Are social media posts admissible in evidence?

Social networking has become part of our daily life with 93 percent of Filipino Internet users having their own Facebook account.

On the whole, this is an excellent social phenomenon. But there is also a bad part of it.

Consider, for example, a Facebook post by Mr. Y that reads: “Senator X is a crook. He stole millions of taxpayers’ money from the PDAF. He is a certified thief. He deserves all the public humiliation that he is now getting.”

This kind of comment is definitely libelous. It may be the basis for a civil case for damages and a criminal case for libel.

The post, in turn, is admissible in evidence not only in a civil case but also in a criminal case. (SC En Banc Resolution dated September 24, 2002 in AM No. 01-07-01)

The Facebook post in question is considered a document pursuant to the functional equivalence and non-discrimination principles under the E-Commerce Act of 2000 (ECA) and the Rules on Electronic Evidence (REE), which the Supreme Court promulgated in 2001 to implement the ECA in our courts of law.

Under these principles, an electronic document is considered the functional equivalent of a paper-based document and should not be discriminated against as evidence solely on the ground that it is not in the standard paper form.

In fact, Section 12 of the ECA expressly provides that “nothing in the application of the rules of evidence shall deny admissibility of an electronic data message or electronic document on the sole ground that it is in electronic form, or on the ground that it is not the standard form.”

The REE further provides that “[w]henever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules.” (Section 1, Rule 3)

In layman’s terms, the Facebook post in question should be treated as a paper-based document. The legal question is how to prove or authenticate this Facebook post as evidence in a court of law.

Electronic document

There are two possible situations.

The first is that a record of the Facebook post is retained. In such case, the post is characterized as electronic document under the ECA and REE.

Section 2, Rule 5 of the REE provides that “[b]efore any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge.”

The first two modes are technical. The first is authentication through digital signatures which, although not well known when the REE was promulgated in 2001, is now fast becoming commonplace.

The second is authentication through other security procedures or devices (retina scan, PDF-8, etc.) as may be authorized by the Supreme Court. No such other procedures or devices have yet been authorized.

The third mode is what I normally refer to in my Ateneo Evidence class and my MCLE and PHILJA lectures as the “layman’s approach” to authenticating electronic document.

Under the third mode of authenticating electronic documents, an electronic document may be authenticated by any “other evidence showing its integrity and reliability to the satisfaction of the judge.”

For example, the prosecution may present a witness to testify that he saw Y write the post in his Facebook account because, according to him, he “hate[s] public officials feasting on the people’s money.”

In practical terms, under the layman’s approach, authenticating an electronic document is just like authenticating a paper-based document under the traditional rules of evidence. No more, no less.

Ephemeral communication

The second situation is that the Facebook post is deleted at a certain point, as what often happens.

The REE has a provision specifically addressing the situation. If deleted or removed, the post is considered ephemeral electronic communication under the REE.

Section 1(k), Rule 2 of the REE provides that “[e]phemeral 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.”

The REE provides for the method of proof of the Facebook post in question when it states: “Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.” (Section 2, par. 1, Rule 11).

In effect, this mode of authentication follows the layman’s approach for authenticating electronic evidence.

The author is a senior partner of the Angara Abello Concepcion Regala & Cruz Law Offices and a law professor in the Ateneo Law School. The views expressed in this column are solely his and should in no way be attributed to Accralaw or Ateneo Law School. He may be contacted at [email protected].