Beware of text messages!

The Philippines has been described as the undisputed text capital of the world. Available data indicate that in 2003, a Filipino subscriber sent an average of 195 messages a month. By 2009, a Filipino subscriber sent an average 600 text messages a month, or more than 300 percent more than he did in 2003.

The avalanche of text messages continues to date.

The legal question posed to me by some of my friends is whether text messages are admissible as evidence in a court of law.

Our Supreme Court answered the question in the affirmative as early as 2005.

In Zaldy Nuez vs. Elvira Cruz-Apao (April 12, 2005), a certain Elvira Cruz-Apao (Elvira) solicited P1 million from Zaldy Nuez (Zaldy) in exchange for a favorable decision of the latter’s case with the Court of Appeals (CA).

Elvira, who was an executive assistant in the CA, represented to Zaldy that the money was for a researcher who would draft a favorable decision for Zaldy.

Instead of agreeing to Elvira’s machinations, Zaldy sought the help of the Imbestigador of the GMA Network and the Presidential Anti-Organized Crime Task Force (PAOCTF) in the entrapment of Elvira.

Zaldy and Patricia Siringan of the Imbestigador, who posed as the former’s sister-in-law, met with Elvira twice. During their second meeting, Zaldy and Patricia were accompanied by 5 PAOCTF agents who apprehended Elvira.

In due course, an administrative case for dishonesty and grave misconduct was filed against Elvira. The CA constituted a committee to investigate the case.

Zaldy, together with Patricia, testified in support of his claim. Zaldy also presented several text messages from Elvira, which helped establish that the latter solicited P1 million in exchange for early decision in favor of Zaldy.

The ruling

The exchange of text messages between Zaldy and Elvira was duly presented before the committee. Zaldy testified on the text messages. On top of the testimony, Elvira and her counsel attested to the veracity of the text messages between her and Zaldy.

The Supreme Court ruled that the text messages were admissible as evidence against Elvira. The Court cited the Rules on Electronic Evidence (REE) promulgated in 2001. The High Court held that the text messages were duly “proven by the testimony of a person who was a party to the same or who has personal knowledge thereof.”

Furthermore, Elvira admitted that the text messages originated from her mobile phone and she, together with her counsel, had signed and attested to the veracity of the text messages. The Supreme Court held that the text messages were duly authenticated in accordance with the REE and were, thus, admissible in evidence against Elvira.

Observations

The Supreme Court was correct in holding the text messages as admissible under the REE. With due respect, however, the court mischaracterized the text messages as “ephemeral communications.” In my humble opinion, this characterization must be corrected immediately, lest the error is perpetuated, as shown by the subsequent case of Vidallon-Magtolis vs. Salud (469 SCRA 439 [2005]) which adopted the erroneous characterization.

Rule 2 of the REE defines “[e]phemeral electronic communication” as “telephone conversations, text messages . . . and other electronic forms of communication the evidence of which is not recorded or retained.” (Section 1(k))

I was a member of the sub-committee formed by the Supreme Court to draft the REE. We included the concept of ephemeral electronic communications in the REE in recognition of the fact that a record of text messages and other electronic communications may not be retained. As we all know, these messages may be deleted from time to time by the sender or recipient for a variety of reasons. We recognized their evidentiary value for as long as a competent witness can testify on them.

Since there was a record of the text messages in the Cruz-Apao case, they could not be regarded as ephemeral communications under the REE.

If not, what were they then? They were electronic documents. The REE defines an electronic document, among others, as “information … by which a fact may be proved and affirmed which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.” (Section 1(h), Rule 2).

In fact, Rule 11 of the REE, which governs ephemeral communications, expressly provides that if such communications are “recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply” (Sec. 2).  Rule 5, on the other hand, provides for the manner of authenticating an electronic document.

Under the REE, an electronic document (like the text messages in the Cruz-Apao case whose record was retained) can be authenticated “by other evidence showing its integrity and reliability to the satisfaction of the judge.” (Section 2, Rule 5)

(The author is the co-managing partner and head of the corporate and special projects department of ACCRALAW. He also teaches Evidence at the Ateneo Law School. He may be contacted at [email protected].)