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Section of the Rules on Evidence Affected by the RULES ON ELECTRONIC EVIDENCE

Rules on Evidence Electronic Evidence Law


RULE 130 Sec. 1 (Object Evidence) Rule 11 Sec.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.

RULE 11 Sec.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.

Are social media posts admissible in evidence?

Consider, for example, a Facebook post by Mr. Y that reads: “Senator X is a crook. He stole
millions of taxpayers’ money from the PDAF. He is a certified thief. He deserves all the public
humiliation that he is now getting.”

 This kind of comment is definitely libelous. It may be the basis for a civil case for
damages and a criminal case for libel.

Citing SC En Banc Resolution dated September 24, 2002 in AM No. 01-07-01: The post, in turn,
is admissible in evidence not only in a civil case BUT ALSO IN CRIMINAL CASES.

The Facebook post in question is considered a document pursuant to the functional


equivalence and non-discrimination principles under the E-Commerce Act of 2000 (ECA) and
the Rules on Electronic Evidence (REE), which the Supreme Court promulgated in 2001 to
implement the ECA in our courts of law.

Under these principles, an electronic document is considered the functional equivalent of a


paper-based document and should not be discriminated against as evidence solely on the
ground that it is not in the standard paper form.
Section 12 of the ECA expressly provides that “nothing in the application of the rules of
evidence shall deny admissibility of an electronic data message or electronic document on the
sole ground that it is in electronic form, or on the ground that it is not the standard form.”

The REE, (Section 1, Rule 3) further provides that “Whenever a rule of evidence refers to the
term of writing, document, record, instrument, memorandum or any other form of writing,
such term shall be deemed to include an electronic document as defined in these Rules.”

PROVING ITS AUTHENTICITY AND GENUINESS

When posts are retained, characterized as electronic document under the ECA and
REE:
 Section 2, Rule 5 of the REE applies
“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.”

The first two modes are technical. The first is authentication through digital signatures which,
although not well known when the REE was promulgated in 2001, is now fast becoming
commonplace.

The second is authentication through other security procedures or devices (retina scan, PDF-8,
etc.) as may be authorized by the Supreme Court. No such other procedures or devices have yet
been authorized.

Under the third mode of authenticating electronic documents, an electronic document may
be authenticated by any “other evidence showing its integrity and reliability to the
satisfaction of the judge.” This is the layman’s way of authenticating electronic evidences.

In practical terms, under the layman’s approach, authenticating an electronic document is just
like authenticating a paper-based document under the traditional rules of evidence. No more,
no less.

Ephemeral Communication

The second situation is that the Facebook post is deleted at a certain point, as what often
happens.
The REE has a provision specifically addressing the situation. If deleted or removed, the post is
considered ephemeral electronic communication under the REE.

Section 1(k), Rule 2 of the REE applies


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.”

(Section 2, par. 1, Rule 11) of the same rule provides 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.”

In effect, this mode of authentication follows the layman’s approach for authenticating
electronic evidence.

Messages and other electronic posts may be deleted from time to time by the sender or by the
recipient for a variety of reasons. This was considered by our law and nevertheless, it still
recognized their evidentiary value for as long as a competent witness can testify on them.

TEXT MESSAGES

The legal question posed to me by some of my friends is whether text messages are admissible as
evidence in a court of law.

Our Supreme Court answered the question in the affirmative as early as 2005.

CASE:

Zaldy Nuez vs. Elvira Cruz-Apao (April 12, 2005)

RULING:

The exchange of text messages between Zaldy and Elvira was duly presented before the
committee. Zaldy testified on the text messages. On top of the testimony, Elvira and her
counsel attested to the veracity of the text messages between her and Zaldy.

The Supreme Court ruled that the text messages were admissible as evidence against Elvira.
The Court cited the Rules on Electronic Evidence (REE) promulgated in 2001. The High Court
held that the text messages were duly “proven by the testimony of a person who was a party to
the same or who has personal knowledge thereof.”
Furthermore, Elvira admitted that the text messages originated from her mobile phone and
she, together with her counsel, had signed and attested to the veracity of the text messages.
The Supreme Court held that the text messages were duly authenticated in accordance with the
REE and were, thus, admissible in evidence against Elvira.

Sypnosis:
A certain Elvira Cruz-Apao (Elvira) solicited P1 million from Zaldy Nuez (Zaldy) in exchange for a
favorable decision of the latter’s case with the Court of Appeals (CA).

Elvira, who was an executive assistant in the CA, represented to Zaldy that the money was for a
researcher who would draft a favorable decision for Zaldy.

Instead of agreeing to Elvira’s machinations, Zaldy sought the help of the Imbestigador of the
GMA Network and the Presidential Anti-Organized Crime Task Force (PAOCTF) in the
entrapment of Elvira.

Zaldy and Patricia Siringan of the Imbestigador, who posed as the former’s sister-in-law, met
with Elvira twice. During their second meeting, Zaldy and Patricia were accompanied by 5
PAOCTF agents who apprehended Elvira.

In due course, an administrative case for dishonesty and grave misconduct was filed against
Elvira. The CA constituted a committee to investigate the case.

Zaldy, together with Patricia, testified in support of his claim. Zaldy also presented several text
messages from Elvira, which helped establish that the latter solicited P1 million in exchange for
early decision in favor of Zaldy.

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