ELECTRONIC EVIDENCE

ATTY. BERTENI C. CAUSING v. JUDGE JOSE LORENZO R. DELA ROSA

OCA IPI No. 17-4663-RTC, March 7, 2018, SECOND DIVISION (J. Caguioa)

This is a complaint for gross ignorance of the law, gross misconduct and gross
incompetence for reversing the dismissal of criminal case entitled People v. Eleazar, et
al., wherein Percival Carag Mabasa, Atty. Causing’s client, was one of the accused.

Complainants criticized respondent Judge Dela Rosa's act of referring to the

Integrated Bar of the Philippines (IBP) Atty. Causing's two (2) separate posts on his
Facebook and blogspot accounts about the subject criminal cases. They reasoned that
respondent Judge Dela Rosa should have first required Atty. Causing to show cause why
he should not be cited in contempt for publicizing and taking his posts to social media.
Atty. Causing emphasized that the posts were presented using decent words and thus, it
was incorrect for respondent Judge Dela Rosa to refer his actions to a disciplinary body
such as the IBP. Atty. Causing further asserted that he did not violate the sub judice  rule
because this rule cannot be used to preserve the unfairness and errors of respondent
Judge Dela Rosa.

The Court finds no merit in complainants' allegation that respondent

Judge Dela Rosa should have first required Atty. Causing to show cause for his act of
posting matters pertaining to the pending criminal case on the internet. The Court agrees
with the OCA that respondent Judge Dela Rosa's act of referring the matter to the IBP, an
independent tribunal who exercises disciplinary powers over lawyers, was a prudent and
proper action to take for a trial court judge.

MARIA VICTORIA G. BELO-HENARES v. ATTY. ROBERTO GUEVARRA

A.C. No. 11394, December 1, 2016, FIRST DIVISION (J. Perlas-Bernabe)

This involves a complaint for disbarment filed by complainant against Atty.

Guevarra, the lawyer of a certain Josie Norcio who filed criminal cases against
complainant for an allegedly botched surgical procedure on her buttocks causing
infection and making her ill in 2009.

Respondent is suspended from the practice of law.

Facebook is a "voluntary social network to which members subscribe and submit

information. . . . It has a worldwide forum enabling friends to share information such as
thoughts, links, and photographs, with one another." Users register at this site, create a
personal profile or an open book of who they are, add other users as friends, and
exchange messages, including automatic notifications when they update their profile. A
user can post a statement, a photo, or a video on Facebook, which can be made visible
to anyone, depending on the user's privacy settings. 

To address concerns about privacy, but without defeating its purpose, Facebook
was armed with different privacy tools designed to regulate the accessibility of a user's
profile, as well as information uploaded by the user. In H v. W,  the South Gauteng
High Court of Johannesburg, Republic of South Africa recognized this ability of the
users to "customize their privacy settings," but with the cautionary advice that although
Facebook, as stated in its policies, "makes every effort to protect a user's information,
these privacy settings are however not foolproof." Consequently, before one can have
an expectation of privacy in his or her online social networking activity — in this case,
Facebook — it is first necessary that said user manifests the intention to keep certain
posts private, through the employment of measures to prevent access thereto or to
limit its visibility. This intention can materialize in cyberspace through the utilization
of Facebook's privacy tools. In other words, utilization of these privacy tools is the

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manifestation, in the cyber world, of the user's invocation of his or her right to
informational privacy. 

The bases of the instant complaint are the Facebook posts maligning and
insulting complainant, which posts respondent insists were set to private view.
However, the latter has failed to offer evidence that he utilized any of the privacy tools
or features of Facebook available to him to protect his posts, or that he restricted its
privacy to a select few. Therefore, without any positive evidence to corroborate his
statement that the subject posts, as well as the comments thereto, were visible only to
him and his circle of friends, respondent's statement is, at best, self-serving, thus
deserving scant consideration.

Moreover, even if the Court were to accept respondent's allegation that his posts
were limited to or viewable by his "Friends" only, there is no assurance that the same
— or other digital content that he uploads or publishes on his Facebook profile — will
be safeguarded as within the confines of privacy, in light of the following:

(1) Facebook "allows the world to be more open and connected by giving its
users the tools to interact and share in any conceivable way";
(2) A good number of Facebook users "befriend" other users who are total
strangers;
(3) The sheer number of "Friends" one user has, usually by the hundreds; and
(4) A user's Facebook friend can "share" the former's post, or "tag" others who
are not Facebook friends with the former, despite its being visible only
to his or her own Facebook friends. 

Thus, restricting the privacy of one's Facebook posts to "Friends" does not
guarantee absolute protection from the prying eyes of another user who does not
belong to one's circle of friends. The user's own Facebook friend can share said
content or tag his or her own Facebook friend thereto, regardless of whether the
user tagged by the latter is Facebook friends or not with the former. Also, when
the post is shared or when a person is tagged, the respective Facebook friends of
the person who shared the post or who was tagged can view the post, the privacy
setting of which was set at "Friends." Under the circumstances, therefore,
respondent's claim of violation of right to privacy is negated.

Moreover, By posting the subject remarks on Facebook directed at

complainant and BMGI, respondent disregarded the fact that, as a lawyer, he is
bound to observe proper decorum at all times, be it in his public or private life. He
overlooked the fact that he must behave in a manner befitting of an officer of the
court, that is, respectful, firm, and decent. Instead, he acted inappropriately and
rudely; he used words unbecoming of an officer of the law, and conducted himself
in an aggressive way by hurling insults and maligning complainant's and BMGI's
reputation.

INTERADENT ZAHNTECHNIK PHILIPPINES, INC., BERNARDINO G.

BANTEGUI, JR. AND SONIA J. GRANDEA v. REBECCA F. SIMBILLO
G.R. No. 207315, November 23, 2016, SECOND DIVISION (J. Del Castillo)

In this case, the act alleged to have caused the loss of trust and confidence of
petitioners in Simbillo was her Facebook post which supposedly suggests that
Interadent was being "feasted on" by the BIR and also contains insulting statements
against a co-worker and hence has compromised the reputation of the company.
According to petitioners, there was disclosure of confidential information that gives the
impression that Interadent is under investigation by the BIR for irregular transactions.
However, we agree with the CA's observation that the Facebook entry did not contain
any corporate record or any confidential information. Otherwise stated, there was

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really no actual leakage of information. No company information or corporate
record was divulged by Simbillo.

Simbillo's failure to substantiate her claim that the Facebook entry was posted for
a friend who consulted her on a predicament she has with her company and that the
term "b_i_r_" represents "bwitre" will not weaken her case against petitioners. It must
be emphasized at this point that in illegal dismissal cases, the burden of proof is upon
the employer to show that the employee's dismissal was for a valid cause. The
Facebook entry did not mention any specific name of employer/company/government
agency or person. Contrary to petitioners' insistence, the intended subject matter was
not clearly identifiable. As acknowledged by petitioners themselves, Simbillo's
Facebook account contained a list of her former and present employers. If anything, the
entry would merely merit some suspicion on the part of Interadent being the present
employer, but it would be far-fetched to conclude that Interadent may be involved in
anomalous transactions with the BIR. Clearly, petitioners' theory was based on mere
speculations. 

If at all, Simbillo can only be said to have acted "carelessly, thoughtlessly,

heedlessly or inadvertently" in making such a comment on Facebook; however, such
would not amount to loss of trust and confidence as to justify the termination of her
employment. When the breach of trust or loss of confidence conjectured upon is not
borne by clearly established facts, as in this case, such dismissal on the ground of loss
of trust and confidence cannot be upheld.

OFFICE OF THE COURT ADMINISTRATOR v. JUDGE ELIZA B. YU

AM No. MTJ-12-1813, November 22, 2016, EN BANC (PER CURIAM)

Judge Yu denied sending the messages to Judge San Gaspar-Gito, and countered

that it was the latter who first sent the "meal stub" message. She maintained that the
messages were confidential and inadmissible as evidence under the exclusionary rule. 

Judge Yu's reliance on the exclusionary rule fails.

The exclusionary rule, or the fruit of the poisonous tree doctrine, presupposes a
violation of law on the part of the agents of the Government, and bars the admission of
evidence obtained in violation of the right against unreasonable searches and seizures
expressly defined under Section 2, Article III of the Constitution. The exclusionary rule
under Section 3 (2), Article III of the Constitution refers to the prohibition against the
issuance of general warrants that encourage law enforcers to go on fishing expeditions. 

Judge Yu did not specify that the State had unlawfully intruded into her privacy.
The subjects of the present inquiry were the messages sent by her to Judge San Gaspar-
Gito. Regardless of the mode of their transmission, the ownership of the messages
pertained to the latter as the recipient. Considering that it was the latter who granted
access to such messages, there was no violation of Judge Yu's right to privacy. As such,
the grant of access by Judge San Gaspar-Gito did not require the consent of Judge Yu as
the writer. To recall, the Court directed the MISO to retrieve the messages for purposes
of these cases. Based on the certification issued by the authorized MISO personnel, the
messages were extracted from the Yahoo and Facebook accounts of Judge San Gaspar-
Gito with the use of her official workstation. Hence, the exclusionary rule did not apply.

Judge Yu denied the imputed significance of the messages.

The denial lacked persuasion. In her October 3, 2009 message to Judge San Gaspar-
Gito's Yahoo account, Judge Yu apologized to Judge San Gaspar-Gito, and expressly
clarified that Judge San Gaspar-Gito had not sent the "meal stub." Judge Yueven

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requested Judge San Gaspar-Gito to "forget all [her] emails . . . since June . . ."  This
apologetic tone from Judge Yu rendered her denial of responsibility devoid of substance.

Moreover, the barrage of messages, most of which were sent within the same day,
makes us believe that they had all come from Judge Yu. Although she insisted
that Judge San Gaspar-Gito had sent the "meal stub," Judge Yu did not offer any
plausible explanation on the other messages containing sexual innuendos.

It is notable that the Facebook and Yahoo messages started in August 2009
when Judge Yu was still a public prosecutor. Nonetheless, she could still be disciplined
for such acts committed prior to her appointment to the Judiciary because her internet
stalking of Judge San Gaspar-Gito continued after she had herself become a
MeTC Judge in Pasay City on January 12, 2010 and lasted until July 2010.

Our reading of the messages supports the studied conclusions by CA Justice

Abdulwahid that they did contain sexual insinuations that were ostensibly improper for
a Judge to write and send to another. The messages, however they may be read and
understood, were at least vexatious and annoying. In any case, the sender showed her
deep-seated proclivities reflective of conduct unbecoming of a member of the Judiciary.

ATTY. RAYMUND P. PALAD v. LOLIT SOLIS, SALVE V. ASIS, AL G.

PEDROCHE and RICARDO F. LO
G.R No. 206691, October 3, 2016, THIRD DIVISION (J. Peralta)

Before this Court is a petition to cite respondents for indirect contempt for
publishing articles on the petitioner Atty. Raymund P. Palad's suspension, which was
subject of a pending administrative case.

Petitioner alleged that respondents made comments, opinions and conclusions as to

the findings of the IBP Board of Governors. Petitioner also alleged that the articles are
pure hearsay since they were not supposed to have copies of the Resolution. On the other
hand, respondents alleged that as entertainment journalists, they received information
from their respective sources about various incidents, events, and personalities. They
alleged that they took the information about the petitioner as the truth, and reported the
same as they were relayed to.

While substantiation of the facts supplied is an important reporting standard, still, a

reporter may rely on information given by a lone source although it reflects only one side
of the story provided the reporter does not entertain a "high degree of awareness of its
probable falsity."  Furthermore, to be considered malicious, the libelous statement must
be shown to have been written or published with the knowledge that they are false or in
reckless disregard of whether they are false or not. "Reckless disregard of what is false or
not" means that the author or publisher entertains serious doubt as to the truth of the
publication, or that he possesses a high degree of awareness of their probable
falsity. Aside from his bare allegation, petitioner presented no proof that respondents
have their own copies of the Resolution, or that they made their own comments, opinions
and conclusions. Petitioner also failed to prove that the publication of the articles is
malicious. Likewise, there was no evidence that respondents entertained awareness of the
probable falsity of their information.

FIRST CLASS CADET ALDRIN JEFF P. CUDIA v. THE

SUPERINTENDENT OF THE PMA, et al.
G.R. No. 211362, February 24, 2015, EN BANC (J. Peralta)

The dismissal of Cadet Cudia is affirmed.

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 Petitioners allege that when Maj. Gen. Lopez denied in his March 11, 2014 letter
Cadet 1CL Cudia's request for documents, footages, and recordings relevant to the HC
hearings, the vital evidence negating the regularity of the HC trial and supporting his
defense have been surely overlooked by the CRAB in its case review. Indeed, for them,
the answers on whether Cadet 1CL Cudia was deprived of due process and whether he
lied could easily be unearthed from the video and other records of the HC investigation.
Respondents did not deny their existence but they refused to present them for the parties
and the Court to peruse. In particular, they note that the Minutes of the HC dated January
21, 2014 and the HC Formal Investigation Report dated January 20, 2014 were
considered by the CRAB but were not furnished to petitioners and the Court; hence, there
is no way to confirm the truth of the alleged statements therein. In their view, failure to
furnish these documents could only mean that it would be adverse if produced pursuant to
Section 3 (e), Rule 131 of the Rules of Court.

For lack of legal basis on PMA's claim of confidentiality of records, petitioners

contend that it is the ministerial duty of the HC to submit to the CRAB, for the conduct of
intelligent review of the case, all its records of the proceedings, including video footages
of the deliberations and voting. They likewise argue that PMA's refusal to release
relevant documents to Cadet 1CL Cudia under the guise of confidentiality reveals another
misapplication of the Honor Code, which merely provides: "A cadet who becomes part of
any investigation is subject to the existing regulations pertaining to rules of
confidentiality and, therefore, must abide to the creed of secrecy. Nothing shall be
disclosed without proper guidance from those with authority" (IV. The Honor System,
Honor Committee, Cadet Observer). This provision, they say, does not deprive Cadet
1CL Cudia of his right to obtain copies and examine relevant documents pertaining to his
case. 

Basically, petitioners want Us to assume that the documents, footages, and

recordings relevant to the HC hearings are favorable to Cadet 1CL Cudia's cause, and,
consequently, to rule that respondents' refusal to produce and have them examined is
tantamount to the denial of his right to procedural due process. They are mistaken.

In this case, petitioners have not particularly identified any documents, witness
testimony, or oral or written presentation of facts submitted at the hearing that would
support Cadet 1CL Cudia's defense. The Court may require that an administrative record
be supplemented, but only "where there is a 'strong showing of bad faith or improper
behavior' on the part of the agency," both of which are not present here. Petitioners have
not specifically indicated the nature of the concealed evidence, if any, and the reason for
withholding it. What they did was simply supposing that Cadet 1CL Cudia's guilty
verdict would be overturned with the production and examination of such documents,
footages, and recordings. As will be further shown in the discussions below, the
requested matters, even if denied, would not relieve Cadet 1CL Cudia's predicament. If at
all, such denial was a harmless procedural error since he was not seriously prejudiced
thereby.

RHONDA AVE S. VIVARES and SPS. MARGARITA AND DAVID SUZARA v.

ST. THERESA’S COLLEGE, et al.
G.R. No. 202666, September 29, 2014, THIRD DIVISION (J. Velasco, Jr.)

The dismissal of the petition for habeas data is affirmed.

The writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission
of a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family, home
and correspondence of the aggrieved party. It is an independent and summary remedy
designed to protect the image, privacy, honor, information, and freedom of information of

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an individual, and to provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control information regarding
oneself, particularly in instances in which such information is being collected through
unlawful means in order to achieve unlawful ends

In developing the writ of habeas data, the Court aimed to protect an individual’s
right to informational privacy, among others. A comparative law scholar has, in fact,
defined habeas data as “a procedure designed to safeguard individual freedom from
abuse in the information age.”  The writ, however, will not issue on the basis merely of
an alleged unauthorized access to information about a person. Availment of the writ
requires the existence of a nexus between the right to privacy on the one hand, and the
right to life, liberty or security on the other. Thus, the existence of a person’s right to
informational privacy and a showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of the victim are
indispensable before the privilege of the writ may be extended.

Without an actionable entitlement in the first place to the right to informational

privacy, a habeas data petition will not prosper. Viewed from the perspective of the case
at bar, this requisite begs this question: given the nature of an online social network
(OSN) — (1) that it facilitates and promotes real-time interaction among millions, if not
billions, of users, sans the spatial barriers,  bridging the gap created by physical space;
and (2) that any information uploaded in OSNs leaves an indelible trace in the provider’s
databases, which are outside the control of the end-users — is there a right to
informational privacy in OSN activities of its users? Before addressing this point, We
must first resolve the procedural issues in this case.

The writ of habeas data is not only confined to cases of extralegal killings and
enforced disappearances

Habeas data, to stress, was designed “to safeguard individual freedom from abuse
in the information age.” As such, it is erroneous to limit its applicability to extralegal
killings and enforced disappearances only. In fact, the annotations to the Rule prepared
by the Committee on the Revision of the Rules of Court, after explaining that the Writ
of Habeas Data complements the Writ of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an
independent remedy to enforce one’s right to privacy, more
specifically the right to informational privacy. The remedies against
the violation of such right can include the updating, rectification,
suppression or destruction of the database or information or files in
possession or in control of respondents. (emphasis Ours)

Clearly then, the privilege of the Writ of Habeas Data may also be availed of in
cases outside of extralegal killings and enforced disappearances.

 Meaning of “engaged” in the gathering, collecting or storing of data or

information

Respondents’ contention that the habeas data writ may not issue against STC, it
not being an entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party, while
valid to a point, is, nonetheless, erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection

shall be available only against abuses of a person or entity engaged in the business of
gathering, storing, and collecting of data. As provided under Section 1 of the Rule:

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 Section 1. Habeas Data. — The writ of habeas data is a remedy
available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party.
(emphasis Ours)

The provision, when taken in its proper context, as a whole, irresistibly conveys
the idea that habeas data is a protection against unlawful acts or omissions of public
officials and of private individuals or entities engaged in gathering, collecting, or
storing data about the aggrieved party and his or her correspondences, or about his
or her family. Such individual or entity need not be in the business of collecting or
storing data.

To “engage” in something is different from undertaking a business endeavour. To

“engage” means “to do or take part in something.” It does not necessarily mean that the
activity must be done in pursuit of a business. What matters is that the person or
entity must be gathering, collecting or storing said data or information about the
aggrieved party or his or her family. Whether such undertaking carries the element of
regularity, as when one pursues a business, and is in the nature of a personal endeavour,
for any other reason or even for no reason at all, is immaterial and such will not prevent
the writ from getting to said person or entity.

To agree with respondents’ above argument, would mean unduly limiting the
reach of the writ to a very small group, i.e., private persons and entities whose business is
data gathering and storage, and in the process decreasing the effectiveness of the writ as
an instrument designed to protect a right which is easily violated in view of rapid
advancements in the information and communications technology — a right which a
great majority of the users of technology themselves are not capable of protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of
the controversy.

The right to informational privacy on Facebook

The concept of privacy has, through time, greatly evolved, with technological

advancements having an influential part therein. This evolution was briefly recounted in
former Chief Justice Reynato S. Puno’s speech, The Common Right to Privacy, where he
explained the three strands of the right to privacy, viz.: (1) locational or situational
privacy;  (2) informational privacy; and (3) decisional privacy. Of the three, what is
relevant to the case at bar is the right to informational privacy — usually defined as the
right of individuals to control information about themselves.

With the availability of numerous avenues for information gathering and data
sharing nowadays, not to mention each system’s inherent vulnerability to attacks and
intrusions, there is more reason that every individual’s right to control said flow of
information should be protected and that each individual should have at least a reasonable
expectation of privacy in cyberspace. Several commentators regarding privacy and social
networking sites, however, all agree that given the millions of OSN users, “[i]n this
[Social Networking] environment, privacy is no longer grounded in reasonable
expectations, but rather in some theoretical protocol better known as wishful thinking.”

It is due to this notion that the Court saw the pressing need to provide for judicial
remedies that would allow a summary hearing of the unlawful use of data or information
and to remedy possible violations of the right to privacy. In the same vein, the South
African High Court, in its Decision in the landmark case, H v. W, promulgated on

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January 30, 2013, recognized that “[t]he law has to take into account the changing
realities not only technologically but also socially or else it will lose credibility in the
eyes of the people. . . . It is imperative that the courts respond appropriately to changing
times, acting cautiously and with wisdom.” Consistent with this, the Court, by developing
what may be viewed as the Philippine model of the writ of habeas data, in effect,
recognized that, generally speaking, having an expectation of informational privacy is
not necessarily incompatible with engaging in cyberspace activities, including those
that occur in OSNs.

The question now though is up to what extent is the right to privacy protected in
OSNs? Bear in mind that informational privacy involves personal information. At the
same time, the very purpose of OSNs is socializing — sharing a myriad of information,
some of which would have otherwise remained personal.

Facebook’s Privacy Tools: a response to the clamor for privacy in OSN

activities

Briefly, the purpose of an OSN is precisely to give users the ability to interact and
to stay connected to other members of the same or different social media platform
through the sharing of statuses, photos, videos, among others, depending on the services
provided by the site. It is akin to having a room filled with millions of personal bulletin
boards or “walls,” the contents of which are under the control of each and every user. In
his or her bulletin board, a user/owner can post anything — from text, to pictures, to
music and videos — access to which would depend on whether he or she allows one,
some or all of the other users to see his or her posts. Since gaining popularity, the OSN
phenomenon has paved the way to the creation of various social networking sites,
including the one involved in the case at bar, www.facebook.com (Facebook), which,
according to its developers, people use “to stay connected with friends and family, to
discover what’s going on in the world, and to share and express what matters to them.”

Facebook connections are established through the process of “friending” another

user. By sending a “friend request,” the user invites another to connect their accounts so
that they can view any and all “Public” and “Friends Only” posts of the other. Once the
request is accepted, the link is established and both users are permitted to view the other
user’s “Public” or “Friends Only” posts, among others. “Friending,” therefore, allows the
user to form or maintain one-to-one relationships with other users, whereby the user gives
his or her “Facebook friend” access to his or her profile and shares certain information to
the latter. 

To address concerns about privacy,  but without defeating its purpose, Facebook

was armed with different privacy tools designed to regulate the accessibility of a user’s
profile as well as information uploaded by the user. In H v. W,  the South Gauteng High
Court recognized this ability of the users to “customize their privacy settings,” but did so
with this caveat: “Facebook states in its policies that, although it makes every effort to
protect a user’s information, these privacy settings are not fool-proof.” 

For instance, a Facebook user can regulate the visibility and accessibility of digital
images (photos), posted on his or her personal bulletin or “wall,” except for the user’s
profile picture and ID, by selecting his or her desired privacy setting:

(a) Public — the default setting; every Facebook user can view the photo;
(b) Friends of Friends — only the user’s Facebook friends and their
friends can view the photo;
(b) Friends — only the user’s Facebook friends can view the photo;
© Custom — the photo is made visible only to particular friends and/or
networks of the Facebook user; and
(d) Only Me — the digital image can be viewed only by the user.

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 The foregoing are privacy tools, available to Facebook users, designed to set up
barriers to broaden or limit the visibility of his or her specific profile content, statuses,
and photos, among others, from another user’s point of view. In other words, Facebook
extends its users an avenue to make the availability of their Facebook activities reflect
their choice as to “when and to what extent to disclose facts about [themselves] — and to
put others in the position of receiving such confidences.”  Ideally, the selected setting will
be based on one’s desire to interact with others, coupled with the opposing need to
withhold certain information as well as to regulate the spreading of his or her personal
information. Needless to say, as the privacy setting becomes more limiting, fewer
Facebook users can view that user’s particular post. ISDCHA

Cyberspace responsibility

It has been said that “the best filter is the one between your children’s
ears.” This means that self-regulation on the part of OSN users and internet consumers in
general is the best means of avoiding privacy rights violations. As a cyberspace
community member, one has to be proactive in protecting his or her own privacy.  It is in
this regard that many OSN users, especially minors, fail. Responsible social networking
or observance of the “netiquettes” on the part of teenagers has been the concern of many
due to the widespread notion that teenagers can sometimes go too far since they generally
lack the people skills or general wisdom to conduct themselves sensibly in a public
forum. 

Respondent STC is clearly aware of this and incorporating lessons on good cyber
citizenship in its curriculum to educate its students on proper online conduct may be most
timely. Too, it is not only STC but a number of schools and organizations have already
deemed it important to include digital literacy and good cyber citizenship in their
respective programs and curricula in view of the risks that the children are exposed to
every time they participate in online activities. Furthermore, considering the complexity
of the cyber world and its pervasiveness, as well as the dangers that these children are
wittingly or unwittingly exposed to in view of their unsupervised activities in cyberspace,
the participation of the parents in disciplining and educating their children about being a
good digital citizen is encouraged by these institutions and organizations. In fact, it is
believed that “to limit such risks, there’s no substitute for parental involvement and
supervision.”

As such, STC cannot be faulted for being steadfast in its duty of teaching its
students to be responsible in their dealings and activities in cyberspace, particularly in
OSNs, when it enforced the disciplinary actions specified in the Student Handbook,
absent a showing that, in the process, it violated the students’ rights.

OSN users should be aware of the risks that they expose themselves to whenever
they engage in cyberspace activities. Accordingly, they should be cautious enough to
control their privacy and to exercise sound discretion regarding how much information
about themselves they are willing to give up. Internet consumers ought to be aware that,
by entering or uploading any kind of data or information online, they are automatically
and inevitably making it permanently available online, the perpetuation of which is
outside the ambit of their control. Furthermore, and more importantly, information,
otherwise private, voluntarily surrendered by them can be opened, read, or copied by
third parties who may or may not be allowed access to such. 

It is, thus, incumbent upon internet users to exercise due diligence in their online
dealings and activities and must not be negligent in protecting their rights. Equity serves
the vigilant. Demanding relief from the courts, as here, requires that claimants themselves
take utmost care in safeguarding a right which they allege to have been violated. These
are indispensable. We cannot afford protection to persons if they themselves did nothing

9
to place the matter within the confines of their private zone. OSN users must be mindful
enough to learn the use of privacy tools, to use them if they desire to keep the information
private, and to keep track of changes in the available privacy settings, such as those of
Facebook, especially because Facebook is notorious for changing these settings and the
site’s layout often.

PEOPLE v. ENOJAS, et al.

G.R. No. 204894, March 10, 2014, THIRD DIVISION (J. Abad)

Here the totality of the circumstantial evidence the prosecution presented

sufficiently provides basis for the conviction of all the accused. Thus:

1. PO2 Gregorio positively identified accused Enojas as the driver

of the taxicab suspiciously parked in front of the Aguila Auto Glass shop.
The officers were bringing him with them to the police station because of
the questionable documents he showed upon query. Subsequent
inspection of the taxicab yielded Enojas' mobile phone that contained
messages which led to the entrapment and capture of the other accused
who were also taxicab drivers.
2. Enojas fled during the commotion rather than remain in the cab
to go to the police station where he was about to be taken for questioning,
tending to show that he had something to hide. He certainly did not go to
the police afterwards to clear up the matter and claim his taxi.
3. PO2 Gregorio positively identified accused Gomez as one of the
men he saw running away from the scene of the shooting.
4. The text messages identified "Kua Justin" as one of those who
engaged PO2 Pangilinan in the shootout; the messages also referred to
"Kua Justin" as the one who was hit in such shootout and later died in a
hospital in Bacoor, Cavite. These messages linked the other accused.
5. During the follow-up operations, the police investigators
succeeded in entrapping accused Santos, Jalandoni, Enojas, and Gomez,
who were all named in the text messages.
6. The text messages sent to the phone recovered from the taxi
driven by Enojas clearly made references to the 7-11 shootout and to the
wounding of "Kua Justin," one of the gunmen, and his subsequent death.
7. The context of the messages showed that the accused were
members of an organized group of taxicab drivers engaged in illegal
activities.
8. Upon the arrest of the accused, they were found in possession of
mobile phones with call numbers that corresponded to the senders of the
messages received on the mobile phone that accused Enojas left in his
taxicab.
||| 
As to the admissibility of the text messages, the RTC admitted them in conformity
with the Court's 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. 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. 

VIRGILIO GARCILLANO v. HRET, et al.

G.R. No. 170338, December 23, 2008, EN BANC (J. Nachura)

10
 As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot
be allowed to continue with the conduct of the questioned legislative inquiry without duly
published rules of procedure, in clear derogation of the constitutional requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate

or the House of Representatives, or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure."
The requisite of publication of the rules is intended to satisfy the basic requirements of
due process. Publication is indeed imperative, for it will be the height of injustice to
punish or otherwise burden a citizen for the transgression of a law or rule of which he had
no notice whatsoever, not even a constructive one. What constitutes publication is set
forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15
days following the completion of their publication either in the Official Gazette, or in a
newspaper of general circulation in the Philippines."

The respondents in G.R. No. 179275 admit in their pleadings and even on oral
argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation
had been published in newspapers of general circulation only in 1995 and in 2006. With
respect to the present Senate of the 14th Congress, however, of which the term of half of
its members commenced on June 30, 2007, no effort was undertaken for the publication
of these rules when they first opened their session.

Recently, the Court had occasion to rule on this very same question. In Neri v.
Senate Committee on Accountability of Public Officers and Investigations, we said: 

Fourth, we find merit in the argument of the OSG that

respondent Committees likewise violated Section 21 of Article VI of
the Constitution, requiring that the inquiry be in accordance with the
"duly published rules of procedure". We quote the OSG's explanation:

The phrase "duly published rules of procedure" requires the

Senate of every Congress to publish its rules of procedure governing
inquiries in aid of legislation because every Senate is distinct from the
one before it or after it. Since Senatorial elections are held every three
(3) years for one-half of the Senate's membership, the composition of
the Senate also changes by the end of each term. Each Senate may thus
enact a different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation
conducted by the 14th Senate, are therefore, procedurally infirm.

Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces

this ruling with the following rationalization:

The present Senate under the 1987 Constitution is no longer a

continuing legislative body. The present Senate has twenty-four
members, twelve of whom are elected every three years for a term of six
years each. Thus, the term of twelve Senators expires every three years,
leaving less than a majority of Senators to continue into the next
Congress. The 1987Constitution, like the 1935 Constitution, requires a
majority of Senators to "constitute a quorum to do business". Applying
the same reasoning in Arnault v. Nazareno, the Senate under the
1987 Constitution is not a continuing body because less than majority of
the Senators continue into the next Congress. The consequence is that
the Rules of Procedure must be republished by the Senate after every
expiry of the term of twelve Senators.

11
 Respondents justify their non-observance of the constitutionally mandated
publication by arguing that the rules have never been amended since 1995 and, despite
that, they are published in booklet form available to anyone for free, and accessible to
the public at the Senate's internet web page.

The Court does not agree. The absence of any amendment to the rules cannot
justify the Senate's defiance of the clear and unambiguous language of Section 21,
Article VI of the Constitution. The organic law instructs, without more, that the Senate
or its committees may conduct inquiries in aid of legislation only in accordance with
duly published rules of procedure, and does not make any distinction whether or not
these rules have undergone amendments or revision. The constitutional mandate to
publish the said rules prevails over any custom, practice or tradition followed by the
Senate.

Justice Carpio's response to the same argument raised by the respondents is

illuminating:

The publication of the Rules of Procedure in the website of the

Senate, or in pamphlet form available at the Senate, is not sufficient
under the Tañada v. Tuvera ruling which requires publication either in
the Official Gazette or in a newspaper of general circulation. The Rules
of Procedure even provide that the rules "shall take effect seven (7)
days after publication in two (2) newspapers of general circulation",
precluding any other form of publication. Publication in accordance
with Tañada is mandatory to comply with the due process requirement
because the Rules of Procedure put a person's liberty at risk. A person
who violates the Rules of Procedure could be arrested and detained by
the Senate. 

The invocation by the respondents of the provisions of R.A. No.

8792, 50otherwise known as the Electronic Commerce Act of 2000, to support their
claim of valid publication through the internet is all the more incorrect. R.A.
8792 considers an electronic data message or an electronic document as the functional
equivalent of a written document only for evidentiary purposes. In other words, the law
merely recognizes the admissibility in evidence (for their being the original) of
electronic data messages and/or electronic documents. 52 It does not make the internet
a medium for publishing laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in
violation of the Constitution, use its unpublished rules in the legislative inquiry subject
of these consolidated cases. The conduct of inquiries in aid of legislation by the Senate
has to be deferred until it shall have caused the publication of the rules, because it can
do so only "in accordance with its duly published rules of procedure".

RAMIREZ v. COURT OF APPEALS

G.R. No. 93833, September 28, 1995, FIRST DIVISION (J. Kapunan)

The nature of the conversation is immaterial to a violation of the statute. The

substance of the same need not be specifically alleged in the information. What R.A.
4200 penalizes are the acts of secretly overhearing, intercepting or recording private
communications by means of the devices enumerated therein. The mere allegation that an
individual made a secret recording of a private communication by means of a tape
recorder would suffice to constitute an offense under Section 1 of R.A. 4200.

Petitioner's contention that the phrase "private communication" in Section 1 of R.A.

4200 does not include "private conversations" narrows the ordinary meaning of the word
"communication" to a point of absurdity. The word communicate comes from the latin

12
word communicare, meaning "to share or to impart." In its ordinary signification,
communication connotes the act of sharing or imparting, as in a conversation, or signifies
the "process by which meanings or thoughts are shared between individuals through a
common system of symbols (as language signs or gestures)."  These definitions are broad
enough to include verbal or non-verbal, written or expressive communications of
"meanings or thoughts" which are likely to include the emotionally-charged exchange, on
February 22, 1988, between petitioner and private respondent, in the privacy of the
latter's office. Any doubts about the legislative body's meaning of the phrase "private
communication" are, furthermore, put to rest by the fact that the terms "conversation" and
"communication" were interchangeably used by Senator Tañada in his Explanatory Note
to the bill quoted below:

"It has been said that innocent people have nothing to fear from
their conversations being overheard. But this statement ignores the usual nature
of conversations as well as the undeniable fact that most, if not all, civilized people have
some aspects of their lives they do not wish to expose. Free conversations are often
characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of
anti-social desires of views not intended to be taken seriously. The right to the privacy of
communication, among others, has expressly been assured by our Constitution. Needless
to state here, the framers of our Constitution must have recognized the nature
of conversations between individuals and the significance of man's spiritual nature, of his
feelings and of his intellect. They must have known that part of the pleasures and
satisfactions of life are to be found in the unaudited, and free exchange of communication
between individuals — free from every unjustifiable intrusion by whatever means."

In Gaanan vs. Intermediate Appellate Court, a case which dealt with the issue of
telephone wiretapping, we held that the use of a telephone extension for the purpose of
overhearing a private conversation without authorization did not violate R.A.
4200 because a telephone extension devise was neither among those devises enumerated
in Section 1 of the law nor was it similar to those "device(s) or arrangement(s)"
enumerated therein," following the principle that "penal statutes must be construed
strictly in favor of the accused." The instant case turns on a different note, because the
applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no
ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of
private communications with the use of tape-recorders as among the acts punishable. 

JOSE JESUS DISINI, JR., et al. v. SECRETARY OF JUSTICE, et al.

G.R. No. 203335, February 18, 2014, EN BANC (J. Abad)

ELLERY MARCH G. TORRES v. PAGCOR

G.R. No. 193531, December 6, 2011, EN BANC (J. Peralta)

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.

13
 Even 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
we stated earlier, the motion for reconsideration may be filed only in two ways, either by
mail or personal delivery. 

In Garvida v. Sales, Jr., 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.

. . . 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. . . . 

Moreover, a facsimile transmission is not considered as an electronic evidence

under the Electronic Commerce Act. In MCC Industrial Sales Corporation v. Ssangyong
Corporation, 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. (Italics ours.) 

We, therefore, found no reversible error committed by the CA when it affirmed the
CSC in dismissing petitioner's appeal. Petitioner's dismissal from the service became
final and executory after he failed to file his motion for reconsideration or appeal in the
manner and within the period provided for under the Revised Uniform Rules on
Administrative Cases in the Civil Service.

BRICCIO A. POLLO v. KARINA CONSTANTINO-DAVID, et al.

G.R. No. 181881, October 18, 2011, EN BANC (J. Villarama)

This case involves a search of office computer assigned to a government employee

who was charged administratively and eventually dismissed from the service. The
employee's personal files stored in the computer were used by the government employer
as evidence of misconduct.||| 

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

14
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, as in Simons. 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.
xxx xxx xxx
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.
xxx xxx xxx
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 User's 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

15
 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 User's password. Only members of the Commission
shall authorize the application of the said global passwords. 

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 stated in O'Connor which are relevant in determining whether

an employee's expectation of privacy in the workplace is reasonable is the existence of a
workplace privacy policy. In one case, the US Court of Appeals Eighth Circuit held that a
state university employee has not shown that he had a reasonable expectation of privacy
in his computer files where the university's computer policy, the computer user is
informed not to expect privacy if the university has a legitimate reason to conduct a
search. The user is specifically told that computer files, including e-mail, can be searched
when the university is responding to a discovery request in the course of litigation.
Petitioner employee thus cannot claim a violation of Fourth Amendment rights when
university officials conducted a warrantless search of his computer for work-related
materials.

As to the second point of inquiry on the reasonableness of the search conducted on

petitioner's computer, we answer in the affirmative.

The search of petitioner's 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 employee's 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 agency's
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 employee's 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 petitioner's computer, as well as
the subsequent warrantless searches was held as valid under the O'Connor 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. 

16
 Under the facts obtaining, the search conducted on petitioner's computer was
justified at its inception and scope.

In addition, petitioner's claim of violation of his constitutional right to privacy

must necessarily fail. His other argument invoking the privacy of communication and
correspondence under Section 3 (1), Article III of the 1987 Constitution is also untenable
considering the recognition accorded to certain legitimate intrusions into the privacy of
employees in the government workplace under the aforecited authorities. We likewise
find no merit in his contention that O'Connor and Simons are not relevant because the
present case does not involve a criminal offense like child pornography. As already
mentioned, the search of petitioner's 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
defined in O'Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against

Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila 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 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. 

The above 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.

FRANCISCO CHAVEZ v. RAUL GONZALES

G.R. No. 168338, February 15, 2008, EN BANC (J. Puno)

Having settled the applicable standard to content-based restrictions on broadcast

media, let us go to its application to the case at bar. To recapitulate, a governmental
action that restricts freedom of speech or of the press based on content is given
the strictest scrutiny, with the government having the burden of overcoming the
presumed unconstitutionality by the clear and present danger rule. This rule applies
equally to all kinds of media, including broadcast media.

17
 This outlines the procedural map to follow in cases like the one at bar as it spells
out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party
to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the
records of the case at bar, respondents who have the burden to show that these acts do not
abridge freedom of speech and of the press failed to hurdle the clear and present danger
test. It appears that the great evil which government wants to prevent is the airing of a
tape recording in alleged violation of the anti-wiretapping law. The records of the case at
bar, however, are confused and confusing, and respondents' evidence falls short of
satisfying the clear and present danger test. Firstly, the various statements of the Press
Secretary obfuscate the identity of the voices in the tape recording. Secondly, the
integrity of the taped conversation is also suspect. The Press Secretary showed to the
public two versions, one supposed to be a "complete" version and the other, an "altered"
version. Thirdly, the evidence of the respondents on the who's and the how's of the
wiretapping act is ambivalent, especially considering the tape's different versions. The
identity of the wire-tappers, the manner of its commission and other related and relevant
proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of
the tape, it is even arguable whether its airing would violate the anti-wiretapping law. 

We rule that not every violation of a law will justify straitjacketing the exercise
of freedom of speech and of the press. Our laws are of different kinds and doubtless,
some of them provide norms of conduct which even if violated have only an adverse
effect on a person's private comfort but does not endanger national security. There are
laws of great significance but their violation, by itself and without more, cannot support
suppression of free speech and free press. In fine, violation of law is just a factor, a vital
one to be sure, which should be weighed in adjudging whether to restrain freedom of
speech and of the press. The totality of the injurious effects of the violation to private
and public interest must be calibrated in light of the preferred status accorded by
the Constitution and by related international covenants protecting freedom of speech and
of the press. In calling for a careful and calibrated measurement of the circumference of
all these factors to determine compliance with the clear and present danger test, the
Court should not be misinterpreted as devaluing violations of law. By all means,
violations of law should be vigorously prosecuted by the State for they breed their own
evil consequence. But to repeat, the need to prevent their violation cannot per se
trump the exercise of free speech and free press, a preferred right whose breach can
lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the
clear and present danger test, the Court has no option but to uphold the exercise of free
speech and free press. There is no showing that the feared violation of the anti-
wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of
whether the mere press statements of the Secretary of Justice and of the NTC in
question constitute a form of content-based prior restraint that has transgressed
the Constitution. In resolving this issue, we hold that it is not decisive that the press
statements made by respondents were not reduced in or followed up with formal
orders or circulars. It is sufficient that the press statements were made by
respondents while in the exercise of their official functions. Undoubtedly,
respondent Gonzales made his statements as Secretary of Justice, while the NTC issued
its statement as the regulatory body of media. Any act done, such as a speech uttered,
for and on behalf of the government in an official capacity is covered by the rule on
prior restraint. The concept of an "act" does not limit itself to acts already
converted to a formal order or official circular. Otherwise, the non formalization of
an act into an official order or circular will result in the easy circumvention of the
prohibition on prior restraint. The press statements at bar are acts that should be struck
down as they constitute impermissible forms of prior restraints on the right to free speech
and press. 

18
 There is enough evidence of chilling effect of the complained acts on record.
The warnings given to media came from no less the NTC, a regulatory agency that can
cancel the Certificate of Authority of the radio and broadcast media. They also came
from the Secretary of Justice, the alter ego of the Executive, who wields the awesome
power to prosecute those perceived to be violating the laws of the land. After the
warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press
Statement. After the warnings, petitioner Chavez was left alone to fight this battle for
freedom of speech and of the press. This silence on the sidelines on the part of some
media practitioners is too deafening to be the subject of misinterpretation.

GSIS v. ARWIN T. MAYORDOMO

G.R. No. 191218, May 31, 2011, EN BANC (J. Mendoza)

Here, Mayordomo's act of having repeatedly changed his IP address without

authority, despite previous warnings, shows that he did not exercise prudence in dealing
with officework and his officemates. After the first warning he received from the
ITSG, Mayordomo should have realized that his unauthorized act brought inconvenience,
not only to a fellow employee, Liscano, but to the entire GSIS, which was actually
deprived of service from a paid employee. As if he did not understand the repercussions
of his act, he again toyed with his IP address and deliberately ignored the importance of
necessary clearance before engaging in any extraordinary measure. Worse, he chose the
RAS and gained access to the entire GSIS network, putting the system in a vulnerable
state of security. When Mayordomo was alerted by the hazardous effects of using an IP
address other than his, he should have realized that, a fortiori, using a RAS IP address
would expose the GSIS system into a more perilous situation. 

Prudence and good sense could have saved Mayordomo from his current tribulation,
but he was unfortunately stubborn to imbibe advice of caution. His claim that he was
obliged to change his IP address due to the inaction of the ITSG in resolving the problem
with his own IP address, cannot exonerate him from responsibility. Obviously, choosing
the RAS IP address to replace his own was way too drastic from sensible conduct
expected of a government employee. Surely, there were other available means to improve
his situation of alleged hampered performance of duties for failure to access the system
due to IP conflict. Certainly, gaining access to the exclusive external trafficking route to
the GSIS computer system was not one of them.  SDEITC

The Court neither loses sight of the undisputed fact that Vice-President J. Fernando
U. Campana's Memorandum stated that the ITSG discovered unauthorized and
unnecessary downloaded programs in Mayordomo's personal computer when it was
pulled out. Hence, despite his insistence that exigency was his sole reason in altering his
IP address, sheer common sense and evidence to the contrary belie this.

Mayordomo likewise fails to convince the Court to adhere to his position that the
lack of official policy and guidelines at the time of commission makes the act of
unauthorized alteration of IP addresses exempt from punishment. While official policy
and guidelines apprise covered employees of offenses carrying specific penalties, the
Court may not close its eyes from the fact that actual notice of the dangers of changing
his IP address was made known to Mayordomo, right after the first incident. The CSC
was correct in holding that subsequent to the first warning, Mayordomo was fully aware
that changing his IP address without acquiescence from the ITSG, was inherently wrong.

In the same vein, proof of the alleged damage caused by Mayordomo's act to
the GSIS system and its use by the general public, is not necessary. The inaccessibility,
unnecessary interruption, and downtime to the GSIS network as may be experienced by
outside users, is obvious. Proof that the public was inconvenienced in using
the GSIS website is not necessary in order to conclude that the unauthorized changing of
IP address can produce pernicious effects to the orderly administration of government

19
services. It is well-settled that in administrative cases, the injury sought to be remedied is
not merely the loss of public money or property. Acts that go against the established rules
of conduct for government personnel, [in this case, that of resorting to unauthorized and
radical solutions, without clearance from appropriate parties] bring harm to the civil
service, whether they result in loss or not. This rule is in line with the purpose of
administrative proceedings, which is mainly to protect the public service, based on the
time-honored principle that a public office is a public trust.

LYNETTE G. GARVIDA v. FLORENCIO G. SALES, JR., et al.

G.R. No. 124893, April 18, 1997, EN BANC (J. Puno)

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. Filing a
pleading by facsimile transmission is not sanctioned by the COMELEC Rules of
Procedure, much less by the Rules of Court. A facsimile is not a genuine and
authentic pleading. It is, at best, in 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.

RUSTAN ANG v. CA and IRISH SAGUD

G.R. No. 182835, April 20, 2010, SECOND DIVISION (J. Abad)

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.

Rustan argues that, since he was arrested and certain items were seized from him
without any warrant, the evidence presented against him should be deemed inadmissible.
But 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 Irish's testimony
that she received the obscene picture and malicious text messages that the sender's
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.

20
 In addition, 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.

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.

PEOPLE v. MELCHOR CABALQUNITO

G.R. No. 167693, September 19, 2006, EN BANC (J. Tinga)

It is worth mentioning that the Court has resolved to refrain from posting in its
Internet Web Page the full text of decisions in cases involving child sexual abuse in
response to a letter from a mother of a child abuse victim addressed to the Chief Justice
expressing anxiety over the posting of full text decisions of the Supreme Court on its
Internet Web Page. The mother submitted that confidentiality and the best interest of the
child must prevail over public access to information and pleaded that her daughter's case,
as well as those of a similar nature, be excluded from the Web Page. 

The position of the OSG in its Comment is noteworthy. The OSG submits that the
posting of the full text of decisions in cases involving child abuse on the Supreme Court
Web Page violates the right to privacy of the aggrieved parties. In order to determine
whether the subject matter upon which the right to privacy being invoked falls within the
constitutionally-protected zone of privacy, it must be shown that the person's expectation
of privacy is reasonable. The reasonableness of such expectancy depends on a two-part
test: (1) whether by his conduct, the individual has exhibited an expectation of privacy;
and (2) whether this expectation is one that society recognizes as reasonable. 

According to the OSG, the fact that the aggrieved child may have consented,
through a parent or guardian, to a public hearing of the case does not negate the
expectation of privacy which the child may later invoke because child victims cannot be
presumed to have intended their initial agreement to extend beyond the termination of
their case to the posting of the decision reached by the Court on the Web Page. Moreover,
such an expectation of privacy is reasonable considering the various statutes and rules
which reveal the intention of the State to maintain the confidentiality of information
pertaining to child abuse cases. The OSG invites the Court's attention to a New Jersey
statute which provides that all court documents which state the name, address and
identity of a child victim in certain sexual assault, endangering the welfare and
abuse and neglect cases should remain confidential. The name of the victim shall not
appear in any public record; rather, initials or a fictitious name shall appear. The
offenses covered by the law include aggravated sexual assault, sexual assault,
aggravated criminal sexual contact, criminal sexual contact, endangering the
welfare of children, and any action alleging an abused or neglected child. Thus,
in Application of V Pub. Corp., 120 N.J. 508 (1990), and Div. of Youth & Fam. Serv. V.
J.B., 120 N.J. 112 (1990), the New Jersey Supreme Court provided guidelines in the
implementation of this statute.

In conclusion, the OSG suggests the adoption of a system of coding which could
include the use of pseudonyms in cases of a similar nature. Short of withdrawing the full
text of decisions in such cases from the Web Page, the OSG proposes that the Court
instead replace the material information, such as the name of the child-victim, in its
decisions.

21
 Taking all these opinions into account and in view of recent enactments which
unequivocally express the intention to maintain the confidentiality of information in cases
involving violence against women and their children, in this case and henceforth, the
Court shall withhold the real name of the victim-survivor and shall use fictitious initials
instead to represent her. Likewise, the personal circumstances of the victims-survivors or
any other information tending to establish or compromise their identities, as well those of
their immediate family or household members, shall not be disclosed.

WINONA M. BONIFACIO, et al. v. RTC of MAKATI, Branch 149, and JESSIE

JOHN P. GIMENEZ
G.R. No. 184800, May 5, 2010, FIRST DIVISION (J. Carpio-Morales)

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.

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. 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).
xxx xxx xxx (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 Gimenez's
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

22
requires much imagination to see the chaos that would ensue in situations where the
website's 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.

EMMANUEL B. AZNAR v. CITIBANK, N.A. (Philippines)

G.R. No. 164273, March 28, 2007, THIRD DIVISION (J. Austria-Martinez, Jr.)

The dishonor of Aznar's Mastercard is not sufficient to support a conclusion that

said credit card was blacklisted by Citibank, especially in view of Aznar's own admission
that in other merchant establishments in Kuala Lumpur and Singapore, his Mastercard
was accepted and honored. 

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. HCISED
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. Aznar's 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-out's 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.

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. 

LUIS MARCOS P. LAUREL v. HON. ZEUS C. ABROGAR, et al.

G.R. No. 155076, January 13, 2009, EN BANC (J. Ynares-Santiago)

As can be clearly gleaned from the above disquisitions, petitioner's acts constitute
theft of respondent PLDT's business and service, committed by means of the
unlawful use of the latter's facilities. In this regard, the Amended Information
inaccurately describes the offense by making it appear that what petitioner took were the
international long distance telephone calls, rather than respondent PLDT's business.

A perusal of the records of this case readily reveals that petitioner and respondent
PLDT extensively discussed the issue of ownership of telephone calls. The prosecution

23
has taken the position that said telephone calls belong to respondent PLDT. This is
evident from its Comment where it defined the issue of this case as whether or not "the
unauthorized use or appropriation of PLDT international telephone calls, service and
facilities, for the purpose of generating personal profit or gain that should have otherwise
belonged to PLDT, constitutes theft."

In discussing the issue of ownership, petitioner and respondent PLDT gave their
respective explanations on how a telephone call is generated. For its part, respondent
PLDT explains the process of generating a telephone call as follows: 

38. The role of telecommunication companies is not limited to merely

providing the medium (i.e., the electric current) through which the human
voice/voice signal of the caller is transmitted. Before the human voice/voice
signal can be so transmitted, a telecommunication company, using its
facilities, must first break down or decode the human voice/voice signal
into electronic impulses and subject the same to further augmentation and
enhancements. Only after such process of conversion will the resulting
electronic impulses be transmitted by a telecommunication company, again,
through the use of its facilities. Upon reaching the destination of the call,
the telecommunication company will again break down or decode the
electronic impulses back to human voice/voice signal before the called
party receives the same. In other words, a telecommunication company both
converts/reconverts the human voice/voice signal and provides the medium
for transmitting the same.
39. Moreover, in the case of an international telephone call, once the
electronic impulses originating from a foreign telecommunication company
country (i.e., Japan) reaches the Philippines through a local
telecommunication company (i.e., private respondent PLDT), it is the latter
which decodes, augments and enhances the electronic impulses back to the
human voice/voice signal and provides the medium (i.e., electric current) to
enable the called party to receive the call. Thus, it is not true that the foreign
telecommunication company provides (1) the electric current which
transmits the human voice/voice signal of the caller and (2) the electric
current for the called party to receive said human voice/voice signal.
40. Thus, contrary to petitioner Laurel's assertion, once the electronic
impulses or electric current originating from a foreign telecommunication
company (i.e., Japan) reaches private respondent PLDT's network, it is
private respondent PLDT which decodes, augments and enhances the
electronic impulses back to the human voice/voice signal and provides the
medium (i.e., electric current) to enable the called party to receive the call.
Without private respondent PLDT's network, the human voice/voice signal
of the calling party will never reach the called party.

In the assailed Decision, it was conceded that in making the international phone
calls, the human voice is converted into electrical impulses or electric current which are
transmitted to the party called. A telephone call, therefore, is electrical energy. It was also
held in the assailed Decision that intangible property such as electrical energy is capable
of appropriation because it may be taken and carried away. Electricity is personal
property under Article 416 (3) of the Civil Code, which enumerates "forces of nature
which are brought under control by science." 

Indeed, while it may be conceded that "international long distance calls", the matter
alleged to be stolen in the instant case, take the form of electrical energy, it cannot be said
that such international long distance calls were personal properties belonging to PLDT
since the latter could not have acquired ownership over such calls. PLDT merely
encodes, augments, enhances, decodes and transmits said calls using its complex
communications infrastructure and facilities. PLDT not being the owner of said

24
telephone calls, then it could not validly claim that such telephone calls were taken
without its consent. It is the use of these communications facilities without the consent
of PLDT that constitutes the crime of theft, which is the unlawful taking of the telephone
services and business. 

Therefore, the business of providing telecommunication and the telephone service

are personal property under Article 308 of the Revised Penal Code, and the act of
engaging in ISR is an act of "subtraction" penalized under said article. However, the
Amended Information describes the thing taken as, "international long distance calls",
and only later mentions "stealing the business from PLDT" as the manner by which the
gain was derived by the accused. In order to correct this inaccuracy of description, this
case must be remanded to the trial court and the prosecution directed to amend the
Amended Information, to clearly state that the property subject of the theft are the
services and business of respondent PLDT. Parenthetically, this amendment is not
necessitated by a mistake in charging the proper offense, which would have called for the
dismissal of the information under Rule 110, Section 14 and Rule 119, Section 19 of
the Revised Rules on Criminal Procedure. To be sure, the crime is properly designated as
one of theft. The purpose of the amendment is simply to ensure that the accused is fully
and sufficiently apprised of the nature and cause of the charge against him, and thus
guaranteed of his rights under the Constitution.

ASSOCIATE JUSTICE DELILAH VIDALLON-MAGTOLIS v. CIELITO M.

SALUD
A.M. No. CA-05-20-P, September 9, 2005, EN BANC (J. Callejo, Sr.)

The respondent's claim that the admission of the text messages as evidence against
him constitutes a violation of his right to privacy 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." 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. Madarang's cell phone.

This was also the ruling of the Court in the recent case of Zaldy Nuez v. Elvira
Cruz-Apao.  In that case, 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 complainant's 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.

25
 ZALDY NUEZ v. ELVIRA CRUZ-APAO
A.M. No. CA-05-18-P, April 12, 2005, EN BANC (PER CURIAM)

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 former's
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."

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 complainant's 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.

MCC INDUSTRIAL SALES CORPORATION v. SSANGYONG CORPORATION

G.R. No. 170633, October 17, 2007, THIRD DIVISION (J. Nachura)

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. In any
case, this Court has ample authority to go beyond the pleadings when, in the interest of
justice or for the promotion of public policy, there is a need to make its own findings in
order to support its conclusions.
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. 

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

26
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."

Is an original printout of a facsimile transmission an electronic data message or

electronic document?

"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
Law's 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

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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.
. . . 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 law's 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." 

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.

NATIONAL POWER CORPORATION v. JUDGE RAMON CODILLA, JR., et al.

G.R. No. 170491, April 3, 2007, THIRD DIVISION (J.Chico-Nazario)

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,

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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 person's 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 petitioner's 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

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 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 above quoted 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.

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