should also to note that even in the notarization of
Electronic Notarization. According to be present in the virtual room and after paper-based documents, such vitiation
Atty. Uy, the Rules will be presented to taking proper procedural safeguards, of consent cannot be avoided. "When
the Supreme Court for consideration the parties and the authenticating you introduce something new, you
in July this year. The rules on electronic officer similar to a notary public, shall should not expect that it is a 'cure-all'
notarization is expected to be affix their electronic signatures in the thing. It will definitely improve the
approved, released and implemented electronic document. system but it will not cure all the
before the end of 2004. defects," said Atty. Uy.
Prior to the drafting of the rules, some
Critics of the implementation of the legal practitioners have commented on Personal appearance before an
electronic notarization system argue the potential dangers of this type of authentication officer
the possible conflict of this set up with authentication system particularly on
the legal requirements of the existing the authenticity of the document. The The second type of Electronic
notarial law. Atty. Uy, however, said primary concern is how can the other Authentication System being proposed
that this issue has already been parties and the authenticating officer requires the personal appearance of
addressed. He explained that the be assured that the person attaching the parties before an authenticating
electronic notarization system is a sui the digital signature is indeed the officer. This type of authentication
generis. It is a concept of its own, a person he or she should be. According system aims to do away with bulky
unique one. Nevertheless, it will have to Atty. Uy, they are going to require paper documents. With this system, the
the same effect as the notarization of in the rules the use of mechanisms that parties who wish to have their
paper-based documents. Simply put, will verify or ascertain the identity of electronic document authenticated are
it will also have the "functional the parties including probably the use required to appear before an
equivalent" of the notarization of of a video camera to see the person authenticating officer duly
paper-based documents. at the other end of the screen. commissioned by the Court. The
parties, after reading the electronic
Atty. Uy recognized that "electronic Utilization of biometrics technology is document, shall affix their electronic
notarization is like putting a square peg also being considered. "Biometrics signatures thereon, while the
in a round hole." For this reason, the refers to the authentication techniques authenticating officer acts as witness.
proposal is to denominate the system that rely on measurable physical The authenticating officer shall then
as "Electronic Authentication System characteristics that can be affix his digital signature in the
for Electronic Documents". automatically checked." [ 8 ] A commonly document, store the said document in
used biometrics is the computer a compact disc, reproduce a number
The MISO has conceptualized two (2) analysis of fingerprints. In order to avail of copies thereof as may be required
types of Electronic Authentication of this type of authentication system, by the rules and give each party his
System. The first type is an "on-line the personal computers of the parties copy of the electronic document. The
authentication system" while the second should have, for example, a authenticating officer shall also keep
system would require the personal fingerprint scanner, where each of his copy of the document.
appearance of the parties. The Rules them could place his or her index

5
The original of an electronic executed at or about the same The flexibility of the legal mandate
document time with identical contents, or is a accorded to the Supreme Court by the
counterpart produced by the same E-Commerce Act of 2000 to adopt a
Section 3, Rule 130 of the Rules of impression as the original, or from the system of e-notarization and
Court provides that when the subject same matrix, or by mechanical or authentication of electronic documents
of inquiry is the contents of a electronic recording, or by chemical as maybe "necessary and advisable" [
14 ]
document, no evidence shall be reproduction, or by other equivalent is consistent with the internationally-
admissible other than the original techniques which accurately accepted principle that 'law should be
document itself, also known in legal reproduces the original, such copies technology neutral' and effectively
parlance as the best evidence rule. or duplicates shall be regarded as the arrests any legal inconvenience posed
equivalent of the original." [ 13 ] Thus, by existing notarial laws.
The E-Commerce Act of 2000 and the for a document to be considered as
Rules on Electronic Evidence [ 9 ] equivalent of the original, it must be Unfortunately, global trends in legal
promulgated by the Supreme Court executed at or about the same practice leave our judicial authorities
modified the concept of the best time as the original. no choice but to start the process of
evidence rule to capture legal change in our legal system in response
recognition and admissibility of In the soon-to-be implemented Rules to the information technology
evidence of electronic documents and on Electronic Authentication System of revolution. The enactment of the E-
electronic contracts. Electronic Documents, Atty. Uy Commerce Law, the Rules on Electronic
declared that a mechanism to ensure Evidence and the prospective Rules on
In electronic documents, the E- that only copies intended to be the Electronic Authentication System of
Commerce Act provides that where the equivalent of the original will be Electronic Documents is certainly a step
law requires information to be presented. He further explained that in the right direction.
presented or retained in its original with the 'time and date stamp' or digital
form, that requirement is met by an stamping, the integrity of an electronic Endnotes
electronic document if the integrity of document would be proved. Upon
1. Tom Halliwell, "The Notary: A Short
the information from the time when it signing an electronic document, the History" (2000, May). Retrieved on 2
was first generated in its final form as parties will secure a time and date April 2004. http://
an electronic document, is shown by stamp. Such stamp assures the w w w. l e a r n e d c o u n s e l . c o m /
notaryhistory.html
evidence allunde or otherwise. [ 10 ] existence of an electronic document 2. Ibid.
at one certain moment. Hence, the 3. Nunga vs. Viray, A. M. 4758, 30 April
Rule 4 of the Rules on Electronic original of the electronic document and 1999
Evidence provides that "an electronic the equivalent copies of the original 4. Sales vs. Court of Appeals, G. R. No.
L40145, 29 July 1992
document shall be regarded as the bear the same digital stamp. 5. Sec. 7, R. A. No. 8792
equivalent of an original under the Best Subsequent copies of the electronic 6. Sec. 8, ibid.
Evidence Rule if it is a print out or output document will certainly bear a different 7. Based on the author's interview of Atty.
readable by sight or other means, time and date. Therefore, there would Ivan John Uy on 1 April 2004
8. Definition from www.webopedia.com.
shown to reflect the data accurately." be no problem in ascertaining whether Copyright, 2004 Jupitermedia . All rights
[11 ]
Thus, every copy of the electronic a particular electronic document is the reserved. Reprinted with permission
document, whether a print out, an e- original, an equivalent of the original, from http://www.internet.com.
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

mail message, or a copy in a hard disk, or a subsequent reproduction thereof. 9. A.M. No. O 1-7-01-SC
10. Sec. 10, R.A. No. 8792.
compact disc or diskette may be 11. Sec. 1, ibid.
regarded as the original. The greatest Conclusion 12. Jaime C. N. Arroyo, "The law and the
apprehension with the said provisions Internet Legal Community slams rules
is the possibility that "all manner of Electronic notarization is certainly a on electronic evidence," Cyberdyaryo,
22 August 2001, Retrieved on 2 April
alterations can be perpetrated in the new and novel concept in legal and 2004. http://www,cyberdyaryo.com/
cyberspace before the document is judicial systems not only in the features/2001_0822_02.htm
even printed. [ 12 ] Philippines but worldwide. Like any 13. Sec. 2, Rule 4 of the Rules on Electronic
Evidence
process of change, it is susceptible to
14. Sec. 11, R. A. No. 8792
The Rules on Electronic Evidence resistance particularly from the legal
further provides that "[w]hen a community.
document is in two or more copies
“THE PRESENT DAY GLOBAL ECONOMIC LANDSCAPE IS DEFINED BY TWO MAIN FEATURES -- THE VAST IMPACT OF THE INFORMATION
TECHNOLOGY REVILUTION AND THE DRAMATIC EXPANSION OF INTERNATIONAL TRADE. THE INTERNET IS REDEFINING BUSINESS MODELS
WORLDWIDE AND CREATING NEW PARADIGMS AND ECONOMIC TRANSACTIONS.” - GOV. JAMES S. GILMORE III, GOVERNOR OF VIRGINIA AND
CHAIRMAN, FEDERAL COMMISSION ON INTERNET TAXATION (1999)

6
Features

The Philippine Quarterly IT Law Journal :: Volume 1, Number 1


THE PHILIPPINE RULES ON ELECTRONIC EVIDENCE: AN OUTLINE
By Jaime N. Soriano

he Philippine electronic documents (or any regular practice. To overcome this, the

T
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


information sent, received, or stored
by electronic, optical or similar means
as electronic data). Thus:

1. An electronic evidence is
admissible in evidence provided
it is competent, relevant and can
be authenticated in the manner
provided for by the rules.
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
documents
of electronic

Burden of proving authenticity: The


August 2001 and initially applied to 2. The fact that it is in electronic form party introducing the electronic
civil, quasi-judicial and administrative will not diminish the confidential evidence.
proceedings pending after that date. nature of a privileged
On 24 September 2002, it was communication. Manner of proving authenticity of
amended to include from its coverage private documents: The electronic
criminal cases effective 24 October Best evidence rule in electronic evidence must be proved before it is
2002. documents offered as authentic in any of the
following manner: (i) evidence that it
Electronic signature vs. digital Electronic documents refer to has been signed digitally by the person,
signature information or representation of (ii) evidence that appropriate security
information that establishes a right or procedures were applied as may be
Electronic signature refers to any extinguishes an obligation and is authorized by law or the SC, or (iii)
distinctive mark or characteristic in received, recorded, transmitted, other evidence showing integrity and
electronic form representing the stored, processed, or retrieved in reliability to the satisfaction of the court.
identity of a person and associated with electronic form. Manner of proving authenticity of
an electronic data message or public document: To be proven as an
electronic document and therefore All copies of an electronic document electronically notarized document in
includes digital signature. Electronic executed at or about the same time accordance with SC rules (NB: No such
signatures have the "functional with the same impression and identical rule at the moment)
equivalent" of the signature of a person in contents are regarded as equivalent
on a written document. of the original, unless there is a Manner of authenticating electronic
question on the authenticity of the signature: (i) evidence to prove the
Digital signature refers to an electronic original or it would be unjust to admit method to establish and verify a digital
signature consisting of a transformation the copy in lieu of the original. signature, (ii) other means provided
of an electronic data message or by law, (iii) any means to satisfy the
electronic document using a Exception to the Hearsay Rule court of its genuineness.
cryptographic system: asymmetric or
symmetric through a certification Records, data or information kept in Methods of proving electronic
authority. electronic form in the regular course documents
of business are excepted from the
Recognition of electronic hearsay rule, provided (i) they are By Affidavit Evidence: based on
evidence proven or shown by the testimony of personal knowledge and indication of
the custodian or other qualified witness the competence of the affiant to testify
Whenever the rules on evidence refer and (ii) it is proven that compilation of on the matters contained therein. The
to a written document it shall include such data, records or information is a contents of the affidavit shall be

7
affirmed in open court and may be certificate (of the certification authority) Admissibility and proof of
cross-examined as a matter of right is correct, (ii) the signature was created ephemeral electronic evidence
by the adverse party in a summary during the operational period of the
hearing. certificate, (iii) there is no cause to Ephemeral electronic evidence refers
render certificate revocable or invalid, to telephone conversation, text
Electronic testimony: When an (iv) the message associated to the messages, chat sessions, streaming
examination of a witness is done signature has not been altered from audio or video or other forms of
electronically, the entire proceedings the time of signing, and (v) it has duly communication that is not recorded or
shall be transcribed stenographically. issued by the certification authority. retained.
The transcript must be certified and
indicate that the proceedings were Factors to consider in It should be proven by the testimony
electronically recorded. The electronic determining evidentiary weight of the person who was a party to the
evidence, the recording and the of electronic documents same, or has personal knowledge of
transcript shall form part of the records the same, or in the absence thereof,
of the case and shall be deemed as 1. Reliability of manner or method by other competent evidence. If the
prima facie evidence of the in which it was generated, stored communication is recorded, it shall be
proceedings. or communicated. proven as an electronic document.
2. Reliability of the manner in which
Disputable presumptions (after the originator was identified. Admissibility and proof of audio,
authentication is proved) 3. Integrity of the information and video or photographic evidence
communication system in which it
Electronic signature: (i) it correlates to is recorded or stored. The evidence is admissible provided
the identity of the person, (ii) it was 4. Familiarity of the system by the they are shown, presented or displayed
affixed with intent to authenticate, (iii) person who made the entry. to the court and identified, explained
it was affixed to indicate consent to the 5. The nature and quality of the or authenticated by the person who
transaction, and (iv) the process to affix information that went into the produced the same or by a competent
the signature operated without error communication system where the testimony on the accuracy thereof.
or fault. electronic document was based.
6. Other factors affecting accuracy
Digital signature: In addition to the and integrity of the electronic
above, (i) information contained in the documents.
Jurisprudence in CyberLaw

IBM PHILIPPINES INC., ET AL. VS. NLRC, ET AL.


(G.R. No. 117221, 13 April 1999, Supreme Court - 2nd Division)

(This section will be a regular feature of the compliance with the notice computer print-out of the exchanges
journal to highlight significant cases decided
requirements of procedural due of e-mails between the company and
in the Philippines and in foreign jurisdictions
relating to information technology) process. the dismissed employee that would
have proven the latter's habitual
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

Facts: IBM Philippines Inc. terminated Later, the NLRC ruled in favor of Israel tardiness and absenteeism, without the
the employment of Angel D. Israel for and found his dismissal to be illegal requisite proof of its authenticity and
habitual absences and tardiness. contending that the computer printouts reliability. The Court said:
Alleging that he was dismissed without presented in evidence, to prove that
due process and without just cause, Israel's attendance was poor, were "The computer print-outs, which
Israel filed a complaint before the insufficient to show that he was guilty constitute the only evidence of
National Labor Relations Commission of habitual absences and tardiness. petitioners, afford no assurance
Issue: Whether or not the computer of their authenticity because they
(NLRC).
print-outs attached by IBM in its position are unsigned. The decisions of
this Court, while adhering to a
To prove Israel's habitual absences and paper were inadmissible in evidence
liberal view in the conduct of
tardiness, IBM attached to its position to prove just cause and due process in proceedings before administrative
paper print-outs of alleged computer the termination of Israel. agencies, have nonetheless
entries or messages sent to Israel consistently required some proof
through the company's internal Ruling: The Supreme Court refused of authenticity or reliability as
computer system to prove the legal to recognize the admissibility and
basis for the termination and evidentiary weight of an unsigned >> [21] Jurisprudence in CyberLaw

8
Features

The Philippine Quarterly IT Law Journal :: Volume 1, Number 1


OPTICAL MEDIA ACT : A PANACEA TO PIRACY
By Ailyn L. Cortez

A year ago,
the Philippines was on the US priority
watch list of international intellectual
property protection organizations,
notwithstanding government efforts to
cut back violation of intellectual property
rights (IPR). This was shown in the 2003
"Special 301" annual review which
examined the sufficiency and efficacy
ROMS, CD recordables and
rewritables.

To implement the new law, the


Videogram Regulatory Board (VRB),
which was created under Presidential
Decree 1987, was reorganized as the
Optical Media Board (OMB) under the
Office of the President. The board was
system of codes embedded in the
optical media to identify the source of
all optical media mastered,
manufactured or replicated by any
establishment or entity. The SID codes
shall be visible and legible and must
conform to such specification as
prescribed by the OMB for all persons,
establishments or entities registered
of intellectual property protection in tasked to institute the means to with and licensed by the OMB. [ 5 ]
different countries including the "regulate the manufacture, mastering,
Philippines. [ 1 ] replication, importation and For the purpose of this Act, it is crucial
exportation of optical media." [ 2 ] The to define a Manufacturing Equipment.
The swift increase in optical disk piracy OMB shall be composed of four ex- Under the law, a manufacturing
in the Philippines brought about by the officio members -- composed of equipment refer to "any and all
pace of change in, and speed and secretaries of the Department of Trade equipment, machine or device, now
ease of, electronic communication and and Industry (DTI), Department of the known or to be known in the future,
copying are both threatening to the Interior Local Government (DILG), intended or design for the production
basic concept of IPR. It was noted that Department of Finance (DOF), and the or manufacture, by mastering and/ or
despite concentrated efforts to clear Director General of the Intellectual replication of optical media, optical
out video pirates, no one was convicted Property Office (IPO) or their duly media masters, or production parts
because of the government's lack of authorized representatives; and five thereof, including but not limited to,
operational means to penalize the regular member to be appointed by those which shall be listed in the
bootleggers. As such, the Philippine the President. [ 3 ] Implementing Rules and Regulations
Government intensified its efforts (IRR) of this Act or as prescribed by the
across the board and enacted stronger There are two mechanisms provided OMB. " [ 6 ] Optical disc writers and such
laws and regulations on the production to protect the intellectual property other devices used in personal
of optical disk. The clamor to punish rights, which serve as gatekeeper computers not for commercial
not only the street vendors, as well as systems to address the problems on purposes shall not be considered as
the manufacturers of sham materials, piracy from the very source. First, the manufacturing equipment.
led to the competent enforcement of OMB shall have the authority to issue,
law which spells out that there are real cancel or suspend licenses of As a deterrent to piracy, the Optical
costs, genuine deterrence and actual establishments or entities registered Media Act provides stiff penalties on
penalties to be paid for piracy. with the OMB to engage in business of establishments caught violating the
mastering, manufacture, replication, provisions of the law. Those engaging
President Gloria Macapagal-Arroyo importation or exportation of optical in illegal importation, exportation,
recently signed Republic Act No. 9239 media. [ 4 ] The registration and license mastering, manufacture, and
known as the "Optical Media Act of issued by the OMB are conditions replication of optical media shall suffer
2003." This law was enacted in accord precedent for securing the necessary imprisonment of 3 years in the
with the Intellectual Property Code of business permits or licenses from minimum and six years in the
the Philippines to ensure the protection appropriate authorities and shall also maximum and a fine of not less than
and promotion of intellectual property be necessary for the release of five hundred thousand pesos but not
rights. This act seeks to regulate optical manufacturing equipment from exceeding one million five hundred
media by imposing stern regulations customs or economic zones. Second, pesos. Violators who will employ
in the licensing, copying and the OMB shall determine, develop armed assistance shall face a stiffer
distribution of optical media such as and/or adopt a system of Source penalty of nine years imprisonment in
DVD's, CD's, VCD's, DVD-ROMS, CD Identification (SID) codes. These are >> [20] Optical Media Act

9
Features

THE DOMAIN NAME SYSTEM (DNS)


AND ADMINISTERING THE ROOT CCTLD .PH
by Michael Vernon M. Guerrero

T Introduction to domain names

he Internet provides
diverse content that changes hour after
hour and renders the Internet to be, in
its totality, a virtual heap of sparsely
organized data and resources. One
can only imagine the tedious process
and the near impossible feat of
Domain name system management,
and root server system management
functions. These services were
originally performed under United
States Government contract by the
Internet Assigned Numbers Authority
(IANA) and other entities. As a private-
public partnership, ICANN is dedicated
to preserving the operational stability
Uniform Domain Name Dispute
Resolution and the deployment of
Nameholder warranty clauses in
registration contracts with domain
registries minimize, but do not
eliminate, the conflicting interests
between trademark owners and
domain name registrants.

memorizing numerical IP (Internet of the Internet, to promoting Chronic intellectual property issues still
Protocol) addresses, like competition; to achieving broad remain involving the gTLD names –
209.50.251.234, to reach sought representation of global Internet which are supposed to be United States
resources or websites, if host names communities, and to developing policy TLDs – because the registries of which
or domain names, like appropriate to its mission through are open or available to all possible
www.arellanolaw.net, do not exist. [ 1 ] bottom-up, consensus-based registrants worldwide. A clear
processes. [ 3 ] DotPH Inc. is the ICANN development in the protection of
A domain name identifies one or more Designated Registry Operator of the country specific domains involves that
IP addresses [ 2 ] and is used in the global .ph ccTLD since 1990. of the .us TLD of the United States.
addresses of documents and other The United States, through its appointed
resources in the World Wide Web, or Trade names and trademarks vis- central registrar Neustar, provided
the Uniform Resource Locators (URLs), a-vis domain names stricter guidelines for .us TLD
which identify particular Web pages. registration. For an entity to register a
Every domain name has a suffix that A domain name locates an .us domain name, the entity should
indicates which top level domain (TLD) organization or other entity on the either be (1) a natural person (i) who
it belongs to: such as .com for Internet, usually by appending a gTLD is a United States citizen, (ii) who is a
commercial business, .net for network suffix (such as .com, .net or .org) to permanent resident of the United States
organizations, .org for non-profit said organization’s trade name. The of America or any of its possessions or
organizations, .gov for government selection and acquisition of domain territories, or (iii) whose primary place
agencies, .edu for educational names, thus, stir up property issues as of domicile is in the United States of
institutions, to name a few. A domain it involves goodwill, trade names and America or any of its possessions; or
name may further admit an additional trademarks, which are recognized (2) a United States entity or
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

suffix that indicates country code Top- intangible properties. [ 4 ] As the organization that is (i) incorporated
Level Domain (ccTLD), a two-letter registries for trademarks / tradenames within one of the 50 US states, the
codes in the ISO 3166-1 standard and domain names are separate and District of Columbia, or any of the
codes for the representation of names distinct but that both recognize the “first United States possessions or territories,
of countries or territories, such as .ph to file” rule, the situation provides or (ii) organized or otherwise
for the Philippines. opportunity for enterprising entities to constituted under the laws of a state of
purchase domain names that may the United States of America, the
The Internet Corporation for Assigned correspond to another entity ’s District of Columbia or any of its
Names and Numbers (ICANN) is the trademark purposed for a possible possessions or territories (including a
internationally organized, non-profit resale of such domain name at a federal, state, or local government of
corporation that has responsibility for higher price to an obviously interested the United States or a political
Internet Protocol (IP) address space entity, or purposed for a virtual forum subdivision thereof, and non-
allocation, protocol identifier containing adverse opinions against commercial organizations based in the
assignment, generic (gTLD) and said obviously interested entity. The United States); or (3) a foreign entity
country code (ccTLD) Top-Level institutionalization of procedures as to or organization that has a bona fide

10
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
presence in the United States of The US model on the wait-list service On 4 February 2004, the PH domain
America or any of its possessions or is different inasmuch as one cannot Registry (dotPH) submitted its comments
territories. [ 5 ] On the other hand, for recover the wait-listing fee if the stating thereon, among others, that
an entity to register a .ph domain current registrant of the coveted specific problems must be identified
name in the Philippines, the Domain domain name renew his subscription. and solutions found via a collaborative
Name Applicant need only to be either The opportunity to shift the application effort of both parties. DotPH
(1) an identifiable human individual of the wait-listing fee in the Philippines announced its intention not to attend
(over the age of 18 years); or (2) a to an available domain name or to the 30 March 2004 hearing as (1) no
legally recognized statutory entity (such another domain name that may be problems in PH domain operation/
as a corporation, limited liability waitlisted very much considers administration have been pointed out
company, partnership, or PLC). [ 6 ] paragraph 3, Article 1461 of the New by the government despite DotPH’s
Civil Code of the Philippines (RA No. repeated requests; (2) that the
gTLD name registrations from the 386) which provides that the “sale of government has not shown that there
Philippines are relatively high a vain hope or expectancy is void.” is a need for Guidelines at all and that
inasmuch as having a gTLD name is these will not result in new, additional
perceived to have a greater prestige Proposed Philippine government problems; and that government has not
than having a ccTLD name in light of control on the .ph ccTLD responded to inputs previously given,
the former’s “international” stature; or preventing the Guidelines to be
on the economic side, that the cost of On 13 January 2004, the National discussed on its own merits. DotPH
purchasing a gTLD name is relatively Telecommunications Commission however reiterated its intent to
cheaper than purchasing a ccTLD (NTC) issued a working draft of its continue participating in the process,
name. [ 7 ] “Guidelines in the Administration of the hoping for a comprehensive solution.
.Ph Domain Name.” The NTC stated
Domain name wait-list in the guidelines’ preamble that the The crux of contention revolves around
.ph domain name is a public resource the issue whether the .ph domain is
ICANN approved the creation of and is part of the Philippine national “part of Philippine patrimony” subject
VeriSign Inc.'s "wait-listing service" on patrimony; that the State has the to “sovereign right” of the State; or
6 March 2004, allowing people to bid sovereign right over Internet-related whether the .ph domain is a US
on domain names that are about to public policy issues; that the Internet Government resource inasmuch as
expire. Only one person is allowed to community must be ensured with an ICANN reports its proposed actions on
speculate or reserve a domain name, efficient, stable, fair and transparent domain registry re-delegation,
owned by somebody else, at a time. administration of the .ph domain; and including ccTLDs, to the US
Speculation is fraught with risk as one that the administrator of the .ph domain Department of Commerce. From
is not sure whether a domain name is the trustee of the country code top thereon flows the issue whether the
would even return to open market. level domain for the Philippines and Philippine Government, in the exercise
Speculators would pay $20 a year, the global Internet community, and thus of its police power, is the ultimate
excluding markup, year on end is accountable to the local Internet authority on the .ph ccTLD so as to
without any return on their investment. community and must be able to carry formulate separate guidelines on the
out the necessary responsibilities, and re-delegation of the administration of
The waitlist service is not new in the have the ability to do an equitable, just, the Registry; or whether the delegation
Philippines. DotPH has been offering honest and competent job. It outlined or re-delegation of the ccTLD is within
a wait-list service since September the qualifications, delegation and the jurisdiction of ICANN where the
2002, where a prospective registrant recognition, and technical competence government is only in the same level
who signs up for the Waitlist is first in of the Administrator; the management as the local Internet community, whose
line to get a domain that expires and and delineation of functions as to the interest is given equitable consideration
is not renewed. The cost of signing up registry and the various registrars; the in the processing of a request for re-
for the Waitlist service is the same as registration of domain names, and all delegation.
registering a domain. If the current matters pertaining to transparency and
registrant renews the domain or the accountability, fairness, service, It must be noted that ICANN handles
person on the Waitlist simply gets tired privacy in the registration thereof; the all requests for redelegation and thus,
of waiting for the domain to expire, use, marketing and promotion of the has the responsibility to neutrally
he can use the Waitlist fee to register .ph domain; dispute resolution; and re- investigate and assess requests on all
an available domain. The registrant delegation of the registry. matters relating to changes in the DNS
can even choose to Waitlist another root, including ccTLD delegations and
domain instead, at no extra charge. [ 8] >> [20] The Domain Name System (DNS)

11
Features

SPAMMING THE WORLD


by Charilyn A. Dee

S pam, spam, spam,


spam.....no, no, no it is not the kind
that we eat. This one is a technical
term referring to unsolicited e-mail
messages appearing in your inbox.
These messages are called by many
other names, but the most commonly
used term to describe it is "spam."
There are a lot of theories abounding
...and proceeded to invoke it
once every couple of seconds,
until one of the wizards finally
booted him off.

...which would have probably


been that last that anyone ever
heard or thought of it, except
that it apparently ingrained itself
3. Other "Get Rich Quick" or "Make
Money Fast" (MMF) schemes

4. Offers of phone sex lines and ads


for pornographic web sites

5. Offers of software for collecting


e-mail addresses and sending
UCE
in the Internet as to the reason behind into the memory of the
the name but the most reliable is a PernMUSHers, and forever 6. Offers of bulk e-mailing services
story, rumored to have originated from after there was the legend of for sending UCE
the MUD/MUSH community, told by 'that asshole who spammed us.'
blue haired former news administrator Every once in a while, this story 7. Stock offerings for unknown
Nathan J. Mehl and summarized in makes it back to my friend, and startup corporations
www.cybernothing.org: he tries very hard to keep a
straight face... " [ 1 ] 8. Quack health products and
"My friend-who-shall-remain- remedies
nameless was, ah, a younger Spam, a formerly harmless form of
and callower man, circa 1985 electronic advertisement, is now 9. Illegally pirated software ("Warez")
[4]
or so, and happened onto one gaining attention from the legislative
of the original Pern MUSHes arm of various governments, notably
during their most Sacred Event of the United States, Australia, and the The problem
- a hatching. After trying to European Union. Complaints of the
converse sanely with two or end-users inconvenienced by There are many spam-caused
three of the denizens, he came spamming are mounting. The problems but the most pertinent is the
quickly to the conclusion that Australian government drafted its cost borne by the end users. Sending
they are all a bunch of version of an anti-spam law because spam mail is amazingly cheap since it
obsessive compulsive nitwits 50% of e-mails received by end-users only requires a 28.8 kbps dial-up
with no life and less literary are spam that resulted in increased modem and a PC. A spammer can
taste. (Probably true.) download time and Internet access send hundreds of bulk e-mails per
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

costs. [ 2 ] In the United States, average hour. However, the effect of this falls
Cybernothing editor's Note: Americans spend fifteen hours deleting on the end-users especially those who
another source tells me that this spam compared to two hours in 2002. pay for personal e-mail services.
[3]
actually happened in the Roughly the same numbers apply
summer of 1991. in other countries harassed by spam. In the technical sense, the Internet is a
Marketers who use this form of worldwide system of computer
So, as the 'eggs' were advertisement are seldom reputable networks that allows data to be routed
'hatching', he assigned a as can be deduced from the most and rerouted before the data arrives
keyboard macro to echo the common forms of spam. Examples to its destination. Each data passing
line: are: through this network system contains
the address of the source and the
SPAM SPAM SPAM SPAM SPAM 1. Chain letters destination. The routers read the
SPAM SPAM SPAM SPAM SPAM address and then send it to the
SPAM SPAM SPAM SPAM 2. Pyramid schemes (including appropriate router which repeats the
Multilevel Marketing, or MLM) same process until the data arrive to
its destination. For example, atypical

12
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
e-mail is virtually divided into "packets" Pornographic sites are required to give Malaysia
for transmission because its mere size conspicuous notice that the email is a
would limit the possibility of a single solicitation or advertisement and A country that chose to take another
transmission. Dividing information into sexually-oriented and plainly labeled route in tackling the issue is Malaysia.
packets makes it more manageable as such. [ 6 ] Malaysian authorities preferred to
and thus avoids data loss. The router educate the people in using the Internet
can only read the packet at a time. European Union to protect themselves. So far, it is the
This creates the delay in sending and only country waging an active war
receiving mails via the Internet. A directive was drawn up in July 2002 against spamming through education.
and came into force in October 2003,
So just imagine if there was delay in but only four countries brought their Effective?
sending and receiving e-mails before national legislation up to the new
spams, how much more with the standards. Despite the best intentions of
introduction of spams? The problem lawmakers, the power of anti-spam
doesn't end there. Instead of processing The directive requires the consent of legislation is still highly criticized and
only important mails, spams create a the customer before the message can doubted. The survey released by Pew
drag on the CPU of ISPs resulting in be sent. Within the existing customer Internet and American Life Project
lost time and resources of end users. relationship, it is reasonable to offer shows that even after the
Data are lined up in queues of similar products or services provided implementation of Can-Spam Act,
unsolicited mails, or SPAMS. [ 5 ] that with each message the customer spamming continues to be a problem.
should be informed about their further The survey further shows that:
Spam abuse legislation use of the customer's email address in
a clear and distinct manner, and be "In terms of emails received on
In answer to the growing problem of given the opportunity to refuse such personal email accounts,
spams, some countries took usage. [ 7 ] 24%of respondents are
appropriate measures. These receiving more spam than
countries differ in whether subscribers South Korea before January 1, 53% have
should "opt-in" or "opt-out" spam. Opt- not noticed a change, 3% do
in is for the user to give consent before The revised anti-spam law of South not know, and only 20% report
receiving spam, whereas optout is Korea was successful in curbing the that they are receiving less
when the user automatically receives increase of spam. The law prohibits spam.
spam and expresses his/her refusal to the harvesting of e-mail addresses
accept such messages to the spammer from websites and the use of technical With respect to work-related
via e-mail to whatever address the means to get around spam blocks. It email accounts, 19% of
spammer gave. also strengthened control of illegal respondents say that they are
labeling of commercial e-mails and receiving more spam, 53%.
United States protection of juveniles from have not noticed a change,
spamming.[8 ] 18% do not know, and only
Last 1 January 2004, the Can-Spam 11% state that they are
Act of 2003 went into effect. The law Australia receiving less spam.
prohibits e-mail senders to falsify or
disguise their identity by using The anti-spam laws of Australia adopted The survey shows an overall
misleading subject lines, improperly the opt-in policy in receiving unsolicited increase of email users who
harvesting e-mail addresses, or taking commercial e-mails. It banned the have reduced their use of
advantage of automated systems for distribution and use of email harvesting email because of spam from
generating electronic addresses by and list-generating software that allow 25% last June to 29% now.
combining names, letters and spammers to make a list of e-mail While last June 52% of users
numbers. addresses. Furthermore, it provides said that they are less trusting
that all commercial messages will have of email because of spam, that
Business should not market themselves to include full details of the sender's percentage now has jumped to
through false or misleading e-mails, name and physical address, as well as 63%.
and a true return e-mail and postal an unsubscribe option allowing
address must be provided along with recipients to stop any further messages. Moreover, the percentage of
[9]
a means to optout of receipt of further Violators will have a fine of more users who report that spam,
e-mails. than $A1 million. [ 10 ] has made being online
>> [21] Spamming the World

13
Features

A SYNOPSIS OF THE E-COMMERCE LAW


by Jaime N. Soriano

I n response to the
global devastation of computer
networks brought about by the "I Love
You" virus suspected to have originated
from the Philippines, Congress
immediately enacted Republic Act No.
8792 on 14 June 2000. Also known
as the "Electronic Commerce Act of
2000", the law was hailed by observers
validity and enforceability as any
other legal document. Electronic
documents are recognized as the
functional equivalent of a written
document for evidentiary
purposes.

3. It gives legal recognition to


contracts and transactions in the
consummation of contracts may
be expressed or executed by
means of electronic data message
or electronic documents. These
contracts shall not be denied
validity or enforceability simply
because they are in electronic
form.

as a landmark piece of legislation that form of electronic data message 6. The law was also made applicable
finally placed the Philippines on the or electronic documents carrying to actions related to contracts of
map of electronic commerce. [ 1 ] The electronic or digital signatures. carriage of goods, including but
Philippines was the fourth country, after Electronic signature can be any not limited to: [ 5 ] (a) statements,
Malaysia, Singapore, and Korea, that distinctive mark, characteristic, declaration or information about
legislated a law on e-commerce. and/or sound in electronic form the goods, (b) confirmation on the
The Implementing Rules and that represents the identity of a delivery, loading or receipt of the
Regulations of the e-Commerce Act person and logically associated goods, (c) notices or
were adopted on 13 July 2000. with the electronic document. [ 3 ] communication on terms and
Digital signatures, on the other conditions of contract; instructions
This law "aims to facilitate domestic and hand, are provided through a to carrier; any loss of, or damage
international dealings, transactions, secret code, known as "electronic to, the goods; specific instructions
arrangements, agreements, contracts key," which secures and defends for the release or delivery of
and exchanges and storage of sensitive information that crosses goods; or, any other notice about
information through the utilization of over public channel into a form the performance of the contract,
electronic, optical and similar medium, decipherable only with a matching (d) granting, acquiring,
mode, instrumentality and technology electronic key [ 4 ] normally obtained renouncing, surrendering,
to recognize the authenticity and from an Internet security transferring or negotiating rights
reliability of electronic documents company. Both electronic and in goods, (e) acquiring or
related to such activities and to promote digital signatures are necessary to transferring rights and obligations
the universal use of electronic ensure the integrity, reliability and under the contract. Contract of
transaction in the government and authenticity of electronic carriage of goods can therefore
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

general public." [ 2 ] documents, particularly those that be in the form of electronic


qualify as an electronic contract. documents under the E-
Essentially, the law provides: Commerce Act. However, in cases
4. Electronic documents, signatures contemplated in (d) and (e), "no
1. It shall have application to any kind and data messages are admissible paper document used to effect any
of data message or document in evidence in a legal proceeding such action is valid unless the use
generated, sent, received or depending upon their reliability, of electronic data message or
stored by electronic, optical or integrity, nature and quality. For electronic document has been
similar means, regardless of this purpose, the Supreme Court terminated and replaced by the
whether the activity or transaction promulgated A. M. No. 02-7-02- use of paper documents. A paper
is commercial or non- SC or the Rules on Electronic document issued in these
commercial, private or public, or Evidence that took effect on 1 circumstances shall contain a
domestic or international. August 2001. statement of such termination. The
replacement of electronic data
2. Electronically generated 5. Offer, acceptance, and other legal messages or electronic documents
documents have the legal effect, requisites for the formation and by paper documents shall not

14
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
affect the rights or obligations of destruction of computer, modernization of certain aspects of
the parties involved." [ 6 ] information and communication their laws and practices in the field of
systems, without the consent of the commercial relationships involving the
7. Government offices, including owner, including the introduction use of computerized or other modern
government-owned-and- of virus; (b) piracy, reproduction, communication techniques, and for the
controlled corporations, should distribution, transmission, or establishment of relevant legislation
conduct their transactions alteration of protected materials where none presently exists.
electronically within two (2) years and intellectual property including
from the effectivity of the law. electronic signatures; (c) violations The Internet, being the backbone of
of the Consumer Act [ 7 ] through the digital age, has gained
8. Internet service providers merely electronic means; and, (d) other considerable interests, not only among
providing access to electronic data violations of the provisions of the the millions of net users, but also
message or electronic documents e-Commerce Law. among legal and policy stakeholders.
in the ordinary course of its Internet law continues to evolve as e-
business are generally not subject The Philippine law on e-Commerce commerce dramatically flourishes. As
to any civil or criminal liability. was patterned after the "UNCITRAL more and more rules are being
Only persons having legal right to Model Law on Electronic Commerce" adopted and applied governing
the possession of electronic files adopted by the United Nations Internet activities, there is compelling
can have access, and make, or Commission on International Trade need for the crafting or re-crafting of
authorize, alterations thereof. Law (UNCITRAL) in 1996. [ 8 ] The model laws, policies and regulation, both in
Unless consent is given to another law is intended to promote the local and international levels, as digital
person or party, electronic key for harmonization and unification of technology continue to develop and re-
identity and integrity is only international trade low and remove define business models in the
available to the person or entity in unnecessary obstacles to international information economy.
lawful possession of the electronic trade caused by inadequacies and
key. Any person who has authority divergences in the law affecting trade Endnotes
to access an electronic file or as a result of the information
1. Bagares, Romel, "New Rules (of Court)
information is bound by the rules technology revolution. for the New Economy", The Philippine
on confidentiality of such file or Star, 27 July 2001, p. B-1.
information. The Model Law was prepared and 2. Sec. 3, R.A. No. 8792
3. Sec. 5 (e), R.A. No. 8792
adopted in response to a major 4. Sec. 5 (f), ibid.
9. Penalties of fine and/or change in the means by which 5. Sec. 25, R.A. No. 8792
imprisonment are imposed for communications are made between 6. Sec. 25 (5), R.A. No. 8792
violations as defined under the law parties using computerized or other 7. R.A. No. 7394
8. During its twenty-ninth session (605th
specifically: (a) hacking, cracking modern techniques in doing business.
Meeting) on 12 June 1996
or unauthorized access or It is intended to serve as a model to
interference, or corruption and countries for the evaluation and

“TWENTY-FOUR HOURS A DAY, SEVEN DAYS A WEEK, MILLIONS OF PEOPLE IN EVERY NOOK AND
CORNER OF THE PLANET EARTH ARE HOOKED IN REAL TIME TO THE INFORMATION SUPERHIGHWAY
AND PARTAKING THE BOUNTY OF DIGITAL TECHNOLOGY. CERTAINLY, INFORMATION TECHNOLOGY
HAS CHANGED THE WAY PEOPLE LIVE, THE WAY THEY INTERACT, THE WAY THEY PURSUE KNOWLEDGE,
THE WAY THEY ENTERTAIN THEMSELVES, AND THE WAY THEY TRANSACT BUSINESS. THE DIGITAL
ERA HAS TRANSFORMED THE WORLD INTO A VIRTUAL GLOBAL COMMUNITY THAT IS GRADUALLY
EVOLVING AND DEFINING A TOTALLY NEW CULTURE OF HUMAN INTERACTION.

AS IN ANY PROCESS OF DRAMATIC CHANGE, THERE ARE INHERENT THREATS AND WEAKNESSES, BUT
THE INFORMATION TECHNOLOGY REVOLUTION SHOULD BE TAKEN IN THE CONTEXT OF ITS
CHALLENGES, OPPORTUNITIES AND BENEFITS. NOW IS THE BEST TIME FOR PRACTITIONERS OF LAW
TO SET THE STAGE FOR WIDER AND DEEPER INVOLVEMENT IN THE PARADIGM SHIFT TO HELP DEFINE
THE RULES OF THE GAME AND MAKE INFORMATION TECHNOLOGY WORK.” - J. N. SORIANO, EXECUTIVE
DIRECTOR, CENTER FOR E-LAW, ARELLANO UNIVERSITY SCHOOL OF LAW

15
Features

OVERVIEW OF SELECTED LEGAL AND REGULATORY ISSUES


IN ELECTRONIC COMMERCE
Reprinted from E-Commerce and Development Report 2001 of the United
Nations Conference on Trade and Development (UNCTAD) [ * ]

Finding global solutions to Disputes in cyberspace: online generates outcomes - to most other

E address global transactions

nsuring users and consumers


effective redress for disputes arising
from transactions in the online
environment is a key element in
building trust. There is a widespread
awareness of the potential legal
barriers arising from recourse to courts
solutions needed for online
problems

It is well known that public lawmaking


is too rigid, too slow in responding to
the need for immediate adjudication,
and too slow adapting to changes to
the social, technological and
commercial customs of cyberspace. In
contrast, private lawmaking and
ODR providers that offer dispute
settlement with human intervention.
Parties may contract for a range of
ODR services from mediation, which
aims at encouraging the parties to
reach an amicable settlement of their
disagreement, to binding arbitration,
which imposes on the parties a legally
enforceable arbitral award. As of
December 2000, more than 40 ODR
in disputes resulting from cross-border private adjudication are more flexible providers had been identified.
online interactions. Which law applies? and readily adapt to the diverse
Which authority has jurisdiction in the evolving technological and social Jurisdiction: is your enterprise
dispute? Which forum is competent to nature of cyberspace and its changing website regarded as a branch?
hear the dispute? Is the decision commercial practices. Given that
enforceable? These are some of the traditional dispute settlement Concerning jurisdiction, two main
questions that all too often arise and mechanisms may not provide effective questions are addressed: (i) can an
for which there is not yet a clear redress in electronic commerce Internet site be regarded as a branch
answer. Electronic commerce has transactions for a large number of the or establishment for any legal
increased the need to rely on party small claims and low-value purpose? and (ii) is the level of
autonomy, the choice-of-court clauses transactions arising from B2C online interactivity relevant? As regards the
becoming central to any discussion of interactions, this chapter analyses the first question, it seems that the tendency
court jurisdiction. Thus, it is essential various alternative dispute resolution is to consider that a website does not
that national legal systems clearly (ADR) mechanisms that would provide qualify as a branch or permanent
provide for rules on which parties can speedy, low-cost redress. When ADR establishment. Thus, the place of
rely in order to ensure that their choice- takes place using computer-mediated establishment of a company providing
of-court clauses will be deemed valid. communications in the online services via an Internet website is not
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

Uncertainty in this respect is environment, it is often referred to as the place at which the technology
detrimental to the trust which private online dispute resolution (ODR). Both supporting its website is located or the
operators will have in the judicial and e-disputes and bricks-and-mortar place at which its website is accessible,
legal systems of a particular country. disputes can be resolved using ODR. but the place where it pursues its
To assist States in their efforts to The system could be used in a variety economic activity. The answer to the
accommodate e-commerce, this of contexts, including within a second question for a large number
chapter analyses a number of options particular online market place (e.g. of countries is also clear: whatever the
for countries wishing to develop a set mediation in online auction sites, level of interactivity of the website, it
of choice-of-court rules. A difference arbitration in the domain name system will not change the answer to the first
is made in this regard within business- and in the automated negotiation question. However, if a site is an
to-business (B2B) and business-to- process for insurance disputes), as part interactive one, it may lead some
consumer (B2C) contracts, as well as of a trustmark or seal programme, or countries, which apply a doing business
between (i) contracts concluded online on an independent basis. These ODR concept for court jurisdiction to assert
and performed offline, and (ii) mechanisms range from those which jurisdiction as long as the interactivity
contracts concluded and performed are fully automated - in that a computer can be seen as a clear link with the
online. program without human intervention State whose courts assert jurisdiction.

16
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Applicable law: a new concept availability and use of each of these basic approaches to electronic
of consumer protection types of information and may make signature legislation together with some
decisions about entering into a recent samples of regional legislation
As regards applicable law, an transaction_ based on the extent to that might guide States wishing to
important difference has to be made which the information will be protected. prepare legislation on electronic
between B2B and B2C contracts. The problem is not new, what is new is signatures. Cybertaxation: No escape
Concerning B2B contracts, there is a its scale. It is this dilemma - keeping So far, businesses have enjoyed a
renewed interest in codes of conduct. our personal information private, while largely tax-free e-commerce
Thus, States are confronted with an allowing use of that information to environment. In other words, goods
ever-increasing duty to define carefully make our lives easier - that is the crux and services transmitted electronically
the limits of their public policy rules, of the current data protection debate. have not been subject to taxation.
since operators over the Internet often The more legal protection and control However, fears of revenue losses from
develop their own codes of conduct. individuals are provided with as uncollected taxes and duties on Internet
Whether or not operators can include regards their personal information, the transactions have prompted many
a choice-of-law clause in their more costly it becomes for companies Governments to work towards
contracts will be determined by the to comply with those protections, and internationally agreeable solutions with
public policy of each State. In the case for Governments to investigate and regard to changing existing tax
of B2C contracts, and for a large prosecute violations of those rights. legislation to take account of e-
majority of countries where consumers Removing legal barriers to the free flow commerce.
are protected, the law applicable would of information, while allowing for more
be the one which is more favourable innovation, development, and more Who pays the VAT: buyer or
to the consumer. Therefore, if the law personalized service, will lessen legal seller?
of the location of the consumer is more protection of personal information.
favourable, it will apply; but if, on the Although the unification of substantive At the centre of the e-commerce
contrary, it is not, the law of the law remains the best solution for taxation debate are two issues:
professional who supplied the service international protection of privacy and consumption and income taxation. As
or the goods will apply. This is the main personal data, in practice it is not far as consumption taxes are
reason why Internet operators have always possible to unify all aspects of concerned, the question arises whether
been so keen to block all adoption of the law. Therefore, the question of the tax should be collected in the
rules of the same nature for the applicable law (e.g. the law of the jurisdiction of the supplier or the
Internet. This is one of the areas that location of the person whose data are consumer. Under current legislation
would greatly benefit from an collected) is still pertinent in this context. foreign suppliers are often exempted
international agreement on common However, when the conflict rule clashes from VAT This provides incentives for
rules of protection for consumers. with the economic needs of Internet suppliers to locate abroad and gives
Concerning torts, most decisions which operators, it must remain a default rule an unfair competitive advantage to
have been taken by national courts to be applied only if substantive foreign suppliers. Therefore, there
around the world apply the law of the unification is not possible. seems to be a growing tendency
place where the effect is felt, and not towards applying taxation in the place
that of the country where the tort was Legal recognition of electronic of consumption. Given the
committed. This rule needs to be signatures: the options disappearance of intermediaries who
reassessed against Internet specificity. previously collected the VAT, it is not
As regards encryption and electronic clear yet who should collect the taxes
Data protection: convenience at signatures, there seems to be a now. The EU has proposed that the
the cost of privacy? consensus that a mechanism for secure foreign supplier should register in a
authentication of electronic EU country for VAT purposes. The
The question of privacy and data communication is critical to the United States, being the largest
protection over the net is another development of electronic commerce. exporter and a net exporter of e-
important issue. It is well known that Such a mechanism must provide for commerce, tends towards an origin-
the value of many Internet corporations confidentiality, authentication (enabling based consumption tax. Furthermore,
depends on the amount of data they each party in a transaction to ascertain it has little interest in collecting VAT for
are able to gather. Thus, personal data with certainty the identity of the other European tax authorities on their e-
about consumer habits, tastes and the party) and non-repudiation (ensuring commerce goods and services exports
like are of great value to any that the parties to a transaction cannot to the EU. Developing countries, which
corporation wishing to operate over the subsequently deny their participation). will be largely e-commerce importers
net. A consumer may want to limit the This chapter provides a review of the in the short to medium run, would

17
have an interest in not eroding their through the server; and (iv) ISPs cannot resulting from uncollected border
tax base by switching to an origin-based be PEs of the businesses whose tariffs. The question of how to define
tax system. websites they host. Developing digital goods (books, CDs, software,
countries, even if they are not part of music etc.) - as goods or as services -
Is my website a taxable business? an OECD agreement on Internet has held up progress on e-commerce
taxation, should use the agreed-upon in the WTO. While border tariffs are
As far as income taxation is concerned, rules as a basis for adjusting their own normally collected on goods, they are
much of the debate has focused on legislation. Since they are net importers not collected on services. Developing
the issue of the "permanent of e-commerce, they will run a greater countries have therefore raised the
establishment" (PE) of a business. This risk of losing revenues if traditional question of potential fiscal implications
will determine to what extent an imports are replaced by online if digital products are imported duty-
Internet-based business will be subject delivery, and should thus start to free. UNCTAD calculations show a
to taxation. The definition of PE is develop efficient tax collection systems potential fiscal loss of approximately
important for countries that apply for e-commerce. US$ 1 billion on border tariffs and US$
source-based income taxation (the 8 billion if other import duties
majority of countries). Agreement has No customs duties on digital (including VAT) are taken into
been reached at the OECD on the goods: a fiscal concern? consideration. While these amounts
following issues: (i) a website by itself are small relative to total government
cannot constitute a PE; (ii) a web server In accordance with a WTO revenue, absolute losses from forgone
hosted by an Internet service provider moratorium, no customs duties should tariff revenues are much higher in the
(ISP) cannot constitute a fixed place of be imposed on electronic developing countries, owing to their
business if the ISP does not carry on transmissions. While a large number higher tariffs applied to digital products.
business through the server; (iii) a web of (mainly developed) countries prefer
server can constitute a fixed place of to extend the moratorium, some Endnotes
business and thus a PE if it is owned by developing countries have expressed
* Citations omitted
a business that carries on business concern about potential revenue losses

LEXICON OF CYBERLAW TERMINOLOGY

(This will be a regular section to acquaint law or electronic documents and includes stored, either by mastering and/or
practitioners, students and researchers on
legal terms in IT law preferably from the
the computer system or other similar replication, which may be accessed
Philippine context). device by or in which data is recorded and read using a lens scanning
or stored and any procedures related mechanism employing a high intensity
"Computer" refers to any device or to the recording or storage of light source such as a laser or any such
apparatus which, by electronic, electronic data message or electronic other means as may be developed in
electromechanical or magnetic document. (Sec. 5 (d), R.A. No. 8792) the future. (Sec. 3 (i), R.A. No. 9239)
impulse, or by other means, is capable
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

of receiving, recording, transmitting, "Ephemeral electronic "Electronic Document" refers to


storing, processing, retrieving, or communication" refers to telephone information or the representation of
producing information, data, figures, conversations, text messages, information, data, figures, symbols or
symbols or other modes of written chatroom sessions, streaming audio, other modes of written expression,
expression according to mathematical streaming video, and other electronic described or however represented, by
and logical rules or of performing any forms of communication the evidence which a right is established or an
one or more of those functions. (Sec. of which is not recorded or retained. obligation extinguished, or by which a
5 (b), R.A. No. 8792) (Sec. 1 (k), Rule 2, Rules on Electronic fact may be proved and affirmed,
Evidence) which is received, recorded,
"Information and communication transmitted, stored, processed,
system" refers to a system intended "Optical Media" refers to the storage retrieved or produced electronically.
for and capable of generating, medium or device in which (Sec. 5 (f), R.A. No. 8792)
sending, receiving, storing or otherwise information, including sounds and/ or
processing electronic data messages images, or software code, has been

18
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Contributions are Welcome
91 NEW LAWYERS FROM THE
ARELLANO UNIVERSITY SCHOOL OF LAW

T O IT Law Journal
he Philippine IT Law
Journal welcomes the submission of
contributions with a view to publication,
which should be sent to:

The Board of Editors


The Philippine Quarterly

Arellano University School of Law


Taft Avenue, corner Menlo Street
2.
3.
4.
n 2 April 2004, the Supreme Court released the names
of 1,108 successful examinees of the 2003 Bar Examinations, representing
20.71 percent of the total examinees. The 91 new lawyers from the Arellano
University School of Law are:

1. AGACITA, Romeo Jr. E.


AGBAYANI, Rommel Chrisante F.
AGUILAR, Jose Jr. P.
AGUIRRE, Ma. Luisa L.
46.
47.
48.
49.
KATIGBAK, George S.
LABO, Eduardo Jr. L.
LAVARIAS, Lope Jr. A.
LILAGAN, Freddie V.
Pasay City 1300 Philippines 5. ALAMADA-MAGAYANES, Sharon M. 50. LIWANAG, Geraldine C.
Tels. (2) 404-3089 to 91 6. ALONDAY, Pearl Joy A. 51. MACALDO, Felipe Jr. E.
Fax. (2) 521-4691 7. APARICIO, Romel A. 52. MACARAIG, Allan Dexter P.
eMail: itlawjournal@arellanolaw.net 8. AQUINO, Robertson R. 53. MACARAYA, Alan Felix Jr. J.
9. BABANO, Wilfred S. 54. MACARINE, Ingemar P.
as should all correspondence, books for 10. BARRION, Zennia C. 55. MADELAR, Ma. Ramona P.
review, orders and other 11. CABASUG, Elegio D. 56. MANAIG, Michelle C.
communications. 12. CADER, Sittie Phamy G. 57. MARASIGAN, Arth Jhun A.
13. CALINGASAN, Karlo L. 58. MARIANO, Rizaldy C.
14. CASTRO, Joselito C. 59. MARTINEZ, Michelle D.
The Board of Editors will only consider
15. CAYABYAB, Odgie C. 60. MELLA, Danny J.
material which complies with the 16. CHUN, Ian Steven C. 61. MIRABUENO, Marion Gay C.
following: 17. CLEMENTE, Clemente M. 62. MONTEFALCO, Romeo Jr. M.
18. COTAY, Cathleen Elizabeth L. 63. NAIG, Franklin A.
1. The submission is an original, 19. DELA CRUZ, Remelito M. 64. NATIVIDAD, Ma. Teresita A.
unpublished work which is not 20. DE LEON, Sheila B. 65. NAVARRO, Dexter L.
being submitted for publication 21. DELMORO, Joebil B. 66. OCAMPO, John Vincent P.
elsewhere. 22. DEOCAMPO, Leo B. 67. PASCUA, Edward S.
2. The manuscript must be typed, 23. DIZON, Clarence S. 68. PUNCIA, Maria Alma Corazon H.
double-spaced, on one side only of 24. DUMBRIQUE-VILLAVICENCIO, Rose 69. RAMA, Lorelee Anne Y.
a uniform sized paper, and be Anne B. 70. RAMOS, Regina Paz A.
accompanied by the text on floppy 25. DY, Dennis L. 71. RAMOSO, Ian P.
26. FAJARDO, Agapito E. 72. REYES, Maria Rehgeis C.
disk in a recognized software.
27. FAJARDO, Leilanie R. 73. RIVERA, Neil Randy P.
3. Footnotes must be numbered
28. FAJARDO, Rey Christopher D. 74. SACRO, Roderick P.
consecutively throughout the article. 29. FALCOTELO, Rochelle Ann L. 75. SALGADO, Alwin N.
4. Authors may use graphs, tables, 30. FULTON, Kenneth P. 76. SALVADOR, Barry Boy A.
figures, or mathematics only when 31. GALICIA, Noel M. 77. SANTILLAN-VISTO, Sta. Cecilia M.
its application is necessary for 32. GAMBOL, Jessica A. 78. SAYAGO, Felix S.
achieving the stated objective of the 33. GAYAPA, Kristine Marie Therese O. 79. SIAYNGCO, Jeremy C.
paper. When mathematics is used, 34. GENESELA, Cliff Richard E. 80. SINGZON, Loralaine S.
the necessity for doing so should 35. GIANAN, Fredeswindo Jr. M. 81. SOLIS, Ronald L.
be explained, and the major steps 36. GOLEZ, Norman T. 82. SOMERA, Dencio Jr. G.
in the argument and the conclusions 37. GRIMALDO, Rodel R. 83. SUBIERA, Cielita S.
made intelligible to a non- 38. GUERZON, Elmer Joseph R. 84. TAGALICUD, Nonilon L.
mathematical reader. 39. GUILLERMO, Adela S. 85. TALON, Mae Antonnette F.
40. GUILLERMO, Maria Vida M. 86. TAN, Dante E.
41. HERNANDEZ, Arsenio Jr. 87. TENORIO, Grachielle E.
Authors are asked to refer to a recent
42. IROG, Arnel C. 88. TOBIAS, Ludovino Joseph Augusto Jr. L.
issue of the Philippine IT Law Journal for 43. JACOB, Louella C. 89. TORRES, Francisco Jr. E.
style. More detailed guidance will be sent 44. JAMORA, Alfred Joseph T. 90. TUAZON-ALBERTO, Cristina T.
on request. Authors are encouraged to 45. JIMENO, Jennifer A. 91. ZAPANTA, Jason J.
carefully edit their own works.

19
<< [9] Optical Media Disc << [24] e-Law Center · Establish appropriate linkages with
other institutions, organizations, or
the maximum and fine not exceeding · Regularly organize and hold
bodies, in and out of the country,
three million pesos. Those who buy and lectures, trainings, seminars,
with the end of view of promoting
sell pirated discs shall face at least one conferences or presentations on
common objectives, sharing
year but not more than three years of technology law, particularly to
resources, study exchange, and
imprisonment and a fine of not less make its students, faculty and
institution of networks along the
than one hundred thousand pesos but graduates, and the academic
lines of technology law particularly
not exceeding five hundred thousand community at-large always attuned
as it affects the Philippine legal
pesos. Employment of armed to, and be recognized as a leader
community.
resistance will double the imposition in, legal developments in this field.
of penalty of uniform imprisonment to
· Generate grants, sponsorship, or
three years but not more that six years · Assist in the development of an
funds to subsidize specific studies,
and a fine not exceeding one million appropriate infrastructure to make
research, projects or investigations
five hundred pesos. [ 7 ] the law school the most
on a distinct or difficult aspect of
technology-friendly institution in
technology law.
The large-scale piracy in the country, the field of law by promoting and
which completely disregards the rights enhancing its on-line legal
The Center was organized on 22
of the creators and performers of films research and interactive legal
November 2002 and is headed by
and musical recording, is a stumbling instructions capabilities.
Professor Jaime N. Soriano, a
block to the economic growth of the
cyberlaw practitioner.
country. Hopefully, the Optical Media
Act will serve as an adequate legal << [24] e-Law Center System (DNS) server to translate domain
support for the enforcement of names into IP addresses so that such
intellectual property rights in the redelegations. It uses RFC 1591 [ 9 ] as computers in the Internet may be able
a basis, along with ICP-1, [ 10 ] and the to communicate with each other.
Philippines. 2. Identifiers for computers or devices on a
ICANN Governmental Advisory Transmission Control Protocol/Internet
Endnotes Committee Principles for the Protocol [TCP/IP] network, the format
Delegation and Administration of of which is a numeric address written as
1. 2003 Special 201 Report, United States four numbers – each between 0 and
Trade Representative (1 May 2003).
Country Code Top Level Domains
255 – separated by periods. Definitions
Accessed 9 April 2004. http:// (GAC Principles). for “domain name”, “IP addresses,”
w w w . u s t r. g o v / r e p o r t s / 2 0 0 3 / “TLD,” and “URL” acquired or retrieved
specia1301.htm Global issue whether national on 28 March 2004 from
2. RA No. 9239, Section 2, 2nd paragraph www.webopedia.com. Copyright, 2004
3. Ibid, Sec. 6
governments or the private sector Jupitermedia . All rights reserved.
4. Ibid., Sec. 13 should control the Internet Reprinted with permission from http://
5. Ibid., Sec. 18 www.internet.com.
6. Ibid, Sec. 3, par. f The issue whether government(s) or 3. ICANN website. Retrieved on 28 March
7. Ibid., Sec. 19 2004 . www. icann.org/general/
the private sector should control the 4. Article 520 to 522 of the Civil Code of
Internet is not locally isolated. In the Philippines; Sections 121 to 160 of
<< [24] IT Law Society December 2003, United Nations (UN) the Philippine Intellectual Property
member countries requested the UN Code (R.A. No. 8293).
abreast with the developments in this
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

5. Neustar website. Retrieved on 28 March


field. Lastly, the Advocacy Group will Secretary General to put together a 2004 . http://www.neustar.us/
pursue policy initiatives and advocacies panel of experts from government, 6. Policies, DotPH website. Retrieved 28
industry and the public to study who March 2004. http://www.domains.ph/
on the development of information and
Policies4.asp
communications technology as they should control the regulation of the 7. .com, .net registration may be as low as
affect Philippine laws and law practice, Internet. Some developing countries PhP 800 per year (or US$14.28 as of
including the crafting of proactive have urged the UN to assume control late March 2004 exchange rates) while
over many of ICANN's primary .ph remains at US$70 per two years.
proposals for legislative or regulatory 8. News, dotPH website. Retrieved on 28
action. The activities of these groups functions, but US and European March 2004. http://www.domains.ph/
would be under the direction, auspices leaders have urged the UN to affirm news.asp?more=http://
and thrusts of the e-Law Center. ICANN's role. The high-tech summit registrarnews.ph/dotphnews/archives/
reconvenes in Tunisia in 2005. 000063.html#more
9. “Request for Comments.” RFC 1591,
entitled “Domain Name System
Endnotes Structure and Delegation” was issued
by Dr. Jon Postel on March 1994.
1. It must be noted, however, that the 10. Entitled “Internet Domain Name System
Internet is based on IP addresses, and Structure and Delegation” (ccTLD
not on domain names, and thus every Administration and Delegation, May
Web server requires a Domain Name 1999).

20
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
<< [3] Mercantile Law Bar Exam << [13] Spamming the World Those two features of an anti-spam
Endnotes
measure are most relevant for now.
unpleasant and annoying has
jumped from 70% last June to Endnotes
1. Definitions for “hack,” “crack,” and
“hacker ”acquired or retrieved on 2 April 77% now. At this point, 86% of
2004 from www.webopedia.com. ernail users report some level 1. Southwick, Scott and Falk, J.D.(1998).
Copyright, 2004 Jupitermedia . All rights of distress caused by spam." [11 The Net Abuse FAQ. Retrieved on 31
reserved. Reprinted with permission March 2004. http://
from http://www.internet.com. www.cybernothing.org/faqs/net-abuse-
2. Section 185, R.A. No. 8293 provides in Admittedly, legislation alone cannot faq.html
part, “Fair Use of a Copyrighted Work. stem the flood of spam in electronic 2. Barton, Lindsay. Spain. Retrieved on 2
— xxx Decompilation, which is mailboxes. "There's no silver bullet," April 2004, from Australian
understood here to be the reproduction Government: National Office for the
of the code and translation of the forms
Roger Dean, founder of EEMA, told Information Economy. http://
of the computer program to achieve the ElectricNews.Net. "The solution is a www.noie.gov.au/projects/confidence/
inter-operability of an independently combination of legislation, technology Improving/spam.htm
created computer program with other and educated users." [ 12 ] 3. Studies Find More Spam Leaves Bad
programs may also constitute fair use. ” Taste In Inboxes(30 March 2004).
3. Section 33 (a), RA No. 8792. Retrieved on 2 April 2004 from
4. Windows 95, 98, ME, XP Home, NT, Anti-spam law in the Philippines? WBALChannel.com http://
2000, XP Professional are trademarks of w w w. t h e w b a l c h a n n e l . c o m / n e w s /
the Microsoft Corporation. On the other 2961291/detail.html
The spam issue in the Philippines is
hand, visit www.linux.org for information 4. The Problem. Retrieved on 2 April 2004
on Linux. almost insignificant because the from CAUSE Coalition Against
5. The last option, however, is not available number of Filipinos hooked up to the Unsolicited Commercial E-mail http://
under Windows 98. Internet is sparse compared to other www.cauce.org/about/problem.shtml
6. To do so, within the word processing 5. Ibid.
countries. Nevertheless, the Philippine 6. Junk e-mail runs rampant despite Can
(Word) or spreadsheet (Excel)
application, click on “File,” then “Save government should also take up arms Spam Act (25 March 2004) Retrieved on
As.” When the Save As dialog box against spam in order to alleviate any 2 April 2004, from Yahoo! News http://
appears, click on “Tools“on the tool bar cost that businesses and individuals story.news.yahoo com/
on top right, and click “General news?tmpl=story&cid=711&ncid=711&e=2&u=/
may bear as a result of the malpractice. usatoday/ 20040325/tc_usatoday/
Options...” on the drop-down menu
appearing. A Save dialog box will It is preferable if Congress adopts an junkemailrunsrampantdespitecanspanract
appear. Key-in a password on the box opt-in policy. Generally, spams that 7. Carter, Richard (27 January 2004). No
under “File Sharing Option”, “Password clogged the end-user's inbox are 'silver bullet' for the monster of junk
to open.” A Confirm Password dialog email. Retrieved on 2 April 2004 from
unwanted and to make the reception EUobserver. http://
box will appear, key-in the same
password. The file saved would only be of spams automatic will only give the w w w. e u o b s e r v e r. c o m /
opened if the password so determined spammer the freedom to send one index.phtml?aid=14227
would be keyed-in. message after another should the 8. Williams, Martin (15 September 2003)
Spam falls after South Korea strengthens
<< [8] Jurisprudence in Cyberspace
recipient opt to unsubscribe. This e-mail law. Retrieved on 29 March 2004,
defeats the purpose of the law which from InfoWorld. http://
condition for the admission of was to save the end-user cost and time. www.infoworld.com/article/03/09/15/
documents. The possibility that the end-user will HNkoreaspam_1.html
9. Perrone, Jane (24 July 2003). Australia
spend more time unsubscribing to the Tries to Can Spam. Retrieved on 29
xxx xxx xxx
spams should be avoided. Another March 2004 from Guardian Unlimited.
Not one of the 18 print-out advantage of an opt-in policy is that it http://www.guardian.co.uk/online/
spam/story/0,13427,1005158,00.html
copies submitted by petitioners can minimize the possibility of a minor's
10. AFP (22 March 2004). Asian countries
was ever signed, either by the exposure to adult materials because join US-led coalition against spa,.
sender or the receiver. There is majority of spams sent are Retrieved on 2 April 2004 from
thus no guarantee that the pornographic. smh.com.au. http://www.smh.com.au/
message sent was the same a r t i c l e s / 2 0 0 4 / 0 3 / 2 2 /
message received. 1079823278794.html
Sparnmers must provide true 11. Sinrod, Eric J. (25 March 2004). Junk
xxx xxx xxx addresses to which the recipients will email runs rampant despite CAN-Spam
be able to send their refusal to receive Act. Retrieved on 2 April 2004 from
USATODAY.com. http://
Neither were the print-outs any further spam. This is to make sure www.usatoday.com/tech/columnist/
certified or authenticated by any that the end-user is not robbed of his ericjsinrod/2004-03-25-sinrod_x.htm
company official who could right to make a choice. If an 12. Clark, Mathew (5 November 2003). No
properly attest that these came unscrupulous spammer provides a silver bullet for spam, says expert.
from IBM's computer system or - Retrieved on 2 April 2004 from
false address, the end-user will be electricnews.net. http://www.enn.ie/
the data stored in the system were
forced to bear the continual reception news.html?code=9380566
not and/or could not have been
tampered with before the some
of message he no longer wants.
were printed out. xxxx"

21
LegalWeb

LAWPHIL.NET: A STEP IN THE RIGHT DIRECTION


by Carlyn Marie Bernadette C. Ocampo-Guerrero and Michael Vernon M. Guerrero

(This section is a continuing series of articles Constitution, (2) Statutes, (3) Executive (Commission on Human Rights,
featuring various websites which may be
Issuances, (4) Jurisprudence, (5) National Commission on Indigenous
relevant to legal practitioners, legal

L
researchers, and law students.) Courts, (6) Administrative Agencies, People, and the National Commission
(7) Congress, (8) News and Legal on the Filipino Language), the Office
Updates, (9) International Law, (10) of the President, the Office of the Vice
awphil is a legal web site Legal Links, (11) and Lawyer's Tools. President, the various departments, the
project of Arellano Law Foundation Sections 1 to 4, and 9 contain the bulk Bases Conversion Development
thru its Information Technology Center. of relevant laws, treaties and Authority (BCDA), Social Security
Arellano Law Foundation is a non-stock jurisprudence. Sections 5 to7 are System (SSS), Government Service
non-profit institution specializing in informative as to the kind of political Insurance System (GSIS), Housing and
legal education. Realizing the essence and legal system that exists in the Land Use Regulatory Board, Housing
of making the law accessible and Philippines. and Urban Development Coordinating
understandable not only to the legal Council, Pag-IBIG Fund, Career-
community but to all sectors of society, The section on the "Constitution" Executive Service Board, Local Water
the Foundation has embarked to contains all Philippine Constitutions: the Utilities Administration, National
digitize and make available through Malolos, the 1935, the 1973, and the Commission for Culture and the Arts,
the Internet all Philippine laws, statutes, 1987 Constitutions. "Statutes" contains National Youth Commission (NYC),
jurisprudence, presidential decrees, subsections pertaining to various kinds Professional Regulation Commission,
executive orders, administrative of statutes in different era in Philippine and Bangko Sentral ng Pilipinas. The
orders, lawyers' tools and other legal history - Acts, Commonwealth Acts, section on "Congress" includes the
materials. Republic Acts, Batas Pambansa and directory, officers and committees and
Presidential Decrees. "Executive the rules of both the Senate and the
Hence, the LawPhil Project of the Issuance" contains the subsections House of Representatives.
Arellano Law Foundation Executive Orders, General Orders,
(www.lawphil.net) is one of the more Memorandum Orders, and "News and Legal Updates" includes
ambitious projects in the legal field that Proclamation. "Jurisprudence" contains Legal News, Current Issues, Latest
have been initiated to provide law decisions and resolutions promulgated Laws, and Latest Supreme Court
practitioners and law students with tools from 1901 to 2003, as of this writing. Decisions; while "Legal links" includes
for legal research. It is so far the most The section on "International Law" subsections on General Legal
comprehensive repository of Philippine contains the subsections Treaties, Resources, Online Law Libraries,
jurisprudence and laws. International Agreements, International Online Publications, Government
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

Organizations, and International Resources, General Resources, and


Composition, structure, and look Courts. International Resources. Lastly, the
and feel section on "Lawyers' Tools" includes
"Courts" contains information involving Legal Forms, Legal Dictionaries, and
The website is encoded according to the Philippine Court System, Rules of Miscellaneous items.
HTML 4.0 standards, with javascripts, Court, Jurisdiction, Legal Ethics, Bar
imagemaps, and standard web image Matters, Roll of Attorneys and the The website's look and feel corresponds
files (.gif and .jpg). The website is Integrated Bar of the Philippines; while to the familiar online experience one
structured in a three-panel frameset: "Administrative Agencies" contains acquires when browsing through the
a masthead, a navigation bar, and the information pertaining to the central repository of Supreme Court
main body itself. The frameset Constitutional Commissions (The issuances, the Philippine Supreme
structure allows flexibility in the gradual Commission on Audit, Commission on Court website
expansion of the website. The website Civil Service, and Commission on (www.supremecourt.gov.ph).
is composed of 11 sections: (1) the Elections), the National Commissions

22
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Development excusat.' It is a
concrete step of
The development of the site is clearly bringing the law to
one that is aggressive and distributed. the people. Still,
It is aggressive in such a way that the by way of
site has at least 41,400 site elements providing
by October 2003, a leap from 21,700 unsolicited advise,
site elements existing March 2003, or the search tool
a 198 percent increase in site content may be a feature
for a period of only seven months. It is that needs to be
distributed as additional content is being improved on, to
generated to include more recent highlight the
laws, jurisprudence, etc. without words being
compromising the inclusion of older looked up
laws, jurisprudence, etc. which have (although this is
not been previously included in the available through The homepage of the LawPHil Project (http://www.lawphil.net).
repository. It is likely that the inclusion the use of the site's The website was launched in year 2000.
of older laws and jurisprudence, cached pages in a
promulgate for a span of a hundred very popular
years would be completed within a search engine,
couple of years or so, considering the but the starting point resulting to this have now as a "modern justice system".
pace of development as to the kind of search right now is through the "In the Philippines, one of the
consolidation of legal content. search engine and not the website), forerunners of "cyber-legal
or to find cases corresponding to the information dissemination" is the
Surfers' comments proprietary citations of case Lawphil.net. Among all of the available
compilations of the two biggest law local websites concerned with the same
"The site is user-friendly. The main book publishers in the country, among objectives, Lawphil has an idiosyncratic
page readily shows the laws that have others. Inter-linked pages, wherein brand of having the most updated
been recently passed, as well as the cases are linked to the cases and laws materials as far as Supreme Court
current legal issues. There is a search cited are linked, are also suggested. decisions are concerned. This positive
tool which I can use to locate certain These, of course, after the site has distinction has been brought about by
issues or topics. The scroll bars on the completed the incorporation of most the ingenious idea of its creators to start
left side of the page which include the of the older laws and jurisprudence compiling these Court decisions
Constitution, statutes, executive into the website." -RS starting, and concentrating more, from
issuances, jurisprudence, courts, the more recent rulings, while striving,
administrative agencies, congress, "Quite inconspicuously, with the advent in equal pace, to complete the files of
news and legal updates, International of the computer age, the endeavors the earlier ones. This is just a brilliant
law, legal links and lawyer's tools, involved in the justice system took an way to start establishing the site for after
encompass various subject matters, abrupt giant leap from manual to all, only subsequent rulings supersede
though not as comprehensive as a mechanical. The justice system as the rest. Lawphil's layout is just
well-known CD based research tool, understood five (5) years ago or so is systematic and user-friendly. Even first-
in general. As to the design, it is simple very much different from how it is now. timers find using it orderly and
yet appealing, specially the photos that The element which greatly affected this comprehensible. Laws and statutes
are captured on the front page. change is the birth of cyber-legal updates and segments on current legal
Lawphil.net, as a whole, is a helpful research tools which are made readily issues are very instructive and
and easy access research tool which available in just a click of the mouse. enlightening.
will definitely be of use to me as I hurdle With the proliferation of these research
my remaining years in law school." - tools, the quality of legal services that "The publication and distribution of
MI lawyers cater to litigants, the quality of legal information, in forms of laws,
the decisions promulgated by courts, jurisprudence and legal opinions, etc.,
"The site is a step in the right direction, the legal knowledge of the "laymen" (local or global), generated by Lawphil
considering that the website provides (litigant or otherwise); and the legal has rendered the maxim "ignorantia
the ordinary surfer a whole range of research methods for public or private legis neminem excusat" almost moot
legal resources, without fees, and thus consumption, to name a few, have all and academic, at least as far as those
provides a means to avoid the been significantly enhanced. With this who have comparatively usual access
invocation of 'ignorantia legis non modern method, we may call what we thereto are concerned." -JL

23
The Center and the Society

DIGITAL LAW & THE IMPERATIVES THE BIRTH OF THE


OF THE E-LAW CENTER IT LAW SOCIETY
by Jaime N. Soriano by Carlyn Marie Bernadette C. Guerrero

T The global development in information


technology resulting from the
phenomenal convergence of
computers and communications has
brought about a new face and
challenges in law practice and legal
education. As information technology
dramatically affects the way people
live, it also affects in the same
·

T
Conduct research and studies in
the field of information and
communication technology as it
affects the Philippine legal system
including the monitoring, critique
and publication of papers of global
and local developments in this
area.
he information Technology
Law Society (ITLS) is the support
organization of the e-Law Center of
the Arellano University School of Law.
The Society intends to take a lead role
in promoting growth and development
of Cyberlaw in the country.

The Society formally convened


degree almost every aspect of on 10 January 2004. Elected
existing legal systems and officers of the organization for
relationships. Needless to say, 2004-2005 were: Michael
the law must be technology Vernon M. Guerrero,
neutral and must always adapt president; Carlyn Marie
to the needs of the times. Bernadette C.
OcampoGuerrero, secretary;
Governments, international Ailyn L Cortez, treasurer:
bodies, and the general public Charilyn A. Dee, web
all over the world have started development head; Peter
to prepare for this technology Joseph L. Fauni, publication
revolution, so to speak. Many head; Ma. Cristina A. Ramos,
law schools and bar associations seminars head; and Aileen T.
kicked-off the formation of units Forteza, advocacy head. Atty
dedicated to information (From left) Peter Joseph Fauni, Carlyn Marie Bernadette Ocampo- Jaime N. Soriano, Executive
technology developments within Guerrero, Atty. Jaime Soriano, Ailyn Cortez, Michael Vernon Director of the e-Law Center,
their respective institutions. In the Guerrero, and Ma. Cristina Ramos. is the organization's adviser.
Philippines, much has to be
desired in this area from the academic The organization is divided into four
community because of its strong · Maintain the most complete, groups: 1 ) Web Development, 2;
adherence to the highly conservative comprehensive, organized, and Research and Publication, 3) Seminars
and traditional approach to legal up-to-date information system, and Education, and 4) Advocacy. The
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

education. Unfortunately, the paradigm database, and library of resources Web Development Group will be
shift is inevitable. on information technology that will involved in updating, conducting
cater and be accessible, not only researches and studies in the field of
In the light of the foregoing to the students and faculty of the information technology as it affects the
imperatives, the Arellano University law school, but also to researchers, Philippine legal system. Research and
School of Law caused the creation of policy makers and the public, in Publication will be engaged in the
the "e-Law Center", a body, functioning general. publication of papers on global and
within its organizational framework, to local developments in the field of IT
take the lead within the academic circle · Pursue policy initiatives and law. Seminars and Education will be
in the areas of research, policy advocacy on the development of active in organizing and holding
advocacy, and legal education that Philippine law on information and lectures, trainings, seminars,
addresses the developments in communication technology conferences or presentations on IT law
technology law. including the crafting of proactive to enable law students, faculty and
proposals for legislative or other members of the academic
The Center has the following objectives: regulatory action. community always attuned to, and
>> [20] e-Law Center >> [20] IT Law Society

24