The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

THE PHILIPPINE QUARTERLY THE OFFICIAL PUBLICATION OF THE

ARELLANO UNIVERSITY SCHOOL OF LAW

IT Law Journal E-LAW CENTER AND IT LAW SOCIETY

VOLUME 1, N UMBER 1

what’s
Inside
“HACKING” THE MERCANTILE LAW BAR EXAM QUESTIONS
by Michael Vernon M. Guerrero
1 “H
M
Q
ACKING ”
ERCANTILE
UESTION
THE
B AR E XAM

2 EP DITORIAL

4 EAA

7 TEO
HILIPPINE
FIGURES
L E C T R O N I C

B REAKTHROUGH IN
NOTARIZATION H
F ACTS

UTHENTICATION SYSTEM:

HE PHILIPPINE RULES ON
LECTRONIC EVIDENCE: AN
UTLINE
& Hacking?

acking what? Technical

people would argue that there is no such a
thing as “Hacking the Mercantile Law Bar
Exam Questions.” Cracking maybe, but not
hacking. Obviously, confusion will arise on
the usage of the word “hacking” if one is not
particular to one’s audience.
Nevertheless, similar to the failure of mass
media to distinguish between cracking and
hacking, the terms cracking and hacking
under the Philippine Electronic Commerce Act
(Republic Act No. 8792) are used
interchangeably. The Act provides specifically
that “hacking or cracking ... refers to
unauthorized access into or interference in a
computer system / server or information and
8 JC URISPRUDENCE
YBERLAW
IN

For the technically inclined, to hack means to

9 OP PTICAL MEDIA A CT :
ANACEA TO PIRACY?
A write a program code; or to modify a
10 SATHE
YSTEM
D OMAIN N AME
(DNS) AND
DMINISTERING THE ROOT
CCTLD .PH
12 S PAMMING THE WORLD
14 AC S YNOPSIS OF THE E -
OMMERCE LAW
O VERVIEW OF S ELECTED
16 LI EGAL AND REGULATORY
SSUES IN E LECTRONIC
COMMERCE (UNCTAD)
18 LT EXICON OF C YBERLAW
ERMINOLOGIES
19 91A NEW LAWYERS FROM THE
RELLANO U NIVERSITY
SCHOOL OF LAW
22 [LL EGAL WEB]
AWPHIL . NET : A STEP IN
THE RIGHT DIRECTION
24 DIC IGITAL LAW & THE
MPERATIVES OF THE E-LAW
ENTER
THE BIRTH OF THE IT
LAW SOCIETY
program, often in an unauthorized manner,
by changing the code itself. A hacker, thus, is
a computer enthusiast, or a person who enjoys
learning programming languages and
computer systems and can often be considered
an expert on the subject(s). To crack, on the
other hand, is to break into a computer system
or to copy commercial software illegally by
breaking (cracking) the various copy-
protection and registration techniques being
used. A cracker, therefore, is distinct from a
hacker. The sole aim of crackers is to break
into secure systems, while hackers are more
interested in gaining knowledge about
computer systems and possibly using this
knowledge for playful pranks. [ 1 ]
To illustrate the technical distinction to the legal
mind, decompilation allowed in Section 185
of the Philippine Intellectual Property Code
(Republic Act No. 8293) [ 2 ] is part and parcel
of the technical concept of hacking. On the
other hand, effecting transactions with one
or more access devices issued to another
person or persons to receive payment or any
other thing of value (Section 9 [n] of the Access
Devices Regulation Act, Republic Act No.
8484) – especially if construed in a virtual or
Internet transaction – constitutes cracking.
communication system; or any access in order
to corrupt, alter, steal, or destroy using a
computer or other similar information and
communication devices, without the
knowledge and consent of the owner of the
computer or information and communications
system, including the introduction of computer
viruses and the like, resulting in the corruption,
destruction, alteration, theft or loss of
electronic data messages or electronic
document.” [ 3 ]
The simplification of the definition of hacking,
made synonymous to cracking, in the
Electronic Commerce Act, allows the
prosecution of a person, not necessarily a
computer expert, who simply accessed
another person‘s computer or electronic
documents without the latter’s permission.
“Hacking the Mercantile Law Bar Exam
Questions,” therefore, may be technically an
incorrect title, but may be legally correct within
Philippine jurisdiction.
Leakage of the 2003 Mercantile Law
Bar Exams
The 21 September 2003 Mercantile Law Bar
Examinations, one of the eight bar subjects
and one given 15% weight, was annulled after
>> [ 3 ] Mercantile Law Bar Exam

1

T
hree years ago, on
the occasion of the centenary
celebration of the Philippine Supreme
Court, Arellano University School of
Law was invited to co-sponsor the law
and technology lecture. In the response
I delivered for the school, I announced
to the distinguished members of the
Highest Court and their guests that as
far back as 1997, the school had
already anticipated the need to develop
globally-oriented lawyers and
professors. This can be gleaned from
the school’s vision statement drafted
on th same year where we saw
ourselves as a globally competitive
institution that harnesses world-class,
state-of-the-art technologies and
methodologies, responsive and attuned
to the demands of the times.
In 1999, true to our vision, we opened
an Information Technology Center
(ITC) to handle all of the school’s
computer requirements. On the same
year, we set up at least 30 computer
stations with Internet access for the
exclusive use of law students. Lawphil
was developed and introduced on the
web in the year 2000 and has become
the country ’s most visited legal
research website. The Arellano Law
Editorial Board
C HAIRMAN
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Atty. Jaime N. Soriano, CPA, MNSA
M EMBERS
Ailyn L. Cortez
Charilyn A. Dee
Jhonelle S. Estrada
Peter Joseph L. Fauni
Carlyn Marie Bernadette C. Ocampo-
Guerrero
Michael Vernon M. Guerrero
Ma. Cristina A. Ramos
Volume 1, Issue 1
© 2004. All Rights Reserved.
Reconstituted November 2006. Proportions
may differ slightly from original printed copy.
2
Message from the Dean
and Policy Review (ALPR), a journal
featuring mainly articles on
international law and policy
developments, was published starting
2001 to which the law libraries of Yale
and Harvard are now subscribers. An
Institute of Special Studies (ISS) was
opened to engage in research and
encourage discussion in the field of
international law, particularly
international trade law. It holds monthly
brown bag lectures mostly on the
burning local and international legal
issues of the day.
In 2001, the ISS worked with the
International Trade Centre, a technical
cooperation agency of the UNCTAD
and the World Trade Organization
(WTO) in authoring a handbook entitled
“Arbitration and Alternative Dispute
Resolution,” now considered by many
Philippine law schools as the most
authoritative on the subject. Changes
in the curriculum were made in the
year 2000. Among them were the
introduction of courses like Alternative
Dispute Resolution, Environmental Law,
International Trade Law, Project
Finance, CorporateFinance,
Telecommunications Law, Technology
and the Law, and Human Rights to
address the globalization of both
Commercial Law and Public Interest
Law.
The Philippine Quarterly IT Law
Journal is the official publication of the e-
Law Center and the IT Law Society of the
Arellano University School of Law. It is
published quarterly.
Contributions to the Philippine Quarterly IT
Law Journal express the views of their authors
and not necessarily the views of the Arellano
University School of Law.
For subscriptions, contact:
THE PHILIPPINE QUARTERLY
It Law Journal
e-Law Center
2/F Heilbronn Hall
Arellano University School of Law
Taft Avenue corner Menlo Street
Pasay City 1300 Philippines
Tels. +63 2 404-3089, 404-3090, 404-3091
http://www.arellanolaw.net
itlawjournal@arellanolaw.net
With the establishment in 2003 of
AUSL’s Center for e-Law, it is clear that
the school is ready to meet the
challenges posed by the advent of the
digital age. The formation of an IT Law
Society with members composed of
technologically proficient law students
is a most welcome development that
will set the school apart from even the
so-called elite law institutions.
I congratulate the movers behind the
Center for E-Law and the IT Law
Society for the work they have been
doing, and in particular for coming out
with an ambitious project like the IT
Law Journal. May your tribe increase
and may you indeed be at the forefront
of law and technology concerns in the
country and beyond.
Philippine IT Facts and Figures
Internet users (thousands), 2000-2002 1
2000 1 540
2001 and 2002 2 000
% change 2000-2001 29.87
Internet users per 1000 person, 2000-2002 2
2000 201
2001 and 2002 256
Network Readiness Index (NRI) & Ranking by
the Economist Intellegence Unit (EIU) 3
NRI Score 3.25
NRI Rank 62
ERI Score 3.93
ERI Rank 47
Sources:
1
ITU (2003a) and UNCTAD calculations
2
ITU (2003a) and UNCTAD calculations
3
Dutta, Lanvin and Paua (2003) and
Economist Intelligence Unit (2003).

<< [ 1 ] Mercantile Law Bar Exam
a massive leakage – comprising 82
percent of the questions asked in the
bar subject – occurred. The nullification
of the examination on the subject was
made in order to preserve the integrity
and protect the sanctity of the
examination and avoid any doubt or
suspicion on the outcome of said
examination. The Supreme Court,
instead of having the examinees retake
the Mercantile Law examination,
distributed the weight assigned to
Mercantile Law to other Bar subjects.
Examinees in 2003 numbered to
5,349 law graduates.
The Supreme Court, on 4 February
2004, disbarred Danilo de Guzman,
a lawyer from the Balgos and Perez
law firm and the one responsible for
the Mercantile Law Bar Examination
leakage, and reprimanded Marcial OT
Balgos, examiner in the 2003
Mercantile Law Exam, whose
negligence was the root cause of the
said bar leakage.
It appeared, on investigation, that
Balgos prepared three sets of test
questions on Mercantile Law on his
personal computer in his law office.
His computer, running on Microsoft
Windows 98 operating system, is
interconnected with other computers
in the law office through a local area
network (LAN). De Guzman activitated
file-sharing of pertinent file folder(s)
in Balgos’ computer without the latter’s
knowledge, and was able to access
Balgos’ files using his own computer
in the network. De Guzman faxed the
questions to Ronan Garvina, a
fraternity brother. Garvina, in turn
faxed the questions to Randy Iñigo and
James Bugain. Iñigo passed a copy of
the questions to Allan Guiapal, who
gave a copy to Ronald Collado. Collado
ordered the printing of the questions,
with the logo and initials of the fraternity
and distributed copies to 30 Bar
candidates of the Manuel L. Quezon
University (MLQU).
Atty. Ivan Uy, chief information officer
of the Supreme Court, and his
computer forensic experts were able
to uncover De Guzman’s activities
through his computer’s and the
network’s logs. Inasmuch as access to
Balgos’ computer was unauthorized,
De Guzman is deemed to have
committed “hacking” pursuant to the
definition given by Section 33(a) of the
Electronic Commerce Act.
Protecting files
Interconnectivity and security are two
opposing, but not necessarily
incompatible, concepts. Getting one
step ahead of potential security threats
would be a costly endeavor. But one
must at least find ways to secure one’s
files from an unauthorized user, who
has basic knowledge of computers and
their systems.
LAN may be practical in connecting a
number of computers so as to share
peripherals and resources, such as
printers, hard disk storage, and even
Internet connection when applicable.
File transfer between computers within
the network is made easier, especially
if the file is above the 1.44MB diskette
limit, or if the other computer does not
have or support a large removable
media drive. Unauthorized file access
through shared folders, however, may
occur if the user is unaware of means
to control access. Therefore, what
should be done to control access?
First. Choose the proper operating
system. A lot of organizations purchase
“home-based” operating systems such
as Windows 95, 98, ME and XP Home
for their personal computers as they
are relatively cheaper than the more
secure operating systems Windows NT,
2000, and XP Pro; or more popular
than the various flavors of Linux or
similar operating systems. The
drawback in the use of Windows 98,
for example, is that one can access
the computer by merely cancelling the
login box and thus create an account
for oneself in the computer where one
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
is not authorized to access. So if a file
folder in Windows 98-based machine
has been shared, one can access said
folder in another computer in the
network. Unlike in Windows 2000, for
example, only one having
administrator capabilities can add a
new user to the computer.
Furthermore, when a computer in a
network does not contain a similar user
profile as in the one accessed, a log-
in and password dialogue box appears
before one can access the other
computer. [ 4 ]
Second. Find out if you’re sharing
more than you are willing to share.
Clicking on your computer’s name on
Network Neighborhood would show
the folder(s) or drive(s) your computer
is sharing over the network. Better
unshare the folder(s) or drive(s) which
you are not really willing to share, or
otherwise create a specific folder
containing only the files that you would
want to share. Furtther, you may want
to limit the number of people that can
access the shared folders at one time.
[5]
Third. Password-protect your
documents. If you are using Microsoft
Word and Excel, these documents and
spreadsheets may be protected from
being opened by unauthorized
personnel. [ 6 ]
Fourth. Don’t let your ultra-sensitive
files stay in your computer. Better store
them in reliable removable storage
devices, such as those heavy-duty
portable ones that can be plugged in
your USB port.
Fifth. If you have money to spare, buy
reliable software which would provide
your computer personal firewall. It is
additional protection to safeguard your
sensitive files.
These are some of the precautions one
can do to safeguard one’s files from
the prying eyes of other people,
especially if the security of documents
affect the lives of a lot of people.
>> [ 21 ] Mercantile Law Bar Exam
3

ELECTRONIC AUTHENTICATION SYSTEM:
A BREAKTHROUGH IN NOTARIZATION
N Introduction
otaries public, as we
know them today, originated as scribes.
Scribes, Latin scribae, are literate clerks
who took notes of important events and
discussions and made copies both of
public and private documents. The role
of these scribes can be traced back to
pre-Biblical times in Ancient Egypt and
Greece. The importance of these
scribes became more and more
important when the value of official
record-keeping was recognized and
when societies began to formalize their
rules and decisions. [ 1 ]
In Ancient Rome, scribes who
performed the function of the notary
were known as tabellions. Instead of
paper, these tabellions used tabulae or
tables or plates covered with wax. Later
on, a new system of shorthand writing
called notae tironinae was developed.
It was a system of arbitrary marks or
signs called notae. The person who
adopted this method was called a
notarius. Although originally applied to
a shorthand writer, the term notarius
became used exclusively to a publicly
appointed official who performed the
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
functions similar to that of a present-
day notary. [ 2 ]
The Philippine Notarial Law
In the Philippines, notaries public are
members of the Bar commissioned by,
and are under The supervision of,
Executive Judges of the territory where
they perform their notarial functions.
The laws and regulation governing
notaries public include the following:
· Sections 231 to 252 and Sections
2632 to 2633 of the 1917
4
Features
By Ma. Cristina A. Ramos
·
·
Revised Administrative Code of
the Philippines.
Section 11, Rule 141 of the Rules
of Court.
A.M. No 02-8-02-SC,
promulgated by the Supreme
Court (En Banc) on August 13,
2002 effective September 2,
2002.
Notarization converts a private
document into a public document and
renders the document admissible in
court as evidence without need for
further proof of its authenticity. A
notarized document is entitled, by law,
to full faith and credit upon its face. [ 3
]
Notarization also vests upon the
document the presumption of
regularity unless it is impugned by
strong, complete and conclusive
proof.[4 ]
When a notary public affixes his
signature and notarial seal to an
instrument, after putting the affiants
under oath, he makes the following
warranties:
· The party or parties personally
appeared before him and signed
the instrument in his presence
· The party or parties made
themselves known to him to be the
same person or persons who
executed, and whose names
appeared in the instrument.
· In cases of acknowledgements, the
parties made known to him the
voluntary execution of the
instrument.
In short, notarization under existing
laws necessitates personal appearance
of the affiants or the parties before a
notary public to satisfy the foregoing
warranties.
e-Notarization under the e-
Commerce Act
To keep pace with the global
developments in information
technology, Congress enacted into law
Republic Act No. 8792, also known
as the Electronic Commerce Act of
2000) on June 14, 2000. The law
gave validity and legal recognition to
electronic documents and electronic
contracts as the functional equivalent
of paper-based documents. [ 5 ]
Corollary to this is the legal recognition
of electronic and digital signatures
affixed on electronic documents and
electronic contracts. These signatures
are now legally recognized as
equivalent to the signature of a person
on a written document. [ 6 ] Electronic
contracts and documents would not be
denied validity, enforceability and
admissibility as evidence for as long
they preserved their integrity and
reliability and can be
authenticated in accordance with the
law and established rules of procedure.
Section 11 of the Electronic
Commerce Act of 2000 authorized the
Supreme Court to determine the
appropriate rules governing the
authentication of electronic documents
and electronic contracts "including the
use of electronic notarization systems
as necessary and advisable, as well as
the certificate of authentication on
printed or hard copies of the electronic
document or electronic data messages
by electronic notaries, service providers
and other duly appointed certification
authorities."

Electronic notarization is the
performance of a legal act that will
facilitate the conversion of private
documents in electronic form into
"public documents" and provide them
with the legal attributes and character
as such. It is the digitalization" of the
performance of the function of a
notary public.
Current efforts of the Supreme
Court [ 7 ]
At present, the Management
Information System Office (MISO) of
the Supreme Court, headed by Atty.
Ivan John Uy, has completed ninety
percent (90%) of the Rules on
Electronic Notarization. According to
Atty. Uy, the Rules will be presented to
the Supreme Court for consideration
in July this year. The rules on electronic
notarization is expected to be
approved, released and implemented
before the end of 2004.
Critics of the implementation of the
electronic notarization system argue
the possible conflict of this set up with
the legal requirements of the existing
notarial law. Atty. Uy, however, said
that this issue has already been
addressed. He explained that the
electronic notarization system is a sui
generis. It is a concept of its own, a
unique one. Nevertheless, it will have
the same effect as the notarization of
paper-based documents. Simply put,
it will also have the "functional
equivalent" of the notarization of
paper-based documents.
Atty. Uy recognized that "electronic
notarization is like putting a square peg
in a round hole." For this reason, the
proposal is to denominate the system
as "Electronic Authentication System
for Electronic Documents".
The MISO has conceptualized two (2)
types of Electronic Authentication
System. The first type is an "on-line
authentication system" while the second
system would require the personal
appearance of the parties. The Rules
that MISO is preparing are intended
for these two types of election
authentication system.
On-line authentication system
The first type or the on-line
authentication system is intended to
cater to parties who are physically
remote from each other but wish to
have their document authenticated to
convert the same as a public
document. In this system, there would
be a virtual room where the parties
will meet on-line via NetMeeting or
net conference. An officer duly
authorized by the court to conduct
electronic authentication should also
be present in the virtual room and after
taking proper procedural safeguards,
the parties and the authenticating
officer similar to a notary public, shall
affix their electronic signatures in the
electronic document.
Prior to the drafting of the rules, some
legal practitioners have commented on
the potential dangers of this type of
authentication system particularly on
the authenticity of the document. The
primary concern is how can the other
parties and the authenticating officer
be assured that the person attaching
the digital signature is indeed the
person he or she should be. According
to Atty. Uy, they are going to require
in the rules the use of mechanisms that
will verify or ascertain the identity of
the parties including probably the use
of a video camera to see the person
at the other end of the screen.
Utilization of biometrics technology is
also being considered. "Biometrics
refers to the authentication techniques
that rely on measurable physical
characteristics that can be
automatically checked." [ 8 ] A commonly
used biometrics is the computer
analysis of fingerprints. In order to avail
of this type of authentication system,
the personal computers of the parties
should have, for example, a
fingerprint scanner, where each of
them could place his or her index
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
finger. The computer would analyze
the fingerprint to determine the identity
of the person at the other end of the
screen. With this mechanism, the risk
of the digital signature being accessed
or used without authority will be
avoided.
Another potential danger of this type
of electronic authentication system is
the risk that the owner of the digital
signature be coerced to put his digital
signature on the electronic document
without the notary public knowing of
such fact. This danger is something that
the Electronic Authentication System
may not resolve. However, It is worthy
to note that even in the notarization of
paper-based documents, such vitiation
of consent cannot be avoided. "When
you introduce something new, you
should not expect that it is a 'cure-all'
thing. It will definitely improve the
system but it will not cure all the
defects," said Atty. Uy.
Personal appearance before an
authentication officer
The second type of Electronic
Authentication System being proposed
requires the personal appearance of
the parties before an authenticating
officer. This type of authentication
system aims to do away with bulky
paper documents. With this system, the
parties who wish to have their
electronic document authenticated are
required to appear before an
authenticating officer duly
commissioned by the Court. The
parties, after reading the electronic
document, shall affix their electronic
signatures thereon, while the
authenticating officer acts as witness.
The authenticating officer shall then
affix his digital signature in the
document, store the said document in
a compact disc, reproduce a number
of copies thereof as may be required
by the rules and give each party his
copy of the electronic document. The
authenticating officer shall also keep
his copy of the document.
5
 The original of an electronic
document
Section 3, Rule 130 of the Rules of
Court provides that when the subject
of inquiry is the contents of a
document, no evidence shall be
admissible other than the original
document itself, also known in legal
parlance as the best evidence rule.
The E-Commerce Act of 2000 and the
Rules on Electronic Evidence [ 9 ]
promulgated by the Supreme Court
modified the concept of the best
evidence rule to capture legal
recognition and admissibility of
evidence of electronic documents and
electronic contracts.
In electronic documents, the E-
Commerce Act provides that where the
law requires information to be
presented or retained in its original
form, that requirement is met by an
electronic document if the integrity of
the information from the time when it
was first generated in its final form as
an electronic document, is shown by
evidence allunde or otherwise. [ 10 ]
Rule 4 of the Rules on Electronic
Evidence provides that "an electronic
document shall be regarded as the
equivalent of an original under the Best
Evidence Rule if it is a print out or output
readable by sight or other means,
shown to reflect the data accurately."
[11 ]
Thus, every copy of the electronic
document, whether a print out, an e-
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
mail message, or a copy in a hard disk,
compact disc or diskette may be
regarded as the original. The greatest
apprehension with the said provisions
is the possibility that "all manner of
alterations can be perpetrated in the
cyberspace before the document is
even printed. [ 12 ]
The Rules on Electronic Evidence
further provides that "[w]hen a
document is in two or more copies
“THE PRESENT DAY GLOBAL ECONOMIC LANDSCAPE IS DEFINED BY TWO MAIN FEATURES -- THE VAST IMPACT OF THE INFORMATION
TECHNOLOGY REVILUTION AND THE DRAMATIC EXPANSION OF INTERNATIONAL TRADE. THE INTERNET IS REDEFINING BUSINESS MODELS
WORLDWIDE AND CREATING NEW PARADIGMS AND ECONOMIC TRANSACTIONS.” - GOV. JAMES S. GILMORE III, GOVERNOR OF VIRGINIA AND
CHAIRMAN, FEDERAL COMMISSION ON INTERNET TAXATION (1999)
6
executed at or about the same
time with identical contents, or is a
counterpart produced by the same
impression as the original, or from the
same matrix, or by mechanical or
electronic recording, or by chemical
reproduction, or by other equivalent
techniques which accurately
reproduces the original, such copies
or duplicates shall be regarded as the
equivalent of the original." [ 13 ] Thus,
for a document to be considered as
equivalent of the original, it must be
executed at or about the same
time as the original.
In the soon-to-be implemented Rules
on Electronic Authentication System of
Electronic Documents, Atty. Uy
declared that a mechanism to ensure
that only copies intended to be the
equivalent of the original will be
presented. He further explained that
with the 'time and date stamp' or digital
stamping, the integrity of an electronic
document would be proved. Upon
signing an electronic document, the
parties will secure a time and date
stamp. Such stamp assures the
existence of an electronic document
at one certain moment. Hence, the
original of the electronic document and
the equivalent copies of the original
bear the same digital stamp.
Subsequent copies of the electronic
document will certainly bear a different
time and date. Therefore, there would
be no problem in ascertaining whether
a particular electronic document is the
original, an equivalent of the original,
or a subsequent reproduction thereof.
Conclusion
Electronic notarization is certainly a
new and novel concept in legal and
judicial systems not only in the
Philippines but worldwide. Like any
process of change, it is susceptible to
resistance particularly from the legal
community.
The flexibility of the legal mandate
accorded to the Supreme Court by the
E-Commerce Act of 2000 to adopt a
system of e-notarization and
authentication of electronic documents
as maybe "necessary and advisable" [
14 ]
is consistent with the internationally-
accepted principle that 'law should be
technology neutral' and effectively
arrests any legal inconvenience posed
by existing notarial laws.
Unfortunately, global trends in legal
practice leave our judicial authorities
no choice but to start the process of
change in our legal system in response
to the information technology
revolution. The enactment of the E-
Commerce Law, the Rules on Electronic
Evidence and the prospective Rules on
Electronic Authentication System of
Electronic Documents is certainly a step
in the right direction.
Endnotes
1. Tom Halliwell, "The Notary: A Short
History" (2000, May). Retrieved on 2
April 2004. http://
w w w. l e a r n e d c o u n s e l . c o m /
notaryhistory.html
2. Ibid.
3. Nunga vs. Viray, A. M. 4758, 30 April
1999
4. Sales vs. Court of Appeals, G. R. No.
L40145, 29 July 1992
5. Sec. 7, R. A. No. 8792
6. Sec. 8, ibid.
7. Based on the author's interview of Atty.
Ivan John Uy on 1 April 2004
8. Definition from www.webopedia.com.
Copyright, 2004 Jupitermedia . All rights
reserved. Reprinted with permission
from http://www.internet.com.
9. A.M. No. O 1-7-01-SC
10. Sec. 10, R.A. No. 8792.
11. Sec. 1, ibid.
12. Jaime C. N. Arroyo, "The law and the
Internet Legal Community slams rules
on electronic evidence," Cyberdyaryo,
22 August 2001, Retrieved on 2 April
2004. http://www,cyberdyaryo.com/
features/2001_0822_02.htm
13. Sec. 2, Rule 4 of the Rules on Electronic
Evidence
14. Sec. 11, R. A. No. 8792

THE PHILIPPINE RULES
he Philippine
T
Supreme Court, through A. M. No.
01-7-01-SC, approved en banc the
Rules of Electronic Evidence on July
20, 2001 in accordance with Republic
Act No. 8792, otherwise known as the
"e-Commerce Act of 2000".
Scope and effectivity
The Rules became effective on 1
August 2001 and initially applied to
civil, quasi-judicial and administrative
proceedings pending after that date.
On 24 September 2002, it was
amended to include from its coverage
criminal cases effective 24 October
2002.
Electronic signature vs. digital
signature
Electronic signature refers to any
distinctive mark or characteristic in
electronic form representing the
identity of a person and associated with
an electronic data message or
electronic document and therefore
includes digital signature. Electronic
signatures have the "functional
equivalent" of the signature of a person
on a written document.
Digital signature refers to an electronic
signature consisting of a transformation
of an electronic data message or
electronic document using a
cryptographic system: asymmetric or
symmetric through a certification
authority.
Recognition of electronic
evidence
Whenever the rules on evidence refer
to a written document it shall include
Features
ON ELECTRONIC EVIDENCE: AN OUTLINE
By Jaime N. Soriano
electronic documents (or any
information sent, received, or stored
by electronic, optical or similar means
as electronic data). Thus:
1. An electronic evidence is
admissible in evidence provided
it is competent, relevant and can
be authenticated in the manner
provided for by the rules.
2. The fact that it is in electronic form
will not diminish the confidential
nature of a privileged
communication.
Best evidence rule in electronic
documents
Electronic documents refer to
information or representation of
information that establishes a right or
extinguishes an obligation and is
received, recorded, transmitted,
stored, processed, or retrieved in
electronic form.
All copies of an electronic document
executed at or about the same time
with the same impression and identical
in contents are regarded as equivalent
of the original, unless there is a
question on the authenticity of the
original or it would be unjust to admit
the copy in lieu of the original.
Exception to the Hearsay Rule
Records, data or information kept in
electronic form in the regular course
of business are excepted from the
hearsay rule, provided (i) they are
proven or shown by the testimony of
the custodian or other qualified witness
and (ii) it is proven that compilation of
such data, records or information is a
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
regular practice. To overcome this, the
adverse parry must present proof of
the untrustworthiness of the source of
information, or the method or
circumstance of the preparation,
transmission or storage.
Authentication
documents
of electronic
Burden of proving authenticity: The
party introducing the electronic
evidence.
Manner of proving authenticity of
private documents: The electronic
evidence must be proved before it is
offered as authentic in any of the
following manner: (i) evidence that it
has been signed digitally by the person,
(ii) evidence that appropriate security
procedures were applied as may be
authorized by law or the SC, or (iii)
other evidence showing integrity and
reliability to the satisfaction of the court.
Manner of proving authenticity of
public document: To be proven as an
electronically notarized document in
accordance with SC rules (NB: No such
rule at the moment)
Manner of authenticating electronic
signature: (i) evidence to prove the
method to establish and verify a digital
signature, (ii) other means provided
by law, (iii) any means to satisfy the
court of its genuineness.
Methods of proving electronic
documents
By Affidavit Evidence: based on
personal knowledge and indication of
the competence of the affiant to testify
on the matters contained therein. The
contents of the affidavit shall be
7
 affirmed in open court and may be
cross-examined as a matter of right
by the adverse party in a summary
hearing.
Electronic testimony: When an
examination of a witness is done
electronically, the entire proceedings
shall be transcribed stenographically.
The transcript must be certified and
indicate that the proceedings were
electronically recorded. The electronic
evidence, the recording and the
transcript shall form part of the records
of the case and shall be deemed as
prima facie evidence of the
proceedings.
Disputable presumptions (after
authentication is proved)
Electronic signature: (i) it correlates to
the identity of the person, (ii) it was
affixed with intent to authenticate, (iii)
it was affixed to indicate consent to the
transaction, and (iv) the process to affix
the signature operated without error
or fault.
Digital signature: In addition to the
above, (i) information contained in the
IBM PHILIPPINES INC., ET AL. VS. NLRC, ET AL.
(G.R. No. 117221, 13 April 1999, Supreme Court - 2nd Division)
(This section will be a regular feature of the
journal to highlight significant cases decided
in the Philippines and in foreign jurisdictions
relating to information technology)
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Facts: IBM Philippines Inc. terminated
the employment of Angel D. Israel for
habitual absences and tardiness.
Alleging that he was dismissed without
due process and without just cause,
Israel filed a complaint before the
National Labor Relations Commission
(NLRC).
To prove Israel's habitual absences and
tardiness, IBM attached to its position
paper print-outs of alleged computer
entries or messages sent to Israel
through the company's internal
computer system to prove the legal
basis for the termination and
8
certificate (of the certification authority)
is correct, (ii) the signature was created
during the operational period of the
certificate, (iii) there is no cause to
render certificate revocable or invalid,
(iv) the message associated to the
signature has not been altered from
the time of signing, and (v) it has duly
issued by the certification authority.
Factors to consider in
determining evidentiary weight
of electronic documents
1. Reliability of manner or method
in which it was generated, stored
or communicated.
2. Reliability of the manner in which
the originator was identified.
3. Integrity of the information and
communication system in which it
is recorded or stored.
4. Familiarity of the system by the
person who made the entry.
5. The nature and quality of the
information that went into the
communication system where the
electronic document was based.
6. Other factors affecting accuracy
and integrity of the electronic
documents.
Jurisprudence in CyberLaw
compliance with the notice
requirements of procedural due
process.
Later, the NLRC ruled in favor of Israel
and found his dismissal to be illegal
contending that the computer printouts
presented in evidence, to prove that
Israel's attendance was poor, were
insufficient to show that he was guilty
of habitual absences and tardiness.
Issue: Whether or not the computer
print-outs attached by IBM in its position
paper were inadmissible in evidence
to prove just cause and due process in
the termination of Israel.
Ruling: The Supreme Court refused
to recognize the admissibility and
evidentiary weight of an unsigned
Admissibility and proof of
ephemeral electronic evidence
Ephemeral electronic evidence refers
to telephone conversation, text
messages, chat sessions, streaming
audio or video or other forms of
communication that is not recorded or
retained.
It should be proven by the testimony
of the person who was a party to the
same, or has personal knowledge of
the same, or in the absence thereof,
by other competent evidence. If the
communication is recorded, it shall be
proven as an electronic document.
Admissibility and proof of audio,
video or photographic evidence
The evidence is admissible provided
they are shown, presented or displayed
to the court and identified, explained
or authenticated by the person who
produced the same or by a competent
testimony on the accuracy thereof.
computer print-out of the exchanges
of e-mails between the company and
the dismissed employee that would
have proven the latter's habitual
tardiness and absenteeism, without the
requisite proof of its authenticity and
reliability. The Court said:
"The computer print-outs, which
constitute the only evidence of
petitioners, afford no assurance
of their authenticity because they
are unsigned. The decisions of
this Court, while adhering to a
liberal view in the conduct of
proceedings before administrative
agencies, have nonetheless
consistently required some proof
of authenticity or reliability as
>> [21] Jurisprudence in CyberLaw

OPTICAL MEDIA ACT : A PANACEA TO PIRACY
A year ago,
the Philippines was on the US priority
watch list of international intellectual
property protection organizations,
notwithstanding government efforts to
cut back violation of intellectual property
rights (IPR). This was shown in the 2003
"Special 301" annual review which
examined the sufficiency and efficacy
of intellectual property protection in
different countries including the
Philippines. [ 1 ]
The swift increase in optical disk piracy
in the Philippines brought about by the
pace of change in, and speed and
ease of, electronic communication and
copying are both threatening to the
basic concept of IPR. It was noted that
despite concentrated efforts to clear
out video pirates, no one was convicted
because of the government's lack of
operational means to penalize the
bootleggers. As such, the Philippine
Government intensified its efforts
across the board and enacted stronger
laws and regulations on the production
of optical disk. The clamor to punish
not only the street vendors, as well as
the manufacturers of sham materials,
led to the competent enforcement of
law which spells out that there are real
costs, genuine deterrence and actual
penalties to be paid for piracy.
President Gloria Macapagal-Arroyo
recently signed Republic Act No. 9239
known as the "Optical Media Act of
2003." This law was enacted in accord
with the Intellectual Property Code of
the Philippines to ensure the protection
and promotion of intellectual property
rights. This act seeks to regulate optical
media by imposing stern regulations
in the licensing, copying and
distribution of optical media such as
DVD's, CD's, VCD's, DVD-ROMS, CD
Features
By Ailyn L. Cortez
ROMS, CD recordables and
rewritables.
To implement the new law, the
Videogram Regulatory Board (VRB),
which was created under Presidential
Decree 1987, was reorganized as the
Optical Media Board (OMB) under the
Office of the President. The board was
tasked to institute the means to
"regulate the manufacture, mastering,
replication, importation and
exportation of optical media." [ 2 ] The
OMB shall be composed of four ex-
officio members -- composed of
secretaries of the Department of Trade
and Industry (DTI), Department of the
Interior Local Government (DILG),
Department of Finance (DOF), and the
Director General of the Intellectual
Property Office (IPO) or their duly
authorized representatives; and five
regular member to be appointed by
the President. [ 3 ]
There are two mechanisms provided
to protect the intellectual property
rights, which serve as gatekeeper
systems to address the problems on
piracy from the very source. First, the
OMB shall have the authority to issue,
cancel or suspend licenses of
establishments or entities registered
with the OMB to engage in business of
mastering, manufacture, replication,
importation or exportation of optical
media. [ 4 ] The registration and license
issued by the OMB are conditions
precedent for securing the necessary
business permits or licenses from
appropriate authorities and shall also
be necessary for the release of
manufacturing equipment from
customs or economic zones. Second,
the OMB shall determine, develop
and/or adopt a system of Source
Identification (SID) codes. These are
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
system of codes embedded in the
optical media to identify the source of
all optical media mastered,
manufactured or replicated by any
establishment or entity. The SID codes
shall be visible and legible and must
conform to such specification as
prescribed by the OMB for all persons,
establishments or entities registered
with and licensed by the OMB. [ 5 ]
For the purpose of this Act, it is crucial
to define a Manufacturing Equipment.
Under the law, a manufacturing
equipment refer to "any and all
equipment, machine or device, now
known or to be known in the future,
intended or design for the production
or manufacture, by mastering and/ or
replication of optical media, optical
media masters, or production parts
thereof, including but not limited to,
those which shall be listed in the
Implementing Rules and Regulations
(IRR) of this Act or as prescribed by the
OMB. " [ 6 ] Optical disc writers and such
other devices used in personal
computers not for commercial
purposes shall not be considered as
manufacturing equipment.
As a deterrent to piracy, the Optical
Media Act provides stiff penalties on
establishments caught violating the
provisions of the law. Those engaging
in illegal importation, exportation,
mastering, manufacture, and
replication of optical media shall suffer
imprisonment of 3 years in the
minimum and six years in the
maximum and a fine of not less than
five hundred thousand pesos but not
exceeding one million five hundred
pesos. Violators who will employ
armed assistance shall face a stiffer
penalty of nine years imprisonment in
>> [20] Optical Media Act
9

THE DOMAIN NAME SYSTEM (DNS)
AND ADMINISTERING THE ROOT CCTLD .PH
T Introduction to domain names
he Internet provides
diverse content that changes hour after
hour and renders the Internet to be, in
its totality, a virtual heap of sparsely
organized data and resources. One
can only imagine the tedious process
and the near impossible feat of
memorizing numerical IP (Internet
Protocol) addresses, like
209.50.251.234, to reach sought
resources or websites, if host names
or domain names, like
www.arellanolaw.net, do not exist. [ 1 ]
A domain name identifies one or more
IP addresses [ 2 ] and is used in the global
addresses of documents and other
resources in the World Wide Web, or
the Uniform Resource Locators (URLs),
which identify particular Web pages.
Every domain name has a suffix that
indicates which top level domain (TLD)
it belongs to: such as .com for
commercial business, .net for network
organizations, .org for non-profit
organizations, .gov for government
agencies, .edu for educational
institutions, to name a few. A domain
name may further admit an additional
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
suffix that indicates country code Top-
Level Domain (ccTLD), a two-letter
codes in the ISO 3166-1 standard
codes for the representation of names
of countries or territories, such as .ph
for the Philippines.
The Internet Corporation for Assigned
Names and Numbers (ICANN) is the
internationally organized, non-profit
corporation that has responsibility for
Internet Protocol (IP) address space
allocation, protocol identifier
assignment, generic (gTLD) and
country code (ccTLD) Top-Level
10
Features
by Michael Vernon M. Guerrero
Domain name system management,
and root server system management
functions. These services were
originally performed under United
States Government contract by the
Internet Assigned Numbers Authority
(IANA) and other entities. As a private-
public partnership, ICANN is dedicated
to preserving the operational stability
of the Internet, to promoting
competition; to achieving broad
representation of global Internet
communities, and to developing policy
appropriate to its mission through
bottom-up, consensus-based
processes. [ 3 ] DotPH Inc. is the ICANN
Designated Registry Operator of the
.ph ccTLD since 1990.
Trade names and trademarks vis-
a-vis domain names
A domain name locates an
organization or other entity on the
Internet, usually by appending a gTLD
suffix (such as .com, .net or .org) to
said organization’s trade name. The
selection and acquisition of domain
names, thus, stir up property issues as
it involves goodwill, trade names and
trademarks, which are recognized
intangible properties. [ 4 ] As the
registries for trademarks / tradenames
and domain names are separate and
distinct but that both recognize the “first
to file” rule, the situation provides
opportunity for enterprising entities to
purchase domain names that may
correspond to another entity ’s
trademark purposed for a possible
resale of such domain name at a
higher price to an obviously interested
entity, or purposed for a virtual forum
containing adverse opinions against
said obviously interested entity. The
institutionalization of procedures as to
Uniform Domain Name Dispute
Resolution and the deployment of
Nameholder warranty clauses in
registration contracts with domain
registries minimize, but do not
eliminate, the conflicting interests
between trademark owners and
domain name registrants.
Chronic intellectual property issues still
remain involving the gTLD names –
which are supposed to be United States
TLDs – because the registries of which
are open or available to all possible
registrants worldwide. A clear
development in the protection of
country specific domains involves that
of the .us TLD of the United States.
The United States, through its appointed
central registrar Neustar, provided
stricter guidelines for .us TLD
registration. For an entity to register a
.us domain name, the entity should
either be (1) a natural person (i) who
is a United States citizen, (ii) who is a
permanent resident of the United States
of America or any of its possessions or
territories, or (iii) whose primary place
of domicile is in the United States of
America or any of its possessions; or
(2) a United States entity or
organization that is (i) incorporated
within one of the 50 US states, the
District of Columbia, or any of the
United States possessions or territories,
or (ii) organized or otherwise
constituted under the laws of a state of
the United States of America, the
District of Columbia or any of its
possessions or territories (including a
federal, state, or local government of
the United States or a political
subdivision thereof, and non-
commercial organizations based in the
United States); or (3) a foreign entity
or organization that has a bona fide

presence in the United States of
America or any of its possessions or
territories. [ 5 ] On the other hand, for
an entity to register a .ph domain
name in the Philippines, the Domain
Name Applicant need only to be either
(1) an identifiable human individual
(over the age of 18 years); or (2) a
legally recognized statutory entity (such
as a corporation, limited liability
company, partnership, or PLC). [ 6 ]
gTLD name registrations from the
Philippines are relatively high
inasmuch as having a gTLD name is
perceived to have a greater prestige
than having a ccTLD name in light of
the former’s “international” stature; or
on the economic side, that the cost of
purchasing a gTLD name is relatively
cheaper than purchasing a ccTLD
name. [ 7 ]
Domain name wait-list
ICANN approved the creation of
VeriSign Inc.'s "wait-listing service" on
6 March 2004, allowing people to bid
on domain names that are about to
expire. Only one person is allowed to
speculate or reserve a domain name,
owned by somebody else, at a time.
Speculation is fraught with risk as one
is not sure whether a domain name
would even return to open market.
Speculators would pay $20 a year,
excluding markup, year on end
without any return on their investment.
The waitlist service is not new in the
Philippines. DotPH has been offering
a wait-list service since September
2002, where a prospective registrant
who signs up for the Waitlist is first in
line to get a domain that expires and
is not renewed. The cost of signing up
for the Waitlist service is the same as
registering a domain. If the current
registrant renews the domain or the
person on the Waitlist simply gets tired
of waiting for the domain to expire,
he can use the Waitlist fee to register
an available domain. The registrant
can even choose to Waitlist another
domain instead, at no extra charge. [ 8]
The US model on the wait-list service
is different inasmuch as one cannot
recover the wait-listing fee if the
current registrant of the coveted
domain name renew his subscription.
The opportunity to shift the application
of the wait-listing fee in the Philippines
to an available domain name or to
another domain name that may be
waitlisted very much considers
paragraph 3, Article 1461 of the New
Civil Code of the Philippines (RA No.
386) which provides that the “sale of
a vain hope or expectancy is void.”
Proposed Philippine government
control on the .ph ccTLD
On 13 January 2004, the National
Telecommunications Commission
(NTC) issued a working draft of its
“Guidelines in the Administration of the
.Ph Domain Name.” The NTC stated
in the guidelines’ preamble that the
.ph domain name is a public resource
and is part of the Philippine national
patrimony; that the State has the
sovereign right over Internet-related
public policy issues; that the Internet
community must be ensured with an
efficient, stable, fair and transparent
administration of the .ph domain; and
that the administrator of the .ph domain
is the trustee of the country code top
level domain for the Philippines and
the global Internet community, and thus
is accountable to the local Internet
community and must be able to carry
out the necessary responsibilities, and
have the ability to do an equitable, just,
honest and competent job. It outlined
the qualifications, delegation and
recognition, and technical competence
of the Administrator; the management
and delineation of functions as to the
registry and the various registrars; the
registration of domain names, and all
matters pertaining to transparency and
accountability, fairness, service,
privacy in the registration thereof; the
use, marketing and promotion of the
.ph domain; dispute resolution; and re-
delegation of the registry.
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
On 4 February 2004, the PH domain
Registry (dotPH) submitted its comments
stating thereon, among others, that
specific problems must be identified
and solutions found via a collaborative
effort of both parties. DotPH
announced its intention not to attend
the 30 March 2004 hearing as (1) no
problems in PH domain operation/
administration have been pointed out
by the government despite DotPH’s
repeated requests; (2) that the
government has not shown that there
is a need for Guidelines at all and that
these will not result in new, additional
problems; and that government has not
responded to inputs previously given,
preventing the Guidelines to be
discussed on its own merits. DotPH
however reiterated its intent to
continue participating in the process,
hoping for a comprehensive solution.
The crux of contention revolves around
the issue whether the .ph domain is
“part of Philippine patrimony” subject
to “sovereign right” of the State; or
whether the .ph domain is a US
Government resource inasmuch as
ICANN reports its proposed actions on
domain registry re-delegation,
including ccTLDs, to the US
Department of Commerce. From
thereon flows the issue whether the
Philippine Government, in the exercise
of its police power, is the ultimate
authority on the .ph ccTLD so as to
formulate separate guidelines on the
re-delegation of the administration of
the Registry; or whether the delegation
or re-delegation of the ccTLD is within
the jurisdiction of ICANN where the
government is only in the same level
as the local Internet community, whose
interest is given equitable consideration
in the processing of a request for re-
delegation.
It must be noted that ICANN handles
all requests for redelegation and thus,
has the responsibility to neutrally
investigate and assess requests on all
matters relating to changes in the DNS
root, including ccTLD delegations and
>> [20] The Domain Name System (DNS)
11

S pam, spam, spam,
spam.....no, no, no it is not the kind
that we eat. This one is a technical
term referring to unsolicited e-mail
messages appearing in your inbox.
These messages are called by many
other names, but the most commonly
used term to describe it is "spam."
There are a lot of theories abounding
in the Internet as to the reason behind
the name but the most reliable is a
story, rumored to have originated from
the MUD/MUSH community, told by
blue haired former news administrator
Nathan J. Mehl and summarized in
www.cybernothing.org:
"My friend-who-shall-remain-
nameless was, ah, a younger
and callower man, circa 1985
or so, and happened onto one
of the original Pern MUSHes
during their most Sacred Event
- a hatching. After trying to
converse sanely with two or
three of the denizens, he came
quickly to the conclusion that
they are all a bunch of
obsessive compulsive nitwits
with no life and less literary
taste. (Probably true.)
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Cybernothing editor's Note:
another source tells me that this
actually happened in the
summer of 1991.
So, as the 'eggs' were
'hatching', he assigned a
keyboard macro to echo the
line:
SPAM SPAM SPAM SPAM SPAM
SPAM SPAM SPAM SPAM SPAM
SPAM SPAM SPAM SPAM
12
Features
SPAMMING THE WORLD
by Charilyn A. Dee
...and proceeded to invoke it
once every couple of seconds,
until one of the wizards finally
booted him off.
...which would have probably
been that last that anyone ever
heard or thought of it, except
that it apparently ingrained itself
into the memory of the
PernMUSHers, and forever
after there was the legend of
'that asshole who spammed us.'
Every once in a while, this story
makes it back to my friend, and
he tries very hard to keep a
straight face... " [ 1 ]
Spam, a formerly harmless form of
electronic advertisement, is now
gaining attention from the legislative
arm of various governments, notably
of the United States, Australia, and the
European Union. Complaints of the
end-users inconvenienced by
spamming are mounting. The
Australian government drafted its
version of an anti-spam law because
50% of e-mails received by end-users
are spam that resulted in increased
download time and Internet access
costs. [ 2 ] In the United States, average
Americans spend fifteen hours deleting
spam compared to two hours in 2002.
[3]
Roughly the same numbers apply
in other countries harassed by spam.
Marketers who use this form of
advertisement are seldom reputable
as can be deduced from the most
common forms of spam. Examples
are:
1. Chain letters
2. Pyramid schemes (including
Multilevel Marketing, or MLM)
3. Other "Get Rich Quick" or "Make
Money Fast" (MMF) schemes
4. Offers of phone sex lines and ads
for pornographic web sites
5. Offers of software for collecting
e-mail addresses and sending
UCE
6. Offers of bulk e-mailing services
for sending UCE
7. Stock offerings for unknown
startup corporations
8. Quack health products and
remedies
9. Illegally pirated software ("Warez")
[4]
The problem
There are many spam-caused
problems but the most pertinent is the
cost borne by the end users. Sending
spam mail is amazingly cheap since it
only requires a 28.8 kbps dial-up
modem and a PC. A spammer can
send hundreds of bulk e-mails per
hour. However, the effect of this falls
on the end-users especially those who
pay for personal e-mail services.
In the technical sense, the Internet is a
worldwide system of computer
networks that allows data to be routed
and rerouted before the data arrives
to its destination. Each data passing
through this network system contains
the address of the source and the
destination. The routers read the
address and then send it to the
appropriate router which repeats the
same process until the data arrive to
its destination. For example, atypical

e-mail is virtually divided into "packets"
for transmission because its mere size
would limit the possibility of a single
transmission. Dividing information into
packets makes it more manageable
and thus avoids data loss. The router
can only read the packet at a time.
This creates the delay in sending and
receiving mails via the Internet.
So just imagine if there was delay in
sending and receiving e-mails before
spams, how much more with the
introduction of spams? The problem
doesn't end there. Instead of processing
only important mails, spams create a
drag on the CPU of ISPs resulting in
lost time and resources of end users.
Data are lined up in queues of
unsolicited mails, or SPAMS. [ 5 ]
Spam abuse legislation
In answer to the growing problem of
spams, some countries took
appropriate measures. These
countries differ in whether subscribers
should "opt-in" or "opt-out" spam. Opt-
in is for the user to give consent before
receiving spam, whereas optout is
when the user automatically receives
spam and expresses his/her refusal to
accept such messages to the spammer
via e-mail to whatever address the
spammer gave.
United States
Last 1 January 2004, the Can-Spam
Act of 2003 went into effect. The law
prohibits e-mail senders to falsify or
disguise their identity by using
misleading subject lines, improperly
harvesting e-mail addresses, or taking
advantage of automated systems for
generating electronic addresses by
combining names, letters and
numbers.
Business should not market themselves
through false or misleading e-mails,
and a true return e-mail and postal
address must be provided along with
a means to optout of receipt of further
e-mails.
Pornographic sites are required to give
conspicuous notice that the email is a
solicitation or advertisement and
sexually-oriented and plainly labeled
as such. [ 6 ]
European Union
A directive was drawn up in July 2002
and came into force in October 2003,
but only four countries brought their
national legislation up to the new
standards.
The directive requires the consent of
the customer before the message can
be sent. Within the existing customer
relationship, it is reasonable to offer
similar products or services provided
that with each message the customer
should be informed about their further
use of the customer's email address in
a clear and distinct manner, and be
given the opportunity to refuse such
usage. [ 7 ]
South Korea
The revised anti-spam law of South
Korea was successful in curbing the
increase of spam. The law prohibits
the harvesting of e-mail addresses
from websites and the use of technical
means to get around spam blocks. It
also strengthened control of illegal
labeling of commercial e-mails and
protection of juveniles from
spamming.[8 ]
Australia
The anti-spam laws of Australia adopted
the opt-in policy in receiving unsolicited
commercial e-mails. It banned the
distribution and use of email harvesting
and list-generating software that allow
spammers to make a list of e-mail
addresses. Furthermore, it provides
that all commercial messages will have
to include full details of the sender's
name and physical address, as well as
an unsubscribe option allowing
recipients to stop any further messages.
[9]
Violators will have a fine of more
than $A1 million. [ 10 ]
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Malaysia
A country that chose to take another
route in tackling the issue is Malaysia.
Malaysian authorities preferred to
educate the people in using the Internet
to protect themselves. So far, it is the
only country waging an active war
against spamming through education.
Effective?
Despite the best intentions of
lawmakers, the power of anti-spam
legislation is still highly criticized and
doubted. The survey released by Pew
Internet and American Life Project
shows that even after the
implementation of Can-Spam Act,
spamming continues to be a problem.
The survey further shows that:
"In terms of emails received on
personal email accounts,
24%of respondents are
receiving more spam than
before January 1, 53% have
not noticed a change, 3% do
not know, and only 20% report
that they are receiving less
spam.
With respect to work-related
email accounts, 19% of
respondents say that they are
receiving more spam, 53%.
have not noticed a change,
18% do not know, and only
11% state that they are
receiving less spam.
The survey shows an overall
increase of email users who
have reduced their use of
email because of spam from
25% last June to 29% now.
While last June 52% of users
said that they are less trusting
of email because of spam, that
percentage now has jumped to
63%.
Moreover, the percentage of
users who report that spam,
has made being online
>> [21] Spamming the World
13

A SYNOPSIS OF THE E-COMMERCE LAW
I n response to the
global devastation of computer
networks brought about by the "I Love
You" virus suspected to have originated
from the Philippines, Congress
immediately enacted Republic Act No.
8792 on 14 June 2000. Also known
as the "Electronic Commerce Act of
2000", the law was hailed by observers
as a landmark piece of legislation that
finally placed the Philippines on the
map of electronic commerce. [ 1 ] The
Philippines was the fourth country, after
Malaysia, Singapore, and Korea, that
legislated a law on e-commerce.
The Implementing Rules and
Regulations of the e-Commerce Act
were adopted on 13 July 2000.
This law "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
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
general public." [ 2 ]
Essentially, the law provides:
1. It shall have application to any kind
of data message or document
generated, sent, received or
stored by electronic, optical or
similar means, regardless of
whether the activity or transaction
is commercial or non-
commercial, private or public, or
domestic or international.
2. Electronically generated
documents have the legal effect,
14
Features
by Jaime N. Soriano
validity and enforceability as any
other legal document. Electronic
documents are recognized as the
functional equivalent of a written
document for evidentiary
purposes.
3. It gives legal recognition to
contracts and transactions in the
form of electronic data message
or electronic documents carrying
electronic or digital signatures.
Electronic signature can be any
distinctive mark, characteristic,
and/or sound in electronic form
that represents the identity of a
person and logically associated
with the electronic document. [ 3 ]
Digital signatures, on the other
hand, are provided through a
secret code, known as "electronic
key," which secures and defends
sensitive information that crosses
over public channel into a form
decipherable only with a matching
electronic key [ 4 ] normally obtained
from an Internet security
company. Both electronic and
digital signatures are necessary to
ensure the integrity, reliability and
authenticity of electronic
documents, particularly those that
qualify as an electronic contract.
4. Electronic documents, signatures
and data messages are admissible
in evidence in a legal proceeding
depending upon their reliability,
integrity, nature and quality. For
this purpose, the Supreme Court
promulgated A. M. No. 02-7-02-
SC or the Rules on Electronic
Evidence that took effect on 1
August 2001.
5. Offer, acceptance, and other legal
requisites for the formation and
consummation of contracts may
be expressed or executed by
means of electronic data message
or electronic documents. These
contracts shall not be denied
validity or enforceability simply
because they are in electronic
form.
6. The law was also made applicable
to actions related to contracts of
carriage of goods, including but
not limited to: [ 5 ] (a) statements,
declaration or information about
the goods, (b) confirmation on the
delivery, loading or receipt of the
goods, (c) notices or
communication on terms and
conditions of contract; instructions
to carrier; any loss of, or damage
to, the goods; specific instructions
for the release or delivery of
goods; or, any other notice about
the performance of the contract,
(d) granting, acquiring,
renouncing, surrendering,
transferring or negotiating rights
in goods, (e) acquiring or
transferring rights and obligations
under the contract. Contract of
carriage of goods can therefore
be in the form of electronic
documents under the E-
Commerce Act. However, in cases
contemplated in (d) and (e), "no
paper document used to effect any
such action is valid unless the use
of electronic data message or
electronic document has been
terminated and replaced by the
use of paper documents. A paper
document issued in these
circumstances shall contain a
statement of such termination. The
replacement of electronic data
messages or electronic documents
by paper documents shall not

affect the rights or obligations of
the parties involved." [ 6 ]
7. Government offices, including
government-owned-and-
controlled corporations, should
conduct their transactions
electronically within two (2) years
from the effectivity of the law.
8. Internet service providers merely
providing access to electronic data
message or electronic documents
in the ordinary course of its
business are generally not subject
to any civil or criminal liability.
Only persons having legal right to
the possession of electronic files
can have access, and make, or
authorize, alterations thereof.
Unless consent is given to another
person or party, electronic key for
identity and integrity is only
available to the person or entity in
lawful possession of the electronic
key. Any person who has authority
to access an electronic file or
information is bound by the rules
on confidentiality of such file or
information.
9. Penalties of fine and/or
imprisonment are imposed for
violations as defined under the law
specifically: (a) hacking, cracking
or unauthorized access or
interference, or corruption and
destruction of computer,
information and communication
systems, without the consent of the
owner, including the introduction
of virus; (b) piracy, reproduction,
distribution, transmission, or
alteration of protected materials
and intellectual property including
electronic signatures; (c) violations
of the Consumer Act [ 7 ] through
electronic means; and, (d) other
violations of the provisions of the
e-Commerce Law.
The Philippine law on e-Commerce
was patterned after the "UNCITRAL
Model Law on Electronic Commerce"
adopted by the United Nations
Commission on International Trade
Law (UNCITRAL) in 1996. [ 8 ] The model
law is intended to promote the
harmonization and unification of
international trade low and remove
unnecessary obstacles to international
trade caused by inadequacies and
divergences in the law affecting trade
as a result of the information
technology revolution.
The Model Law was prepared and
adopted in response to a major
change in the means by which
communications are made between
parties using computerized or other
modern techniques in doing business.
It is intended to serve as a model to
countries for the evaluation and
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
modernization of certain aspects of
their laws and practices in the field of
commercial relationships involving the
use of computerized or other modern
communication techniques, and for the
establishment of relevant legislation
where none presently exists.
The Internet, being the backbone of
the digital age, has gained
considerable interests, not only among
the millions of net users, but also
among legal and policy stakeholders.
Internet law continues to evolve as e-
commerce dramatically flourishes. As
more and more rules are being
adopted and applied governing
Internet activities, there is compelling
need for the crafting or re-crafting of
laws, policies and regulation, both in
local and international levels, as digital
technology continue to develop and re-
define business models in the
information economy.
Endnotes
1. Bagares, Romel, "New Rules (of Court)
for the New Economy", The Philippine
Star, 27 July 2001, p. B-1.
2. Sec. 3, R.A. No. 8792
3. Sec. 5 (e), R.A. No. 8792
4. Sec. 5 (f), ibid.
5. Sec. 25, R.A. No. 8792
6. Sec. 25 (5), R.A. No. 8792
7. R.A. No. 7394
8. During its twenty-ninth session (605th
Meeting) on 12 June 1996

“TWENTY-FOUR HOURS A DAY, SEVEN DAYS A WEEK, MILLIONS OF PEOPLE IN EVERY NOOK AND
CORNER OF THE PLANET EARTH ARE HOOKED IN REAL TIME TO THE INFORMATION SUPERHIGHWAY
AND PARTAKING THE BOUNTY OF DIGITAL TECHNOLOGY. CERTAINLY, INFORMATION TECHNOLOGY
HAS CHANGED THE WAY PEOPLE LIVE, THE WAY THEY INTERACT, THE WAY THEY PURSUE KNOWLEDGE,
THE WAY THEY ENTERTAIN THEMSELVES, AND THE WAY THEY TRANSACT BUSINESS. THE DIGITAL
ERA HAS TRANSFORMED THE WORLD INTO A VIRTUAL GLOBAL COMMUNITY THAT IS GRADUALLY
EVOLVING AND DEFINING A TOTALLY NEW CULTURE OF HUMAN INTERACTION.

AS IN ANY PROCESS OF DRAMATIC CHANGE, THERE ARE INHERENT THREATS AND WEAKNESSES, BUT
THE INFORMATION TECHNOLOGY REVOLUTION SHOULD BE TAKEN IN THE CONTEXT OF ITS
CHALLENGES, OPPORTUNITIES AND BENEFITS. NOW IS THE BEST TIME FOR PRACTITIONERS OF LAW
TO SET THE STAGE FOR WIDER AND DEEPER INVOLVEMENT IN THE PARADIGM SHIFT TO HELP DEFINE
THE RULES OF THE GAME AND MAKE INFORMATION TECHNOLOGY WORK.” - J. N. SORIANO, EXECUTIVE
DIRECTOR, CENTER FOR E-LAW, ARELLANO UNIVERSITY SCHOOL OF LAW

15

OVERVIEW OF SELECTED LEGAL AND REGULATORY ISSUES
IN ELECTRONIC COMMERCE
Reprinted from E-Commerce and Development Report 2001 of the United
Nations Conference on Trade and Development (UNCTAD) [ * ]
Finding global solutions to
E address global transactions
nsuring users and consumers
effective redress for disputes arising
from transactions in the online
environment is a key element in
building trust. There is a widespread
awareness of the potential legal
barriers arising from recourse to courts
in disputes resulting from cross-border
online interactions. Which law applies?
Which authority has jurisdiction in the
dispute? Which forum is competent to
hear the dispute? Is the decision
enforceable? These are some of the
questions that all too often arise and
for which there is not yet a clear
answer. Electronic commerce has
increased the need to rely on party
autonomy, the choice-of-court clauses
becoming central to any discussion of
court jurisdiction. Thus, it is essential
that national legal systems clearly
provide for rules on which parties can
rely in order to ensure that their choice-
of-court clauses will be deemed valid.
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Uncertainty in this respect is
detrimental to the trust which private
operators will have in the judicial and
legal systems of a particular country.
To assist States in their efforts to
accommodate e-commerce, this
chapter analyses a number of options
for countries wishing to develop a set
of choice-of-court rules. A difference
is made in this regard within business-
to-business (B2B) and business-to-
consumer (B2C) contracts, as well as
between (i) contracts concluded online
and performed offline, and (ii)
contracts concluded and performed
online.
16
Features
Disputes in cyberspace: online
solutions needed for online
problems
It is well known that public lawmaking
is too rigid, too slow in responding to
the need for immediate adjudication,
and too slow adapting to changes to
the social, technological and
commercial customs of cyberspace. In
contrast, private lawmaking and
private adjudication are more flexible
and readily adapt to the diverse
evolving technological and social
nature of cyberspace and its changing
commercial practices. Given that
traditional dispute settlement
mechanisms may not provide effective
redress in electronic commerce
transactions for a large number of the
small claims and low-value
transactions arising from B2C online
interactions, this chapter analyses the
various alternative dispute resolution
(ADR) mechanisms that would provide
speedy, low-cost redress. When ADR
takes place using computer-mediated
communications in the online
environment, it is often referred to as
online dispute resolution (ODR). Both
e-disputes and bricks-and-mortar
disputes can be resolved using ODR.
The system could be used in a variety
of contexts, including within a
particular online market place (e.g.
mediation in online auction sites,
arbitration in the domain name system
and in the automated negotiation
process for insurance disputes), as part
of a trustmark or seal programme, or
on an independent basis. These ODR
mechanisms range from those which
are fully automated - in that a computer
program without human intervention
generates outcomes - to most other
ODR providers that offer dispute
settlement with human intervention.
Parties may contract for a range of
ODR services from mediation, which
aims at encouraging the parties to
reach an amicable settlement of their
disagreement, to binding arbitration,
which imposes on the parties a legally
enforceable arbitral award. As of
December 2000, more than 40 ODR
providers had been identified.
Jurisdiction: is your enterprise
website regarded as a branch?
Concerning jurisdiction, two main
questions are addressed: (i) can an
Internet site be regarded as a branch
or establishment for any legal
purpose? and (ii) is the level of
interactivity relevant? As regards the
first question, it seems that the tendency
is to consider that a website does not
qualify as a branch or permanent
establishment. Thus, the place of
establishment of a company providing
services via an Internet website is not
the place at which the technology
supporting its website is located or the
place at which its website is accessible,
but the place where it pursues its
economic activity. The answer to the
second question for a large number
of countries is also clear: whatever the
level of interactivity of the website, it
will not change the answer to the first
question. However, if a site is an
interactive one, it may lead some
countries, which apply a doing business
concept for court jurisdiction to assert
jurisdiction as long as the interactivity
can be seen as a clear link with the
State whose courts assert jurisdiction.

Applicable law: a new concept
of consumer protection
As regards applicable law, an
important difference has to be made
between B2B and B2C contracts.
Concerning B2B contracts, there is a
renewed interest in codes of conduct.
Thus, States are confronted with an
ever-increasing duty to define carefully
the limits of their public policy rules,
since operators over the Internet often
develop their own codes of conduct.
Whether or not operators can include
a choice-of-law clause in their
contracts will be determined by the
public policy of each State. In the case
of B2C contracts, and for a large
majority of countries where consumers
are protected, the law applicable would
be the one which is more favourable
to the consumer. Therefore, if the law
of the location of the consumer is more
favourable, it will apply; but if, on the
contrary, it is not, the law of the
professional who supplied the service
or the goods will apply. This is the main
reason why Internet operators have
been so keen to block all adoption of
rules of the same nature for the
Internet. This is one of the areas that
would greatly benefit from an
international agreement on common
rules of protection for consumers.
Concerning torts, most decisions which
have been taken by national courts
around the world apply the law of the
place where the effect is felt, and not
that of the country where the tort was
committed. This rule needs to be
reassessed against Internet specificity.
Data protection: convenience at
the cost of privacy?
The question of privacy and data
protection over the net is another
important issue. It is well known that
the value of many Internet corporations
depends on the amount of data they
are able to gather. Thus, personal data
about consumer habits, tastes and the
like are of great value to any
corporation wishing to operate over the
net. A consumer may want to limit the
availability and use of each of these
types of information and may make
decisions about entering into a
transaction_ based on the extent to
which the information will be protected.
The problem is not new, what is new is
its scale. It is this dilemma - keeping
our personal information private, while
allowing use of that information to
make our lives easier - that is the crux
of the current data protection debate.
The more legal protection and control
individuals are provided with as
regards their personal information, the
more costly it becomes for companies
to comply with those protections, and
for Governments to investigate and
prosecute violations of those rights.
Removing legal barriers to the free flow
of information, while allowing for more
innovation, development, and more
personalized service, will lessen legal
protection of personal information.
Although the unification of substantive
law remains the best solution for
international protection of privacy and
personal data, in practice it is not
always possible to unify all aspects of
the law. Therefore, the question of
applicable law (e.g. the law of the
location of the person whose data are
collected) is still pertinent in this context.
However, when the conflict rule clashes
with the economic needs of Internet
operators, it must remain a default rule
to be applied only if substantive
unification is not possible.
Legal recognition of electronic
signatures: the options
As regards encryption and electronic
signatures, there seems to be a
consensus that a mechanism for secure
authentication of electronic
communication is critical to the
development of electronic commerce.
Such a mechanism must provide for
confidentiality, authentication (enabling
each party in a transaction to ascertain
with certainty the identity of the other
party) and non-repudiation (ensuring
that the parties to a transaction cannot
subsequently deny their participation).
This chapter provides a review of the
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
basic approaches to electronic
signature legislation together with some
recent samples of regional legislation
that might guide States wishing to
prepare legislation on electronic
signatures. Cybertaxation: No escape
So far, businesses have enjoyed a
largely tax-free e-commerce
environment. In other words, goods
and services transmitted electronically
have not been subject to taxation.
However, fears of revenue losses from
uncollected taxes and duties on Internet
transactions have prompted many
Governments to work towards
internationally agreeable solutions with
regard to changing existing tax
legislation to take account of e-
commerce.
Who pays the VAT: buyer or
seller?
At the centre of the e-commerce
taxation debate are two issues:
consumption and income taxation. As
far as consumption taxes are
concerned, the question arises whether
the tax should be collected in the
jurisdiction of the supplier or the
consumer. Under current legislation
foreign suppliers are often exempted
from VAT This provides incentives for
suppliers to locate abroad and gives
an unfair competitive advantage to
foreign suppliers. Therefore, there
seems to be a growing tendency
towards applying taxation in the place
of consumption. Given the
disappearance of intermediaries who
previously collected the VAT, it is not
clear yet who should collect the taxes
now. The EU has proposed that the
foreign supplier should register in a
EU country for VAT purposes. The
United States, being the largest
exporter and a net exporter of e-
commerce, tends towards an origin-
based consumption tax. Furthermore,
it has little interest in collecting VAT for
European tax authorities on their e-
commerce goods and services exports
to the EU. Developing countries, which
will be largely e-commerce importers
in the short to medium run, would
17
 have an interest in not eroding their
tax base by switching to an origin-based
tax system.
Is my website a taxable business?
As far as income taxation is concerned,
much of the debate has focused on
the issue of the "permanent
establishment" (PE) of a business. This
will determine to what extent an
Internet-based business will be subject
to taxation. The definition of PE is
important for countries that apply
source-based income taxation (the
majority of countries). Agreement has
been reached at the OECD on the
following issues: (i) a website by itself
cannot constitute a PE; (ii) a web server
hosted by an Internet service provider
(ISP) cannot constitute a fixed place of
business if the ISP does not carry on
business through the server; (iii) a web
server can constitute a fixed place of
business and thus a PE if it is owned by
a business that carries on business
LEXICON OF CYBERLAW TERMINOLOGY
(This will be a regular section to acquaint law
practitioners, students and researchers on
legal terms in IT law preferably from the
Philippine context).
"Computer" refers to any device or
apparatus which, by electronic,
electromechanical or magnetic
impulse, or by other means, is capable
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
of receiving, recording, transmitting,
storing, processing, retrieving, or
producing information, data, figures,
symbols or other modes of written
expression according to mathematical
and logical rules or of performing any
one or more of those functions. (Sec.
5 (b), R.A. No. 8792)
"Information and communication
system" refers to a system intended
for and capable of generating,
sending, receiving, storing or otherwise
processing electronic data messages
18
through the server; and (iv) ISPs cannot
be PEs of the businesses whose
websites they host. Developing
countries, even if they are not part of
an OECD agreement on Internet
taxation, should use the agreed-upon
rules as a basis for adjusting their own
legislation. Since they are net importers
of e-commerce, they will run a greater
risk of losing revenues if traditional
imports are replaced by online
delivery, and should thus start to
develop efficient tax collection systems
for e-commerce.
No customs duties on digital
goods: a fiscal concern?
In accordance with a WTO
moratorium, no customs duties should
be imposed on electronic
transmissions. While a large number
of (mainly developed) countries prefer
to extend the moratorium, some
developing countries have expressed
concern about potential revenue losses
or electronic documents and includes
the computer system or other similar
device by or in which data is recorded
or stored and any procedures related
to the recording or storage of
electronic data message or electronic
document. (Sec. 5 (d), R.A. No. 8792)
"Ephemeral electronic
communication" refers to telephone
conversations, text messages,
chatroom sessions, streaming audio,
streaming video, and other electronic
forms of communication the evidence
of which is not recorded or retained.
(Sec. 1 (k), Rule 2, Rules on Electronic
Evidence)
"Optical Media" refers to the storage
medium or device in which
information, including sounds and/ or
images, or software code, has been
resulting from uncollected border
tariffs. The question of how to define
digital goods (books, CDs, software,
music etc.) - as goods or as services -
has held up progress on e-commerce
in the WTO. While border tariffs are
normally collected on goods, they are
not collected on services. Developing
countries have therefore raised the
question of potential fiscal implications
if digital products are imported duty-
free. UNCTAD calculations show a
potential fiscal loss of approximately
US$ 1 billion on border tariffs and US$
8 billion if other import duties
(including VAT) are taken into
consideration. While these amounts
are small relative to total government
revenue, absolute losses from forgone
tariff revenues are much higher in the
developing countries, owing to their
higher tariffs applied to digital products.
Endnotes
* Citations omitted
stored, either by mastering and/or
replication, which may be accessed
and read using a lens scanning
mechanism employing a high intensity
light source such as a laser or any such
other means as may be developed in
the future. (Sec. 3 (i), R.A. No. 9239)
"Electronic Document" refers to
information or the representation of
information, data, figures, symbols or
other modes of written expression,
described or however represented, by
which a right is established or an
obligation extinguished, or by which a
fact may be proved and affirmed,
which is received, recorded,
transmitted, stored, processed,
retrieved or produced electronically.
(Sec. 5 (f), R.A. No. 8792)
 The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Contributions are Welcome
91 NEW LAWYERS FROM THE
ARELLANO UNIVERSITY SCHOOL OF LAW

T O IT Law Journal
he Philippine IT Law
Journal welcomes the submission of
contributions with a view to publication,
which should be sent to:

The Board of Editors

The Philippine Quarterly

Arellano University School of Law

Taft Avenue, corner Menlo Street
2.
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n 2 April 2004, the Supreme Court released the names
of 1,108 successful examinees of the 2003 Bar Examinations, representing
20.71 percent of the total examinees. The 91 new lawyers from the Arellano
University School of Law are:

1. AGACITA, Romeo Jr. E.

AGBAYANI, Rommel Chrisante F.
AGUILAR, Jose Jr. P.
AGUIRRE, Ma. Luisa L.
46.
47.
48.
49.
KATIGBAK, George S.
LABO, Eduardo Jr. L.
LAVARIAS, Lope Jr. A.
LILAGAN, Freddie V.
Pasay City 1300 Philippines 5. ALAMADA-MAGAYANES, Sharon M. 50. LIWANAG, Geraldine C.
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The Board of Editors will only consider
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3. Footnotes must be numbered
28. FAJARDO, Rey Christopher D. 74. SACRO, Roderick P.
consecutively throughout the article. 29. FALCOTELO, Rochelle Ann L. 75. SALGADO, Alwin N.
4. Authors may use graphs, tables, 30. FULTON, Kenneth P. 76. SALVADOR, Barry Boy A.
figures, or mathematics only when 31. GALICIA, Noel M. 77. SANTILLAN-VISTO, Sta. Cecilia M.
its application is necessary for 32. GAMBOL, Jessica A. 78. SAYAGO, Felix S.
achieving the stated objective of the 33. GAYAPA, Kristine Marie Therese O. 79. SIAYNGCO, Jeremy C.
paper. When mathematics is used, 34. GENESELA, Cliff Richard E. 80. SINGZON, Loralaine S.
the necessity for doing so should 35. GIANAN, Fredeswindo Jr. M. 81. SOLIS, Ronald L.
be explained, and the major steps 36. GOLEZ, Norman T. 82. SOMERA, Dencio Jr. G.
in the argument and the conclusions 37. GRIMALDO, Rodel R. 83. SUBIERA, Cielita S.
made intelligible to a non- 38. GUERZON, Elmer Joseph R. 84. TAGALICUD, Nonilon L.
mathematical reader. 39. GUILLERMO, Adela S. 85. TALON, Mae Antonnette F.
40. GUILLERMO, Maria Vida M. 86. TAN, Dante E.
41. HERNANDEZ, Arsenio Jr. 87. TENORIO, Grachielle E.
Authors are asked to refer to a recent
42. IROG, Arnel C. 88. TOBIAS, Ludovino Joseph Augusto Jr. L.
issue of the Philippine IT Law Journal for 43. JACOB, Louella C. 89. TORRES, Francisco Jr. E.
style. More detailed guidance will be sent 44. JAMORA, Alfred Joseph T. 90. TUAZON-ALBERTO, Cristina T.
on request. Authors are encouraged to 45. JIMENO, Jennifer A. 91. ZAPANTA, Jason J.
carefully edit their own works.

19
 << [9] Optical Media Disc
the maximum and fine not exceeding
three million pesos. Those who buy and
sell pirated discs shall face at least one
year but not more than three years of
imprisonment and a fine of not less
than one hundred thousand pesos but
not exceeding five hundred thousand
pesos. Employment of armed
resistance will double the imposition
of penalty of uniform imprisonment to
three years but not more that six years
and a fine not exceeding one million
five hundred pesos. [ 7 ]
The large-scale piracy in the country,
which completely disregards the rights
of the creators and performers of films
and musical recording, is a stumbling
block to the economic growth of the
country. Hopefully, the Optical Media
Act will serve as an adequate legal
support for the enforcement of
intellectual property rights in the
Philippines.
Endnotes
1. 2003 Special 201 Report, United States
Trade Representative (1 May 2003).
Accessed 9 April 2004. http://
w w w . u s t r. g o v / r e p o r t s / 2 0 0 3 /
specia1301.htm
2. RA No. 9239, Section 2, 2nd paragraph
3. Ibid, Sec. 6
4. Ibid., Sec. 13
5. Ibid., Sec. 18
6. Ibid, Sec. 3, par. f
7. Ibid., Sec. 19
<< [24] IT Law Society
abreast with the developments in this
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
field. Lastly, the Advocacy Group will
pursue policy initiatives and advocacies
on the development of information and
communications technology as they
affect Philippine laws and law practice,
including the crafting of proactive
proposals for legislative or regulatory
action. The activities of these groups
would be under the direction, auspices
and thrusts of the e-Law Center.
20
<< [24] e-Law Center
· Regularly organize and hold
lectures, trainings, seminars,
conferences or presentations on
technology law, particularly to
make its students, faculty and
graduates, and the academic
community at-large always attuned
to, and be recognized as a leader
in, legal developments in this field.
· Assist in the development of an
appropriate infrastructure to make
the law school the most
technology-friendly institution in
the field of law by promoting and
enhancing its on-line legal
research and interactive legal
instructions capabilities.
<< [24] e-Law Center
redelegations. It uses RFC 1591 [ 9 ] as
a basis, along with ICP-1, [ 10 ] and the
ICANN Governmental Advisory
Committee Principles for the
Delegation and Administration of
Country Code Top Level Domains
(GAC Principles).
Global issue whether national
governments or the private sector
should control the Internet
The issue whether government(s) or
the private sector should control the
Internet is not locally isolated. In
December 2003, United Nations (UN)
member countries requested the UN
Secretary General to put together a
panel of experts from government,
industry and the public to study who
should control the regulation of the
Internet. Some developing countries
have urged the UN to assume control
over many of ICANN's primary
functions, but US and European
leaders have urged the UN to affirm
ICANN's role. The high-tech summit
reconvenes in Tunisia in 2005.
Endnotes
1. It must be noted, however, that the
Internet is based on IP addresses, and
not on domain names, and thus every
Web server requires a Domain Name
· Establish appropriate linkages with
other institutions, organizations, or
bodies, in and out of the country,
with the end of view of promoting
common objectives, sharing
resources, study exchange, and
institution of networks along the
lines of technology law particularly
as it affects the Philippine legal
community.
· Generate grants, sponsorship, or
funds to subsidize specific studies,
research, projects or investigations
on a distinct or difficult aspect of
technology law.
The Center was organized on 22
November 2002 and is headed by
Professor Jaime N. Soriano, a
cyberlaw practitioner.
System (DNS) server to translate domain
names into IP addresses so that such
computers in the Internet may be able
to communicate with each other.
2. Identifiers for computers or devices on a
Transmission Control Protocol/Internet
Protocol [TCP/IP] network, the format
of which is a numeric address written as
four numbers – each between 0 and
255 – separated by periods. Definitions
for “domain name”, “IP addresses,”
“TLD,” and “URL” acquired or retrieved
on 28 March 2004 from
www.webopedia.com. Copyright, 2004
Jupitermedia . All rights reserved.
Reprinted with permission from http://
www.internet.com.
3. ICANN website. Retrieved on 28 March
2004 . www. icann.org/general/
4. Article 520 to 522 of the Civil Code of
the Philippines; Sections 121 to 160 of
the Philippine Intellectual Property
Code (R.A. No. 8293).
5. Neustar website. Retrieved on 28 March
2004 . http://www.neustar.us/
6. Policies, DotPH website. Retrieved 28
March 2004. http://www.domains.ph/
Policies4.asp
7. .com, .net registration may be as low as
PhP 800 per year (or US$14.28 as of
late March 2004 exchange rates) while
.ph remains at US$70 per two years.
8. News, dotPH website. Retrieved on 28
March 2004. http://www.domains.ph/
news.asp?more=http://
registrarnews.ph/dotphnews/archives/
000063.html#more
9. “Request for Comments.” RFC 1591,
entitled “Domain Name System
Structure and Delegation” was issued
by Dr. Jon Postel on March 1994.
10. Entitled “Internet Domain Name System
Structure and Delegation” (ccTLD
Administration and Delegation, May
1999).

<< [3] Mercantile Law Bar Exam
Endnotes
1. Definitions for “hack,” “crack,” and
“hacker ”acquired or retrieved on 2 April
2004 from www.webopedia.com.
Copyright, 2004 Jupitermedia . All rights
reserved. Reprinted with permission
from http://www.internet.com.
2. Section 185, R.A. No. 8293 provides in
part, “Fair Use of a Copyrighted Work.
— xxx Decompilation, which is
understood here to be the reproduction
of the code and translation of the forms
of the computer program to achieve the
inter-operability of an independently
created computer program with other
programs may also constitute fair use. ”
3. Section 33 (a), RA No. 8792.
4. Windows 95, 98, ME, XP Home, NT,
2000, XP Professional are trademarks of
the Microsoft Corporation. On the other
hand, visit www.linux.org for information
on Linux.
5. The last option, however, is not available
under Windows 98.
6. To do so, within the word processing
(Word) or spreadsheet (Excel)
application, click on “File,” then “Save
As.” When the Save As dialog box
appears, click on “Tools“on the tool bar
on top right, and click “General
Options...” on the drop-down menu
appearing. A Save dialog box will
appear. Key-in a password on the box
under “File Sharing Option”, “Password
to open.” A Confirm Password dialog
box will appear, key-in the same
password. The file saved would only be
opened if the password so determined
would be keyed-in.
<< [8] Jurisprudence in Cyberspace
condition for the admission of
documents.
xxx xxx xxx
Not one of the 18 print-out
copies submitted by petitioners
was ever signed, either by the
sender or the receiver. There is
thus no guarantee that the
message sent was the same
message received.
xxx xxx xxx
Neither were the print-outs
certified or authenticated by any
company official who could
properly attest that these came
from IBM's computer system or -
the data stored in the system were
not and/or could not have been
tampered with before the some
were printed out. xxxx"
<< [13] Spamming the World
unpleasant and annoying has
jumped from 70% last June to
77% now. At this point, 86% of
ernail users report some level
of distress caused by spam." [11
Admittedly, legislation alone cannot
stem the flood of spam in electronic
mailboxes. "There's no silver bullet,"
Roger Dean, founder of EEMA, told
ElectricNews.Net. "The solution is a
combination of legislation, technology
and educated users." [ 12 ]
Anti-spam law in the Philippines?
The spam issue in the Philippines is
almost insignificant because the
number of Filipinos hooked up to the
Internet is sparse compared to other
countries. Nevertheless, the Philippine
government should also take up arms
against spam in order to alleviate any
cost that businesses and individuals
may bear as a result of the malpractice.
It is preferable if Congress adopts an
opt-in policy. Generally, spams that
clogged the end-user's inbox are
unwanted and to make the reception
of spams automatic will only give the
spammer the freedom to send one
message after another should the
recipient opt to unsubscribe. This
defeats the purpose of the law which
was to save the end-user cost and time.
The possibility that the end-user will
spend more time unsubscribing to the
spams should be avoided. Another
advantage of an opt-in policy is that it
can minimize the possibility of a minor's
exposure to adult materials because
majority of spams sent are
pornographic.
Sparnmers must provide true
addresses to which the recipients will
be able to send their refusal to receive
any further spam. This is to make sure
that the end-user is not robbed of his
right to make a choice. If an
unscrupulous spammer provides a
false address, the end-user will be
forced to bear the continual reception
of message he no longer wants.
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Those two features of an anti-spam
measure are most relevant for now.
Endnotes
1. Southwick, Scott and Falk, J.D.(1998).
The Net Abuse FAQ. Retrieved on 31
March 2004. http://
www.cybernothing.org/faqs/net-abuse-
faq.html
2. Barton, Lindsay. Spain. Retrieved on 2
April 2004, from Australian
Government: National Office for the
Information Economy. http://
www.noie.gov.au/projects/confidence/
Improving/spam.htm
3. Studies Find More Spam Leaves Bad
Taste In Inboxes(30 March 2004).
Retrieved on 2 April 2004 from
WBALChannel.com http://
w w w. t h e w b a l c h a n n e l . c o m / n e w s /
2961291/detail.html
4. The Problem. Retrieved on 2 April 2004
from CAUSE Coalition Against
Unsolicited Commercial E-mail http://
www.cauce.org/about/problem.shtml
5. Ibid.
6. Junk e-mail runs rampant despite Can
Spam Act (25 March 2004) Retrieved on
2 April 2004, from Yahoo! News http://
story.news.yahoo com/
news?tmpl=story&cid=711&ncid=711&e=2&u=/
usatoday/ 20040325/tc_usatoday/
junkemailrunsrampantdespitecanspanract
7. Carter, Richard (27 January 2004). No
'silver bullet' for the monster of junk
email. Retrieved on 2 April 2004 from
EUobserver. http://
w w w. e u o b s e r v e r. c o m /
index.phtml?aid=14227
8. Williams, Martin (15 September 2003)
Spam falls after South Korea strengthens
e-mail law. Retrieved on 29 March 2004,
from InfoWorld. http://
www.infoworld.com/article/03/09/15/
HNkoreaspam_1.html
9. Perrone, Jane (24 July 2003). Australia
Tries to Can Spam. Retrieved on 29
March 2004 from Guardian Unlimited.
http://www.guardian.co.uk/online/
spam/story/0,13427,1005158,00.html
10. AFP (22 March 2004). Asian countries
join US-led coalition against spa,.
Retrieved on 2 April 2004 from
smh.com.au. http://www.smh.com.au/
a r t i c l e s / 2 0 0 4 / 0 3 / 2 2 /
1079823278794.html
11. Sinrod, Eric J. (25 March 2004). Junk
email runs rampant despite CAN-Spam
Act. Retrieved on 2 April 2004 from
USATODAY.com. http://
www.usatoday.com/tech/columnist/
ericjsinrod/2004-03-25-sinrod_x.htm
12. Clark, Mathew (5 November 2003). No
silver bullet for spam, says expert.
Retrieved on 2 April 2004 from
electricnews.net. http://www.enn.ie/
news.html?code=9380566
21

LAWPHIL.NET: A STEP IN THE RIGHT DIRECTION
by Carlyn Marie Bernadette C. Ocampo-Guerrero and Michael Vernon M. Guerrero
(This section is a continuing series of articles
featuring various websites which may be
relevant to legal practitioners, legal
L
researchers, and law students.)
awphil is a legal web site
project of Arellano Law Foundation
thru its Information Technology Center.
Arellano Law Foundation is a non-stock
non-profit institution specializing in
legal education. Realizing the essence
of making the law accessible and
understandable not only to the legal
community but to all sectors of society,
the Foundation has embarked to
digitize and make available through
the Internet all Philippine laws, statutes,
jurisprudence, presidential decrees,
executive orders, administrative
orders, lawyers' tools and other legal
materials.
Hence, the LawPhil Project of the
Arellano Law Foundation
(www.lawphil.net) is one of the more
ambitious projects in the legal field that
have been initiated to provide law
practitioners and law students with tools
for legal research. It is so far the most
comprehensive repository of Philippine
jurisprudence and laws.
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
Composition, structure, and look
and feel
The website is encoded according to
HTML 4.0 standards, with javascripts,
imagemaps, and standard web image
files (.gif and .jpg). The website is
structured in a three-panel frameset:
a masthead, a navigation bar, and the
main body itself. The frameset
structure allows flexibility in the gradual
expansion of the website. The website
is composed of 11 sections: (1) the
22
LegalWeb
Constitution, (2) Statutes, (3) Executive
Issuances, (4) Jurisprudence, (5)
Courts, (6) Administrative Agencies,
(7) Congress, (8) News and Legal
Updates, (9) International Law, (10)
Legal Links, (11) and Lawyer's Tools.
Sections 1 to 4, and 9 contain the bulk
of relevant laws, treaties and
jurisprudence. Sections 5 to7 are
informative as to the kind of political
and legal system that exists in the
Philippines.
The section on the "Constitution"
contains all Philippine Constitutions: the
Malolos, the 1935, the 1973, and the
1987 Constitutions. "Statutes" contains
subsections pertaining to various kinds
of statutes in different era in Philippine
history - Acts, Commonwealth Acts,
Republic Acts, Batas Pambansa and
Presidential Decrees. "Executive
Issuance" contains the subsections
Executive Orders, General Orders,
Memorandum Orders, and
Proclamation. "Jurisprudence" contains
decisions and resolutions promulgated
from 1901 to 2003, as of this writing.
The section on "International Law"
contains the subsections Treaties,
International Agreements, International
Organizations, and International
Courts.
"Courts" contains information involving
the Philippine Court System, Rules of
Court, Jurisdiction, Legal Ethics, Bar
Matters, Roll of Attorneys and the
Integrated Bar of the Philippines; while
"Administrative Agencies" contains
information pertaining to the
Constitutional Commissions (The
Commission on Audit, Commission on
Civil Service, and Commission on
Elections), the National Commissions
(Commission on Human Rights,
National Commission on Indigenous
People, and the National Commission
on the Filipino Language), the Office
of the President, the Office of the Vice
President, the various departments, the
Bases Conversion Development
Authority (BCDA), Social Security
System (SSS), Government Service
Insurance System (GSIS), Housing and
Land Use Regulatory Board, Housing
and Urban Development Coordinating
Council, Pag-IBIG Fund, Career-
Executive Service Board, Local Water
Utilities Administration, National
Commission for Culture and the Arts,
National Youth Commission (NYC),
Professional Regulation Commission,
and Bangko Sentral ng Pilipinas. The
section on "Congress" includes the
directory, officers and committees and
the rules of both the Senate and the
House of Representatives.
"News and Legal Updates" includes
Legal News, Current Issues, Latest
Laws, and Latest Supreme Court
Decisions; while "Legal links" includes
subsections on General Legal
Resources, Online Law Libraries,
Online Publications, Government
Resources, General Resources, and
International Resources. Lastly, the
section on "Lawyers' Tools" includes
Legal Forms, Legal Dictionaries, and
Miscellaneous items.
The website's look and feel corresponds
to the familiar online experience one
acquires when browsing through the
central repository of Supreme Court
issuances, the Philippine Supreme
Court website
(www.supremecourt.gov.ph).

Development
The development of the site is clearly
one that is aggressive and distributed.
It is aggressive in such a way that the
site has at least 41,400 site elements
by October 2003, a leap from 21,700
site elements existing March 2003, or
a 198 percent increase in site content
for a period of only seven months. It is
distributed as additional content is being
generated to include more recent
laws, jurisprudence, etc. without
compromising the inclusion of older
laws, jurisprudence, etc. which have
not been previously included in the
repository. It is likely that the inclusion
of older laws and jurisprudence,
promulgate for a span of a hundred
years would be completed within a
couple of years or so, considering the
pace of development as to the
consolidation of legal content.
Surfers' comments
"The site is user-friendly. The main
page readily shows the laws that have
been recently passed, as well as the
current legal issues. There is a search
tool which I can use to locate certain
issues or topics. The scroll bars on the
left side of the page which include the
Constitution, statutes, executive
issuances, jurisprudence, courts,
administrative agencies, congress,
news and legal updates, International
law, legal links and lawyer's tools,
encompass various subject matters,
though not as comprehensive as a
well-known CD based research tool,
in general. As to the design, it is simple
yet appealing, specially the photos that
are captured on the front page.
Lawphil.net, as a whole, is a helpful
and easy access research tool which
will definitely be of use to me as I hurdle
my remaining years in law school." -
MI
"The site is a step in the right direction,
considering that the website provides
the ordinary surfer a whole range of
legal resources, without fees, and thus
provides a means to avoid the
invocation of 'ignorantia legis non
excusat.' It is a
concrete step of
bringing the law to
the people. Still,
by way of
providing
unsolicited advise,
the search tool
may be a feature
that needs to be
improved on, to
highlight the
words being
looked up
(although this is
available through The homepage of the LawPHil Project (http://www.lawphil.net).
the use of the site's The website was launched in year 2000.
cached pages in a
very popular
search engine,
but the starting point resulting to this
kind of search right now is through the
search engine and not the website),
or to find cases corresponding to the
proprietary citations of case
compilations of the two biggest law
book publishers in the country, among
others. Inter-linked pages, wherein
cases are linked to the cases and laws
cited are linked, are also suggested.
These, of course, after the site has
completed the incorporation of most
of the older laws and jurisprudence
into the website." -RS
"Quite inconspicuously, with the advent
of the computer age, the endeavors
involved in the justice system took an
abrupt giant leap from manual to
mechanical. The justice system as
understood five (5) years ago or so is
very much different from how it is now.
The element which greatly affected this
change is the birth of cyber-legal
research tools which are made readily
available in just a click of the mouse.
With the proliferation of these research
tools, the quality of legal services that
lawyers cater to litigants, the quality of
the decisions promulgated by courts,
the legal knowledge of the "laymen"
(litigant or otherwise); and the legal
research methods for public or private
consumption, to name a few, have all
been significantly enhanced. With this
modern method, we may call what we
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
have now as a "modern justice system".
"In the Philippines, one of the
forerunners of "cyber-legal
information dissemination" is the
Lawphil.net. Among all of the available
local websites concerned with the same
objectives, Lawphil has an idiosyncratic
brand of having the most updated
materials as far as Supreme Court
decisions are concerned. This positive
distinction has been brought about by
the ingenious idea of its creators to start
compiling these Court decisions
starting, and concentrating more, from
the more recent rulings, while striving,
in equal pace, to complete the files of
the earlier ones. This is just a brilliant
way to start establishing the site for after
all, only subsequent rulings supersede
the rest. Lawphil's layout is just
systematic and user-friendly. Even first-
timers find using it orderly and
comprehensible. Laws and statutes
updates and segments on current legal
issues are very instructive and
enlightening.
"The publication and distribution of
legal information, in forms of laws,
jurisprudence and legal opinions, etc.,
(local or global), generated by Lawphil
has rendered the maxim "ignorantia
legis neminem excusat" almost moot
and academic, at least as far as those
who have comparatively usual access
thereto are concerned." -JL
23

DIGITAL LAW & THE IMPERATIVES
OF THE E-LAW CENTER
by Jaime N. Soriano
T The global development in information
technology resulting from the
phenomenal convergence of
computers and communications has
brought about a new face and
challenges in law practice and legal
education. As information technology
dramatically affects the way people
live, it also affects in the same
·
degree almost every aspect of
existing legal systems and
relationships. Needless to say,
the law must be technology
neutral and must always adapt
to the needs of the times.
Governments, international
bodies, and the general public
all over the world have started
to prepare for this technology
revolution, so to speak. Many
law schools and bar associations
kicked-off the formation of units
dedicated to information (From left) Peter Joseph Fauni, Carlyn Marie Bernadette Ocampo-
technology developments within Guerrero, Atty. Jaime Soriano, Ailyn Cortez, Michael Vernon
their respective institutions. In the Guerrero, and Ma. Cristina Ramos.
Philippines, much has to be
desired in this area from the academic
community because of its strong
adherence to the highly conservative
and traditional approach to legal
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1
education. Unfortunately, the paradigm
shift is inevitable.
In the light of the foregoing
imperatives, the Arellano University
School of Law caused the creation of
the "e-Law Center", a body, functioning
within its organizational framework, to
take the lead within the academic circle
in the areas of research, policy
advocacy, and legal education that
addresses the developments in
technology law.
The Center has the following objectives:
24
The Center and the Society
T
Conduct research and studies in
the field of information and
communication technology as it
affects the Philippine legal system
including the monitoring, critique
and publication of papers of global
and local developments in this
area.
· Maintain the most complete,
comprehensive, organized, and
up-to-date information system,
database, and library of resources
on information technology that will involved in updating, conducting
cater and be accessible, not only
to the students and faculty of the
law school, but also to researchers, Philippine legal system. Research and
policy makers and the public, in
general.
· Pursue policy initiatives and
advocacy on the development of
Philippine law on information and
communication technology
including the crafting of proactive to enable law students, faculty and
proposals for legislative or
regulatory action.
>> [20] e-Law Center
THE BIRTH OF THE
IT LAW SOCIETY
by Carlyn Marie Bernadette C. Guerrero
he information Technology
Law Society (ITLS) is the support
organization of the e-Law Center of
the Arellano University School of Law.
The Society intends to take a lead role
in promoting growth and development
of Cyberlaw in the country.
The Society formally convened
on 10 January 2004. Elected
officers of the organization for
2004-2005 were: Michael
Vernon M. Guerrero,
president; Carlyn Marie
Bernadette C.
OcampoGuerrero, secretary;
Ailyn L Cortez, treasurer:
Charilyn A. Dee, web
development head; Peter
Joseph L. Fauni, publication
head; Ma. Cristina A. Ramos,
seminars head; and Aileen T.
Forteza, advocacy head. Atty
Jaime N. Soriano, Executive
Director of the e-Law Center,
is the organization's adviser.
The organization is divided into four
groups: 1 ) Web Development, 2;
Research and Publication, 3) Seminars
and Education, and 4) Advocacy. The
Web Development Group will be
researches and studies in the field of
information technology as it affects the
Publication will be engaged in the
publication of papers on global and
local developments in the field of IT
law. Seminars and Education will be
active in organizing and holding
lectures, trainings, seminars,
conferences or presentations on IT law
other members of the academic
community always attuned to, and
>> [20] IT Law Society