RECENT DEVELOPMENTS

IN THE RULES ON ELECTRONIC EVIDENCE

Earlier cases:

PEOPLE OF THE PHILIPPINES v. HON. JOSE BURGOS, as Presiding Judge of

the Regional Trial Court of Cebu, Branch 17, SIEGFRED DEDURO y DELFIN
alias "Raul Delfin y Zerrudo, ET AL., G.R. No. 92739, August 2, 1991

FACTS:

On 2 September 1989, an information for violation of Republic Act No.

1700 ["An Act to Outlaw the Communist Party of the Philippines and Similar
Associations, Penalizing Membership Therein and for Other Purposes"] was
filed against nine persons by the Office of the City Prosecutor of Cebu. The
information recommended no bail, the accused allegedly being leaders of
the Communist Party of the Philippines.

After arraignment, the accused filed petition for bail. The prosecution
filed opposition except as to accused Catalina Peras, who was then in her
eighth month of pregnancy, and for which the court thereafter fixed bail.

While the prosecution was still presenting evidence for purposes of

determining whether or not bail should be granted, the court issued an
Order fixing bail for the five of the remaining eight accused. The court,
however, denied the application for bail of the three other accused on the
ground that insofar as these particular accused were concerned, the
evidence of guilt was strong.

The trial court disallowed the prosecutions request for its witness, a
computer programmer, to print out in open court the material encoded in
certain diskettes seized from the accused by virtue of a search warrant.
According to the trial court the diskettes have been in possession of the
prosecution since the start and anything may happen while they were in
their possession. The court explained that to let the witness operate the
computer is very dangerous, because the witness said that these
diskettes can be manipulated or altered which would be prejudicial to
the rights of the accused.

HELD:

The respondent Judge's insinuation or speculation that the

prosecution, considering the fact that it had the diskettes in its
possession prior to the hearing, may have tampered with them appears
absolutely baseless and quite unfair to the prosecution. Such statement
had in fact no basis in the evidence before the respondent Judge. There
was neither testimonial evidence nor any physical evidence on the
diskettes themselves which might indicate they had actually been
tampered or their contents altered in order to secure the conviction of
the accused. Respondent Judge was in effect charging the prosecution
with fabricating evidence against the private respondents, which
constitutes serious misconduct and quite possibly a criminal offense.

The mere fact that the diskettes had been in the possession of the
prosecution does not necessarily imply that it had altered or tampered
with the evidence to suit its prosecutorial objectives. Indeed, the
presumption that official duty has been regularly performed prevails, in
the absence of any evidence to the contrary.

We, therefore hold that the printing out of data (if any) encoded
in the diskettes should be allowed. Respondent Judge's asserted
apprehension that the witness brought in by the prosecution to
undertake the printing out of the diskettes' contents could himself
"manipulate" said diskettes during the actual printing out in court may
very easily relieved by designating a competent person agreeable to
both parties, and especially to respondent Judge, who can perform the
task of printing out the contents of the diskettes. Respondent Judge's
ostensible lack of confidence in the prosecution witness should not in
any way affect the integrity of the diskettes themselves or the right of
the prosecution to show the contents of the diskettes subject, of course,
to applicable rights of the accused.

Moreover, contrary to accuseds contention that the diskettes

themselves should be deemed inadmissible in evidence because they
were not included in the things mentioned in the search warrant, we
find that these diskettes had been sufficiently described in the search
warrant. The search warrant states:

You are, therefore, hereby commanded to make immediate

search at any time of the day or night of Rm. 31 of the third floor of said
building where the persons or suspects above-named are presently
occupying and to seize and to take possession of the following
properties used or intended to be used as the means of committing
violation of RA 1700 and/or Art. 142 of the Revised Penal Code:

Incendiary or subversive documents, pamphlets; books, computer

print-outs and subversive materials, and computer machine used
imprinting seditious or subversive literature.

The phrase "computer machine used in printing seditious or

subversive literature" is appropriately regarded as necessarily including
diskettes into which data is encoded and stored, such as those seized in
the present case on the same occasion the computer itself was seized,
for indeed a computer system cannot store and print out any data
without diskettes. Technically and realistically speaking, diskettes are
deemed integral parts of a computer system, the diskettes constituting
one of the "input-output devices" or "peripherals," in the same manner
that the keyboard is an "input-output device" and the monitor,
keyboard and printer are "peripherals" in relation to the memory or
central processing unit (CPU) of a computer system.

IBM PHILIPPINES, INC., VIRGILIO L. PEA, and VICTOR V. REYES v.

NATIONAL LABOR RELATIONS COMMISSION and ANGEL D. ISRAEL,
G.R. No. 117221, April 13, 1999

FACTS:

IBM Philippines, Inc. (IBM) is a domestic corporation engaged in

the business of selling computers and computer services, with Virgilio L.
Pea and Victor V. Reyes as its ranking officers. Angel D. Israel on the
other hand was employed by IBM as Office Products Customer
Engineer, who was assigned to the team supervised by Reyes. On June
27, 1991, Reyes handed a letter to Israel informing him that his
employment was to be terminated effective July 31, 1991 due to habitual
tardiness and absenteeism.

Alleging that his dismissal was illegal, Israel filed a complaint with
the Department of Labor and Employment on July 18, 1991. In its
defense, alleged that Israel had unsatisfactory performance in the
company and was given sufficient warning and opportunity to "reform
and improve his attitude toward attendance," but which he never did.
According to IBM, Israel was constantly told of his poor attendance
record and inefficiency through the companys internal electronic mail
(e-mail) system, which allows paperless or "telematic" communication.

The word "telematic" is not yet found in regular English

dictionaries, and according to IBM it is derived from the French word
telematique which is used in communications to refer to the
combination of computers and telecommunications for data processing
and information communication among IBM personnel in the company
offices here and abroad. An employee is assigned a "User ID" and the
corresponding password is provided by the employee himself and,
theoretically, known only to him. Employees are then expected to turn
on their computers everyday, "log in" to the system by keying in their
respective IDs and passwords in order to access and read the messages
sent to and stored in the computer system. To reply, an employee types
in or encodes his message-response and sends the same to the
intended recipient, also via the computer system. The system
automatically records the time and date each message was sent and
received, including the identification of the sender and receiver thereof.
All messages are recorded and stored in computer disks.

IBM submitted copies of print-outs of alleged computer

entries/messages sent by Reyes to Israel through IBMs internal
computer system. Through these computer print-outs calling Israels
attention to his tardiness and absenteeism, IBM sought to prove that
Israel was sufficiently notified of the charges against him and was guilty
thereof because of his failure to deny the said charges. The labor arbiter
found in favor IBM and dismissed the complaint.

Prior to the release of the labor arbiters decision at 11:21 a.m. on

March 26, 1992, Israel filed a "Manifestation And Motion To Admit
Attached New Evidence For The Complainant" which was received by
the Arbitration Branch at 10:58 a.m. of the same day. The evidence
consisted of Israels Daily Time Records (DTRs) for the period June 1,
1990 to August 31, 1990 and pay slips for the period January 1990 to
June 1991 showing that Israel did not incur any unexcused absences,
that he was not late on any day within the period and that no
deduction was made from his salary on account of tardiness or
absences.

Israel appealed to the NLRC which thereafter reversed the labor

arbiters decision and found private the dismissal illegal. The NLRC
ruled: (1) that the computer print-outs which IBM presented in evidence
to prove that Israels office attendance was poor were insufficient to
show that the latter was guilty of habitual absences and tardiness; and
(2) that Israel was not heard in his defense before the issuance of the
final notice of dismissal.

IBM argued that the computer print-outs submitted by them

need not be identified or authenticated according to the rules of
procedure in regular courts in order for the same to be admissible in
evidence. They contend that technical rules of evidence do not apply to
administrative/labor cases and because of a relaxation of the rules of
evidence, Israel was in fact allowed by the labor arbiter to adduce
additional evidence even after a decision had been rendered.

HELD:

It is indeed true that administrative agencies, such as the NLRC,

are not bound by the technical rules of procedure and evidence in the
adjudication of cases. This was the reason Israel was allowed to submit
additional evidence even after the case was deemed submitted for
resolution by the labor arbiter. The practice of admitting additional
evidence on appeal in labor cases has been sanctioned by this Court.

However, the liberality of procedure in administrative actions is

subject to limitations imposed by basic requirements of due process.

The computer print-outs, which constitute the only evidence of

IBM, afford no assurance of their authenticity because they are
unsigned. The decisions of this Court, while adhering to a liberal view in
the conduct of proceedings before administrative agencies, have
nonetheless consistently required some proof of authenticity or
reliability as condition for the admission of documents.
 In Rizal Workers Union v. Ferrer-Calleja,26 [186 SCRA 431 (1990)]
this Court struck down the decision of the Director of Labor Relations
which was based on an unsigned and unidentified manifesto. It was
held:

From even a perfunctory assessment, it becomes apparent that

the "evidence" upon which said decision is professedly based does not
come up to that standard of substantiality.

It is of course also a sound and settled rule that administrative

agencies performing quasi-judicial functions are unfettered by the rigid
technicalities of procedure observed in the courts of law, and this so
that disputes brought before such bodies may be resolved in the most
expeditious and inexpensive manner possible. But what is involved here
transcends mere procedural technicality and concerns the more
paramount principles and requirements of due process, which may not
be sacrificed to speed or expediency...The clear message of [Article 221
of the Labor Code] is that even in the disposition of labor cases, due
process must never be subordinated to expediency or dispatch. Upon
this principle, the unidentified documents relied upon by respondent
Director must be seen and taken for what they are, mere inadmissible
hearsay. They cannot, by any stretch of reasoning, be deemed
substantial evidence of the election frauds complained of.

Likewise, in the case of EMS Manpower & Placement Services v.

NLRC,27 [276 SCRA 117 (1997)] the employer submitted a photocopy of
a telex which supposedly shows that the employee was guilty of
"serious misconduct" and which became the basis of her dismissal. This
Court ruled that the telex, a "single document, totally uncorroborated
and easily concocted or fabricated to suit ones personal interest and
purpose," was insufficient to uphold the employers defense.

In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC, this Court
held as incompetent unsigned daily time records presented to prove
that the employee was neglectful of his duties:

Indeed, the [DTRs] annexed to the present petition would tend to

establish private respondents neglectful attitude towards his work
duties as shown by repeated and habitual absences and tardiness and
propensity for working undertime for the year 1992. But the problem
with these DTRs is that they are neither originals nor certified true
copies. They are plain photocopies of the originals, if the latter do exist.
More importantly, they are not even signed by private respondent nor
by any of the employers representatives...

In the case at bar, a specimen of the computer print-out

submitted by petitioners reads:

Date and time 10/12/90 09:23:1

From: REYESVV -- MNLVM1
To: ISRAEL -- MNLRVM Israel, A.D.
SEC: I IBM INTERNAL USE ONLY

Subject:

Angel, have been trying to pin you down for a talk the past couple of
days. Whatever happened to our good discussion 2 weeks ago? I
thought you would make an effort to come in on time from then on? If
you have problems which prevent you from coming in on time, let me
know because I would really like to help if I can. The sum of all your
quotas is less than mine so I really need all of you pitching in. Kindly
take a look at your proofs in-tray as there are some to dos which are
pending. Acts such as St. Louis U. and NEECO should be worth looking
into as theyve been inquiring about upgrading their very old boxes. If
you are too tied up for these accounts do let me know so I can
reassign. By Monday morning please. Lets give it that final push for the
branch!

==============================================
===
Regards from the APPLICATION MNLVM 1 (REYESVV)
SYSTEMS MARKETING group T (832)8192-279
Victor V. Reyes - Marketing Manager
==============================================
===

Not one of the 18 print-out copies submitted by petitioners was

ever signed, either by the sender or the receiver. There is thus no
guarantee that the message sent was the same message received. As
the Solicitor General pointed out, the messages were transmitted to
and received not by private respondent himself but his computer.
 Neither were the print-outs certified or authenticated by any
company official who could properly attest that these came from IBMs
computer system or that the data stored in the system were not and/or
could not have been tampered with before the same were printed out.
It is noteworthy that the computer unit and system in which the
contents of the print-outs were stored were in the exclusive possession
and control of petitioners since after private respondent was served his
termination letter, he had no more access to his computer.

WONINA M. BONIFACIO, JOCELYN UPANO, VICENTE ORTUOSTE AND

JOVENCIO PERECHE, SR., versus REGIONAL TRIAL COURT OF MAKATI,
BRANCH 149, and JESSIE JOHN P. GIMENEZ, G.R. No. 184800, May 5,
2010

FACTS:

The accusatory portion of the Amended Information for Libel filed

by the Makati City Prosecutors Office reads:

That on or about the 25th day of August 2005 in Makati

City, Metro Manila, Philippines, a place within the jurisdiction of
the Honorable Court, the above-named accused, being then the
trustees of Parents Enabling Parents Coalition and as such
trustees they hold the legal title to the website
www.pepcoalition.com which is of general circulation, and
publication to the public conspiring, confederating together with
John Does, whose true names, identities and present
whereabouts are still unknown and all of them mutually helping
and aiding one another, did then and there willfully, unlawfully
and feloniously and publicly and maliciously with intention of
attacking the honesty, virtue, honor and integrity, character and
reputation of complainant Malayan Insurance Co. Inc., Yuchengco
Family particularly Ambassador Alfonso Yuchengco and Helen
Dee and for further purpose exposing the complainant to public
hatred and contempt published an article imputing a vice or
defect to the complainant and caused to be composed, posted
and published in the said website www.pepcoalition.com, a
website accessible in Makati City, an injurious and defamatory
 article, which was first published and accessed by the private
complainant in Makati City, as follows:

Talagang naisahan na naman tayo ng mga Yuchengcos.

Nangyari na ang mga kinatatakutan kong pagbagsak ng
negotiation. x x x x x x x x x

For sure may tactics pa silang nakabasta sa atin. Let us be

ready for it because they had successfully lull us and the next time
they will try to kill us na. x x x

A copy of the full text of the foregoing article as

published/posted in www.pepcoalition.com is attached as Annex
F of the complaint.

That the keyword and password to be used in order to post

and publish the above defamatory article are known to the
accused as trustees holding legal title to the above-cited website
and that the accused are the ones responsible for the posting and
publication of the defamatory articles that the article in question
was posted and published with the object of the discrediting and
ridiculing the complainant before the public.

CONTRARY TO LAW.

Several of the accused challenged the Makati City Prosecutors

Resolution by a petition for review to the Secretary of Justice who
reversed the finding of probable cause and accordingly directed the
withdrawal of the Informations for libel filed in court. The Justice
Secretary opined that the crime of internet libel was non-existent,
hence, the accused could not be charged with libel under Article 353 of
the RPC.

Petitioners moved to quash the Information which, they alleged,

failed to vest jurisdiction upon the court because it failed to allege that
the libelous articles were printed and first published by the accused in
Makati; and the prosecution erroneously laid the venue of the case in
the place where the offended party accessed the internet-published
article. The trial court denied the motion.
ISSUE: Was venue properly laid? Did the trial court acquire jurisdiction
over the offense charge?

HELD:

In the present case, petitioners raise a pure question of law involving

jurisdiction in criminal complaints for libel under Article 360 of the RPC
on whether the Amended Information is sufficient to sustain a charge
for written defamation in light of the requirements under Article 360 of
the RPC, as amended by Republic Act (RA) No. 4363, which reads:

Art. 360. Persons responsible. Any person who shall publish,

exhibit or cause the publication or exhibition of any defamation in
writing or by similar means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or

business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamations contained
therein to the same extent as if he were the author thereof.

The criminal action and civil action for damages in cases of

written defamations, as provided for in this chapter shall be filed
simultaneously or separately with the Court of First Instance of
the province or city where the libelous article is printed and first
published or where any of the offended parties actually resides at
the time of the commission of the offense: Provided, however,
That where one of the offended parties is a public officer whose
office is in the City of Manila at the time of the commission of the
offense, the action shall be filed in the Court of First Instance of
the City of Manila or of the city or province where the libelous
article is printed and first published, and in case such public
officer does not hold office in the City of Manila, the action shall
be filed in the Court of First Instance of the province or city where
he held office at the time of the commission of the offense or
where the libelous article is printed and first published and in case
one of the offended parties is a private individual, the action shall
be filed in the Court of First Instance of the province or city where
he actually resides at the time of the commission of the offense
or where the libelous matter is printed and first published x x x.
(emphasis and underscoring supplied)
Venue is jurisdictional in criminal actions such that the place where the
crime was committed determines not only the venue of the action but
constitutes an essential element of jurisdiction. This principle acquires
even greater import in libel cases, given that Article 360, as amended,
specifically provides for the possible venues for the institution of the
criminal and civil aspects of such cases.

In Macasaet v. People, G.R. No. 156747, February 23, 2005, 452 SCRA
255, the Court reiterated its earlier pronouncements in Agbayani v.
Sayo, G.R. No. L-47880, April 30, 1979, 89 SCRA 699, which laid out the
rules on venue in libel cases, viz:

For the guidance, therefore, of both the bench and the bar,
this Court finds it appropriate to reiterate our earlier
pronouncement in the case of Agbayani, to wit:

In order to obviate controversies as to the venue of the

criminal action for written defamation, the complaint or
information should contain allegations as to whether, at the time
the offense was committed, the offended party was a public
officer or a private individual and where he was actually residing
at that time. Whenever possible, the place where the written
defamation was printed and first published should likewise be
alleged. That allegation would be a sine qua non if the
circumstance as to where the libel was printed and first published
is used as the basis of the venue of the action. (emphasis and
underscoring supplied)

It becomes clear that the venue of libel cases where the complainant is
a private individual is limited to only either of two places, namely: 1)
where the complainant actually resides at the time of the commission of
the offense; or 2) where the alleged defamatory article was printed and
first published. The Amended Information in the present case opted to
lay the venue by availing of the second. Thus, it stated that the
offending article was first published and accessed by the private
complainant in Makati City. In other words, it considered the phrase to
be equivalent to the requisite allegation of printing and first publication.

The insufficiency of the allegations in the Amended Information to vest

jurisdiction in Makati becomes pronounced upon an examination of the
rationale for the amendment to Article 360 by RA No. 4363. Chavez v.
Court of Appeals, G.R. No. 125813, February 6, 2007, 514 SCRA 279,
285-286, explained the nature of these changes:

Agbayani supplies a comprehensive restatement of the rules of

venue in actions for criminal libel, following the amendment by
Rep. Act No. 4363 of the Revised Penal Code:
Article 360 in its original form provided that the venue of
the criminal and civil actions for written defamations is the
province wherein the libel was published, displayed or exhibited,
regardless of the place where the same was written, printed or
composed. Article 360 originally did not specify the public officers
and the courts that may conduct the preliminary investigation of
complaints for libel.

Before article 360 was amended, the rule was that a criminal
action for libel may be instituted in any jurisdiction where the
libelous article was published or circulated, irrespective of where
it was written or printed (People v. Borja, 43 Phil. 618). Under that
rule, the criminal action is transitory and the injured party has a
choice of venue.

Experience had shown that under that old rule the offended party
could harass the accused in a libel case by laying the venue of the
criminal action in a remote or distant place.

Thus, in connection with an article published in the Daily Mirror

and the Philippine Free Press, Pio Pedrosa, Manuel V. Villareal and
Joaquin Roces were charged with libel in the justice of the peace
court of San Fabian, Pangasinan (Amansec v. De Guzman, 93 Phil.
933).

To forestall such harassment, Republic Act No. 4363 was enacted.

It lays down specific rules as to the venue of the criminal action so
as to prevent the offended party in written defamation cases from
inconveniencing the accused by means of out-of-town libel suits,
meaning complaints filed in remote municipal courts (Explanatory
Note for the bill which became Republic Act No. 4363,
Congressional Record of May 20, 1965, pp. 424-5; Time, Inc. v.
Reyes, L-28882, May 31, 1971, 39 SCRA 303, 311).

x x x x (emphasis and underscoring supplied)

Clearly, the evil sought to be prevented by the amendment to Article
360 was the indiscriminate or arbitrary laying of the venue in libel cases
in distant, isolated or far-flung areas, meant to accomplish nothing
more than harass or intimidate an accused. The disparity or unevenness
of the situation becomes even more acute where the offended party is
a person of sufficient means or possesses influence, and is motivated by
spite or the need for revenge.

If the circumstances as to where the libel was printed and first

published are used by the offended party as basis for the venue in the
criminal action, the Information must allege with particularity where the
defamatory article was printed and first published, as evidenced or
supported by, for instance, the address of their editorial or business
offices in the case of newspapers, magazines or serial publications. This
pre-condition becomes necessary in order to forestall any inclination to
harass.

The same measure cannot be reasonably expected when it pertains to

defamatory material appearing on a website on the internet as there
would be no way of determining the situs of its printing and first
publication. To credit Gimenezs premise of equating his first access to
the defamatory article on petitioners website in Makati with printing
and first publication would spawn the very ills that the amendment to
Article 360 of the RPC sought to discourage and prevent. It hardly
requires much imagination to see the chaos that would ensue in
situations where the websites author or writer, a blogger or anyone
who posts messages therein could be sued for libel anywhere in the
Philippines that the private complainant may have allegedly accessed
the offending website.

For the Court to hold that the Amended Information sufficiently vested
jurisdiction in the courts of Makati simply because the defamatory
article was accessed therein would open the floodgates to the libel suit
being filed in all other locations where the pepcoalition website is
likewise accessed or capable of being accessed.

Respecting the contention that the venue requirements imposed by

Article 360, as amended, are unduly oppressive, the Courts
pronouncements in Chavez, supra, at 291-292, are instructive:
 For us to grant the present petition, it would be necessary to
abandon the Agbayani rule providing that a private person must
file the complaint for libel either in the place of printing and first
publication, or at the complainants place of residence. We would
also have to abandon the subsequent cases that reiterate this rule
in Agbayani, such as Soriano, Agustin, and Macasaet. There is no
convincing reason to resort to such a radical action. These
limitations imposed on libel actions filed by private persons are
hardly onerous, especially as they still allow such persons to file
the civil or criminal complaint in their respective places of
residence, in which situation there is no need to embark on a
quest to determine with precision where the libelous matter was
printed and first published.

(Emphasis and underscoring supplied.)

IN FINE, the public respondent committed grave abuse of discretion in

denying petitioners motion to quash the Amended Information.

Comment:

Cybercrime Prevention Act of 2012 (Republic Act No. 10175) punishes

the crime of libel committed through the use of the Internet, in this
manner:

Sec. 4(c)(4) Libel. The unlawful or prohibited acts of libel as defined

in Article 355 of the Revised Penal Code, as amended, committed
through a computer system or any other similar means which may be
devised in the future.

The new law does not change the definition of the crime of libel under
the Revised Penal Code. However, it does two things.

First, it adds a new elementthe crime must be committed through a

computer system or any other similar means that may be devised in the
future. Second, the crime of Internet libel is punishable by a penalty
one degree higher than that provided for by the Revised Penal Code.

Under the new law, the penalty is imprisonment for a minimum period
of four years and one day to a maximum of eight years, per offense.
Top 5 cybercrime complaints
Online Libel
Online Scam
Identity Theft
Online Threat
Anti-Photo and Video VoyeurismAct

In 2016 online libel emerged as the top complaint of Filipino internet

users, with 494 complaints recorded compared to 311 recorded in 2015.
It comprised 26.49% of the 1,865 cybercrime complaints for 2016.

Meanwhile, online scam complaints came in at second place, with 444

complaints in 2016, up from the 334 complaints recorded in 2015.
Rounding up the top 5 complaints were identity theft, online threats,
and violation of the anti-photo and video voyeurism act.

Rules on Electronic Evidence (A.M. No. 01-7-01-SC)

Rule 1
COVERAGE

Section 1. Scope. Unless otherwise provided herein, these Rules

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

Sec. 2. Cases covered. - These Rules shall apply to the criminal

and civil actions and proceeding, as well as quasi-judicial and
administrative cases. [A.M. No. 01-7-01-SC, Re: Expansion of the
Coverage of the Rules on Electronic Evidence, September 24, 2002]

Section 3. Application of other rules on evidence. In all matters

not specifically covered by these Rules, the Rules of Court and pertinent
provisions of statutes containing rules on evidence shall apply.

Rule 2
DEFINITION OF TERMS AND CONSTRUCTION
 Electronic signature refers to any distinctive mark, characteristic
and/or sound in electronic form, representing the identity of a person
and attached to or logically associated with the electronic data message
or electronic document or any methodology or procedure employed or
adopted by a person and executed or adopted by such person with the
intention of authenticating, signing or approving an electronic data
message or electronic document. For purposes of these Rules, an
electronic signature includes digital signatures.

Digital signature refers to an electronic signature consisting of a

transformation of an electronic document or an electronic data
message using an asymmetric or public cryptosystem such that a
person having the initial untransformed electronic document and the
signer's public key can accurately determine:

i. whether the transformation was created using the private key

that corresponds to the signer's public key; and

ii. whether the initial electronic document had been altered after
the transformation was made.

"Digitally signed" refers to an electronic document or electronic

data message bearing a digital signature verified by the public key
listed in a certificate.

Electronic document refers to information or the representation

of information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes digitally
signed documents and any print-out or output, readable by sight or
other means, which accurately reflects the electronic data message or
electronic document. For purposes of these Rules, the term "electronic
document" may be used interchangeably with "electronic data
message".

Electronic data message refers to information generated, sent,

received or stored by electronic, optical or similar means.
 Ephemeral electronic communication refers to telephone
conversations, text messages, chatroom sessions, streaming audio,
streaming video, and other electronic forms of communication the
evidence of which is not recorded or retained.

Rule 3
ELECTRONIC DOCUMENTS

Section 1. Electronic documents as functional equivalent of paper-

based documents. Whenever a rule of evidence refers to the term
writing, document, record, instrument, memorandum or any other form
of writing, such term shall be deemed to include an electronic
document as defined in these Rules.

Section 2. Admissibility. An electronic document is admissible in

evidence if it complies with the rules on admissibility prescribed by the
Rules of Court and related laws and is authenticated in the manner
prescribed by these Rules.

Section 3. Privileged communication. The confidential character

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

Rule 4
BEST EVIDENCE RULE

Section 1. Original of an electronic document. An electronic

document shall be regarded as the equivalent of an original document
under the Best Evidence Rule if it is a printout or output readable by
sight or other means, shown to reflect the data accurately.

Section 2. Copies as equivalent of the originals. When a

document is in two or more copies executed at or about the same time
with identical contents, or is a counterpart produced by the same
impression as the original, or from the same matrix, or by mechanical or
electronic re-recording, or by chemical reproduction, or by other
equivalent techniques which accurately reproduces the original, such
copies or duplicates shall be regarded as the equivalent of the original.
 Notwithstanding the foregoing, copies or duplicates shall not be
admissible to the same extent as the original if:

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

original; or

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

the copy in lieu of the original.

Rule 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS

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

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

Section 2. Manner of authentication. Before any private

electronic document offered as authentic is received in evidence, its
authenticity must be proved by any of the following means:

(a) by evidence that it had been digitally signed by the person

purported to have signed the same;

(b) by evidence that other appropriate security procedures or

devices as may be authorized by the Supreme Court or by law for
authentication of electronic documents were applied to the document;
or

(c) by other evidence showing its integrity and reliability to the

satisfaction of the judge.

Section 3. Proof of electronically notarized document. A

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

Rule 6
ELECTRONIC SIGNATURES
 Section 1. Electronic signature. An electronic signature or a
digital signature authenticated in the manner prescribed hereunder is
admissible in evidence as the functional equivalent of the signature of a
person on a written document.

Section 2. Authentication of electronic signatures. An electronic

signature may be authenticated in any of the following manner:

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

a digital signature and verify the same;

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

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

the genuineness of the electronic signature.

Section 3. Disputable presumptions relating to electronic

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

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

correlates;

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

(c) The methods or processes utilized to affix or verify the

electronic signature operated without error or fault.

Section 4. Disputable presumptions relating to digital signatures.

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

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

(b) The digital signature was created during the operational

period of a certificate;

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

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

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

indicated therein.

Rule 7
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS

Section 1. Factors for assessing evidentiary weight. In assessing

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

(a) The reliability of the manner or method in which it was

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

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

identified;

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

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

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

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

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

Section 2. Integrity of an information and communication system.

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

(a) Whether the information and communication system or other

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

(b) Whether the electronic document was recorded or stored by a

party to the proceedings with interest adverse to that of the party using
it; or

(c) Whether the electronic document was recorded or stored in

the usual and ordinary course of business by a person who is not a
party to the proceedings and who did not act under the control of the
party using it.

RULE 8
BUSINESS RECORDS
AS EXCEPTION TO THE HEARSAY RULE

Section 1. Inapplicability of the hearsay rule. A memorandum,

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

Section 2. Overcoming the presumption. The presumption

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

Rule 9
METHOD OF PROOF
 Section 1. Affidavit evidence. All matters relating to the
admissibility and evidentiary weight of an electronic document may be
established by an affidavit stating facts of direct personal knowledge of
the affiant or based on authentic records. The affidavit must
affirmatively show the competence of the affiant to testify on the
matters contained therein.

Section 2. Cross-examination of deponent. The affiant shall be

made to affirm the contents of the affidavit in open court and may be
cross-examined as a matter of right by the adverse party.

Rule 10
EXAMINATION OF WITNESSES

Section 1. Electronic testimony. After summarily hearing the

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

Section 2. Transcript of electronic testimony. When examination

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

Section 3. Storage of electronic evidence. The electronic

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

Rule 11
AUDIO, PHOTOGRAPHIC, VIDEO,
AND EPHEMERAL EVIDENCE
 Section 1. Audio, video and similar evidence. Audio,
photographic and video evidence of events, acts or transactions shall
be admissible provided it shall be shown, presented or displayed to the
court and shall be identified, explained or authenticated by the person
who made the recording or by some other person competent to testify
on the accuracy thereof.

Section 2. Ephemeral electronic communications. Ephemeral

electronic communications shall be proven by the testimony of a
person who was a party to the same or has personal knowledge
thereof. In the absence or unavailability of such witnesses, other
competent evidence may be admitted.

A recording of the telephone conversation or ephemeral

electronic communication shall be covered by the immediately
preceding section.

If the foregoing communications are recorded or embodied in an

electronic document, then the provisions of Rule 5 shall apply.

RA 10175 was passed on Sept. 12, 2012. The Supreme Court declared it
constitutional last February 18, 2014, except three provisions on the
automatic takedown clause, real-time collection of online data and on
unsolicited commercial communication, like spam. The High Court
upheld the Internet libel provision but limited it to the author of the
libelous statement and clarified that only original authors of libelous
material are covered by the Cybercrime law, and not those who merely
received or reacted to it.

Instances when cybercrime law was applied:

1. The Office of the Cebu City Prosecutor has indicted an American who
allegedly maligned the reputation of his co-worker on Facebook in
2014. Prosecutor Fatima Asjali-Maadil found evidence to charge Andre
Philippe Laflamme with violation of Republic Act 10175, or the
Cybercrime Prevention Act of 2012, before the Regional Trial Court.
In her judicial affidavit, the complainant alleged that the
respondent, a senior manager of their outsourcing firm based in Cebu
City, defamed her on the social networking site, by posting her photo
with the caption, Id do anything for money. According to
complainant In posting that Id do anything for money, respondent
imputed a vice upon me by insinuating that I have a serious character
flaw and he did it publicly through Facebook,

2. A woman from Cebu who allegedly maligned a single mother in a

social networking site was also charged before the Cebu City Regional
Trial Court (RTC) for violating Republic Act (RA) No. 10175 otherwise
known as the Cybercrime Prevention Act of 2012. The accused called
the victim names like cheap.
In her affidavit, complainant alleged that the accused sent her
messages through cellular phone criticizing her for allegedly hurting a
man on Sept. 16, 2013. It was further alleged that complainant and this
man were in an illicit affair. The accused threatened complainant that
she will post the libelous statements on Facebook, whereupon
complainant deactivated her account. But the accused continued to
malign the complainant. When complainant reactivated her Facebook
account, she then was able to read the accuseds accusations against
her.
According to complainant, the accused posted the following
statements against her: This the counterfeiter, forger and a thief. A lot
of cases will be coming out soon from Cebu. Beware of this woman!

3. On March 13, 2012, an information for libel was filed in the RTC
against a teenager blogger and four others. The group was accused by
complainant of maligning her on a blog posted by one of them on April
6, 2008, on the website Multiply. According to complainant the group
put a Yahoo Messenger conversation between them on a blog by one
of them titled Meet My Backstabber Friend but edited her chat
name into an alias.
Complainant further alleged that several persons commented on the
blog further mocking her with contempt and insults. Worse, details of
confirming complainants identity were placed, like deliberate and
obvious hints in a sarcastic fashion of a futile attempt to cover up. One
of those who commented referred to the object of the blog as a bitch
and other derogatory names.

The information alleged that Calling a person backstabber, ugly,

frikin face, mother frikin dead kid, loser, bakla, bitch, ass and liar
within the knowledge of other persons is defamatory because there is
an imputation of a condition or a status, which tends to cause dishonor
or contempt of the offended party,

CASES:

ZALDY NUEZ vs. ELVIRA CRUZ-APAO,

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

FACTS:

Complainant Zaldy Nuez filed an illegal dismissal case against

PAGCOR before the Civil Service Commission (CSC). The CSC ordered
complainants reinstatement but a writ of preliminary injunction and a
temporary restraining order was issued by the Court of Appeals (CA) in
favor of PAGCOR, thus complainant was not reinstated to his former
job pending adjudication of the case. Desiring an expeditious decision
of his case, complainant sought the assistance of respondent Elvira
Cruz-Apao sometime in July 2004 after learning of the latters
employment with the CA from her sister, Magdalena David. During their
first telephone conversation and thereafter through a series of text
messages they exchanged via short message service
(SMS), complainant informed respondent of the particulars of his
pending case. Allegedly, complainant thought that respondent would
be able to advise him on how to achieve an early resolution of his case.

However, a week after their first telephone conversation,

respondent allegedly told complainant that a favorable and speedy
decision of his case was attainable but the person who was to draft the
decision was in return asking for Php1Million.

Complainant expostulated that he did not have that kind of

money since he had been jobless for a long time, to which respondent
replied, Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera,
pasensiya na. Complainant then tried to ask for a reduction of the
amount but respondent held firm asserting that the price had been set,
not by her but by the person who was going to make the decision.
Respondent even admonished complainant with the words Wala tayo
sa palengke iho! when the latter bargained for a lower amount.
 Complainant then asked for time to determine whether or not to
pay the money in exchange for the decision. Instead, in August of 2004,
he sought the assistance of Imbestigador. The crew of the TV program
accompanied him to Presidential Anti-Organized Crime Task Force-
Special Projects Group (PAOCTF-SPG) where he lodged a complaint
against respondent for extortion. Thereafter, he communicated with
respondent again to verify if the latter was still asking for the money
and to set up a meeting with her. Upon learning that respondents offer
of a favorable decision in exchange for Php1Million was still standing,
the plan for the entrapment operation was formulated
by Imbestigador in cooperation with the Presidential Anti-Organized
Crime Commission (PAOCC).

On 24 September 2004, complainant and respondent met for the

first time in person at the 2nd Floor of Jollibee, Times Plaza Bldg., the
place where the entrapment operation was later conducted. Patricia
Siringan, a researcher of Imbestigador, accompanied complainant and
posed as his sister-in-law. During the meeting, complainant clarified
from respondent that if he gave the amount of Php1Million, he would
get a favorable decision. This was confirmed by the latter together with
the assurance that it would take about a month for the decision to
come out. Respondent also explained that the amount guaranteed a
favorable decision only in the CA but did not extend to the Supreme
Court should the case be appealed later.

When respondent was asked where the money will go, she
claimed that it will go to a male researcher whose name she refused to
divulge. The researcher was allegedly a lawyer in the CA 5 th Division
where complainants case was pending. She also claimed that she will
not get any part of the money unless the researcher decides to give her
some.

Complainant tried once again to bargain for a lower amount

during the meeting but respondent asserted that the amount was fixed.
She even explained that this was their second transaction and the
reason why the amount was closed at Php1Million was because on a
previous occasion, only Php800,000.00 was paid by the client despite
the fact that the amount had been pegged at Php1.3Million.
Complainant then proposed that he pay a down payment of
Php700,000.00 while the balance of Php300,000.00 will be paid once
the decision had been released. However, respondent refused to
entertain the offer, she and the researcher having learned their lesson
from their previous experience for as then, the client no longer paid the
balance of Php500,000.00 after the decision had come out.

Complainant brought along copies of the documents pertinent to

his case during the first meeting. After reading through them,
respondent allegedly uttered, Ah, panalo ka. The parties set the next
meeting date at lunchtime on 28 September 2004 and it was
understood that the money would be handed over by complainant to
respondent then.

On the pre-arranged meeting date, five (5) PAOCTF agents,

namely: Capt. Reynaldo Maclang (Maclang) as team leader, SPO1
Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny
Feliciano, and PO2 Edgar delos Reyes arrived at around 11:30 in the
morning at Jollibee. Nuez and Siringan arrived at past noon and seated
themselves at the table beside the one occupied by the two (2) agents,
Banay and Villena. Complainant had with him an unsealed long brown
envelope containing ten (10) bundles of marked money and paper
money which was to be given to respondent. The envelope did not
actually contain the Php1Million demanded by respondent, but instead
contained paper money in denominations of Php100.00, Php500.00 and
Php1,000.00, as well as newspaper cut-outs. There were also ten (10)
authentic Php100.00 bills which had been previously dusted with ultra-
violet powder by the PAOCTF. The three other PAOCTF agents were
seated a few tables away and there were also three (3) crew members
from Imbestigador at another table operating a mini DV camera that
was secretly recording the whole transaction.

Respondent arrived at around 1:00 p.m. She appeared very

nervous and suspicious during the meeting. Ironically, she repeatedly
said that complainant might entrap her, precisely like those that were
shown on Imbestigador. She thus refused to receive the money then
and there. What she proposed was for complainant and Siringan to
travel with her in a taxi and drop her off at the CA where she would
receive the money.

More irony ensued. Respondent actually said that she felt there
were policemen around and she was afraid that once she took hold of
the envelope complainant proffered, she would suddenly be arrested
and handcuffed. At one point, she even said, Ayan o, tapos na silang
kumain, bakit hindi pa sila umaalis?, referring to Banay and Villena at
the next table. To allay respondents suspicion, the two agents stood up
after a few minutes and went near the staircase where they could still
see what was going on.

Complainant, respondent and Siringan negotiated for almost one

hour. Complainant and Siringan bargained for a lower price but
respondent refused to accede. When respondent finally touched the
unsealed envelope to look at the money inside, the PAOCTF agents
converged on her and invited her to the Western Police District (WPD)
Headquarters at United Nations Avenue for questioning. Respondent
became hysterical as a commotion ensued inside the restaurant.

On the way to the WPD on board the PAOCTF vehicle, Banay

asked respondent why she went to the restaurant. The latter replied
that she went there to get the Pp1Million.

Respondent was brought to the PNP Crime Laboratory at the

WPD where she was tested and found positive for ultra-violet powder
that was previously dusted on the money. She was later detained at the
WPD Headquarters.

During the hearing of this case, respondent maintained that what

happened was a case of instigation and not an entrapment. She
asserted that the offer of money in exchange for a favorable decision
came not from her but from complainant. To support her contention,
she presented witnesses who testified that it was complainant who
allegedly offered money to anyone who could help him with his
pending case. She likewise claimed that she never touched the money
on 28 September 2004, rather it was Capt. Maclang who forcibly held
her hands and pressed it to the envelope containing the money. She
thus asked that the administrative case against her be dismissed.

Question 1: Under the facts of this case, are the text messages (SMS)
admissible in evidence against respondent?

Answer: Yes. Text Messages constitutes an Ephemeral electronic

communication which is considered an electronic evidence.
Complainant was able to prove by his testimony in conjunction with the
text messages from respondent duly presented before the Committee
that the latter asked for Php1Milliion in exchange for a favorable
decision of the formers pending case with the CA. The text messages
were properly admitted by the Committee since the same are now
covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence
which provides:

Ephemeral electronic communication refers to telephone

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

Question 2: How should Ephemeral electronic communications be

proven under the rules?

Answer: Under Section 2, Rule 11 of the Rules on Electronic

Evidence, Ephemeral electronic communications shall be proven by the
testimony of a person who was a party to the same or who has
personal knowledge thereof . . . . In this case, complainant who was the
recipient of said messages and therefore had personal knowledge
thereof testified on their contents and import.

Respondent herself admitted that the cellphone number reflected

in complainants cellphone from which the messages originated was
hers. Moreover, any doubt respondent may have had as to the
admissibility of the text messages had been laid to rest when she and
her counsel signed and attested to the veracity of the text messages
between her and complainant.

It is also well to remember that in administrative cases, technical

rules of procedure and evidence are not strictly applied. We have no
doubt as to the probative value of the text messages as evidence in
determining the guilt or lack thereof of respondent in this case.
ASSOCIATE JUSTICE DELILAH VIDALLON-MAGTOLIS, COURT OF
APPEALS v. CIELITO M. SALUD, CLERK IV, COURT OF APPEALS, A.M.
No. CA-05-20-P Formerly OCA IPI No. 05-81-CA-P, September 9, 2005

FACTS:

Melchor Lagua was found guilty of homicide by the Regional Trial

Court of Pasig City, Branch 163. On appeal, the case was assigned to the
6th Division of the Court of Appeals. Lagua, who was then detained at
the Bureau of Prisons National Penitentiary in Muntinlupa City, filed a
Very Urgent Petition for Bail. Finding the petition well-taken, the
appellate court issued a Resolution on October 9, 2003, directing him
to post a Php200,000.00 bond. Laguas bond was approved in a
Resolution dated November 6, 2003, where the appellate court also
directed the issuance of an order of release in favor of Lagua. The
resolution was then brought to the Office of the Division Clerk of Court,
Atty. Maria Isabel M. Pattugalan-Madarang, for promulgation.

Irma Del Rosario, Utility Worker, noticed that respondent CIELITO

M. SALUD had unusual interest in the Lagua case. The respondent had
apparently been making inquiries whether the appellate court had
already directed the issuance of an order of release in the said case and
was initially told there was none yet. Due to his persistence, the records
of the case were eventually found. Atty. Madarang then directed the
typing of the Order of Release Upon Bond, and to notify the mailing
section that there were orders requiring personal service. At around
4:00 p.m., the respondent then went to Atty. Madarangs office and
assisted in arranging and stapling the papers for release. He brought
the said resolutions and other papers himself to the Mailing Section.

On November 7, 2003, the respondent went to the National

Penitentiary to serve the resolution and order of release in the Lagua
case. The respondent left the prison compound at around 2:30 p.m. In
the meantime, Atty. Madarang received a telephone call from a certain
Melissa Melchor, who introduced herself as Laguas relative. It was
about 2:00 p.m. The caller asked her how much more they had to give
to facilitate Laguas provisional liberty. The caller also told Atty.
Madarang that they had sought the help of a certain Rhodora Valdez of
the Regional Trial Court (RTC) of Pasig, where the criminal case
originated, but were told that they still had a balance to be given to
Justice Magtolis and Atty. Madarang through the respondent Cielito M.
Salud. Atty. Madarang then called the said court and asked to speak to
Ms. Valdez, pretending to be Laguas relative.

What transpired thereafter is contained in Atty. Madarangs

Affidavit dated December 8, 2003, as follows:

4. That upon telephone queries made with the office of

the Clerk of Court of RTC Pasig, I learned that Rhodora
Valdez is the incumbent Process Server of RTC, [Branch]
163, Pasig City, from which the original case against
accused-appellant Lagua originated. Disguising myself
as accused-appellant Laguas relative, I dialed [Branch]
163, RTC, Pasig (6314273) but Rhodora Valdez did not
report for work that day, according to Baby (also known
as Ester), her officemate (who) answered my call. She
added that Rhodora Valdez has been waiting for us
(Laguas relatives) to call. Her exact words were these:
Wala si Rhodora. Meron lang siyang nilakad. Pero
kahapon pa nya hinihintay ang tawag nyo. May kulang
pa kayo eh. Kailangan kasing i-en banc sa Court of
Appeals ang kaso ni Lagua.

5. That I coordinated with Ms. Cecil Secarro, the Acting

Chief of the Mailing Section, to inquire if it was
usual/normal for her to text her process servers on the
field for an update of their deliveries, to which she
answered in the affirmative. While she was in the office,
she texted Salud for his whereabouts and he replied,
that he was on his way back to Quezon City. That was
before 4 p.m., adding that his deliveries were ok.

6. That I got Saluds mobile phone number from Ms.

Secarro and started texting him at about the same time
Ms. Secarro did. I represented myself as Arlyn, Laguas
relative. Most of his text messages are still stored in my
mobile phone. In fact, I received one text message from
him while I was at the office of Justice Magtolis, (the
Chairman of the 6thDivision and the ponente of C.R. No.
27423) in the late afternoon of November 7, 2003 while
reporting to her this incident. Those stored in my phone
are the following:
1. bkit, C rhodora to. 639204439082. Nov. 2003,
15:36:15

2. CNO KAMAGANAK AT ANONG PANGALAN

MO 639204439082, 7 Nov 2003 16:14:47

3. SINO K KC NAGHIWALAY N KAMI

639204439082, 7 Nov 2003 16:40:21

4. TAWAG K S AKIN 639204439082 7 Nov 2003

17:18:47

5. NARELEASE N C MR. LAGUA. NAGKITA N B

KAYO 639204439082-7 Nov 2003 19:44:52

6. Magkano b and binigay nyo sa middle nyo.

Puede bang malaman 639184470111-7 Nov
2003 20:32:05

7. Gud evening. May gusto lng akong malaman.

Sana alang makaalam kahit cino. Lito
6391844701117 Nov. 2003 19:54:20

8. Cno ang kausap n Rhodora. Pwede bang

malaman 639184470111-7 Nov 2003 20:37:57

9. May landline ka. Tawagan kta bukas nang

umaga 639184470111-7 Nov 2003 20:56:31

10. Wag s Court of Appeal. Txt na lang kta kung

saan. 639184470111-7 Nov 2003 20:52:58

11. Gusto mo bukas nang umaga magkita tyo.

639184470111 7 Nov 2003 20:57:10

12. D ba pwede bukas tyo kita. May gusto lang

ako malaman 639184470111 7 Nov 2003
21:02:41
 13. D 2ngkol kay rhodora duon sa kasama ko
kaninang lalakeng pinsan 639184470111 7 Nov
2003, 21:04:28

14. Ala po ako sa Lunes sa opis. Sa hapon po

puede kyo 639184470111, 7 Nov 2003 21:07:23

15. Kay Melchor Lagua 639184470111 7 Nov

2003 21:08:19

16. Kasama ko cya kanina nang lumabas

639184470111 7 Nov. 2003 21:13:05

17. Ano m ba Melchor Lagua 639184470111 7

Nov 2003 21:15:52

18. Between 5 and 5:30 ng hapon. Bkit.

639184470111 7 Nov. 2003 21:54:24

19. 3 PM PUWEDE KB 639004039082 10 Nov

2003 12:09:32

20. Kilala mo b c rhodora. Nagkita na b kayo.

Ala naman problema sa kanya. Ok naman
639184470111 7 Nov 2003, 21:57:13

21. MAGKITA N LANG TAYO 639204439082 10

Nov. 2003, 12:20:16

22. A, OK, NAGKITA N B KAYO NG

KAMAGANAK MO 639204439082 10 Nov 2003
15:12:14

23. D TALAGA AKO DARATING DAHIL WALA

AKONG KAILANGAN S IYO. 639204439082 10
Nov 2003 18:36:03

7. That Salud called me up in the morning of November

8, 2003 at around 7:33 but I purposely did not answer
him. Why did he need to call me up?
8. That I personally called up the Bureau of Prisons for
the exact time the Order of Release was delivered and
when accused appellant Lagua was released. I learned
that the Order of Release was received at 9:15 A.M. and
that Lagua was released between 5-5:30 P.M. of
November 7, 2003.

9. That I was able to talk to Rhodora Valdez the

following Monday, November 10, 2003. Again, I
introduced myself as Laguas relative, Arlyn and told her
I only wanted to know how much more we had to pay
for Laguas release. She refused to entertain me because
according to her, Hindi ikaw ang kausap ko. Duda ako sa
yo. Kung gusto mo, puntahan mo ako dito bukas, para
magkita tayo. Pero lumabas na si Lagua. Itinawag sa akin
ni Lito Salud. Then, she [hung] up.

10. That on Tuesday, November 11, 2003, I brought Salud,

accompanied by Ms. Secarro to Justice Magtolis. Out of
the confrontation, we discovered that Salud did not
properly serve the copies of the Resolution and Order of
Release upon the accused-appellant and his counsel,
Atty. Salvador C. Quimpo of the Quimpo Dingayan-
Quimpo and Associates. He gave them to a certain Art,
allegedly Laguas relative who he claimed approached
him at the Bureau of Prisons in the morning of
November 7, 2003. He told Justice Magtolis that he gave
these documents to Art, who promised to take care of
them, even before he could deliver the copy addressed
to the Director of Prisons. He never mentioned that this
Art was connected with the office of accused-appellants
counsel. Because of this information from Salud himself,
I did not sign the Certificate of Service, Annex C.

11. That several days later, Salud accompanied by Ms.

Secarro, came to my office to apologize. But before he
could even say a word, he broke down in [wails]. In
between his loud cries, he uttered, Boss, patawad po,
alang-alang sa aking mga anak.
 On November 11, 2003, Justice Magtolis called the respondent to
her office. When confronted, the respondent denied extorting or
receiving money for Laguas release, or in any other case. He, however,
admitted serving the copies of resolution and order of release intended
for Lagua and his counsel to Art Baluran.

Cielito Salud, Clerk IV, Mailing Section of the Judicial Records

Division, Court of Appeals (CA) was subsequently charged with the
following offenses:

1. Inefficiency and incompetence in the performance of

official duties;
2. Conduct grossly prejudicial to the best interest of the
service; and
3. Directly or indirectly having financial and material
interest in an official transaction, under Section 22,
paragraphs (p), (t) and (u), Rule XIV of the Omnibus
Rules Implementing the Civil Service Law.

Question 3: Respondent claims that the admission of text

messages against him constitutes a violation of his right to privacy. Is
this claim valid?

Answer: Respondents claim is unavailing. Text messages have

been classified as ephemeral electronic communication under Section
1(k), Rule 2 of the Rules on Electronic Evidence, and shall be proven by
the testimony of a person who was a party to the same or has personal
knowledge thereof.

At any rate, any question as to the admissibility of such messages

is now moot and academic, as the respondent himself, as well as his
counsel, already admitted that he was the sender of the first three
messages on Atty. Madarangs cell phone.

In Zaldy Nuez v. Elvira Cruz-Apao, the Court, in finding the

respondent therein guilty of dishonesty and grave misconduct,
considered text messages addressed to the complainant asking for a
million pesos in exchange for a favorable decision in a case pending
before the CA. The Court had the occasion to state:
 The text messages were properly admitted by the
Committee since the same are now covered by Section 1(k),
Rule 2 of the Rules on Electronic Evidence, which provides:

Ephemeral electronic communication refers to

telephone conversations, text messages and other
electronic forms of communication the evidence of
which is not recorded or retained.

Under Section 2, Rule 11 of the [said rules], Ephemeral

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

PEOPLE OF THE PHILIPPINES v. NOEL ENOJAS Y HINGPIT, et al., G.R.

No. 204894, March 10, 2014

FACTS:

On September 4, 2006 the City Prosecutor of Las Pias charged

appellants Noel Enojas y Hingpit (Enojas), Arnold Gomez y Fabregas
(Gomez), Fernando Santos y Delantar (Santos), and Roger Jalandoni y
Ari (Jalandoni) with murder before the Las Pias Regional Trial Court
(RTC) in Criminal Case 06-0854.
 PO2 Eduardo Gregorio, Jr. (PO2 Gregorio) testified that at around
10:30 in the evening of August 29, 2006, he and PO2 Francisco
Pangilinan (PO2 Pangilinan) were patrolling the vicinity of Toyota
Alabang and SM Southmall when they spotted a taxi that was
suspiciously parked in front of the Aguila Auto Glass shop near the
intersection of BF Almanza and Alabang-Zapote Roads. The officers
approached the taxi and asked the driver, later identified as accused
Enojas, for his documents. The latter complied but, having entertained
doubts regarding the veracity of documents shown them, they asked
him to come with them to the police station in their mobile car for
further questioning.

Accused Enojas voluntarily went with the police officers and left
his taxi behind. On reaching the 7-11 convenience store on the Zapote-
Alabang Road, however, they stopped and PO2 Pangilinan went down
to relieve himself there. As he approached the stores door, however, he
came upon two suspected robbers and shot it out with them. PO2
Pangilinan shot one suspect dead and hit the other who still managed
to escape. But someone fired at PO2 Pangilinan causing his death.

On hearing the shots, PO2 Gregorio came around and fired at an

armed man whom he saw running towards Pilar Village. He saw another
man, who came from the Jollibbee outlet, run towards Alabang-Zapote
Road while firing his gun at PO2 Gregorio. The latter returned fire but
the men were able to take a taxi and escape. PO2 Gregorio radioed for
help and for an ambulance. On returning to his mobile car, he realized
that accused Enojas, the taxi driver they had with them had fled.

P/Insp. Ferjen Torred (Torred), the Chief of Investigation Division

of the Las Pias Police, testified that he and PO2 Teoson Rosarito (PO2
Rosarito) immediately responded to PO2 Gregorios urgent call.
Suspecting that accused Enojas, the taxi driver who fled, was involved in
the attempted robbery, they searched the abandoned taxi and found a
mobile phone that Enojas apparently left behind. P/Ins. Torred
instructed PO3 Joel Cambi (PO3 Cambi) to monitor its incoming
messages.

The police later ascertained that the suspect whom PO2

Pangilinan had killed was someone named Reynaldo Mendoza who was
armed with a .38 caliber revolver. The police found spent 9 mm and M-
16 rifle shells at the crime scene. Follow-up operations at nearby
provinces resulted in finding the dead body of one of the suspects, Alex
Angeles, at the Metro South Medical Center along Molino, Bacoor,
Cavite.

PO3 Cambi and PO2 Rosarito testified that they monitored the
messages in accused Enojas mobile phone and, posing as Enojas,
communicated with the other accused. The police then conducted an
entrapment operation that resulted in the arrest of accused Santos and
Jalandoni. Subsequently, the police were also able to capture accused
Enojas and Gomez. The prosecution presented the transcripts of the
mobile phone text messages between Enojas and some of his co-
accused.

Manifesting in open court that they did not want to adduce any
evidence or testify in the case, the accused opted to instead file a trial
memorandum on March 10, 2008 for their defense. They pointed out
that they were entitled to an acquittal since they were all illegally
arrested and since the evidence of the text messages were inadmissible,
not having been properly identified.

On June 2, 2008 the RTC rendered judgment, finding all the

accused guilty of murder qualified by evident premeditation and use of
armed men with the special aggravating circumstance of use of
unlicensed firearms.

Upon review, the Court of Appeals (CA) dismissed the appeal and
affirmed in toto the conviction of the accused. The CA, however, found
the absence of evident premeditation since the prosecution failed to
prove that the several accused planned the crime before committing it.
The accused appealed from the CA to the Supreme Court.

Question 4: Accused-appellants question the admissibility of text

messages testified to by PO3 Cambi for alleged lack of identification
and authentication under the rules. Is the objection to the admissibility
of the text messages valid?

Answer: No. The text messages were admitted by the RTC in

conformity with the Supreme Courts earlier Resolution applying the
Rules on Electronic Evidence to criminal actions. Text messages are to
be proved by the testimony of a person who was a party to the same or
has personal knowledge of them. The rules provide that Ephemeral
electronic communications shall be proven by the testimony of a
person who was a party to the same or has personal knowledge
thereof. In the absence or unavailability of such witnesses, other
competent evidence may be admitted.

Here, PO3 Cambi, posing as the accused Enojas, exchanged text

messages with the other accused in order to identify and entrap them.
As the recipient of those messages sent from and to the mobile phone
in his possession, PO3 Cambi had personal knowledge of such
messages and was competent to testify on them.

// commentary:

The Supreme Court did not discuss the issue on whether the police
have the right to use the text messages as tools to arrest and prosecute
the accused, or whether or not there was lawful search and seizure of
the mobile phone data. Is it not that under the poisonous tree doctrine
the text messages in the mobile phone, which led to the arrest and
identification of the accused, are inadmissible considering that all
evidence resulting from the unlawful use of the mobile phone must be
excluded?

In a similar case [Riley vs. California, No. 12-132, 25 June 2014], the
U.S. Supreme Court held that, although a mobile phone is not immune
from search, a warrant is generally required before the search. In said
case, the Supreme Court recognized notable circumstances that brings
a mobile phone to a level similar to personal records and documents,
and thus protected by the constitutional right against warrantless
search and seizure, thus:

Cell phones differ in both a quantitative and a qualitative sense

from other objects that might be carried on an arrestees person.
Notably, modern cell phones have an immense storage capacity.
Before cell phones, a search of a person was limited by physical
realities and generally constituted only a narrow intrusion on
privacy. But cell phones can store millions of pages of text,
thousands of pictures, or hundreds of videos. This has several
interrelated privacy consequences. First, a cell phone collects in
one place many distinct types of information that reveal much
more in combination than any isolated record. Second, the
phones capacity allows even just one type of information to
 convey far more than previously possible. Third, data on the
phone can date back for years. In addition, an element of
pervasiveness characterizes cell phones but not physical records.
A decade ago officers might have occasionally stumbled across a
highly personal item such as a diary, but today many of the more
than 90% of American adults who own cell phones keep on their
person a digital record of nearly every aspect of their lives.

Sections 15 and 16 of Republic Act No. 10175, otherwise known as

the Cybercrime Prevention Act of 2012, acknowledges the right of law
enforcement authorities to seize and analyze computer data, among
others provided that a search and seizure warrant must have been
properly issued. Thus:

SEC. 15. Search, Seizure and Examination of Computer Data. Where a

search and seizure warrant is properly issued, the law enforcement
authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception,
as defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data
storage medium; and
(e) To render inaccessible or remove those computer data in the
accessed computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any
person who has knowledge about the functioning of the computer
system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to
enable the undertaking of the search, seizure and examination.
Law enforcement authorities may request for an extension of time to
complete the examination of the computer data storage medium and
to make a return thereon but in no case for a period longer than thirty
(30) days from date of approval by the court.

SEC. 16. Custody of Computer Data. All computer data, including

content and traffic data, examined under a proper warrant shall, within
forty-eight (48) hours after the expiration of the period fixed therein, be
deposited with the court in a sealed package, and shall be
accompanied by an affidavit of the law enforcement authority executing
it stating the dates and times covered by the examination, and the law
enforcement authority who may access the deposit, among other
relevant data.

It must be noted that the terms computer and computer data are
defined in the law as to include mobile phone and mobile phone data.

Notably also, the factual circumstances in Enojas occurred prior to the

enactment of the RA 10175. But since the case was decided long after
the enactment of the Cybercrime Prevention Act of 2012 the provisions
of the law could have been retroactively applied in favor of the
accused.

Notably also, prosecution under RA 10175 was enjoined the Supreme

Court at that time. But the pertinent provisions of the law pertaining to
the total exclusionary rule as well as the fruit of the poisonous tree
doctrine should nonetheless have been applied or at least taken into
consideration considering the obvious if not overwhelming reasonable
expectation of the public that mobile phones and mobile phone data
are private and cannot be subjected to unreasonable searches and
seizure without the appropriate warrant issued by a competent court.

RUSTAN ANG y PASCUA v. THE HONORABLE COURT OF APPEALS and

IRISH SAGUD, G.R. No. 182835, April 20, 2010

FACTS:

This case concerns a claim of commission of the crime of violence

against women when a former boyfriend sent to the girl the picture of a
naked woman, not her, but with her face on it. The public prosecutor
charged Rustan Ang before the Regional Trial Court (RTC) of Baler,
Aurora, of violation of the Anti-Violence Against Women and Their
Children Act or Republic Act (R.A.) 9262 in an information that reads:

That on or about June 5, 2005, in the Municipality of

Maria Aurora, Province of Aurora, Philippines and within the
jurisdiction of this Honorable Court, the said accused
willfully, unlawfully and feloniously, in a purposeful and
reckless conduct, sent through the Short Messaging Service
(SMS) using his mobile phone, a pornographic picture to
 one Irish Sagud, who was his former girlfriend, whereby the
face of the latter was attached to a completely naked body
of another woman making it to appear that it was said Irish
Sagud who is depicted in the said obscene and
pornographic picture thereby causing substantial emotional
anguish, psychological distress and humiliation to the said
Irish Sagud.

The prosecution presented in evidence the obscene picture as

Exhibit A and as Exhibit C the photograph depicting the Sony Ericsson
P900 cellphone that was used, which cellphone Rustan admitted
owning during the pre-trial conference. Irish Sagud testified that she
received the obscene picture and malicious text messages and that the
senders cellphone numbers belonged to Rustan with whom she had
been previously in communication. To prove that the cellphone
numbers belonged to Rustan, Irish and the police used such numbers
to summon him to come to Lorentess Resort and he did. The
prosecution did not anymore present in evidence the confiscated
cellphone and SIM cards.

In his defense, Rustan admitted having sent the malicious text

messages to Irish but according to him he himself received those
messages from an unidentified person who was harassing Irish and he
merely forwarded the same to her, using his cellphone. Rustan,
however, did not present the cellphone number of the unidentified
person who allegedly sent the messages to him.

Question 5: Rustan Ang argues that, since he was arrested and

certain items were seized from him without any warrant, the evidence
of SMS presented against him should be deemed inadmissible. Is the
argument valid?

Answer: No. The fact is that the prosecution did not present in
evidence either the cellphone or the SIM cards that the police officers
seized from him at the time of his arrest. The prosecution did not need
such items to prove its case. Exhibit C for the prosecution was but a
photograph depicting the Sony Ericsson P900 cellphone that was used,
which cellphone Rustan admitted owning during the pre-trial
conference.
 Actually, though, the bulk of the evidence against him consisted
in Irishs testimony that she received the obscene picture and malicious
text messages and that the senders cellphone numbers belonged to
Rustan with whom she had been previously in communication. Indeed,
to prove that the cellphone numbers belonged to Rustan, Irish and the
police used such numbers to summon him to come to Lorentess Resort
and he did. Consequently, the prosecution did not have to present the
confiscated cellphone and SIM cards to prove that Rustan sent those
messages.

Moreover, Rustan admitted having sent the malicious text

messages to Irish. His defense was that he himself received those
messages from an unidentified person who was harassing Irish and he
merely forwarded the same to her, using his cellphone. But Rustan
never presented the cellphone number of the unidentified person who
sent the messages to him to authenticate the same. The RTC did not
give credence to such version and neither will this Court. Besides, it was
most unlikely for Irish to pin the things on Rustan if he had merely tried
to help her identify the sender.

Question 6: When the case reached the Supreme Court, Rustan

claims that the obscene picture sent to Irish through a text message
constitutes an electronic document. Thus, it should be authenticated by
means of an electronic signature, as provided under Section 1, Rule 5 of
the Rules on Electronic Evidence (A.M. 01-7-01-SC). The failure of the
prosecution to authenticate in accordance with the rules renders the
electronic document inadmissible. Is the contention valid?

Answer: Rustan is raising this objection to the admissibility of the

obscene picture, Exhibit A, for the first time before the Supreme
Court. The objection is too late since he should have objected to the
admission of the picture on such ground at the time it was offered in
evidence. He should be deemed to have already waived such ground
for objection.

Besides, the rules he cites do not apply to the present criminal

action. The Rules on Electronic Evidence applies only to civil actions,
quasi-judicial proceedings, and administrative proceedings. In
conclusion, this Court finds that the prosecution has proved each and
every element of the crime charged beyond reasonable doubt.
 Note: SC En Banc Resolution dated September 24, 2002 in AM
No. 01-07-01, A.M. No. 01-7-01-SC, Re: Expansion of the Coverage of
the Rules on Electronic Evidence, thereby making the rules applicable to
criminal cases as well.

NATIONAL POWER CORPORATION v. HON. RAMON G. CODILLA, JR.,

Presiding Judge, RTC of Cebu, Br.19, BANGPAI SHIPPING COMPANY,
and WALLEM SHIPPING, INCORPORATED, G.R. No. 170491, April 4,
2007

FACTS:

On 20 April 1996, M/V Dibena Win, a vessel of foreign registry

owned and operated by Bangpai Shipping, Co., allegedly bumped and
damaged petitioners Power Barge 209 which was then moored at
the Cebu International Port. On 26 April 1996, petitioner filed before
the Cebu RTC a complaint for damages against Bangpai Shipping Co.,
for the alleged damages caused on petitioners power barges.
Thereafter, petitioner filed an Amended Complaint dated 8 July
1996 impleading Wallem Shipping, Inc., as additional defendant,
contending that the latter is a ship agent of Bangpai Shipping Co.

Petitioner, after adducing evidence during the trial of the case,

filed a formal offer of evidence before the lower court on 2 February
2004 consisting of Exhibits A to V together with the sub-marked
portions thereof, as follows:

1. Exhibit A is a photocopy of a letter manually signed by a certain

Jose C. Troyo, with RECEIVED stamped thereon, together with a
handwritten date;

2. Exhibit C is a photocopy of a list of estimated cost of damages of

petitioners power barges 207 and 209 prepared by Hopewell
Mobile Power Systems Corporation and manually signed by
Messrs. Rex Malaluan and Virgilio Asprer;

3. Exhibit D is a photocopy of a letter manually signed by a certain

Nestor G. Enriquez, Jr., with RECEIVED stamped thereon, together
with a handwritten notation of the date it was received;
4. Exhibit E is a photocopy of a Standard Marine Protest Form which
was filled up and accomplished by Rex Joel C. Malaluan in his
own handwriting and signed by him. Portions of the Juratwere
handwritten, and manually signed by the Notary Public;

5. Exhibit H is a photocopy of a letter manually signed by Mr. Nestor

G. Enriquez, Jr. with RECEIVED stamped thereon, together with a
handwritten notation of the date it was received;

6. Exhibit I is a photocopy of a computation of the estimated energy

loss allegedly suffered by petitioner which was manually signed
by Mr. Nestor G. Enriquez, Jr.;

7. Exhibit J is a photocopy of a letter containing the breakdown of

the cost estimate, manually signed by Mr. Nestor G. Enriquez, Jr.,
with RECEIVED stamped thereon, together with a handwritten
notation of the date it was received, and other handwritten
notations;

8. Exhibit K is a photocopy of the

Subpoena Duces Tecum Ad Testificandum written using a manual
typewriter, signed manually by Atty. Ofelia Polo-De Los Reyes,
with a handwritten notation when it was received by the party;

9. Exhibit L is a photocopy of a portion of the electricity supply and

operation and maintenance agreement between petitioner and
Hopewell, containing handwritten notations and every page
containing three unidentified manually placed signatures;

10. Exhibit M is a photocopy of the Notice of Termination with

attachments addressed to Rex Joel C. Malaluan, manually signed
by Jaime S. Patinio, with a handwritten notation of the date it was
received. The sub-markings also contain manual signatures
and/or handwritten notations;

11. Exhibit N is a photocopy of a letter of termination with

attachments addressed to VIrgilio Asprer and manually signed by
Jaime S. Patino. The sub-markings contain manual signatures
and/or handwritten notations;

12. Exhibit O is the same photocopied document marked as Annex C;

 13. Exhibit P is a photocopy of an incident report manually signed by
Messrs. Malaluan and Bautista and by the Notary Public, with
other handwritten notations;

14. Exhibit Q is a photocopy of a letter manually signed

by Virgilio Asprer and by a Notary Public, together with other
handwritten notations.

Consequently, Bangpai Shipping Co. and Wallem Shipping, Inc.

filed their respective objections to petitioners formal offer of evidence.

On 16 November 2004, public respondent judge issued order

denying the admission and excluding from the records petitioners
Exhibits A, C, D, E, H and its sub-markings, I, J and its sub-markings, K,
L, M and its sub-markings, N and its sub-markings, O, P and its sub-
markings, Q and its sub-markings, R and S and its sub-markings for
being mere photocopies.

Upon denial of petitioners Motion for Reconsideration, petitioner

filed a Petition for Certiorari under Rule 65 of the Rules of Civil
Procedure before the Court of Appeals maintaining that public
respondent Judge acted with grave abuse of discretion amounting to
lack or excess of jurisdiction in denying the admission of its exhibits.
On 9 November 2005, the appellate court issued a Decision dismissing
petitioners petition for certiorari.

Question 7: Petitioner insists that, contrary to the rulings of both

the trial court and the appellate court, the photocopies it presented as
documentary evidence actually constitute electronic evidence based on
its own premise that an electronic document as defined under Section
1(h), Rule 2 of the Rules on Electronic Evidence is not limited to
information that is received, recorded, retrieved or produced
electronically. Rather, petitioner maintains that an electronic document
can also refer to other modes of written expression that is produced
electronically, such as photocopies, as included in the sections catch-
all proviso: any print-out or output, readable by sight or other means.

The said section reads: "Electronic document" refers to

information or the representation of information, data, figures, symbols
or other modes of written expression, described or however
represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or
produced electronically. It includes digitally signed documents and any
print-out or output, readable by sight or other means, which accurately
reflects the electronic data message or electronic document. For
purposes of these Rules, the term "electronic document" may be used
interchangeably with "electronic data message".

According to petitioner, the photocopies it offered as formal

evidence before the trial court are the functional equivalent of their
original pursuant to Section 1, Rule 3 of the Rules on Electronic
Evidence, which reads:

Section 1. Electronic documents as functional equivalent of

paper-based documents. Whenever a rule of evidence refers to the
term writing, document, record, instrument, memorandum or any other
form of writing, such term shall be deemed to include an electronic
document as defined in these Rules.

Is petitioners argument tenable?

Answer: No. The focal point of this entire controversy is

petitioners obstinate contention that the photocopies it offered as
formal evidence before the trial court are the functional equivalent of
their original based on its inimitable interpretation of the Rules on
Electronic Evidence.

An electronic document refers to information or the

representation of information, data, figures, symbols or other models of
written expression, described or however represented, by which a right
is established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes digitally
signed documents and any printout, readable by sight or other means
which accurately reflects the electronic data message or electronic
document.

The rules use the word information to define an electronic

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

A perusal of the information contained in the photocopies

submitted by petitioner will reveal that not all of the contents therein,
such as the signatures of the persons who purportedly signed the
documents, may be recorded or produced electronically. By no stretch
of the imagination can a persons signature affixed manually be
considered as information electronically received, recorded,
transmitted, stored, processed, retrieved or produced. Hence, the
argument of petitioner that since these paper printouts were produced
through an electronic process, then these photocopies are electronic
documents as defined in the Rules on Electronic Evidence is obviously
an erroneous, if not preposterous, interpretation of the law. Having
thus declared that the offered photocopies are not tantamount to
electronic documents, it is consequential that the same may not be
considered as the functional equivalent of their original as decreed in
the law.

Furthermore, no error can be ascribed to the court a quo in

denying admission and excluding from the records petitioners Exhibits
A, C, D, E, H and its sub-markings, I, J and its sub-markings, K, L, M and
its sub-markings, N and its sub-markings, O, P and its sub-markings, Q
and its sub-markings, and R. The trial court was correct in rejecting
these photocopies as they violate the best evidence rule and are
therefore of no probative value being incompetent pieces of
evidence. Before the onset of liberal rules of discovery, and modern
technique of electronic copying, the best evidence rule was designed to
guard against incomplete or fraudulent proof and the introduction of
altered copies and the withholding of the originals. But the modern
justification for the rule has expanded from the prevention of fraud to a
recognition that writings occupy a central position in the law. The
importance of the precise terms of writings in the world of legal
relations, the fallibility of the human memory as reliable evidence of the
terms, and the hazards of inaccurate or incomplete duplicate are the
concerns addressed by the best evidence rule.
 Moreover, as mandated under Section 2, Rule 130 of the Rules of
Court:

"SECTION 2. Original writing must be produced; exceptions.

There can be no evidence of a writing the contents of which
is the subject of inquiry, other than the original writing
itself, except in the following cases:
(a) When the original has been lost, destroyed, or cannot
be produced in court;
(b) When the original is in the possession of the party
against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original is a record or other document in the
custody of a public officer;
(d) When the original has been recorded in an existing
record a certified copy of which is made evidence by law;
(e) When the original consists of numerous accounts or
other documents which cannot be examined in court
without great loss of time and the fact sought to be
established from them is only the general result of the
whole."

When the original document has been lost or destroyed, or

cannot be produced in court, the offeror, upon proof of its execution or
existence and the cause of its unavailability without bad faith on his
part, may prove its contents by a copy, or by a recital of its contents in
some authentic document, or by the testimony of witnesses in the
order stated. The offeror of secondary evidence is burdened to prove
the predicates thereof:

(a) the loss or destruction of the original without bad faith on the part
of the proponent/offeror which can be shown by circumstantial
evidence of routine practices of destruction of documents; (b) the
proponent must prove by a fair preponderance of evidence as to raise
a reasonable inference of the loss or destruction of the original copy;
and (c) it must be shown that a diligent and bona fide but unsuccessful
search has been made for the document in the proper place or places.

However, in the case at bar, though petitioner insisted in offering the

photocopies as documentary evidence, it failed to establish that such
offer was made in accordance with the exceptions as enumerated
under the abovequoted rule. Accordingly, we find no error in the Order
of the court a quo denying admissibility of the photocopies offered by
petitioner as documentary evidence.

// Finally, it perplexes this Court why petitioner continued to

obdurately disregard the opportunities given by the trial court for it to
present the originals of the photocopies it presented yet comes before
us now praying that it be allowed to present the originals of the
exhibits that were denied admission or in case the same are lost, to lay
the predicate for the admission of secondary evidence. Had petitioner
presented the originals of the documents to the court instead of the
photocopies it obstinately offered as evidence, or at the very least laid
the predicate for the admission of said photocopies, this controversy
would not have unnecessarily been brought before the appellate court
and finally to this Court for adjudication. Had it not been for petitioners
intransigence, the merits of petitioners complaint for damages would
have been decided upon by the trial court long ago. As aptly
articulated by the Court of Appeals, petitioner has only itself to blame
for the respondent judges denial of admission of its aforementioned
documentary evidence and consequently, the denial of its prayer to be
given another opportunity to present the originals of the documents
that were denied admission nor to lay the predicate for the admission
of secondary evidence in case the same has been lost.

BRICCIO Ricky A. POLLO vs. CHAIRPERSON KARINA CONSTANTINO-

DAVID, et al.,
G.R. No. 181881, October 18, 2011

FACTS:

This case involves a search of office computer assigned to a

government employee who was charged administratively and
eventually dismissed from the service. The employees personal files
stored in the computer were used by the government employer as
evidence of misconduct.
 BRICCIO Ricky A. POLLO is a former Supervising Personnel
Specialist of the CSC Regional Office No. IV and also the Officer-in-
Charge of the Public Assistance and Liaison Division (PALD) under
the Mamamayan Muna Hindi Mamaya Na program of the CSC.

On January 3, 2007, an unsigned letter-complaint addressed to

CSC Chairperson Karina Constantino-David which was marked
Confidential and sent through a courier service (LBC) from a certain
Alan San Pascual of Bagong Silang, Caloocan City, was received by the
Integrated Records Management Office (IRMO) at the CSC Central
Office. Following office practice in which documents marked
Confidential are left unopened and instead sent to the addressee, the
aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New

Year!
As a concerned citizen of my beloved country, I would
like to ask from you personally if it is just alright for an
employee of your agency to be a lawyer of an accused govt
employee having a pending case in the csc. I honestly think
this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of

your attorny in the region 4 office. He is the chief of the
Mamamayan muna hindi mamaya na division. He have
been helping many who have pending cases in the Csc. The
justice in our govt system will not be served if this will
continue. Please investigate this anomaly because our
perception of your clean and good office is being tainted.

Concerned Govt employee

 Chairperson David immediately formed a team of four personnel
with background in information technology (IT), and issued a memo
directing them to conduct an investigation and specifically to back up
all the files in the computers found in the Mamamayan Muna (PALD)
and Legal divisions.

The backing-up of all files in the hard disk of computers at the

PALD and Legal Services Division (LSD) was witnessed by several
employees. All the computers in the PALD were thereafter sealed and
secured for the purpose of preserving all the files stored therein.
Several diskettes containing the back-up files sourced from the hard
disk of PALD and LSD computers were turned over to Chairperson
David. The contents of the diskettes were examined by the CSCs Office
for Legal Affairs (OLA). It was found that most of the files in the 17
diskettes containing files copied from the computer assigned to and
being used by the petitioner, numbering about 40 to 42 documents,
were draft pleadings or letters in connection with administrative cases
in the CSC and other tribunals. On the basis of this finding, Chairperson
David issued the Show-Cause Order dated January 11, 2007, requiring
Pollo to submit his explanation or counter-affidavit within five days
from notice.

Evaluating the subject documents obtained from Pollos personal

files, Chairperson David made the following observations:

Most of the foregoing files are drafts of legal

pleadings or documents that are related to or connected
with administrative cases that may broadly be lumped as
pending either in the CSCRO No. IV, the CSC-NCR, the
CSC-Central Office or other tribunals. It is also of note that
most of these draft pleadings are for and on behalves of
parties, who are facing charges as respondents in
administrative cases. This gives rise to the inference that the
one who prepared them was knowingly, deliberately and
willfully aiding and advancing interests adverse and inimical
to the interest of the CSC as the central personnel agency
of the government tasked to discipline misfeasance and
malfeasance in the government service. The number of
pleadings so prepared further demonstrates that such
person is not merely engaged in an isolated practice but
pursues it with seeming regularity. It would also be the
 height of naivete or credulity, and certainly against
common human experience, to believe that the person
concerned had engaged in this customary practice without
any consideration, and in fact, one of the retrieved files
(item 13 above) appears to insinuate the collection of
fees. That these draft pleadings were obtained from the
computer assigned to Pollo invariably raises the
presumption that he was the one responsible or had a hand
in their drafting or preparation since the computer of origin
was within his direct control and disposition.

Pollo denied that he is the person referred to in the anonymous

letter-complaint which had no attachments to it, because he is not a
lawyer and neither is he lawyering for people with cases in the CSC. He
accused CSC officials of conducting a fishing expedition when they
unlawfully copied and printed personal files in his computer, and
subsequently asking him to submit his comment which violated his
right against self-incrimination. He asserted that he had protested the
unlawful taking of his computer done while he was on leave, citing the
letter dated January 8, 2007 in which he informed Director Castillo that
the files in his computer were his personal files and those of his sister,
relatives, friends and some associates and that he is not authorizing
their sealing, copying, duplicating and printing as these would violate
his constitutional right to privacy and protection against self-
incrimination and warrantless search and seizure. He pointed out that
though government property, the temporary use and ownership of the
computer issued under a Memorandum of Receipt (MR) is ceded to the
employee who may exercise all attributes of ownership, including its
use for personal purposes. As to the anonymous letter, petitioner
argued that it is not actionable as it failed to comply with the
requirements of a formal complaint under the Uniform Rules on
Administrative Cases in the Civil Service (URACC). In view of the illegal
search, the files/documents copied from his computer without his
consent is thus inadmissible as evidence, being fruits of a poisonous
tree.

On February 26, 2007, the CSC issued Resolution No. 070382

finding prima facie case against Pollo and charging him with
Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest
of the Service and Violation of R.A. No. 6713 ( Code of Conduct and
Ethical Standards for Public Officials and Employees ). . . . Since the
charges fall under Section 19 of the URACC, petitioner was likewise
placed under 90 days preventive suspension effective immediately
upon receipt of the resolution. Petitioner received a copy of Resolution
No. 070382 on March 1, 2007.

Question 8: Is the search conducted on the employees office

computer and the copying of his personal files without his knowledge
and consent a transgression on his constitutional right to privacy of
communication and correspondence under Section 3(1), Article III of
the 1987 Constitution?

Answer: No. In this inquiry, the relevant surrounding

circumstances to consider include (1) the employees relationship to the
item seized; (2) whether the item was in the immediate control of the
employee when it was seized; and (3) whether the employee took
actions to maintain his privacy in the item. These factors are relevant to
both the subjective and objective prongs of the reasonableness inquiry,
and we consider the two questions together. Thus, where the employee
used a password on his computer, did not share his office with co-
workers and kept the same locked, he had a legitimate expectation of
privacy and any search of that space and items located therein must
comply with the constitutional guarantee against unreasonable search
and seizure.

Petitioner failed to prove that he had an actual (subjective)

expectation of privacy either in his office or government-issued
computer which contained his personal files. Petitioner did not allege
that he had a separate enclosed office which he did not share with
anyone, or that his office was always locked and not open to other
employees or visitors. Neither did he allege that he used passwords or
adopted any means to prevent other employees from accessing his
computer files.

On the contrary, he submits that being in the public assistance

office of the CSC-ROIV, he normally would have visitors in his office like
friends, associates and even unknown people, whom he even allowed
to use his computer which to him seemed a trivial request. He
described his office as full of people, his friends, unknown people and
that in the past 22 years he had been discharging his functions at the
PALD, he is personally assisting incoming clients, receiving documents,
drafting cases on appeals, in charge of accomplishment
report, Mamamayan Muna Program, Public Sector Unionism, Correction
of name, accreditation of service, and hardly had anytime for himself
alone, that in fact he stays in the office as a paying customer. Under
this scenario, it can hardly be deduced that petitioner had such
expectation of privacy that society would recognize as reasonable.
Moreover, even assuming arguendo, in the absence of allegation or
proof of the aforementioned factual circumstances, that petitioner had
at least a subjective expectation of privacy in his computer as he claims,
such is negated by the presence of policy regulating the use of office
computers.

Office Memorandum No. 10, S. 2002 Computer Use Policy

(CUP) explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil

Service Commission and may be used only for legitimate
business purposes.

2. Users shall be permitted access to Computer

Resources to assist them in the performance of their
respective jobs.

3. Use of the Computer Resources is a privilege that may

be revoked at any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of

the Commission shall not have an expectation of
privacy in anything they create, store, send, or receive
on the computer system.
The Head of the Office for Recruitment, Examination and
Placement shall select and assign Users to handle the
confidential examination data and processes.
5. Waiver of privacy rights. Users expressly waive any right
to privacy in anything they create, store, send, or
 receive on the computer through the Internet or any
other computer network. Users understand that
the CSC may use human or automated means to
monitor the use of its Computer Resources.
6. Non-exclusivity of Computer Resources. A computer
resource is not a personal property or for the exclusive
use of a User to whom a memorandum of receipt (MR)
has been issued. It can be shared or operated by other
users. However, he is accountable therefor and must
insure its care and maintenance.
xxxx

Passwords

12. Responsibility for passwords. Users shall be responsible

for safeguarding their passwords for access to the
computer system. Individual passwords shall not be
printed, stored online, or given to others. Users shall be
responsible for all transactions made using their
passwords. No User may access the computer system
with another Users password or account.
13. Passwords do not imply privacy. Use of passwords to
gain access to the computer system or to encode
particular files or messages does not imply
that Users have an expectation of privacy in the
material they create or receive on the computer
system. The Civil Service Commission has global
passwords that permit access to all materials stored on
its networked computer system regardless of whether
those materials have been encoded with a
particular Users password. Only members of the
Commission shall authorize the application of the said
global passwords.
xxxx

The CSC in this case had implemented a policy that put its
employees on notice that they have no expectation of privacy
in anything they create, store, send or receive on the office computers,
and that the CSC may monitor the use of the computer resources using
both automated or human means. This implies that on-the-spot
inspections may be done to ensure that the computer resources were
used only for such legitimate business purposes.

One of the factors relevant in determining whether an employees

expectation of privacy in the workplace is reasonable is the existence of
a workplace privacy policy.

Question 9: Was the search authorized by the CSC Chair, and the
copying of the contents of the hard drive on petitioners computer
reasonable in its inception and scope?

Answer: Yes. The search of petitioners computer files was

conducted in connection with investigation of work-related misconduct
prompted by an anonymous letter-complaint addressed to Chairperson
David regarding anomalies in the CSC-ROIV where the head of
the Mamamayan Muna Hindi Mamaya Na division is supposedly
lawyering for individuals with pending cases in the CSC.

A search by a government employer of an employees office is

justified at inception when there are reasonable grounds for suspecting
that it will turn up evidence that the employee is guilty of work-related
misconduct. Thus, in the 2004 case decided by the US Court of Appeals
Eighth Circuit, it was held that where a government agencys computer
use policy prohibited electronic messages with pornographic content
and in addition expressly provided that employees do not have any
personal privacy rights regarding their use of the agency information
systems and technology, the government employee had no legitimate
expectation of privacy as to the use and contents of his office
computer, and therefore evidence found during warrantless search of
the computer was admissible in prosecution for child pornography. In
that case, the defendant employees computer hard drive was first
remotely examined by a computer information technician after his
supervisor received complaints that he was inaccessible and had copied
and distributed non-work-related e-mail messages throughout the
office. When the supervisor confirmed that defendant had used his
computer to access the prohibited websites, in contravention of the
express policy of the agency, his computer tower and floppy disks were
taken and examined. A formal administrative investigation ensued and
later search warrants were secured by the police department. The initial
remote search of the hard drive of petitioners computer, as well as the
subsequent warrantless searches was held as valid under the ruling
that a public employer can investigate work-related misconduct so long
as any search is justified at inception and is reasonably related in scope
to the circumstances that justified it in the first place.

Question 10: Petitioner further contends that the search is invalid

because the present case does not involve a criminal offense like child
pornography and the like. Petitioner invokes the ruling in Anonymous
Letter-Complaint against Atty. Miguel Morales, Clerk of Court,
Metropolitan Trial Court of Manila [A.M. Nos. P-08-2519 and P-08-
2520, November 19, 2008, 571 SCRA 361.] involving a branch clerk (Atty.
Morales) who was investigated on the basis of an anonymous letter
alleging that he was consuming his working hours filing and attending
to personal cases, using office supplies, equipment and utilities. The
OCA conducted a spot investigation aided by NBI agents. The team was
able to access Atty. Morales personal computer and print two
documents stored in its hard drive, which turned out to be two
pleadings, one filed in the CA and another in the RTC of Manila, both in
the name of another lawyer. Atty. Morales computer was seized and
taken in custody of the OCA but was later ordered released on his
motion, but with order to the MISO to first retrieve the files stored
therein. The OCA disagreed with the report of the Investigating Judge
that there was no evidence to support the charge against Atty. Morales
as no one from the OCC personnel who were interviewed would give a
categorical and positive statement affirming the charges against Atty.
Morales, along with other court personnel also charged in the same
case. The OCA recommended that Atty. Morales should be found guilty
of gross misconduct. The Court En Banc held that while Atty. Morales
may have fallen short of the exacting standards required of every court
employee, the Court cannot use the evidence obtained from
his personal computer against him for it violated his constitutional right
against unreasonable searches and seizures. The Court found no
evidence to support the claim of OCA that they were able to obtain the
subject pleadings with the consent of Atty. Morales, as in fact the latter
immediately filed an administrative case against the persons who
conducted the spot investigation, questioning the validity of the
investigation and specifically invoking his constitutional right against
unreasonable search and seizure. And as there is no other evidence,
apart from the pleadings, retrieved from the unduly confiscated
personal computer of Atty. Morales, to hold him administratively liable,
the Court had no choice but to dismiss the charges against him for
insufficiency of evidence.
 Is petitioners contention meritorious?

Answer: There is no merit in the contention that the present case

does not involve a criminal offense like child pornography. As already
mentioned, the search of petitioners computer was justified there
being reasonable ground for suspecting that the files stored therein
would yield incriminating evidence relevant to the investigation being
conducted by CSC as government employer of such misconduct subject
of the anonymous complaint. This situation clearly falls under the
exception to the warrantless requirement in administrative searches.

The Court is not unaware of Its decision in Anonymous Letter-

Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan
Trial Court of Manila [A.M. Nos. P-08-2519 and P-08-2520, November
19, 2008, 571 SCRA 361.] The said case is to be distinguished from the
case at bar because, unlike the former which involved
a personal computer of a court employee, the computer from which the
personal files of herein petitioner were retrieved is a government-issued
computer, hence government property the use of which the CSC has
absolute right to regulate and monitor. Such relationship of the
petitioner with the item seized (office computer) and other relevant
factors and circumstances under American Fourth Amendment
jurisprudence, notably the existence of CSC MO 10, S. 2007 on
Computer Use Policy, failed to establish that petitioner had a
reasonable expectation of privacy in the office computer assigned to
him.

In fine, no error or grave abuse of discretion was committed by

the CA in affirming the CSCs ruling that petitioner is guilty of grave
misconduct, dishonesty, conduct prejudicial to the best interest of the
service, and violation of R.A. No. 6713. The gravity of these offenses
justified the imposition on petitioner of the ultimate penalty of dismissal
with all its accessory penalties, pursuant to existing rules and
regulations.
MCC INDUSTRIAL SALES CORPORATION v. SSANGYONG
CORPORATION, G.R. No. 170633, October 17, 2007

FACTS:

MCC Industrial Sales (MCC) is a domestic corporation engaged in

the business of importing and wholesaling stainless steel products. One
of its suppliers is the Ssangyong Corporation (Ssangyong), an
international trading company with head office in Seoul, South
Korea and regional headquarters in Makati City, Philippines. The two
corporations conducted business through telephone calls and facsimile
or telecopy transmissions. Ssangyong would send the pro
forma invoices containing the details of the steel product order to MCC;
if the latter conforms thereto, its representative affixes his signature on
the faxed copy and sends it back to Ssangyong, again by fax.

Ssangyong filed on November 16, 2001 a civil action for damages

due to breach of contract against defendants MCC, Sanyo Seiki and
Gregory Chan before the Regional Trial Court of Makati City. After
Ssangyong rested its case, defendants filed a Demurrer to Evidence
alleging that Ssangyong failed to present the original copies of the pro
forma invoices on which the civil action was based. In an Order dated
April 24, 2003, the court denied the demurrer, ruling that the
documentary evidence presented had already been admitted in the
December 16, 2002 Order and that their admissibility finds support in
Republic Act (R.A.) No. 8792, otherwise known as the Electronic
Commerce Act of 2000. Considering that both testimonial and
documentary evidence tended to substantiate the material allegations
in the complaint, Ssangyongs evidence sufficed for purposes of a
prima facie case.

After trial on the merits, the RTC rendered its Decision on March
24, 2004, in favor of Ssangyong. The trial court ruled that when plaintiff
agreed to sell and defendants agreed to buy the 220MT of steel
products for the price of US$1,860 per MT, the contract was perfected.
The subject transaction was evidenced by Pro Forma Invoice Nos. ST2-
POSTS0401-1 and ST2-POSTS0401-2, which were later amended only in
terms of reduction of volume as well as the price per MT, following Pro
Forma Invoice Nos. ST2-POSTS080-1 and ST2-POSTS080-2.

The CA affirmed the trial courts decision.

 Question 11: Petitioner contends that the photocopies of the pro
forma invoices presented by respondent Ssangyong to prove the
perfection of their supposed contract of sale are inadmissible in
evidence and do not fall within the ambit of R.A. No. 8792, the
Electronic Commerce Act, because the law merely admits as the best
evidence the original fax transmittal. On the other hand, respondent
posits that, from a reading of the law and the Rules on Electronic
Evidence, the original facsimile transmittal of the pro forma invoice is
admissible in evidence since it is an electronic document and, therefore,
the best evidence under the law and the Rules. Respondent further
claims that the photocopies of these fax transmittals (specifically ST2-
POSTS0401-1 and ST2-POSTS0401-2) are admissible under the Rules on
Evidence because the respondent sufficiently explained the non-
production of the original fax transmittals. The issue as posed is: Are the
print-out and/or photocopies of facsimile transmissions electronic
evidence and admissible as such?

In resolving this issue, the Court of Appeals ruled as follows:

The copies of the said pro-forma invoices submitted

by the appellee are admissible in evidence, although they
are mere electronic facsimile printouts of appellants orders.
Such facsimile printouts are considered Electronic
Documents under the New Rules on Electronic Evidence,
which came into effect on August 1, 2001. (Rule 2, Section 1
[h], A.M. No. 01-7-01-SC).

Is the ruling correct?

Answer: The ruling of the Appellate Court is incorrect. R.A. No.

8792, otherwise known as the Electronic Commerce Act of 2000,
considers an electronic data message or an electronic document as the
functional equivalent of a written document for evidentiary purposes.
The Rules on Electronic Evidence regards an electronic document as
admissible in evidence if it complies with the rules on admissibility
prescribed by the Rules of Court and related laws, and is authenticated
in the manner prescribed by the said Rules. An electronic document is
also the equivalent of an original document under the Best Evidence
Rule, if it is a printout or output readable by sight or other means,
shown to reflect the data accurately.

Thus, to be admissible in evidence as an electronic data message

or to be considered as the functional equivalent of an original
document under the Best Evidence Rule, the writing must foremost be
an electronic data message or an electronic document.

The Electronic Commerce Act of 2000 defines electronic data

message and electronic document as follows:

Sec. 5. Definition of Terms. For the purposes of this Act, the

following terms are defined, as follows:

xxx

c. Electronic Data Message refers to information

generated, sent, received or stored by electronic, optical or
similar means.

xxx

f. Electronic Document refers to information or the

representation of information, data, figures, symbols or
other modes of written expression, described or however
represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically.

The Implementing Rules and Regulations (IRR) of R.A. No. 8792,

which was signed on July 13, 2000 by the then Secretaries of the
Department of Trade and Industry, the Department of Budget and
Management, and then Governor of the Bangko Sentral ng Pilipinas ,
defines the terms as:

Sec. 6. Definition of Terms. For the purposes of this Act and

these Rules, the following terms are defined, as follows:

xxx
 (e) Electronic Data Message refers to information
generated, sent, received or stored by electronic, optical or
similar means, but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or
telecopy. Throughout these Rules, the term electronic data
message shall be equivalent to and be used
interchangeably with electronic document.

xxxx

(h) Electronic Document refers to information or the

representation of information, data, figures, symbols or
other modes of written expression, described or however
represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced
electronically. Throughout these Rules, the term electronic
document shall be equivalent to and be used
interchangeably with electronic data message.

The phrase but not limited to, electronic data interchange

(EDI), electronic mail, telegram, telex or telecopy in the IRRs definition
of electronic data message is copied from the Model Law on
Electronic Commerce adopted by the United Nations Commission on
International Trade Law (UNCITRAL), from which majority of the
provisions of R.A. No. 8792 were taken. While Congress deleted this
phrase in the Electronic Commerce Act of 2000, the drafters of the
IRR reinstated it. The deletion by Congress of the said phrase is
significant and pivotal, as discussed hereunder.

The clause on the interchangeability of the terms electronic

data message and electronic document was the result of the Senate
of the Philippines adoption, in Senate Bill 1902, of the phrase
electronic data message and the House of Representatives
employment, in House Bill 9971, of the term electronic document. In
order to expedite the reconciliation of the two versions, the technical
working group of the Bicameral Conference Committee adopted
both terms and intended them to be the equivalent of each one. Be
that as it may, there is a slight difference between the two terms.
While data message has reference to information electronically sent,
stored or transmitted, it does not necessarily mean that it will give
rise to a right or extinguish an obligation , unlike an electronic
document. Evident from the law, however, is the legislative intent to
give the two terms the same construction.

The Rules on Electronic Evidence promulgated by this Court

defines the said terms in the following manner:

SECTION 1. Definition of Terms. For purposes of these

Rules, the following terms are defined, as follows:

xxxx

(g) Electronic data message refers to information

generated, sent, received or stored by electronic, optical or
similar means.

(h) Electronic document refers to information or the

representation of information, data, figures, symbols or
other modes of written expression, described or however
represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes
digitally signed documents and print-out or output,
readable by sight or other means, which accurately reflects
the electronic data message or electronic document. For
purposes of these Rules, the term electronic document may
be used interchangeably with electronic data message.

Given these definitions, we go back to the original question: Is

an original printout of a facsimile transmission an electronic data
message or electronic document?

The definitions under the Electronic Commerce Act of 2000, its

IRR and the Rules on Electronic Evidence, at first glance, convey the
impression that facsimile transmissions are electronic data messages
or electronic documents because they are sent by electronic
means. The expanded definition of an electronic data message under
the IRR, consistent with the UNCITRAL Model Law, further supports
this theory considering that the enumeration xxx [is] not limited to,
electronic data interchange (EDI), electronic mail, telegram, telex
or telecopy. And to telecopy is to send a document from one place
to another via a fax machine.

As further guide for the Court in its task of statutory

construction, Section 37 of the Electronic Commerce Act of 2000
provides that

Unless otherwise expressly provided for, the

interpretation of this Act shall give due regard to its
international origin and the need to promote uniformity in
its application and the observance of good faith in
international trade relations. The generally accepted
principles of international law and convention on electronic
commerce shall likewise be considered.

Obviously, the international origin mentioned in this section

can only refer to the UNCITRAL Model Law, and the UNCITRALs
definition of data message:

Data message means information generated, sent,

received or stored by electronic, optical or similar
means including, but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or
telecopy.

is substantially the same as the IRRs characterization of an electronic

data message.

However, Congress deleted the phrase, but not limited to,

electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy, and replaced the term data message (as found in the
UNCITRAL Model Law) with electronic data message. This legislative
divergence from what is assumed as the terms international origin
has bred uncertainty and now impels the Court to make an inquiry
into the true intent of the framers of the law. Indeed, in the
construction or interpretation of a legislative measure, the primary
rule is to search for and determine the intent and spirit of the law. A
construction should be rejected that gives to the language used in a
statute a meaning that does not accomplish the purpose for which
the statute was enacted, and that tends to defeat the ends which are
sought to be attained by the enactment.

Interestingly, when Senator Ramon B. Magsaysay, Jr., the

principal author of Senate Bill 1902 (the predecessor of R.A. No.
8792), sponsored the bill on second reading, he proposed to adopt
the term data message as formulated and defined in the UNCITRAL
Model Law. During the period of amendments, however, the term
evolved into electronic data message, and the phrase but not limited
to, electronic data interchange (EDI), electronic mail, telegram, telex
or telecopy in the UNCITRAL Model Law was deleted. Furthermore,
the term electronic data message, though maintaining its description
under the UNCITRAL Model Law, except for the aforesaid deleted
phrase, conveyed a different meaning. . .

Thus, when the Senate consequently voted to adopt the term

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

Electronic record fixes the scope of the Act. The

record is the data. The record may be any medium. It is
electronic because it is recorded or stored in or by a
computer system or similar device. The Act is intended to
apply, for example, to data on magnetic strips on cards, or
in smart cards. As drafted, it would not apply to telexes or
faxes (except computer-generated faxes), unlike the United
Nations Model Law on Electronic Commerce. It would also
 not apply to regular digital telephone conversations, since
the information is not recorded. It would apply to voice
mail, since the information has been recorded in or by a
device similar to a computer. Likewise video records are not
covered, though when the video is transferred to a Web
site it would be, because of the involvement of the
computer. Music recorded by a computer system on a
compact disk would be covered.

In short, not all data recorded or stored in digital

form is covered. A computer or similar device has to be
involved in its creation or storage. The term similar device
does not extend to all devices that create or store data in
digital form. Although things that are not recorded or
preserved by or in a computer system are omitted from this
Act, they may well be admissible under other rules of law.
This Act focuses on replacing the search for originality,
proving the reliability of systems instead of that of
individual records, and using standards to show systems
reliability.

Paper records that are produced directly by a

computer system, such as printouts, are themselves
electronic records, being just the means of intelligible
display of the contents of the record. Photocopies of the
printout would be paper records subject to the usual rules
about copies, but the original printout would be subject to
the rules of admissibility of this Act.

However, printouts that are used only as paper

records, and whose computer origin is never again called
on, are treated as paper records. See subsection 4(2). In this
case the reliability of the computer system that produced
the record is relevant to its reliability.

There is no question then that when Congress formulated the

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

Facsimile transmissions are not, in this sense, paperless, but

verily are paper-based.

A facsimile machine, which was first patented in 1843 by

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

A facsimile or fax transmission is a process involving

the transmission and reproduction of printed and graphic
matter by scanning an original copy, one elemental area at
a time, and representing the shade or tone of each area by
a specified amount of electric current. The current is
transmitted as a signal over regular telephone lines or via
microwave relay and is used by the receiver to reproduce
an image of the elemental area in the proper position and
the correct shade. The receiver is equipped with a stylus or
other device that produces a printed record on paper
referred to as a facsimile.

x x x A facsimile is not a genuine and authentic

pleading. It is, at best, an exact copy preserving all the
marks of an original. Without the original, there is no way of
determining on its face whether the facsimile pleading is
 genuine and authentic and was originally signed by the
party and his counsel. It may, in fact, be a sham pleading.

Accordingly, in an ordinary facsimile transmission, there exists

an original paper-based information or data that is scanned, sent
through a phone line, and re-printed at the receiving end. Be it noted
that in enacting the Electronic Commerce Act of 2000, Congress
intended virtual or paperless writings to be the functional equivalent
and to have the same legal function as paper-based documents.
Further, in a virtual or paperless environment, technically, there is no
original copy to speak of, as all direct printouts of the virtual reality
are the same, in all respects, and are considered as originals.
Ineluctably, the laws definition of electronic data message, which, as
aforesaid, is interchangeable with electronic document, could not
have included facsimile transmissions, which have an original paper-
based copy as sent and a paper-based facsimile copy as received.
These two copies are distinct from each other, and have different
legal effects. While Congress anticipated future developments in
communications and computer technology when it drafted the law, it
excluded the early forms of technology, like telegraph, telex and
telecopy (except computer-generated faxes, which is a newer
development as compared to the ordinary fax machine to fax
machine transmission), when it defined the term electronic data
message.

Clearly then, the IRR went beyond the parameters of the law
when it adopted verbatim the UNCITRAL Model Laws definition of
data message, without considering the intention of Congress when
the latter deleted the phrase but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy . The
inclusion of this phrase in the IRR offends a basic tenet in the exercise
of the rule-making power of administrative agencies. After all, the
power of administrative officials to promulgate rules in the
implementation of a statute is necessarily limited to what is found in
the legislative enactment itself. The implementing rules and
regulations of a law cannot extend the law or expand its coverage, as
the power to amend or repeal a statute is vested in the Legislature.
Thus, if a discrepancy occurs between the basic law and
an implementing rule or regulation, it is the former that prevails,
because the law cannot be broadened by a mere administrative
 issuance an administrative agency certainly cannot amend an act of
Congress. Had the Legislature really wanted ordinary fax
transmissions to be covered by the mantle of the Electronic
Commerce Act of 2000, it could have easily lifted without a bit of
tatter the entire wordings of the UNCITRAL Model Law.

Incidentally, the National Statistical Coordination Board Task

Force on the Measurement of E-Commerce, on November 22, 2006,
recommended a working definition of electronic commerce, as [a]ny
commercial transaction conducted through electronic, optical and
similar medium, mode, instrumentality and technology. The transaction
includes the sale or purchase of goods and services, between
individuals, households, businesses and governments conducted over
computer-mediated networks through the Internet, mobile phones,
electronic data interchange (EDI) and other channels through open and
closed networks. The Task Forces proposed definition is similar to the
Organization of Economic Cooperation and Developments (OECDs)
broad definition as it covers transactions made over any network, and,
in addition, it adopted the following provisions of the OECD definition:
(1) for transactions, it covers sale or purchase of goods and services; (2)
for channel/network, it considers any computer-mediated network and
NOT limited to Internet alone; (3) it excludes transactions
received/placed using fax, telephone or non-interactive mail; (4) it
considers payments done online or offline; and (5) it considers delivery
made online (like downloading of purchased books, music or software
programs) or offline (deliveries of goods).

We, therefore, conclude that the terms electronic data

message and electronic document, as defined under the Electronic
Commerce Act of 2000, do not include a facsimile
transmission. Accordingly, a facsimile transmission cannot be
considered as electronic evidence. It is not the functional equivalent
of an original under the Best Evidence Rule and is not admissible
as electronic evidence.

Since a facsimile transmission is not an electronic data message

or an electronic document, and cannot be considered as electronic
evidence by the Court, with greater reason is a photocopy of such a
fax transmission not electronic evidence. In the present case,
therefore, Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-
POSTS0401-2 (Exhibits E and F), which are mere photocopies of the
 original fax transmittals, are not electronic evidence, contrary to the
position of both the trial and the appellate courts.

ELLERY MARCH G. TORRES V. PHILIPPINE

AMUSEMENT and GAMING CORPORATION, represented by ATTY.
CARLOS R. BAUTISTA, JR., G.R. No. 193531, December 14, 2011

FACTS:

Petitioner was a Slot Machine Operations Supervisor (SMOS) of

respondent Philippine Amusement and Gaming Corporation
(PAGCOR). On the basis of an alleged intelligence report of padding of
the Credit Meter Readings (CMR) of the slot machines at PAGCOR-
Hyatt Manila, then Casino Filipino-Hyatt (CF Hyatt), which involved the
slot machine and internal security personnel of respondent PAGCOR,
and in connivance with slot machine customers, respondent PAGCOR's
Corporate Investigation Unit (CIU) allegedly conducted an investigation
to verify the veracity of such report. The CIU discovered the scheme of
CMR padding which was committed by adding zero after the first digit
of the actual CMR of a slot machine or adding a digit before the first
digit of the actual CMR, e.g., a slot machine with an actual CMR
of P5,000.00 will be issued a CMR receipt with the amount of
either P50,000.00 or P35,000.00. Based on the CIU's investigation of all
the CMR receipts and slot machine jackpot slips issued by CF Hyatt for
the months of February and March 2007, the CIU identified the
members of the syndicate who were responsible for such CMR padding,
which included petitioner.

On August 4, 2007, petitioner received a letter dated August

2, 2007 from Atty. Lizette F. Mortel, Managing Head of PAGCOR's
Human Resource and Development Department, dismissing him from
the service. The letter reads in part, to wit:

Please be informed that the Board of Directors, in its

meeting on July 31, 2007, approved the recommendation
of the Adjudication Committee to dismiss you from the
service effective upon approval due to the following
offense:
 Dishonesty, gross misconduct, serious violations of office
rules and regulations, conduct prejudicial to the best
interests of the company and loss of trust and confidence,
committed as follows: For actively and directly participating
in a scheme to defraud the company in conspiracy with co-
employees and SM customers by padding slot machine
Credit Meter Reading (CMR) receipts in favor of co-
conspirator customers who had said (sic) CMR receipts paid
at the teller's booth on numerous occasions which caused
substantial losses to the proprietary interests of PAGCOR.

On September 14, 2007, petitioner filed with the CSC a Complaint

against PAGCOR and its Chairman Efraim Genuino for illegal dismissal,
non-payment of backwages and other benefits.

The CSC treated the complaint as an appeal from the PAGCOR's

dismissal of petitioner. On June 23, 2008, the CSC issued Resolution
No. 081204 denying petitioner's appeal on the ground that under the
rules, petitioner had 15 days from receipt of the letter of dismissal to
file his appeal. However, at the time petitioner filed his complaint with
the CSC, which was considered as petitioner's appeal, 41 days had
already elapsed from the time he received his letter of dismissal on
August 4, 2007.

The CSC, in finding that petitioner's appeal had already

prescribed, did not give credit to petitioner's claim that he sent a
facsimile transmission of his letter reconsideration within the period
prescribed by the Uniform Rules on Administrative Cases in the Civil
Service. It found PAGCOR's denial of having received petitioner's letter
more credible as it was supported by certifications issued by its
employees. It found that a verification of one of the telephone numbers
where petitioner allegedly sent his letter reconsideration disclosed that
such number did not belong to the PAGCOR's Office of the Board of
Directors; and that petitioner should have mentioned about the alleged
facsimile transmission at the first instance when he filed his complaint
and not only when respondent PAGCOR raised the issue of prescription
in its Comment.

Question 12: Petitioner contends that he filed his letter

reconsideration of his dismissal on August 13, 2007, which was within
the 15-day period for filing the same; and that he did so by means of a
facsimile transmission sent to the PAGCOR's Office of the Board of
Directors. He argues that the sending of documents thru electronic data
message, which includes facsimile, is sanctioned under Republic Act No.
8792, the Electronic Commerce Act of 2000. Is petitioners argument
correct?

Answer: No. A motion for reconsideration may either be filed by

mail or personal delivery. When a motion for reconsideration was sent
by mail, the same shall be deemed filed on the date shown by the
postmark on the envelope which shall be attached to the records of the
case. On the other hand, in case of personal delivery, the motion is
deemed filed on the date stamped thereon by the proper office. And
the movant has 15 days from receipt of the decision within which to file
a motion for reconsideration or an appeal therefrom.

Petitioner received a copy of the letter/notice of dismissal on

August 4, 2007; thus, the motion for reconsideration should have been
submitted either by mail or by personal delivery on or before August
19, 2007. However, records do not show that petitioner had filed his
motion for reconsideration. In fact, the CSC found that the non-receipt
of petitioner's letter reconsideration was duly supported by
certifications issued by PAGCOR employees.

Assuming arguendo that petitioner indeed submitted a letter

reconsideration which he claims was sent through a facsimile
transmission, such letter reconsideration did not toll the period to
appeal. The mode used by petitioner in filing his reconsideration is not
sanctioned by the Uniform Rules on Administrative Cases in the Civil
Service. As stated earlier, the motion for reconsideration may be filed
only in two ways, either by mail or personal delivery.

In Garvida v. Sales, Jr., [G.R. No. 124893, April 18, 1997, 271 SCRA
767.] we found inadmissible in evidence the filing of pleadings through
fax machines and ruled that:

A facsimile or fax transmission is a process involving the

transmission and reproduction of printed and graphic
matter by scanning an original copy, one elemental area at
a time, and representing the shade or tone of each area by
a specified amount of electric current. The current is
 transmitted as a signal over regular telephone lines
or via microwave relay and is used by the receiver to
reproduce an image of the elemental area in the proper
position and the correct shade. The receiver is equipped
with a stylus or other device that produces a printed record
on paper referred to as a facsimile.

x x x A facsimile is not a genuine and authentic pleading. It

is, at best, an exact copy preserving all the marks of an
original. Without the original, there is no way of
determining on its face whether the facsimile pleading is
genuine and authentic and was originally signed by the
party and his counsel. It may, in fact, be a sham pleading. x
xx

Moreover, a facsimile transmission is not considered as an

electronic evidence under the Electronic Commerce Act. In MCC
Industrial Sales Corporation v. Ssangyong Corporation, [ G.R. No.
170633, October 17, 2007, 536 SCRA 408.] We determined the question
of whether the original facsimile transmissions are "electronic data
messages" or "electronic documents" within the context of the
Electronic Commerce Act, and We said:

We, therefore, conclude that the terms "electronic data

message" and "electronic document," as defined under the
Electronic Commerce Act of 2000, do not include a facsimile
transmission. Accordingly, a facsimile transmission cannot
be considered as electronic evidence. It is not the functional
equivalent of an original under the Best Evidence Rule and is
not admissible as electronic evidence.

We, therefore, found no reversible error committed by the CA when it

affirmed the CSC in dismissing petitioner's appeal.

FREDRIK FELIX P. NOGALES, ET AL. V. PEOPLE OF THE PHILIPPINES, G.R.

No. 191080, November 21, 2011

FACTS:
 On July 30, 2007, Special Investigator Garry Meez (SI Meez) of the
National Bureau of Investigation (NBI) applied for a search warrant
before the RTC to authorize him and his fellow NBI agents or any peace
officer to search the premises of petitioner Phil-Pacific Outsourcing
Services Corporation (Phil-Pacific) and to seize/confiscate and take into
custody the items/articles/objects enumerated in his application. On
August 3, 2007, after a hearing, the application was granted and the
corresponding Search Warrant was issued, quoted as follows:

SEARCH WARRANT

TO: ANY PEACE OFFICER

It appearing to the satisfaction of the undersigned, after examining

under oath applicant SI III GARY I. MEEZ of the Special Task Force
Division, National Bureau of Investigation, and his witnesses, ISABEL
CORTEZ y ANDRADE of 167 5th Avenue, Caloocan City and MARK
ANTHONY C. SEBASTIAN of No. 32 Arlegui Street, San Miguel Quiapo,
Manila that there are good reasons to believe that VIOLATION OF
ARTICLE 201 OF THE REVISED PENAL CODE, AS AMENDED IN
RELATION TO R.A. 8792 (ELECTRONIC COMMERCE ACT) has been
committed and that JUN NICOLAS, LOREN NUESTRA, FREDERICK (sic)
FELIX P. NOGALES, GIAN CARLO P. NOGALES, ROGELIO P. NOGALES,
MELINDA P. NOGALES, PRISCILA B. CABRERA and/or OCCUPANTS OF
PHIL. PACIFIC OUTSOURCING SERVICES CORPORATION located at
Mezzanine Floor, Glorietta De Manila Building, 776 San Sebastian St.,
University Belt, Manila, have in their possession and control of the
following:

1. Computer Sets
2. Television Sets
3. Internet Servers
4. Fax Machines
5. Pornographic Films and other Pornographic Materials
6. Web Cameras
7. Telephone Sets
8. Photocopying Machines
9. List of clients and
10. Other tools and materials used or intended to be used in the
commission of the crime.

You are hereby commanded to make an immediate search any time of

the DAY of the premises mentioned above which is Mezzanine Floor,
Glorietta De Manila Building, 776 San Sebastian St., University Belt,
Manila and take possession of the following:

1. Computer Sets
2. Television Sets
3. Internet Servers
4. Fax Machines
5. Pornographic Films and other Pornographic Materials
6. Web Cameras
7. Telephone Sets
8. Photocopying Machines
9. List of clients and
10. Other tools and materials used or intended to be used in the
commission of the crime.

and bring to this Court the said properties and persons to be dealt with
as the law may direct. You are further directed to submit a return within
ten (10) days from today.

On August 8, 2007, SI Meez submitted a Return of Search

Warrant to the RTC manifesting that in the morning of August 7, 2007,
the operatives of the Special Task Force of the NBI implemented the
said search warrant in an orderly and peaceful manner in the presence
of the occupants of the described premises and that the seized items
were properly inventoried in the Receipt/Inventory of Property Seized.
The items seized were the following:

1. Ten (10) units of Central Processing Units (CPUs);

2. Ten (10) units of monitors;
3. Ten (10) units of keyboard;
4. Ten (10) units of mouse; and
5. Ten (10) units of AVRs.

The RTC then issued an order granting the prayer of SI Meez to

keep the seized items in the NBI evidence room and under his custody
with the undertaking to make said confiscated items available whenever
the court would require them.

Aggrieved by the issuance of the said order, the named persons

in the search warrant filed a Motion to Quash Search Warrant and
Return Seized Properties. On December 26, 2007, the RTC denied the
motion.

Undaunted, petitioners moved for the reconsideration.

Meanwhile, in a resolution dated February 21, 2008, the 3rd

Assistant City Prosecutor recommended that the complaint for violation
of Article 201 of the Revised Penal Code (RPC) against petitioners be
dismissed due to insufficiency of evidence and the same was approved
by the City Prosecutor. Hence, on May 6, 2008, petitioners filed a
Supplemental Motion to Release Seized Properties manifesting that the
complaint against them was dismissed, and that, for said reason, the
State had no more use of the seized properties.

On August 6, 2008, the RTC issued the assailed order, which

denied the motion for reconsideration filed by petitioners. The RTC,
however, partially granted the prayer of petitioners to release the
seized properties, thus:

Accordingly therefore, let the computer sets be hereby returned

to the respondents. The CPU and all the rest of the softwares
containing obscene materials which were seized during the
implementation of the valid Search Warrant are hereby retained in the
possession of the National Bureau of Investigation thru applicant
Special Investigator Garry J. Meez.

Not in conformity, petitioners sought relief with the CA via a

special civil action for certiorari alleging that Judge Alisuag committed
grave abuse of discretion amounting to lack or excess of jurisdiction
when she partially granted the motion of petitioners for the release of
the seized properties such that only the monitor sets were released but
the CPUs and the softwares were retained under the custody of the NBI.

The CA affirmed with modification the assailed August 6, 2008

Order of the RTC. Thus:
 WHEREFORE, in view of all the foregoing premises, the assailed
order issued by the respondent Judge on August 6, 2008 is AFFIRMED
with the MODIFICATION that the CPUs and softwares which were
ordered to be retained by the NBI through SI Meez shall be released in
favor of the petitioners herein with the condition that the hard disk be
removed from the CPUs and be destroyed. If the softwares are
determined to be unlicensed or pirated copies, they shall be destroyed
in the manner allowed by law.

Question 13: Petitioners argue that there is no evidence showing

that they were the source of pornographic printouts presented by the
NBI to the RTC or to the City Prosecutor of Manila. Since the hard disks
in their computers are not illegal per se unlike shabu, opium,
counterfeit money, or pornographic magazines, said merchandise are
lawful as they are being used in the ordinary course of business, the
destruction of which would violate not only procedural, but substantive
due process. Is the contention correct?

Answer: The argument of petitioners is totally misplaced

considering the undisputed fact that the seized computer units
contained obscene materials or pornographic files. Had it been
otherwise, then, petitioners argument would have been meritorious as
there could be no basis for destroying the hard disks of petitioners
computer units.

While it may be true that the criminal case for violation of Article
201 of the Revised Penal Code was dismissed as there was no concrete
and strong evidence pointing to them as the direct source of the
subject pornographic materials, it cannot be used as basis to recover
the confiscated hard disks. At the risk of being repetitious, it
appears undisputed that the seized computer units belonging to them
contained obscene materials or pornographic files. Clearly, petitioners
had no legitimate expectation of protection of their supposed property
rights.

The CA is correct in stating that the removal of the hard disk from
the CPU is a reliable way of permanently removing the obscene or
pornographic files. Significantly, Presidential Decree (PD) No. 969 is
explicit. Thus:
 Sec. 2. Disposition of the Prohibited Articles. The disposition
of the literature, films, prints, engravings, sculptures,
paintings, or other materials involved in the violation
referred to in Section 1 hereof shall be governed by the
following rules:

a. Upon conviction of the offender, to be forfeited in

favor of the government to be destroyed.

b. Where the criminal case against any violator of this

decree results in an acquittal, the obscene/immoral
literature, films, prints, engravings, sculpture,
paintings or other materials and other articles
involved in the violation referred to in Section
1 hereof shall nevertheless be forfeited in favor of the
government to be destroyed, after forfeiture
proceedings conducted by the Chief of Constabulary.

Clearly, the provision directs the forfeiture of all materials

involved in violation of the subject law. The CA was lenient with
petitioners in modifying the ruling of the RTC in that the CPUs and
softwares, which were initially ordered to be retained by the NBI, should
be released in their favor with only the hard disk removed from the
CPUs and destroyed. If the softwares are determined to be violative of
Article 201 of the RPC, unlicensed or pirated, they should also be
forfeited and destroyed in the manner allowed by law. The law is clear.
Only licensed softwares that can be used for legitimate purposes should
be returned to petitioners.

To stress, P.D. No. 969 mandates the forfeiture and destruction of

pornographic materials involved in the violation of Article 201 of the
Revised Penal Code, even if the accused was acquitted.

Taking into account all the circumstances of this case, the Court
holds that the destruction of the hard disks and the softwares used in
any way in the violation of the subject law addresses the purpose of
minimizing if not totally eradicating pornography. This will serve as a
lesson for those engaged in any way in the proliferation of pornography
or obscenity in this country. The Court is not unmindful of the concerns
of petitioners but their supposed property rights must be balanced with
the welfare of the public in general.
MAYOR EMMANUEL L. MALIKSI v. COMMISSION ON ELECTIONS and
HOMER T. SAQUILAYAN, G.R. No. 203302, March 12, 2013

FACTS:

Emmanuel L. Maliksi and Homer T. Saquilayan were mayoralty

candidates for the Municipality of Imus, Cavite during the 10 May 2010
Automated National and Local Elections. The Municipal Board of
Canvassers (MBC) proclaimed Saquilayan as the duly elected municipal
mayor garnering a total of 48,181 votes as against Maliksis 39,682
votes. Based on the MBCs canvass, Saquilayan won over Maliksi by
8,499 votes. Maliksi filed an election protest before the Regional Trial
Court of Imus, Cavite, Branch 22, questioning the results of the elections
in 209 clustered precincts. In its 15 November 2011 Decision, the trial
court declared Maliksi as the duly elected Municipal Mayor of Imus,
Cavite. The trial court ruled that Maliksi garnered 41,088 votes as
against Saquilayans 40,423 votes. Based on the trial courts recount,
Maliksi won over Saquilayan by a margin of 665 votes.

Saquilayan filed an appeal before the COMELEC. The COMELEC

First Division, after inspecting the ballot boxes, ruled that it was
apparent that the integrity of the ballots had been compromised. To
determine the true will of the electorate, and since there was an
allegation of ballot tampering, the COMELEC First Division examined
the digital images of the contested ballots stored in the Compact Flash
(CF) cards. After the counting and appreciation of the ballot images in
the CF cards of the appealed clustered precincts, the COMELEC First
Division found that Saquilayan won over Maliksi by 8,429 votes. In a
Resolution promulgated on 15 August 2012, the COMELEC First Division
nullified the trial courts decision and declared Saquilayan as the duly-
elected Municipal Mayor of Imus, Cavite. The COMELEC First Division
noted that Maliksi attached a photocopy of an official ballot to his
election protest. The COMELEC First Division stated that unless one of
the clustered precincts had a photocopying machine, it could only
mean that an official ballot was taken out of the polling place to be
photocopied, in violation of Section 30(a) of COMELEC Resolution No.
8786.
 Question 14: Maliksi assailed the use by the COMELEC First
Division of the ballot images in the CF cards. He alleged that the best
and most conclusive evidence are the physical ballots themselves, and
when they cannot be produced or when they are not available, the
election returns would be the best evidence of the votes cast. Is Maliksi
correct?

Answer: Maliksi is wrong. The ballot images in the CF cards, as

well as the printouts of such images, are the functional equivalent of the
official physical ballots filled up by the voters, and may be used in an
election protest.

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

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

In Vinzons-Chato and Panotes, the Court explained in length:

Section 2 (3) of R.A. No. 9369 defines official ballot where AES is
utilized as the paper ballot, whether printed or generated by the
technology applied, that faithfully captures or represents the votes cast
by a voter recorded or to be recorded in electronic form.

An automated election system, or AES, is a system using

appropriate technology which has been demonstrated in the voting,
counting, consolidating, canvassing, and transmission of election result,
and other electoral process. There are two types of AES identified under
R.A. No. 9369: (1) paper-based election system; and (2) direct recording
electronic system. A paper-based election system, such as the one
adopted during the May 10, 2010 elections, is the type of AES that use
paper ballots, records and counts votes, tabulates,
consolidates/canvasses and transmits electronically the results of the
vote count. On the other hand, direct recording electronic election
system uses electronic ballots, records, votes by means of a ballot
display provided with mechanical or electro-optical component that can
be activated by the voter, processes data by means of computer
programs, record voting data and ballot images, and transmits voting
results electronically.

As earlier stated, the May 10, 2010 elections used a paper-based

technology that allowed voters to fill out an official paper ballot by
shading the oval opposite the names of their chosen candidates. Each
voter was then required to personally feed his ballot into the Precinct
Count Optical Scan (PCOS) machine which scanned both sides of the
ballots simultaneously, meaning, in just one pass. As established during
the required demo tests, the system captured the images of the ballots
in encrypted format which, when decrypted for verification, were found
to be digitized representations of the ballots cast.

We agree, therefore, with both the HRET and Panotes that the
picture images of the ballots, as scanned and recorded by the PCOS,
are likewise official ballots that faithfully captures (sic) in electronic
form the votes cast by the voter, as defined by Section 2 (3) of R.A. No.
9369. As such, the printouts thereof are the functional equivalent of the
paper ballots filled out by the voters and, thus, may be used for
purposes of revision of votes in an electoral protest.

It bears stressing that the digital images of the ballots captured

by the PCOS machine are stored in an encrypted format in the CF
cards. Encryption is the process of encoding messages (or information)
in such a way that eavesdroppers or hackers cannot read it, but that
authorized parties can. In an encryption scheme, the message or
information (referred to as plaintext) is encrypted using an encryption
algorithm, turning it into an unreadable ciphertext. This is usually done
with the use of an encryption key, which specifies how the message is
to be encoded. Any adversary that can see the ciphertext, should not
be able to determine anything about the original message. An
authorized party, however, is able to decode the ciphertext using a
decryption algorithm, that usually requires a secret decryption key, that
adversaries do not have access to.

Hence, the COMELEC First Division did not gravely abuse its
discretion in using the ballot images in the CF cards.
 Question 15: Maliksi further argued that the ballot images in the
CF cards should merely be considered as secondary evidence and
should be resorted to only when the physical ballots are not available
or could not be produced. Is the contention valid?

Answer: Maliksis contention is mistaken. Rule 4 of A.M. No. 01-7-

01-SC36 is clear on this issue. It states:

SECTION 1. Original of an Electronic Document. - An electronic

document shall be regarded as the equivalent of an original document
under the Best Evidence Rule if it is a printout or output readable by
sight or other means, shown to reflect the data accurately.

SECTION 2. Copies as equivalent of the originals. - When a

document is in two or more copies executed at or about the same time
with identical contents, or is a counterpart produced by the same
impression as the original, or from the same matrix, or by mechanical or
electronic recording, or by chemical reproduction, or by other
equivalent techniques which accurately reproduces the original, such
copies or duplicates shall be regarded as the equivalent of the original.

Notwithstanding the foregoing, copies or duplicates shall not be

admissible to the same extent as the original if: (a) a genuine question
is raised as to the authenticity of the original; or (b) in the circumstances
it would be unjust or inequitable to admit the copy in lieu of the
original.

The ballot images, which are digital, are electronically generated

and written in the CF cards when the ballots are fed into the PCOS
machine. The ballot images are the counterparts produced by
electronic recording which accurately reproduce the original, and thus
are the equivalent of the original. As pointed out by the COMELEC,
[t]he digital images of the physical ballots are electronically and
instantaneously generated by the PCOS machines once the physical
ballots are fed into and read by the machines. Hence, the ballot
images are not secondary evidence. The official physical ballots and the
ballot images in the CF cards are both original documents. The ballot
images in the CF cards have the same evidentiary weight as the official
physical ballots.
 The Court notes that Maliksi did not raise any allegation that the
use of the ballot images falls under any of the exceptions under Section
2, Rule 4 of A.M. No. 01-7-01-SC that would make their use inadmissible
as original ballots.

EMMANUEL B. AZNAR v. CITIBANK, N.A., (Philippines), G.R. No. 164273,

March 28, 2007

FACTS:

Emmanuel B. Aznar (Aznar), a known businessman in Cebu, is a

holder of a Preferred Master Credit Card (Mastercard) issued by
Citibank with a credit limit of P150,000.00. As he and his wife, Zoraida,
planned to take their two grandchildren, Melissa and Richard Beane, on
an Asian tour, Aznar made a total advance deposit of P485,000.00 with
Citibank with the intention of increasing his credit limit to P635,000.00.

With the use of his Mastercard, Aznar purchased plane tickets

to Kuala Lumpur for his group worth P237,000.00. On July 17,
1994, Aznar, his wife and grandchildren left Cebu for the said
destination.

Aznar claims that when he presented his Mastercard in some

establishments in Malaysia, Singapore and Indonesia, the same was not
honored. And when he tried to use the same in Ingtan Tour and Travel
Agency (Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it
was again dishonored for the reason that his card was blacklisted by
Citibank. Such dishonor forced him to buy the tickets in cash. He further
claims that his humiliation caused by the denial of his card was
aggravated when Ingtan Agency spoke of swindlers trying to use
blacklisted cards. Aznar and his group returned to
the Philippines on August 10, 1994.

On August 26, 1994, Aznar filed a complaint for damages against

Citibank, claiming that Citibank fraudulently or with gross negligence
blacklisted his Mastercard which forced him, his wife and grandchildren
to abort important tour destinations and prevented them from buying
certain items in their tour. To prove that Citibank blacklisted
his Mastercard, Aznar presented a computer print-out, denominated
as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY
REPORT, issued to him by Ingtan Agency (Exh. G) with the signature of
one Victrina Elnado Nubi(Nubi) which shows that his card in question
was DECL OVERLIMIT or declared over the limit.

Aznar puts much weight on the ON-LINE AUTHORIZATION

FOREIGN ACCOUNT ACTIVITY REPORT, a computer print-out handed
to Aznar by Ingtan Agency, marked as Exh. G, to prove that
his Mastercard was dishonored for being blacklisted. On said print-
out appears the words DECL OVERLIMIT opposite Account No. 5423-
3920-0786-7012.

The RTC and the CA, however, ruled that such exhibit cannot be
considered admissible as its authenticity and due execution were not
sufficiently established by petitioner.

The prevailing rule at the time of the promulgation of the RTC

Decision is Section 20 of Rule 132 of the Rules of Court. It provides that
whenever any private document offered as authentic is received in
evidence, its due execution and authenticity must be proved either by
(a) anyone who saw the document executed or written; or (b) by
evidence of the genuineness of the signature or handwriting of the
maker.

Aznar, who testified on the authenticity of Exh. G, admitted that

he did not actually see the document executed or written, and neither
was he able to provide evidence on the genuineness of the signature or
handwriting of Nubi, who handed to him said computer print-
out. Indeed, all he was able to allege in his testimony are the following:

Q: I show to you a Computer Print Out captioned as On

Line Authorization Activity Report where it is
shown that the Preferred Master Card Number
5423392007867012 was denied as per notation
on the margin of this Computer Print Out, is
this the document evidencing the dishonor of
your Preferred Master Card?

xxxx
 A: Yes sir, after that Ingtan incident, I went straight to the
Service Agency there and on the left hand side
you will be able to see the name of the person
in-charged [sic] there certifying that really my
card is being blacklisted and there is the
signature there of the agency.

ATTY. NAVARRO:
The witness, your honor, is pointing to the signature over
the handwritten name
of Victrina Elnado Nubi which I pray, your
honor, that the Computer Print Out be marked
as our Exhibit G and the remarks at the left
hand bottom portion
of Victorina Elnado Nubi with her signature
thereon be encircled and be marked as our
Exhibit G-1.
xxxx

Q: Mr. Aznar, where did you secure this Computer

Print Out marked as Exhibit G?
A: This is provided by that Agency, your honor. They were
the ones who provided me with this. So what
the lady did, she gave me the Statement and I
requested her to sign to show proof that my
Preferred Master Card has been rejected.

Question 16: Aznar invokes the Rules on Electronic Evidence

contending that Exhibit G is admissible as electronic evidence.
Aznar claims that his testimony complies with par. (c), Section 2, Rule 5
of the Rules on Electronic Evidence, i.e., it constitutes the other
evidence showing integrity and reliability of Exh. G to the satisfaction of
the judge. Is the contention tenable?

Answer: Under the Rules on Electronic Evidence, which took effect

on August 1, 2001, and which is being invoked by Aznar in this case, the
authentication of Exh. G is wanting.

Pertinent sections of Rule 5 read:

 Section 1. Burden of proving authenticity. The person
seeking to introduce an electronic document in any legal
proceeding has the burden of proving its authenticity in the
manner provided in this Rule.

Section 2. Manner of authentication. Before any

private electronic document offered as authentic is received
in evidence, its authenticity must be proved by any of the
following means:

(a) by evidence that it had been digitally signed by

the person purported to have signed the
same;
(b) by evidence that other appropriate security
procedures or devices as may be
authorized by the Supreme Court or by
law for authentication of electronic
documents were applied to the
document; or
(c) by other evidence showing its integrity and
reliability to the satisfaction of the judge.

Indeed, Aznar failed to demonstrate how the information

reflected on the print-out was generated and how the said information
could be relied upon as true. In fact, Aznar to repeat, testified as
follows:

ATTY. NERI
Q Now, paragraph 12 also states and I quote: its entry in the
hot list was confirmed to be authentic

Now, who confirmed that the blacklisting of your Preferred

Citibank Mastercard was authentic?

A Okey. When I presented this Mastercard, my card rather,

at the Merchants store, I do not know, they
called up somebody for verification then later
they told me that your card is being denied. So,
I am not in a position to answer that. I do not
know whom they called up; where they
 verified. So, when it is denied thats presumed
to be blacklisted.

Question 17: Aznar next argues that Exhibit G is still admissible as

prima facie evidence under Section 43 of Rule 130 of the Rules of Court,
which pertains to entries in the course of business. The said provision
reads:

Sec. 43. Entries in the course of business . Entries

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

Is Aznar correct?

Answer: No. Under this rule, the following conditions are

required:
1. the person who made the entry must be dead, or
unable to testify;
2. the entries were made at or near the time of the
transactions to which they refer;
3. the entrant was in a position to know the facts
stated in the entries;
4. the entries were made in his professional capacity or
in the performance of a duty, whether legal,
contractual, moral or religious; and
5. the entries were made in the ordinary or regular
course of business or duty.

As correctly pointed out by the RTC in its May 29, 1998 Decision,
there appears on the computer print-out the name of a
certain Victrina Elnado Nubi and a signature purportedly belonging to
her, and at the left dorsal side were handwritten the words Sorry for the
delay since the records had to be retrieved. Regards. Darryl Mario. It is
not clear therefore if it was Nubi who encoded the information stated in
the print-out and was the one who printed the same. The handwritten
annotation signed by a certain Darryl Mario even suggests that it was
Mario who printed the same and only handed the print-out
to Nubi. The identity of the entrant, required by the provision above
mentioned, was therefore not established. Neither did petitioner
establish in what professional capacity did Mario or Nubi make the
entries, or whether the entries were made in the performance of their
duty in the ordinary or regular course of business or duty.

And even if Exh. G is admitted as evidence, it only shows that the

use of the credit card of petitioner was denied because it was already
over the limit. There is no allegation in the Complaint or evidence to
show that there was gross negligence on the part of Citibank in
declaring that the credit card has been used over the limit.