Jurisprudence on Electronic Evidence

Ang vs. Court of Appeals, GR 182835, 20 April 2010; Second Division, Abad [J], provided:

Four. 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).

But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the
first time before this 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. [People v. Mendoza, G.R. No. 180501, December 24, 2008, 575 SCRA
616, 625-626]

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. [A.M. No. 01-7-
01-SC, Rule 1, Section 2]

However, People v. Enojas, GR 204894, 10 March 2014, Third Division, Abad [J], provided:

As to the admissibility of the text messages, the RTC admitted them in conformity with the Courts
earlier Resolution applying the Rules on Electronic Evidence to criminal actions. [A.M. No. 01-7-01-SC,
Re: Expansion of the Coverage of the Rules on Electronic Evidence, September 24, 2002.] 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. [Id., Rule 11, Section 2] 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. (Emphasis mine)

The latter case does not confront directly the obiter in Ang v. Court of Appeals, but the recognition of
the 2002 resolution expanding the coverage of the rules on electronic evidence in People v. Enojas is
clear.

The Rules on Electronic Evidence apply to criminal cases.

MCC INDUSTRIAL SALES CORPORATION v SSANGYONG CORPORATION (G.R. No. 170633 ,Oct 17, 2007)

Although the parties did not raise the question whether the original facsimile transmissions are
electronic data messages or electronic documents within the context of the Electronic Commerce Act
(the petitioner merely assails as inadmissible evidence the photocopies of the said facsimile
transmissions), we deem it appropriate to determine first whether the said fax transmissions are indeed
within the coverage of R.A. No. 8792 before ruling on whether the photocopies thereof are covered by
the law.

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, 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.

In resolving this issue, the appellate court ruled that he 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). An electronic document shall be regarded as the equivalent of an original document
under the Best Evidence Rule, as long as it is a printout or output readable by sight or other means,
showing to reflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC).

However, SC ruled that the he ruling of the Appellate Court is incorrect. R.A. No. 8792,[64]
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.[65]
The Rules on Electronic Evidence[66] 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.[67] 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.[68]

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 Court concluded 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.
 In this case, to establish the existence of a perfected contract of sale between the parties,
respondent Ssangyong formally offered in evidence the testimonies of its witnesses and the following
exhibits:

Exhibit Description Purpose

Xxx Xxx xxx
E Pro forma Invoice dated 17 To show that defendants contracted with
April 2000 with Contract plaintiff for the delivery of 110 MT of
No. ST2-POSTS0401- stainless steel from Koreapayable by
1, photocopy way of an irrevocable letter of credit in
favor of plaintiff, among other
conditions.
E-1 Pro forma Invoice dated 17 To show that defendants sent their
April 2000 with Contract confirmation of the (i) delivery to it of
No. ST2- the specified stainless steel products, (ii)
POSTS0401, contained in defendants payment thereof by way of
facsimile/thermal paper faxed by an irrevocable letter of credit in favor of
defendants to plaintiff showing plaintiff, among other conditions.
the printed transmission details
on the upper portion of said
paper as coming from defendant
MCC on 26 Apr 00 08:41AM
E-2 Conforme signature of Mr. To show that defendants sent their
Gregory Chan, contained in confirmation of the (i) delivery to it of
facsimile/thermal paper faxed by the total of 220MT specified stainless
defendants to plaintiff showing steel products, (ii) defendants payment
the printed transmission details thereof by way of an irrevocable letter
on the upper portion of said of credit in favor of plaintiff, among
paper as coming from defendant other conditions.
MCC on 26 Apr 00 08:41AM
F Pro forma Invoice dated 17 To show that defendants contracted with
April 2000 with Contract plaintiff for delivery of another 110 MT
No. ST2-POSTSO401- of stainless steel from Korea payable by
2, photocopy way of an irrevocable letter of credit in
favor of plaintiff, among other
conditions.
xxx xxx xxx

Significantly, among these documentary evidence presented by respondent, MCC, in its petition
before this Court, assails the admissibility only of Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-
POSTS0401-2 (Exhibits E and F). After sifting through the records, the Court found that these invoices
are mere photocopies of their original fax transmittals. Ssangyong avers that these documents were
prepared after MCC asked for the splitting of the original order into two, so that the latter can apply for
an L/C with greater facility. It, however, failed to explain why the originals of these documents were not
presented.

To determine whether these documents are admissible in evidence, we apply the ordinary
Rules on Evidence, for as discussed above we cannot apply the Electronic Commerce Act of 2000 and
the Rules on Electronic Evidence.
Because these documents are mere photocopies, they are simply secondary evidence,
admissible only upon compliance with Rule 130, Section 5,
NATIONAL POWER CORPORATION v HON. RAMON G. CODILLA, JR, et.al. (G.R. No. 170491April 4,
2007)

On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned and operated by private
respondent Bangpai Shipping, Co., allegedly bumped and damaged petitioners Power Barge 209 which
was then moored at the Cebu International Port. Thus, on 26 April 1996, petitioner filed before the Cebu
RTC a complaint for damages against private respondent Bangpai Shipping Co., for the alleged damages
caused on petitioners power barges. 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.

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.

We do not agree.

In order to shed light to the issue of whether or not the photocopies are indeed electronic documents as
contemplated in Republic Act No. 8792 or the Implementing Rules and Regulations of the Electronic
Commerce Act, as well as the Rules on Electronic Evidence, we shall enumerate the following
documents offered as evidence by the petitioner, to wit:

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 VirgilioAsprer;

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 Jurat were 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.

On the other hand, 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.[5] It includes digitally signed documents and any printout, readable by sight or
other means which accurately reflects the electronic data message or electronic document.[6]

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.[7] 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.[8] 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.[9] 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.[10]

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.

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

The dishonor of Aznars Mastercard is not sufficient to support a conclusion that said credit card
was blacklisted by Citibank, especially in view of Aznars own admission that in other merchant
establishments in Kuala Lumpur and Singapore, his Mastercard was accepted and honored.[43]

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.

As correctly pointed out by the RTC and the CA, however, 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, did not actually see the document executed
or written, 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.

Even if examined 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 would still be found
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.

Aznar claims that his testimony complies with par. (c), i.e., it constitutes the other evidence
showing integrity and reliability of Exh. G to the satisfaction of the judge. The Court is not convinced.
Aznars testimony that the person from Ingtan Agency merely handed him the computer print-out and
that he thereafter asked said person to sign the same cannot be considered as sufficient to show said
print-outs integrity and reliability. As correctly pointed out by Judge Marcos in his May 29, 1998
Decision, Exh. G does not show on its face that it was issued by Ingtan Agency as Aznar merely
mentioned in passing how he was able to secure the print-out from the agency; Aznar also failed to
show the specific business address of the source of the computer print-out because while the name of
Ingtan Agency was mentioned by Aznar, its business address was not reflected in the print-out.[45]

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.

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.

The Court is also perplexed that stated on Exh. G is the amount of 6,289,195.10 opposite
petitioner's account number, which data, petitioner did not clarify.[48] As plaintiff in this case, it was
incumbent on him to prove that he did not actually incur the said amount which is above his credit limit.
As it is, the Court cannot see how Exh. G could help petitioner's claim for damages.
ZALDY NUEZ vs. ELVIRA CRUZ-APAO [A.M. No. CA-05-18-P. April 12, 2005]

In this case, complainant and the law enforcers resorted to entrapment precisely because respondent
demanded the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a
favorable decision of the latters pending case. Complainants narration of the incidents which led to the
entrapment operation are more in accord with the circumstances that actually transpired and are more
credible than respondents version.

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 One Million Pesos (P1,000,000.00) 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[65] 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 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.[66] 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.[67] It is also well to remember that in administrative
cases, technical rules of procedure and evidence are not strictly applied.[68] 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.