Friday, August 24, 2001

On the Adequacy of the New Philippine Rules on Electronic Evidence

Jim Ayson, a noted web developer in the field of Philippine music, reported that in a forum regarding the New Rules on Electronic Evidence, the lawyers criticized the Rules for being incomplete. He writes,

"For example-- among the criticisms on the promulgation of the Rules on Electronic Evidence (REE) are on its substance, how it affects the Best Evidence Rule and the rules on Admissibility under the Rules of Evidence.. The REE practically does away
with the concept of "best evidence." With the REE almost any electronic document/data message can become admissible...but what about traditional transactions where no internet or any electronic transaction were ever involved?"

There is indeed an "anomaly" under the Best Evidence Rule if read together with the REE. We believe, however, that lawyers have to live with this "anomaly" as the legal world takes a paradigm shift with the onset of electronic evidence. The crux of the issue is how the word "original" is defined. With paper transactions, the original is the document actually signed by the parties. But with electronic evidence, the original can be the file on the hard disk or the email or the diskette file or the print-out or the faxed copy. The lawyers (and most especially the judges) should accept the need to broaden the meaning of the term "original " in the light of new technology.

Yet, we can hardly understand why this provision can be considered a defect in the Rules. For years, we agonized over how to present a faxed message where the only original we have is the faxed copy itself. Every time we presented the faxed copy, we got objections left and right and the poor judge was only too happy to tow the hard-line because the law says the original cannot be the faxed copy. Sometime in 1999, we received a referral on the filing of a criminal case against a group of people who hacked the important files of a company. The evidence consisted of print-outs which clearly indicated who and where the hacker was. We declined the case because the Rules of Evidence in 1999 showed that evidence in the form of print-outs is out of the question. Now. with the new REE, we are more confident that our faxed messages and electronic print-outs can withstand vigorous objections from the best lawyers.

We imagine the first Filipino e-commerce case to be tough. Our lawyers and judges will have to look to the US (which by the way is also struggling with this new field) for various questions on electronic evidence. But adequate or not, the new Rules will surely help the lawyers and the judges get started. That should be good enough. Besides, if the rules were complete and clear, what are lawyers for?

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