MODULE

Flexible Learning A.Y. 2020-2021

3
DISTANCE EDUCATION COURSE STUDY GUIDE v.3
Course instructor: Atty. Bebelan A. Madera, CPA, MBA, RCA, MICB
Contact details: FB messenger: Bebelan A. Madera | Email: b.madera@usls.edu.ph | Phone: +63 9179262342
Consultation schedule: MWF 5:30 to 6:30 p.m.
9 hours

Special Commercial Laws

Amid COVID19 pandemic, the study of data privacy and electronic commerce act
becomes relevant as more and more businesses are doing the transactions online and in a digital
platform. This module aims to explain the data privacy of all individuals as well as the rules in
electronic commerce.

It is the policy of the State to adopt generally accepted international principles and
standards for personal data protection and to safeguard the fundamental human right of every
individual to privacy while ensuring free flow of information for innovation, growth, and
national development. Moreover, to facilitate domestic and international dealings, transactions,
arrangements, agreements, contracts and exchanges and storage of information through the
utilization of electronic, optical and similar medium, mode, instrumentality and technology to
recognize the authenticity and reliability of electronic documents related to such activities and
to promote universal use of electronic transaction in the government and general public,
electronic commerce act was enacted.

Learning Outcomes

At the end of this module, you must have:

1. Understand the nature and purpose of Data Privacy Act.

2. Understand the Electronic Commerce Act.

Read the newspaper clip below:

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 Learning Task 1

Read the Data Privacy Act of 2012 (Republic Act 10173). Here’s the link:

https://www.privacy.gov.ph/data-privacy-act/

Answer the question below:

What are the most critical data privacy issues that have surfaced as a result of COVID-19?

Read this article:

https://www.bworldonline.com/content.php?section=Opinion&title=a-survey-of-cases-on-electronic-
evidence&id=66437

A survey of cases on electronic evidence

Amicus Curiae
John Paul M. Gaba
Posted on February 27, 2013

THE ENACTMENT in June 2000 of the Electronic Commerce Act (E-Commerce Act), as well as the
issuance in August 2001 by the Supreme Court (SC) of the Rules on Electronic Evidence (E-Evidence
Rules), provided a legal framework that addresses various concerns relative to electronic documents
and transactions. To date, the SC promulgated a handful of decisions that interpreted the relevant
provisions of said legal measures. However, there appears to be a bifurcation in their interpretation and
application.

SMS/TEXT MESSAGES AS ELECTRONIC EVIDENCE

The case of Nuez v. Cruz-Apao (April 12, 2005) resolved the issue on whether SMS or text messages
are admissible as electronic evidence. The SC admitted as evidence SMS or text messages, and cited

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Section 1(k) of the E-Evidence Rules which defined the term "ephemeral electronic communication"
and classified text messages as such. "Ephemeral electronic communication" refers to "telephone
conversations, text messages, chat room sessions, steaming audio, streaming video, and other electronic
forms of communication the evidence of which is not recorded or retained." The SC had a similar ruling
in the later case of Vidallon-Magtolis v. Salud (Sept. 9, 2005).

COMPUTER PRINT-OUTS AS ELECTRONIC EVIDENCE

In the case of Aznar v. Citibank (March 28, 2007), the SC resolved the issue of whether a computer
print-out with handwritten notations is an electronic document. The SC declared that such document
"cannot be considered admissible as its authenticity and due execution were not sufficiently
established" by the party offering the same as evidence. The SC applied the Rules of Court (ROC),
particularly Section 20, Rule 132, as the E-Evidence Rules was not yet in existence at the time the lower
court’s decision was promulgated. The ROC 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. The SC said that, in his testimony, the person offering the said
computer print-out did not actually see the document executed or written.

The SC also discussed the provisions of the E-Evidence Rules and said that even if the E-Evidence Rules
was applied, the authentication of the subject document was also found to be "wanting." It ruled that
the offeror’s testimony failed to demonstrate how the information reflected on the print-out was
generated and how said information could be relied upon as true.

FAX TRANSMISSIONS AS ELECTRONIC EVIDENCE

The SC, in the case of MCC Industrial Sales Corp. v. Ssangyong Corp. (Oct. 17, 2007), ruled that print-
outs and photocopies of facsimile transmissions are not electronic evidence. It determined whether an
original print-out of a facsimile transmission is an electronic data message or electronic document, and
noted the differences in the definitions of electronic data message and/or electronic document in the
E-Commerce Act and its implementing rules and regulations and in the E-Evidence Rules, in light of
the UNCITRAL Model Law and the legislative deliberations on the E-Commerce Act.

In the UNCITRAL Model Law, data message is defined as "information generated, sent, received or
stored by electronic, optical or similar means including, but not limited to, electronic data interchange
(EDI), electronic mail, telegram, telex or telecopy." This definition is similar to the IRR’s definition of
what constitutes electronic data message.

The SC pointed out that the intention of the legislature when it passed the E-Commerce Act is to
exclude facsimile transmissions. Notably, the definition in the E-Commerce Act of "electronic data
message" does not include the latter portion of the UNCITRAL’s definition, i.e., the portion "but not
limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy." The E-
Evidence Rules defines electronic data message and electronic document substantially the same as how
the E-Commerce Act defines said terms. The SC stressed that said deletion from the E-Commerce Act’s
definition was intentional, as Congress intended to focus the thrust of the law to paper-less
communications and digital transactions. In its obiter dictum, the SC reiterated this ruling in the 2011
case of Torres vs. PAGCOR (Dec. 14, 2011).

PHOTOCOPIES OF DOCUMENTS AS ELECTRONIC EVIDENCE

The case of National Power Corp. v. Codilla (April 3, 2007) focused on determining whether
photocopies of documents are electronic evidence. In said case, the subject matter is photocopies of
documents with handwritten notations. The party presenting said documents failed to present the
original copies thereof.

In denying their admissibility, the SC pointed out that under the E-Evidence Rules, an electronic
document is relevant only in terms of the information contained therein. What differentiates an

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electronic document from a paper-based document is the manner by which the information contained
therein is processed - to be considered an electronic document, the information must be "received,
recorded, transmitted, stored, processed, retrieved, or produced electronically." The subject documents
were not considered by the SC as electronic evidence due to the existence of manual notations.

APPLICABILITY OF THE E-EVIDENCE RULES

In the obiter dictum of the case of Rustan Ang vs. Pascua (April 20, 2010), the SC further ruled that the
E-Evidence Rules does not apply in criminal actions, but only in civil, quasi-judicial, and administrative
proceedings. This ruling runs contrary to the clear letter of the E-Evidence Rules, which does not
exclude criminal action in its scope of application.

Parallel to its efforts to establish a more efficient court system through a paper-less Judiciary, it is hoped
that the SC shall continue to enrich the local legal landscape by, among others, promulgating decisions
on cases involving electronic documents and electronic evidence.

Learning Task 2

Comment on the article you read vis-à-vis Electronic Commerce Act.

DATA PRIVACY ACT (Republic Act No. 10173)

https://www.privacy.gov.ph/data-privacy-act/

Purpose:

adopt generally accepted international principles and standards for personal data
protection.

safeguard the fundamental human right of every individual to

privacy while ensuring free flow of information for innovation, growth, and
national development.

recognize the vital role of information and communications technology in nation-building and
enforce the State’s inherent obligation to ensure that personal data in information and
communications systems in the government and in the private sector are secured and
protected.

SCOPE OF APPLICATION

The Act and these Rules apply to the processing of personal data

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by any natural and juridical person in the government or private sector.

• applies to data found in the philippines

• data is about a filipino citizen
• processing of data is being done in the philippines
• The act, practice or processing of personal data is done or engaged in by
an entity with links to the Philippines

Extraterritorial Application. –
dThis Act applies to an act done or practice engaged in and outside of the Philippines by an
entity if:
(a) The act, practice or processing relates to personal information about a Philippine citizen or a
resident;
(b) The entity has a link with the Philippines, and the entity is processing personal information
in the Philippines or even if the processing is outside the Philippines as long as it is about
Philippine citizens or residents such as, but not limited to, the following:
(1) A contract is entered in the Philippines;
(2) A juridical entity unincorporated in the Philippines but has central management and control
in the country; and
(3) An entity that has a branch, agency, office or subsidiary in the Philippines and the parent or
affiliate of the Philippine entity has access to personal information; and
(c) The entity has other links in the Philippines such as, but not limited to:
(1) The entity carries on business in the Philippines; and
(2) The personal information was collected or held by an entity in the Philippines.

Rule Making. The Commission shall develop, promulgate, review or

amend rules and regulations for the effective implementation of the Act. This
includes:

1. Recommending organizational, physical and technical security measures

for personal data protection, encryption, and access to sensitive personal
information maintained by government agencies, considering the most
appropriate standard recognized by the information and communications
technology industry, as may be necessary;
2. Specifying electronic format and technical standards, modalities and
procedures for data portability, as may be necessary;
3. Issuing guidelines for organizational, physical, and technical security
measures for personal data protection, taking into account the nature of the
personal data to be protected, the risks presented by the processing, the size of
the organization and complexity of its operations, current data privacy best
practices, cost of security implementation, and the most appropriate standard
recognized by the information and communications technology industry, as may
be necessary;
4. Consulting with relevant regulatory agencies in the formulation, review,
amendment, and administration of privacy codes, applying the standards set out
in the Act, with respect to the persons, entities, business activities, and business
sectors that said regulatory bodies are authorized to principally regulate
pursuant to law;
5. Proposing legislation, amendments or modifications to Philippine laws
on privacy or data protection, as may be necessary;

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6. Ensuring proper and effective coordination with data privacy regulators
in other countries and private accountability agents;
7. Participating in international and regional initiatives for data privacy
protection.

LAWFUL PROCESSING OF PERSONAL DATA

general rule is that is it allowed

exception: unless it is prohibited by law

for such to be lawful it must comply with any of the following conditions

a. The data subject must have given his or her consent prior to the
collection, or as soon as practicable and reasonable;

b. The processing involves the personal information of a data subject who is

a party to a contractual agreement, in order to fulfill obligations under the
contract or to take steps at the request of the data subject prior to entering the
said agreement;
c. The processing is necessary for compliance with a legal obligation to
which the personal information controller is subject;
d. The processing is necessary to protect vitally important interests of the
data subject, including his or her life and health;
e. The processing of personal information is necessary to respond to
national emergency or to comply with the requirements of public order and
safety, as prescribed by law;
f. The processing of personal information is necessary for the fulfillment of
the constitutional or statutory mandate of a public authority; or
g. The processing is necessary to pursue the legitimate interests of the
personal information controller, or by a third party or parties to whom the data is
disclosed, except where such interests are overridden by fundamental rights and
freedoms of the data subject, which require protection under the Philippine
Constitution.

following guidelines for organizational security

Compliance Officers.
Data Protection Policies.
Records of Processing Activities.
Management of Human Resources.

RIGHTS OF DATA SUBJECTS

Right to be informed.

Right to object and withold consent

When a data subject objects or withholds consent, the personal information

controller shall no longer process the personal data, unless:
The personal data is needed pursuant to a subpoena
The collection and processing are for obvious purposes, including, when
it is necessary for the performance of or in relation to a contract or service
The information is being collected and processed as a result of a legal

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obligation.

Right to Access.

Right to rectification.
-data subject has the right to dispute the
inaccuracy or error in the personal data and have the personal information
controller correct it immediately and accordingly

Right to Erasure or Blocking.

-he right to
suspend, withdraw or order the blocking, removal or destruction of his or her
personal data from the personal information controller’s filing system.
however such right may only be exercised upon proof of the following:

(a) The personal data is incomplete, outdated, false, or unlawfully obtained;

(b) The personal data is being used for purpose not authorized by the data
subject;
(c) The personal data is no longer necessary for the purposes for which they
were collected;
(d) The data subject withdraws consent or objects to the processing, and there
is no other legal ground or overriding legitimate interest for the processing;
(e) The personal data concerns private information that is prejudicial to data
subject, unless justified by freedom of speech, of expression, or of the press or
otherwise authorized;
(f) The processing is unlawful;
(g) The personal information controller or personal information processor
violated the rights of the data subject.

Transmissibility of Rights of the Data Subject. The lawful heirs and

assigns of the data subject may invoke the rights of the data subject to which he
or she is an heir or an assignee, at any time after the death of the data subject

DATA BREACH NOTIFICATION

within seventy-two (72) hours upon knowledge of such breach
• notice must be made by the personal information controller to the

• Commission
• Data Subject
•
notification is required when it involves sensitive personal information
or such information may be used to enable identity fraud
personal information controller or the Commission believes that such unauthorized acquisition
is likely to give rise to a real risk of serious harm to any affected data subject.

if there is delay or failure to notify

Commission may investigate the circumstances
include on-site examination of systems
and procedures.

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 • include on-site examination of systems and procedures.
• personal data possibly involved,
• measures taken by the entity to address the breach.
• measures taken to reduce the harm or negative consequences of the breach
• representatives of the personal information controller, including their contact
• details, from whom the data subject can obtain additional information about the
• breach, and any assistance to be provided to the affected data subjects.

Delay of notification may be delayed only to the extent

necessary to determine the scope of the breach

Breach Report
1. personal information controller shall notify the Commission by
submitting a report
2.report shall also include the name of a designated
representative of the personal information controller, and his or her contact
details.
3. All security incidents and personal data breaches shall be documented
through written reports

In the case of personal data breaches

report shall include the

facts surrounding an incident, the effects of such incident, and the remedial
actions taken by the personal information controller.

In other security incidents

not involving personal data, a report containing aggregated data shall constitute
sufficient documentation.

These reports shall be made available when requested

by the Commission. A general summary of the reports shall be submitted to the
Commission annually.

REGISTRATION AND COMPLIANCE REQUIREMENTS

Registration of personal data processing systems operating in the

country that involves accessing or requiring sensitive personal information of at
least one thousand (1,000) individuals, including personal data processing
system of contractors, and their personnel, entering into contracts with
government agencies;

b. Notification of automated processing operations where the processing

becomes the sole basis of making decisions that would significantly affect the
data subject;
c. Annual report of the summary of documented security incidents and
personal data breaches;
d. Compliance with other requirements that may be provided in other
issuances of the Commission.

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The personal information controller or personal information processor that employs fewer than
two hundred fifty (250) persons shall not be required to register unless
The processing it carries out is likely to pose a risk to the rights and freedoms of data
subjects, the processing is not occasional, or the processing includes sensitive
personal information of at least one thousand (1,000) individuals.

PENALTIES
A penalty of imprisonment ranging from one (1) year to three (3) years
and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not
more than Two million pesos (Php2,000,000.00) shall be imposed on persons who
process personal information without the consent of the data subject, or without
being authorized under the Act or any existing law.

penalty of imprisonment ranging from three (3) years to six (6) years
and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not
more than Four million pesos (Php4,000,000.00)
imposed on persons who process sensitive personal information without the consent of the
data subject, or without being authorized under the Act or any existing law.

Malicious disclosure
concealment of security breach
unauthorized disclosure
Combination or Series of Acts

If the offender is an alien, he or she shall, in addition to the penalties herein

prescribed, be deported without further proceedings after serving the penalties
prescribed.

offender is a public official or employee

suffer perpetual or temporary
absolute disqualification from office, as the case may be

Interpretation. Any doubt in the interpretation of any provision of this

Act shall be liberally interpreted in a manner that would uphold the rights and
interests of the individual about whom personal data is processed.

E-COMMERCE ACT (RA 8792)

https://www.officialgazette.gov.ph/2000/06/14/republic-act-no-8792-s-2000/

A. State Policy
o The State recognizes the vital role of information and communications technology
(ICT) in nation-building;
o the need to create an information-friendly environment which supports and ensures
the availability, diversity and affordability of ICT products and services;
o the primary responsibility of the private sector in contributing investments and
services in telecommunications and information technology;
o the need to develop, with appropriate training programs and institutional policy
changes, human resources for the information technology age, a labor force skilled

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 in the use of ICT and a population capable of operating and utilizing electronic
appliances and computers;
o its obligation to facilitate the transfer and promotion of technology; to ensure
network security, connectivity and neutrality of technology for the national benefit;
and
o the need to marshal, organize and deploy national information infrastructures,
comprising in both telecommunications network and strategic information services,
including their interconnection to the global information networks, with the
necessary and appropriate legal, financial, diplomatic and technical framework,
systems and facilities.

B. Objective
o This Act aims to facilitate domestic and international dealings, transactions,
arrangements agreements, contracts and exchanges and storage of information
through the utilization of electronic, optical and similar medium, mode,
instrumentality and technology to recognize the authenticity and reliability of
electronic documents related to such activities and to promote the universal use of
electronic transaction in the government and general public.

C. Coverage
a. Electronic Data Message
▪ Refers to information generated, sent, received, or stored by electronic,
optical or similar means.
b. Electronic Signature
▪ refers to any distinctive mark, characteristic and/or sound in electronic
form, representing the identity of a person and attached to or logically
associated with the electronic data message or electronic document or any
methodology or procedures employed or adopted by a person and executed
or adopted by such person with the intention of authenticating or approving
an electronic data message or electronic document.

c. Electronic Document
▪ refers to information or the representation of information, data, figures,
symbols or other modes of written expression, described or however
represented, by which a right is established or an obligation extinguished,
or by which a fact may be prove and affirmed, which is receive, recorded,
transmitted, stored, processed, retrieved or produced electronically.

d. Electronic Key
▪ refers to a secret code which secures and defends sensitive information that
cross over public channels into a form decipherable only with a matching
electronic key.

D. Legal Recognition

Section 6. Legal Recognition of Electronic Data Messages - Information shall not be denied legal
effect, validity or enforceability solely on the grounds that it is in the data message purporting to
give rise to such legal effect, or that it is merely referred to in that electronic data message.

Section 7. Legal Recognition of Electronic Documents - Electronic documents shall have the legal
effect, validity or enforceability as any other document or legal writing, and -

(a) Where the law requires a document to be in writing, that requirement is met by an
electronic document if the said electronic document maintains its integrity and reliability
and can be authenticated so as to be usable for subsequent reference, in that -

i. The electronic document has remained complete and unaltered, apart from
the addition of any endorsement and any authorized change, or any change
which arises in the normal course of communication, storage and display; and

ii. The electronic document is reliable in the light of the purpose for which it was
generated and in the light of all relevant circumstances.

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 (b) Paragraph (a) applies whether the requirement therein is in the form of an obligation
or whether the law simply provides consequences for the document not being presented
or retained in its original from.

(c) Where the law requires that a document be presented or retained in its original form,
that requirement is met by an electronic document if -

i. There exists a reliable assurance as to the integrity of the document from the
time when it was first generated in its final form; and

ii. That document is capable of being displayed to the person to whom it is to be

presented: Provided, That no provision of this Act shall apply to vary any and all
requirements of existing laws on formalities required in the execution of
documents for their validity.

For evidentiary purposes, an electronic document shall be the functional equivalent of a

written document under existing laws.

This Act does not modify any statutory rule relating to admissibility of electronic data
massages or electronic documents, except the rules relating to authentication and best
evidence.

Section 8. Legal Recognition of Electronic Signatures. - An electronic signature on the electronic

document shall be equivalent to the signature of a person on a written document if that signature
is proved by showing that a prescribed procedure, not alterable by the parties interested in the
electronic document, existed under which -

(a) A method is used to identify the party sought to be bound and to indicate said party's
access to the electronic document necessary for his consent or approval through the
electronic signature;

(b) Said method is reliable and appropriate for the purpose for which the electronic
document was generated or communicated, in the light of all circumstances, including
any relevant agreement;

(c) It is necessary for the party sought to be bound, in or order to proceed further with
the transaction, to have executed or provided the electronic signature; and

(d) The other party is authorized and enabled to verify the electronic signature and to
make the decision to proceed with the transaction authenticated by the same.

Section 9. Presumption Relating to Electronic Signatures - In any proceedings involving an

electronic signature, it shall be presumed that -

(a) The electronic signature is the signature of the person to whom it correlates; and

(b) The electronic signature was affixed by that person with the intention of signing or
approving the electronic document unless the person relying on the electronically signed
electronic document knows or has noticed of defects in or unreliability of the signature
or reliance on the electronic signature is not reasonable under the circumstances.

E. Admissibility and Evidentiary Weight

Section 12. Admissibility and Evidential Weight of Electronic Data Message or Electronic
Document. - In any legal proceedings, nothing in the application of the rules on evidence shall deny
the admissibility of an electronic data message or electronic document in evidence -

(a) On the sole ground that it is in electronic form; or

(b) On the ground that it is not in the standard written form, and the electronic data
message or electronic document meeting, and complying with the requirements under
Sections 6 or 7 hereof shall be the best evidence of the agreement and transaction
contained therein.

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 In assessing the evidential weight of an electronic data message or electronic document, the
reliability of the manner in which it was generated, stored or communicated, the reliability of the
manner in which its originator was identified, and other relevant factors shall be given due regard.

F. Electronic Contracts

Section 16. Formation of Validity of Electronic Contracts.

(1) Except as otherwise agreed by the parties, an offer, the acceptance of an offer and
such other elements required under existing laws for the formation of contracts may be
expressed in, demonstrated and proved by means of electronic data messages or
electronic documents and no contract shall be denied validity or enforceability on the sole
ground that it is in the form of an electronic data message or electronic document, or that
any or all of the elements required under existing laws for the formation of contracts is
expressed, demonstrated and proved by means of electronic data messages or electronic
documents.

(2) Electronic transactions made through networking among banks, or linkages thereof
with other entities or networks, and vice versa, shall be deemed consummated upon the
actual dispensing of cash or the debit of one account and the corresponding credit to
another, whether such transaction is initiated by the depositor or by an authorized
collecting party: Provided, that the obligation of one bank, entity, or person similarly
situated to another arising therefrom shall be considered absolute and shall not be
subjected to the process of preference of credits.

Please see Elaborate_Data Privacy Act.pdf and choose the correct answer. Use capital letters.

TRUE OR FALSE

1. The maximum imprisonment for hacking is 6 years.

2. Store involves the long-term, safe storage and back-up of static, unchanging information.
3. Piracy can cost you P5M or 10 years of imprisonment.
4. We have 6 components of ECM.
5. The introduction of computer viruses is also categorize as hacking.

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 6. Instant messaging is a bit more private than a typical chat room.
7. The e-Commerce is the buying and selling of products or services over the electronic
systems.
8. The Deliver components of ECM present information from the Manage, Store, and
Preserve components.
9. Deliver connects the other components of ECM.
10. The minimum imprisonment for hacking is 6 months.
11. Enterprise Component Management is a formalized means of organizing and storing an
organization's documents.
12. The e-Commerce Law recognizes the data messages as evidence in court.
13. The DTI is one of the implement agencies of the E-Commerce Law.
14. Piracy is the unauthorized dissemination, importation, use, removal, alteration of
files/documents.
15. Store involves the converting of information from paper documents into an electronic
format through scanning.
16. The maximum imprisonment for piracy is 3 years.
17. The R.A. 8792 is also known as the e-Commerce Act of 2000.
18. Online shopping is the process of buying goods and services from merchants who sell on
the Internet.
19. IM is consists of sending real-time messages to another Internet user.
20. Another term for hacking is cracking.

Rubric in checking the activity Task:

Accomplished 96-100 88-95 81-87 80 Below

quizzes, activities, 80
exam
Area to Assess Excellent Above Average Passing Failure
Average
Raw score vis-à-vis 96%- 88% - 80% – At least Below
perfect score 100% 95% 87% 70%cor 70%
correct correct correct rect correct

References

1. 2019 Golden Notes Mercantile Law

2. Ateneo Mercantile Law
3. Official Gazette/ BSP Issuances
4. Scribd.com
5. Reviewer on Commercial Law, 2014 Ed. By: Jose Sundiang, Sr. and Timoteo B. Aquino
6. Mercantile Law Digests by: Co Untian Jr.
7. Pre-week Reviewer in Commercial Law by: Jaapar B. Dimaampao and Ella Dumlao-
Escalante

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