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Prepared by RVG
signed into law last June 14, 2000 a landmark legislation in the history of the Philippines ◦ It made the country a legitimate player in the global marketplace ◦ the Philippine Internet community has played a major role in pushing for its passage ◦ The Philippines became the fourth in SEA (after Malaysia, Singapore and Korea) to have e-commerce legislation
efforts for its passage started as early as 1992 with the Electronic Evidence Act enactment came in response to the global devastation brought about by the ILOVEYOU virus defined Philippine policy on electronic transactions to enable the country’s players and consumers to actively participate in electronic trade
ECA was signed into law on June 14, 2000 by then President Joseph E. Estrada. The corollary Implementing Rules and Regulations, drafted by the DTI, DBM, and BSP, were issued on July 14, 2000. The Act was based on Senate Bill No. 1902 and House Bill No. 9971 which were both founded on and patterned after the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce.
As far back as 1992, bills were filed in order to address the issue of electronic commerce. Because the Model Law had not yet been formally drafted and adopted by UNCITRAL at that time although work had been going on since 1985, the initial bills such as Senate Bill No. 10 of the 11th Congress and Senate Bill No. 1523 (which was heavily influenced by Singapore’s Electronic Transaction Act) took a more inflexible, technology-specific approach, i.e., they were made applicable only to a specific kind of technology or data process, therefore hindering the development and adoption of technologies in the future.
The Senate Committee saw wisdom behind the UNCITRAL Model Law, which was released in 1996, and decided to adhere to its principles and framework and veer away from the restrictive approach of the ECA. ◦ Similar to the Model Law, the ECA is made up of two parts. The first part deals with electronic commerce in general, while the other focuses on electronic commerce in specific areas – in this case e-commerce in the carriage of goods. ◦ The ECA, like the Model Law, was intentionally drafted as a open-ended instrument which may be supplemented or complemented by future work in the other more specific areas of electronic commerce.
While the Act uses the word “e-commerce” in its title, it does not mean it only applies to strictly commercial activities. It is also applicable to noncommercial transactions or activities like ◦ prosecution of libel cases ◦ the giving of termination notice to an employee ◦ proving psychological incapacity.
It is applicable to the whole extent of legal relations which may in any way use electronic data messages
◦ which means all relevant fields of law, may it be public or private, personal or commercial, remedial or substantive. ◦ The legal effects of the ECA are all-encompassing and penetrate every conceivable legal relationship.
1.
The ECA is grounded on the functional equivalent approach. According to the Guide to the Model law, the approach is “based on an analysis of the
purposes and functions of the traditional paper-based requirement with a view to determining how those purposes or functions could be fulfilled through electronic commerce techniques.”
◦ To illustrate, an electronic contract is given the same legal recognition and effect as a contract written on a piece of paper because they perform the same basic function: it is written evidence of a meeting of the minds between the parties. ◦ The logic behind this approach is that the legal validity of any act or information does not depend on the form or the medium in which it is contained, whether it be on paper or in a person’s hard disk.
◦ The ECA itself enumerates the three kinds of electronic data messages: electronic “writings”, electronic “signatures”, and “originals”. They respectively correspond to paper-based writings, handwritten signatures, and documents which need to be kept in their original form – like bills of lading. By using the same terminologies as those found in existing laws, the objective of the ECA is to allow electronic documents, as functional equivalents, to be used in lieu of the paper documents.
◦ For example, even if the Civil Code Commission never had an idea of electronic documents at the time of the drafting of the Code for obvious reasons, electronic signatures may be used within the context of the Civil Code because they perform the same function as manually written signatures. The functions of a manual signature are basically same as an electronic one.
2.
The ECA is technologically neutral. the Act does not espouse or favor any particular technology. The reason behind this is that the Act seeks to uphold the legal validity of all kinds of communications techniques even to those which are considered less advanced like the facsimile, telecopy or voice data. The idea is that no communication technique should be excluded because future technical development should be openly accommodated.
ECA defined important terms such as computer, electronic data message, electronic signature, and electronic document It gave legal recognition to electronic data messages, electronic documents, and electronic signatures. (Sections 6 to 13) ◦ in so doing, it put electronic data messages and digital signatures on the same legal status as paper-based documents and manually executed signatures
Provided guidelines for retention and storage of documents in electronic form
It allowed the use of such electronic writings and signatures in both commercial and noncommercial transactions, thereby giving legal effect and validity to these electronic transactions ◦ Allowed the formation of contracts in electronic form. (Section 16) ◦ Made banking transactions done through ATM switching networks absolute once consummated. (Section 16) ◦ Parties were given the right to choose the type and level of security methods that suit their needs. (Section 24)
◦ Provided the mandate for the electronic implementation of transport documents to facilitate carriage of goods. This includes documents such as, but not limited to, multi-modal, airport, road, rail, inland waterway, courier, post receipts, transport documents issued by freight forwarders, marine/ocean bill of lading, nonnegotiable seaway bill, charter party bill of lading. (Sections 25 and 26)
It laid down the State policy to promote the universal use of electronic transactions in the government and by the general pubic ◦ Mandated the government to have the capability to do e-commerce within 2 years from effectivity of the law or before June 19, 2002. (Section 27)
Mandated RPWeb to be implemented. (Section 28) ◦ RPWeb is a strategy intended to connect all government offices to the Internet and provide universal access to the general public. ◦ The DOTC, NTC, and NCC were tasked to come up with policies and rules that shall lead to substantial reduction of costs of telecommunication and Internet facilities to ensure the implementation of RPWeb.
Made cable, broadcast, and wireless physical infrastructure within the activity of telecommunications. (Section 28) Empowered the DTI to supervise the development of e-commerce in the country and to come up with policies and regulations to facilitate the growth of e-commerce. (Section 29) Provided guidelines as to when a service provider can be held liable. (Section 30)
Authorities and parties with the legal right can only gain access to electronic documents, electronic data messages, and electronic signatures for confidentiality purposes and shall not share or convey these to any other person. (Sections 31 and 32) Hacking or cracking (unauthorized access) including the introduction of computer viruses became punishable by a fine from P100k to the maximum commensurate to the damage with imprisonment from 6 months to 3 years. (Section 33)
Piracy through the use of telecommunication networks, such as the Internet, that infringes intellectual property rights became punishable. The penalties are the same as hacking. (Section 33) All existing laws such as the Consumer Act of the Philippines shall also apply to ecommerce transactions. (Section 33)
Electronic documents face the issue of their admissibility as evidence. ◦ Important questions that need to be answered are: What is an ‘original’ electronic document? How does one authenticate electronic documents? Does the best evidence or the hearsay rule apply to electronic documents?
In the field of taxation, with regard to online purchase of goods between individuals in different States, where is the tax situs of the transaction?
Problems on venue and jurisdiction ◦ For example, in which Regional Trial Court should one file a libel suit against a person who made malicious postings on an electronic message board?
Violation of privacy and security ◦ together with the technological development comes more advanced and less detectable ways of violating the privacy and security of others
Issues on intellectual property rights ◦ Does one’s right to a trade name also include the exclusive right to use it as a domain name?
Issues on other cybercrimes
The ECA is a significant first step in developing the Philippine legal system in order for it to meet the issues and problems brought about by electronic transactions and digital relations in the 21th Century. The use and the development of electronic/digital technologies is so fastpaced and so far-reaching that it would be foolish to think that the passage of the ECA would resolve all those issues.
There are other major legal issues concerning electronic commerce which have been intentionally left out of the ECA such as problems of jurisdiction, digital signatures, privacy, cybercrime, and intellectual property. ◦ These issues are meant to be addressed by subsequent legislation or regulation in the near future.
The ECA is not a cure-all, but it simply laid the foundation for electronic transactions in the country. ◦ While the ECA is the first law which specifically dealt with electronic commerce, it was not meant to provide a definitive solution to other perplexing legal issues. ◦ It is only through subsequent legislation, jurisprudence, governmental control and regulation, and market forces that ecommerce will fully take its hold and its benefits fully utilized. ◦ The ECA was intended not to be an end in itself, but as a springboard to launch the country into the digital age.
Financing for Information Technology Build-Up (SME-FIT) DTI Administrative Order #8: Prescribing Guidelines for the Protection of Personal Data in Information and Communication Systems in the Private Sector Bangko Sentral ng Pilipinas Circular No. 542: Consumer Protection for Electronic Banking DTI-DOF Joint Administrative Order #2: Guidelines Implementing R.A. 8792 on Electronic Payment and Collection System (EPCS) in Government
Executive Order No. 810: Institutionalizing the Certification Scheme for Digital Signatures and Directing Application of Digital Signatures in E-Government Services Insurance Commission Circular Letter 201447: Guidelines on Electronic Commerce of Insurance Products
http://ross17.blogspot.com/2009/09/summary-ofra-8792-e-commerce-law_15.html https://michaeldizon.wordpress.com/2008/12/02/g uide-to-the-philippine-electronic-commerce-act/ http://www.searchinfluencer.com/2006/11/republicact-8792-e-commerce-law-of.html http://www.bsp.gov.ph/regulations/regulations.asp?t ype=1&id=1025 http://cs100alarnroyke.blogspot.com/2009/09/summary-of-ra8792.html http://www.galexia.com/public/research/assets/unct ad_asean_ecommerce_review_2013/unctad_asean_ec ommerce_review_2013-THE-5.html
signed into law last June 14, 2000 a landmark legislation in the history of the Philippines ◦ It made the country a legitimate player in the global marketplace ◦ the Philippine Internet community has played a major role in pushing for its passage ◦ The Philippines became the fourth in SEA (after Malaysia, Singapore and Korea) to have e-commerce legislation
efforts for its passage started as early as 1992 with the Electronic Evidence Act enactment came in response to the global devastation brought about by the ILOVEYOU virus defined Philippine policy on electronic transactions to enable the country’s players and consumers to actively participate in electronic trade
ECA was signed into law on June 14, 2000 by then President Joseph E. Estrada. The corollary Implementing Rules and Regulations, drafted by the DTI, DBM, and BSP, were issued on July 14, 2000. The Act was based on Senate Bill No. 1902 and House Bill No. 9971 which were both founded on and patterned after the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce.
As far back as 1992, bills were filed in order to address the issue of electronic commerce. Because the Model Law had not yet been formally drafted and adopted by UNCITRAL at that time although work had been going on since 1985, the initial bills such as Senate Bill No. 10 of the 11th Congress and Senate Bill No. 1523 (which was heavily influenced by Singapore’s Electronic Transaction Act) took a more inflexible, technology-specific approach, i.e., they were made applicable only to a specific kind of technology or data process, therefore hindering the development and adoption of technologies in the future.
The Senate Committee saw wisdom behind the UNCITRAL Model Law, which was released in 1996, and decided to adhere to its principles and framework and veer away from the restrictive approach of the ECA. ◦ Similar to the Model Law, the ECA is made up of two parts. The first part deals with electronic commerce in general, while the other focuses on electronic commerce in specific areas – in this case e-commerce in the carriage of goods. ◦ The ECA, like the Model Law, was intentionally drafted as a open-ended instrument which may be supplemented or complemented by future work in the other more specific areas of electronic commerce.
While the Act uses the word “e-commerce” in its title, it does not mean it only applies to strictly commercial activities. It is also applicable to noncommercial transactions or activities like ◦ prosecution of libel cases ◦ the giving of termination notice to an employee ◦ proving psychological incapacity.
It is applicable to the whole extent of legal relations which may in any way use electronic data messages
◦ which means all relevant fields of law, may it be public or private, personal or commercial, remedial or substantive. ◦ The legal effects of the ECA are all-encompassing and penetrate every conceivable legal relationship.
1.
The ECA is grounded on the functional equivalent approach. According to the Guide to the Model law, the approach is “based on an analysis of the
purposes and functions of the traditional paper-based requirement with a view to determining how those purposes or functions could be fulfilled through electronic commerce techniques.”
◦ To illustrate, an electronic contract is given the same legal recognition and effect as a contract written on a piece of paper because they perform the same basic function: it is written evidence of a meeting of the minds between the parties. ◦ The logic behind this approach is that the legal validity of any act or information does not depend on the form or the medium in which it is contained, whether it be on paper or in a person’s hard disk.
◦ The ECA itself enumerates the three kinds of electronic data messages: electronic “writings”, electronic “signatures”, and “originals”. They respectively correspond to paper-based writings, handwritten signatures, and documents which need to be kept in their original form – like bills of lading. By using the same terminologies as those found in existing laws, the objective of the ECA is to allow electronic documents, as functional equivalents, to be used in lieu of the paper documents.
◦ For example, even if the Civil Code Commission never had an idea of electronic documents at the time of the drafting of the Code for obvious reasons, electronic signatures may be used within the context of the Civil Code because they perform the same function as manually written signatures. The functions of a manual signature are basically same as an electronic one.
2.
The ECA is technologically neutral. the Act does not espouse or favor any particular technology. The reason behind this is that the Act seeks to uphold the legal validity of all kinds of communications techniques even to those which are considered less advanced like the facsimile, telecopy or voice data. The idea is that no communication technique should be excluded because future technical development should be openly accommodated.
ECA defined important terms such as computer, electronic data message, electronic signature, and electronic document It gave legal recognition to electronic data messages, electronic documents, and electronic signatures. (Sections 6 to 13) ◦ in so doing, it put electronic data messages and digital signatures on the same legal status as paper-based documents and manually executed signatures
Provided guidelines for retention and storage of documents in electronic form
It allowed the use of such electronic writings and signatures in both commercial and noncommercial transactions, thereby giving legal effect and validity to these electronic transactions ◦ Allowed the formation of contracts in electronic form. (Section 16) ◦ Made banking transactions done through ATM switching networks absolute once consummated. (Section 16) ◦ Parties were given the right to choose the type and level of security methods that suit their needs. (Section 24)
◦ Provided the mandate for the electronic implementation of transport documents to facilitate carriage of goods. This includes documents such as, but not limited to, multi-modal, airport, road, rail, inland waterway, courier, post receipts, transport documents issued by freight forwarders, marine/ocean bill of lading, nonnegotiable seaway bill, charter party bill of lading. (Sections 25 and 26)
It laid down the State policy to promote the universal use of electronic transactions in the government and by the general pubic ◦ Mandated the government to have the capability to do e-commerce within 2 years from effectivity of the law or before June 19, 2002. (Section 27)
Mandated RPWeb to be implemented. (Section 28) ◦ RPWeb is a strategy intended to connect all government offices to the Internet and provide universal access to the general public. ◦ The DOTC, NTC, and NCC were tasked to come up with policies and rules that shall lead to substantial reduction of costs of telecommunication and Internet facilities to ensure the implementation of RPWeb.
Made cable, broadcast, and wireless physical infrastructure within the activity of telecommunications. (Section 28) Empowered the DTI to supervise the development of e-commerce in the country and to come up with policies and regulations to facilitate the growth of e-commerce. (Section 29) Provided guidelines as to when a service provider can be held liable. (Section 30)
Authorities and parties with the legal right can only gain access to electronic documents, electronic data messages, and electronic signatures for confidentiality purposes and shall not share or convey these to any other person. (Sections 31 and 32) Hacking or cracking (unauthorized access) including the introduction of computer viruses became punishable by a fine from P100k to the maximum commensurate to the damage with imprisonment from 6 months to 3 years. (Section 33)
Piracy through the use of telecommunication networks, such as the Internet, that infringes intellectual property rights became punishable. The penalties are the same as hacking. (Section 33) All existing laws such as the Consumer Act of the Philippines shall also apply to ecommerce transactions. (Section 33)
Electronic documents face the issue of their admissibility as evidence. ◦ Important questions that need to be answered are: What is an ‘original’ electronic document? How does one authenticate electronic documents? Does the best evidence or the hearsay rule apply to electronic documents?
In the field of taxation, with regard to online purchase of goods between individuals in different States, where is the tax situs of the transaction?
Problems on venue and jurisdiction ◦ For example, in which Regional Trial Court should one file a libel suit against a person who made malicious postings on an electronic message board?
Violation of privacy and security ◦ together with the technological development comes more advanced and less detectable ways of violating the privacy and security of others
Issues on intellectual property rights ◦ Does one’s right to a trade name also include the exclusive right to use it as a domain name?
Issues on other cybercrimes
The ECA is a significant first step in developing the Philippine legal system in order for it to meet the issues and problems brought about by electronic transactions and digital relations in the 21th Century. The use and the development of electronic/digital technologies is so fastpaced and so far-reaching that it would be foolish to think that the passage of the ECA would resolve all those issues.
There are other major legal issues concerning electronic commerce which have been intentionally left out of the ECA such as problems of jurisdiction, digital signatures, privacy, cybercrime, and intellectual property. ◦ These issues are meant to be addressed by subsequent legislation or regulation in the near future.
The ECA is not a cure-all, but it simply laid the foundation for electronic transactions in the country. ◦ While the ECA is the first law which specifically dealt with electronic commerce, it was not meant to provide a definitive solution to other perplexing legal issues. ◦ It is only through subsequent legislation, jurisprudence, governmental control and regulation, and market forces that ecommerce will fully take its hold and its benefits fully utilized. ◦ The ECA was intended not to be an end in itself, but as a springboard to launch the country into the digital age.
Financing for Information Technology Build-Up (SME-FIT) DTI Administrative Order #8: Prescribing Guidelines for the Protection of Personal Data in Information and Communication Systems in the Private Sector Bangko Sentral ng Pilipinas Circular No. 542: Consumer Protection for Electronic Banking DTI-DOF Joint Administrative Order #2: Guidelines Implementing R.A. 8792 on Electronic Payment and Collection System (EPCS) in Government
Executive Order No. 810: Institutionalizing the Certification Scheme for Digital Signatures and Directing Application of Digital Signatures in E-Government Services Insurance Commission Circular Letter 201447: Guidelines on Electronic Commerce of Insurance Products
http://ross17.blogspot.com/2009/09/summary-ofra-8792-e-commerce-law_15.html https://michaeldizon.wordpress.com/2008/12/02/g uide-to-the-philippine-electronic-commerce-act/ http://www.searchinfluencer.com/2006/11/republicact-8792-e-commerce-law-of.html http://www.bsp.gov.ph/regulations/regulations.asp?t ype=1&id=1025 http://cs100alarnroyke.blogspot.com/2009/09/summary-of-ra8792.html http://www.galexia.com/public/research/assets/unct ad_asean_ecommerce_review_2013/unctad_asean_ec ommerce_review_2013-THE-5.html
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