Pursuant to the provisions of Section 34 of
Republic Act No. 8792, otherwise known as the Electronic Commerce
Act (the “Act”), the
following implementing rules and regulations (the “Rules”) are hereby
promulgated:
PART
I
DECLARATION OF
POLICY
AND
PRINCIPLES FOR
ELECTRONIC COMMERCE PROMOTION
Chapter
I
Declaration of
Policy
Section 1. Declaration of
Policy. - The State recognizes the vital role of information and
communications technology (ICT) in nation-building; the need to create an
information-friendly environment which supports and ensures the availability,
diversity and affordability of ICT products and services; the primary
responsibility of the private sector in contributing investments and services in
ICT; the need to develop, with appropriate training programs and institutional
policy changes, human resources for the information age, a labor force skilled
in the use of ICT and a population capable of operating and utilizing electronic
appliances and computers; its obligation to facilitate the transfer and
promotion of technology; to ensure network security, connectivity and neutrality
of technology for the national benefit; and the need to marshal, organize and
deploy national information infrastructures, comprising in both communications
network and strategic information services, including their interconnection to
the global information networks, with the necessary and appropriate legal,
financial, diplomatic and technical framework, systems and
facilities.
Section 2.
Authority of the Department of Trade and Industry and Participating Entities.
- The Department of Trade and Industry (DTI) shall direct and supervise the
promotion and development of electronic commerce in the country with relevant
government agencies, without prejudice to the provisions of Republic Act. 7653
(Charter of Bangko Sentral ng Pilipinas) and Republic Act No. 8791
(General Banking Act).
Chapter
II
Declaration of
Principles for Electronic Commerce Promotion
Section 3. Principles. -
Pursuant to the mandate under Section 29 of the Act to direct and supervise
the promotion and development of electronic commerce in the country, the
following principles are hereby adopted as Government policy on electronic
commerce:
(a) Role
of the Government. - Government intervention, when required, shall promote
a stable legal environment, allow a fair allocation of scarce resources and
protect public interest. Such intervention shall be no more than is essential
and should be clear, transparent, objective, non-discriminatory, proportional,
flexible, and technologically neutral. Mechanisms for private sector input and
involvement in policy making shall be promoted and widely
used.
(b) Role
of the Private Sector. - The development of electronic commerce shall be
led primarily by the private sector in response to market forces.
Participation in electronic commerce shall be pursued through an open and fair
competitive market.
(c)
International Coordination and Harmonization. - Electronic commerce is
global by nature. Government policies that affect electronic commerce
will be internationally coordinated and compatible and will facilitate
interoperability within an international, voluntary and consensus-based
environment for standards setting.
(d)
Neutral Tax Treatment. - Transactions conducted using electronic
commerce should receive neutral tax treatment in comparison to transactions
using non-electronic means and taxation of electronic commerce shall be
administered in the least burdensome
manner.
(e)
Protection of Users. - The protection of users, in particular with
regard to privacy, confidentiality, anonymity and content control shall be
pursued through policies driven by choice, individual empowerment, and
industry-led solutions. It shall be in accordance with applicable laws.
Subject to such laws, business should make available to consumers and, where
appropriate, business users the means to exercise choice with respect to
privacy, confidentiality, content control and, under appropriate
circumstances, anonymity.
(f)
Electronic Commerce Awareness. - Government and the private sector will
inform society, both individual consumers and businesses, about the potentials
of electronic commerce and its impact on social and economic
structures.
(g) Small
and Medium-Sized Enterprises. - Government will provide small and
medium-sized enterprises (SMEs) with information and education relevant to
opportunities provided by global electronic commerce. Government will create
an environment that is conducive to private sector investment in information
technologies and encourage capital access for
SMEs.
(h)
Skills Development. - Government shall enable workers to share in the
new and different employment generated by electronic commerce. In this regard,
the Government shall continue to promote both formal and non-formal
skills-development programs.
(i)
Government as a Model User. - Government shall utilize new electronic
means to deliver core public services in order to demonstrate the benefits
derived therefrom and to promote the use of such means. In this regard, the
Government will be a pioneer in using new technologies. In particular, the
Government Information System Plan (GISP), which is expected to include, but
not be limited to, online public information and cultural resources, databases
for health services, web sites at local, regional and national levels and
public libraries and databases, where appropriate, will be implemented in
accordance with the provisions of the Act and
RPWEB.
(j)
Convergence. - Convergence of technologies is crucial to electronic
commerce and will be supported by appropriate government policies. Government
will work closely with business in preparing for and reacting to changes
caused by convergence.
(k)
Domain Name System. - The Government supports initiatives to ensure
that Internet users will have a sufficient voice in the governance of the
domain name system.
(l)
Access to Public Records. - Government shall provide equal and
transparent access to public domain
information.
(m)
Dispute Mechanisms. - Government encourages the use of self-regulatory
extra-judicial dispute settlement mechanisms such as arbitration and mediation
as an effective way of resolving electronic commerce
disputes.
Chapter
III
Objective and
Sphere of Application
Section 4. Objective of the Act.
- The Act aims to facilitate domestic and international dealings,
transactions, arrangements, agreements, contracts and exchanges and storage of
information through the utilization of electronic, optical and similar medium,
mode, instrumentality and technology to recognize the authenticity and
reliability of electronic documents related to such activities and to promote
the universal use of electronic transactions in the government and by the
general public.
Section 5. Sphere of
Application. - The Act shall apply to any kind of electronic data message
and electronic document used in the context of commercial and non-commercial
activities to include domestic and international dealings, transactions,
arrangements, agreements, contracts and exchanges and storage of
information.
PART
II
ELECTRONIC
COMMERCE IN GENERAL
Chapter
I
General
Provisions
Section 6. Definition of Terms.
- For the purposes of the Act and these Rules, the following terms are
defined, as follows:
(a) “Addressee”
refers to a person who is intended by the originator to receive the
electronic data message or electronic document, but does not include a person
acting as an intermediary with respect to that electronic data message or
electronic document.
(b) “Commercial
Activities” shall be given a wide interpretation so as to cover matters
arising from all relationships of a commercial nature, whether contractual or
not. The term shall likewise refer to acts, events, transactions, or dealings
occurring between or among parties including, but not limited to, factoring,
investments, leasing, consulting, insurance, and all other services, as well as
the manufacture, processing, purchase, sale, supply, distribution or transacting
in any manner, of tangible and intangible property of all kinds such as
commodities, goods, merchandise, financial and banking products, patents,
participations, shares of stock, software, books, works of art and other
intellectual property.
(c) “Computer”
refers to any device or apparatus singly or interconnected which, by
electronic, electro-mechanical, optical and/or magnetic impulse, or other means
with the same function, can receive, record, transmit, store, process,
correlate, analyze, project, retrieve and/or produce information, data, text,
graphics, figures, voice, video, symbols or other modes of expression or perform
any one or more of these functions.
(d) “Convergence”
refers to technologies moving together towards a common point and
elimination of differences between the provisioning of video, voice and data,
using digital and other emerging technologies; the coming together of two or
more disparate disciplines or technologies; the ability of different network
platforms to carry any kind of service; and the coming together of consumer
devices such as, but not limited to, the telephone, television and personal
computer.
(e) “Electronic
data message” refers to information generated, sent, received or stored by
electronic, optical or similar means, but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy.
Throughout these Rules, the term “electronic data message” shall be
equivalent to and be used interchangeably with “electronic
document.”
(f) “Information
and Communications System” refers to a system for generating, sending,
receiving, storing or otherwise processing electronic data messages 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.
(g) “Electronic signature”
refers to any distinctive mark, characteristic and/or sound in electronic
form, representing the identity of a person and attached to or logically
associated with the electronic data message or electronic document or any
methodology or procedures employed or adopted by a person and executed or
adopted by such person with the intention of authenticating or approving an
electronic data message or electronic document.
(h) “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.
Throughout these Rules, the term “electronic document” shall be
equivalent to and be used interchangeably with “electronic data
message.”
(i) “Electronic
key” refers to a secret code, which secures and defends sensitive
information that crosses over public channels into a form decipherable only by
itself or with a matching electronic key. This term shall include, but not be
limited to, keys produced by single key cryptosystems, public key cryptosystems
or any other similar method or process, which may hereafter, be
developed.
(j) “Intermediary” refers to
a person who in behalf of another person and with respect to a particular
electronic data message or electronic document sends, receives and/or stores or
provides other services in respect of that electronic data message or electronic
document.
(k) “Non-Commercial
Activities” are those not falling under commercial
activities.
(l) “Originator” refers to a
person by whom, or on whose behalf, the electronic data message or electronic
document purports to have been created, generated and/or sent. The term does not
include a person acting as an intermediary with respect to that electronic data
message or electronic document.
(m) “Person” means any
natural or juridical person including, but not limited to, an individual,
corporation, partnership, joint venture, unincorporated association, trust or
other juridical entity, or any governmental authority.
(n) “Service
provider” refers to a provider of -
i. Online services or network
access, or the operator of facilities therefor, including entities offering the
transmission, routing, or providing of connections for online communications,
digital or otherwise, between or among points specified by a user, of electronic
data message or electronic documents of the user’s choosing;
or
ii. The necessary technical means
by which electronic data message or electronic documents of an originator may be
stored and made accessible to a designated or undesignated third
party.
Such service providers shall have
no authority to modify or alter the content of the electronic data message or
electronic document received or to make any entry therein on behalf of the
originator, addressee or any third party unless specifically authorized to do
so, and shall retain the electronic data message or electronic document in
accordance with the specific request or as necessary for the purpose of
performing the services it was engaged to perform.
Chapter
II
Legal Recognition
of Electronic Data Messages And Electronic Documents
Section 7. Legal
Recognition of Electronic Data Messages and Electronic Documents. -
Information shall not be denied validity or enforceability solely on the
ground that it is in the form of an electronic data message or electronic
document, purporting to give rise to such legal effect. Electronic data messages
or electronic documents shall have the legal effect, validity or enforceability
as any other document or legal writing. In particular, subject to the provisions
of the Act and these Rules:
(a) A requirement under law that
information is in writing is satisfied if the information is in the form of an
electronic data message or electronic document.
(b) A requirement
under law for a person to provide information in writing to another person is
satisfied by the provision of the information in an electronic data message or
electronic document.
(c) A requirement
under law for a person to provide information to another person in a specified
non-electronic form is satisfied by the provision of the information in an
electronic data message or electronic document if the information is provided in
the same or substantially the same form.
(d) Nothing limits the
operation of any requirement under law for information to be posted or displayed
in specified manner, time or location; or for any information or document to be
communicated by a specified method unless and until a functional equivalent
shall have been developed, installed, and implemented.
Section 8.
Incorporation by Reference. - Information shall not be denied validity or
enforceability solely on the ground that it is not contained in an electronic
data message or electronic document but is merely incorporated by reference
therein.
Section 9. Use Not
Mandatory. - Without prejudice to the application of Section 27 of the Act
and Section 37 of these Rules, nothing in the Act or these Rules requires a
person to use or accept information contained in electronic data messages,
electronic documents, or electronic signatures, but a person's consent to do so
may be inferred from the person's conduct.
Section 10.
Writing. - Where the law requires a document to be in writing, or obliges
the parties to conform to a writing, or provides consequences in the event
information is not presented or retained in its original form, an electronic
document or electronic data message will be sufficient if the
latter:
(a) maintains its integrity and
reliability; and
(b) can be authenticated so as to
be usable for subsequent reference, in
that:
(i) It has remained
complete and unaltered, apart from the addition of any endorsement and any
authorized change, or any change which arises in the normal course of
communication, storage and display; and
(ii) It is
reliable in the light of the purpose for which it was generated and in the
light of all relevant circumstances.
Section
11.Original. - Where the law requires that a document be presented or
retained in its original form, that requirement is met by an electronic
document or electronic data message
if:
(a) There exists a reliable
assurance as to the integrity of the electronic document or electronic data
message from the time when it was first generated in its final form and such
integrity is shown by evidence aliunde (that is, evidence other than the
electronic data message itself) or otherwise; and
(b) The electronic document or
electronic data message is capable of being displayed to the person to whom it
is to be presented.
(c) For the purposes of paragraph
(a) above:
(i) The criteria for
assessing integrity shall be whether the information has remained complete
and unaltered, apart from the addition of any endorsement and any change
which arises in the normal course of communication, storage and display;
and
(ii) The standard of
reliability required shall be assessed in the light of the purpose for which
the information was generated and in the light of all relevant
circumstances.
An electronic data message or electronic document meeting and
complying with the requirements of Sections 6 or 7 of the Act shall be the best
evidence of the agreement and transaction contained therein.
Section 12. Solemn Contracts. -
No provision of the Act shall apply to vary any and all requirements of
existing laws and relevant judicial pronouncements respecting formalities
required in the execution of documents for their validity. Hence, when the law
requires that a contract be in some form in order that it may be valid or
enforceable, or that a contract is proved in a certain way, that requirement is
absolute and indispensable.
Legal
Recognition of Electronic Signatures
Section 13. Legal Recognition of
Electronic Signatures. An electronic signature relating to an electronic
document or electronic data message shall be equivalent to the signature of a
person on a written document if the signature:
(a) is an electronic
signature as defined in Section 6(g) of these Rules; and
(b) is proved by
showing that a prescribed procedure, not alterable by the parties interested in
the electronic document or electronic data message, existed under
which:
(i) A method is used
to identify the party sought to be bound and to indicate said party’s access
to the electronic document or electronic data message necessary for his
consent or approval through the electronic signature;
(ii) Said method is
reliable and appropriate for the purpose for which the electronic document or
electronic data message was generated or communicated, in the light of all
circumstances, including any relevant agreement;
(iii) It is necessary for the
party sought to be bound, in order to proceed further with the transaction, to
have executed or provided the electronic signature;
and,
(iv) The other party is
authorized and enabled to verify the electronic signature and to make the
decision to proceed with the transaction authenticated by the
same.
The parties may agree to adopt
supplementary or alternative procedures provided that the requirements of
paragraph (b) are complied with.
For purposes of subparagraphs (i)
and (ii) of paragraph (b), the factors referred to in Annex “2” may be
taken into account.
Section 14. Presumption Relating
to Electronic Signatures. - In any proceeding involving an electronic
signature, the proof of the electronic signature shall give rise to the
rebuttable presumption that:
(a) The electronic signature is the
signature of the person to whom it correlates; and
(b) The electronic signature was
affixed by that person with the intention of signing or approving the electronic
data message or electronic document unless the person relying on the
electronically signed electronic data message or electronic document knows or
has notice of defects in or unreliability of the signature or reliance on the
electronic signature is not reasonable under the
circumstances.
Modes of
Authentication
Section 15. Method of
Authenticating Electronic Documents, Electronic Data Messages, and Electronic
Signatures. - Electronic documents, electronic data messages and electronic
signatures, shall be authenticated by demonstrating, substantiating and
validating a claimed identity of a user, device, or another entity in an
information or communication system.
Until the Supreme Court, by
appropriate rules, shall have so provided, electronic documents, electronic data
messages and electronic signatures, shall be authenticated, among other ways, in
the following manner:
(a) The electronic
signature shall be authenticated by proof that a letter, character, number or
other symbol in electronic form representing the persons named in and attached
to or logically associated with an electronic data message, electronic document,
or that the appropriate methodology or security procedures, when applicable,
were employed or adopted by a person and executed or adopted by such person,
with the intention of authenticating or approving an electronic data message or
electronic document;
(b) The electronic data
message or electronic document shall be authenticated by proof that an
appropriate security procedure, when applicable was adopted and employed for the
purpose of verifying the originator of an electronic data message or electronic
document, or detecting error or alteration in the communication, content or
storage of an electronic document or electronic data message from a specific
point, which, using algorithm or codes, identifying words or numbers,
encryptions, answers back or acknowledgement procedures, or similar security
devices.
Section 16. Burden of
Authenticating Electronic Documents or Electronic Data Messages. - The
person seeking to introduce an electronic document or electronic data message in
any legal proceeding has the burden of proving its authenticity by evidence
capable of supporting a finding that the electronic data message or electronic
document is what the person claims it to be.
Modes for
Establishing Integrity
Section 17. Method of
Establishing the Integrity of an Electronic Document or Electronic Data Message.
In the absence of evidence to the contrary, the integrity of the information
and communication system in which an electronic data message or electronic
document is recorded or stored may be established in any legal proceeding, among
other methods:
(a) By evidence that at all
material times the information and communication system or other similar device
was operating in a manner that did not affect the integrity of the electronic
document or electronic data message, and there are no other reasonable grounds
to doubt the integrity of the information and communication
system;
(b) By showing that the electronic
document or electronic data message was recorded or stored by a party to the
proceedings who is adverse in interest to the party using it;
or
(c) By showing that the electronic
document or electronic data message was recorded or stored in the usual and
ordinary course of business by a person who is not a party to the proceedings
and who did not act under the control of the party using the
record.
Admissibility
and Evidential Weight
Section 18. Admissibility and
Evidential Weight of Electronic Data Messages and Electronic Documents. -
For evidentiary purposes, an electronic document or electronic data message
shall be the functional equivalent of a written document under existing
laws. In any legal proceeding, nothing in the application of the rules on
evidence shall deny the admissibility of an electronic data message or
electronic document in evidence:
(a) On the sole ground that it is
in electronic form; or
(b) On the ground that it is not
in the standard written form.
The Act does not modify any
statutory rule relating to the admissibility of electronic data messages or
electronic documents, except the rules relating to authentication and best
evidence.
In assessing the evidential weight
of an electronic data message or electronic document, the reliability of the
manner in which it was generated, stored or communicated, the reliability of the
manner in which its originator was identified, and other relevant factors shall
be given due regard.
Section 19. Proof by Affidavit
and Cross-Examination. - The matters referred to in Section 12 of the Act on
admissibility and evidentiary weight, and Section 9 of the Act on the
presumption of integrity of electronic signatures, may be presumed to have been
established by an affidavit given to the best of the deponent’s or affiant’s
personal knowledge subject to the rights of parties in interest to cross-examine
such deponent or affiant as a matter of right. Such right of
cross-examination may likewise be enjoyed by a party to the proceedings who is
adverse in interest to the party who has introduced the affidavit or has caused
the affidavit to be introduced.
Any party to the proceedings has
the right to cross-examine a person referred to in Section 11, paragraph 4, and
sub-paragraph (c) of the Act.
Retention of
Electronic Data Message and Electronic Document
Section 20. Retention of
Electronic Data Message and Electronic Document. - Notwithstanding any
provision of law, rule or regulation to the contrary:
(a) The requirement in any
provision of law that certain documents be retained in their original form is
satisfied by retaining them in the form of an electronic data message or
electronic document which:
(i) Remains accessible so as to
be usable for subsequent reference;
(ii) Is retained in the format
in which it was generated, sent or received, or in a format which can be
demonstrated to accurately represent the electronic data message or
electronic document generated, sent or received;
and,
(iii) Where applicable, enables
the identification of its originator and addressee, as well as the
determination of the date and the time it was sent or
received.
(b) The requirement referred to
in paragraph (a) is satisfied by using the services of a third party, provided
that the conditions set forth in subparagraphs (i), (ii) and (iii) of
paragraph (a) are met.
(c) Relevant government agencies
tasked with enforcing or implementing applicable laws relating to the
retention of certain documents may, by appropriate issuances, impose
regulations to ensure the integrity, reliability of such documents and the
proper implementation of Section 13 of the Act.
Chapter
III
Communication of
Electronic Data Messages And Electronic Documents
Section 21. Formation and
Validity of Electronic Contracts. Except as otherwise agreed by the parties,
an offer, the acceptance of an offer and such other elements required under
existing laws for the formation and perfection of contracts may be expressed in,
demonstrated and proved by means of electronic data message or electronic
documents and no contract shall be denied validity or enforceability on the sole
ground that it is in the form of an electronic data message or electronic
document, or that any or all of the elements required under existing laws for
the formation of the contracts is expressed, demonstrated and proved by means of
electronic documents.
Section 22. Consummation of
Electronic Transactions with Banks. - Electronic transactions made through
networking among banks, or linkages thereof with other entities or networks, and
vice versa, shall be deemed consummated under rules and regulations issued by
the Bangko Sentral under the succeeding paragraph hereunder, upon the actual
dispensing of cash or the debit of one account and the corresponding credit to
another, whether such transaction is initiated by the depositor or by an
authorized collecting party; Provided, that the obligation of one bank, entity,
or person similarly situated to another arising therefrom shall be considered
absolute and shall not be subjected to the process of preference of credits;
Provided, however, that the foregoing shall apply only to transactions utilizing
the Automated Teller Machine switching network.
Without prejudice to the foregoing,
all electronic transactions involving banks, quasi-banks, trust entities, and
other institutions which under special laws are subject to the supervision of
the Bangko Sentral ng Pilipinas shall be covered by the rules and regulations
issued by the same pursuant to its authority under Section 59 of Republic Act No. 8791
(The General Banking Act), Republic Act No. 7653 (the Charter of the Bangko
Sentral ng Pilipinas) and Section 20, Article XII of the Constitution.
Section 23. Recognition by
Parties of Electronic Data Message. - As between the originator and the
addressee of an electronic data message or electronic document, a declaration of
will or other statement shall not be denied legal effect, validity or
enforceability solely on the ground that it is in the form of an electronic data
message or electronic document.
Attribution of
Electronic Data Message and Electronic Document
Section 24. Origin of Electronic
Data Message. - An electronic data message or electronic document is that of
the originator if it was sent by the originator himself.
Section 25. Origin of Electronic
Data Message Not Personally Sent by an Originator. - As between the
originator and the addressee, an electronic data message or electronic document
is deemed to be that of the originator if it was sent:
(a) by a person who had the
authority to act on behalf of the originator with respect to that electronic
data message or electronic document; or
(b) by an information and
communications system programmed by, or on behalf of the originator to operate
automatically.
Section 26. When an Originator
May Be Bound By an Electronic Data Message. - As between the originator and
the addressee, an addressee is entitled to regard an electronic data message or
electronic document as being that of the originator, and to act on that
assumption, if:
(a) in order to ascertain whether
the electronic data message was that of the originator, the addressee properly
applied a procedure previously agreed to by the originator for that purpose;
or
(b) the electronic data message
or electronic document as received by the addressee resulted from the actions
of a person whose relationship with the originator or with any agent of the
originator enabled that person to gain access to a method used by the
originator to identify electronic data messages or electronic documents as his
own.
The provisions of this Section do
not exclude other instances or circumstances when an originator may be bound by
the reliance and consequent action of an addressee respecting an electronic data
message, which purports to have been that of the
originator.
Section 27. When an Originator
May Not Be Bound By an Electronic Data Message. - As between the originator
and the addressee, an addressee is not entitled to regard an electronic data
message as being that of the originator, and to act on that
assumption:
(a) as of the time when the
addressee has both received notice from the originator that the electronic
data message or electronic document is not that of the originator, and has
reasonable time to act accordingly; or
(b) in a case within paragraph
(b) Section 26 of these Rules, at any time when the addressee knew or should
have known, had it exercised reasonable care or used any agreed procedure,
that the electronic data message or electronic document was not that of the
originator.
The provisions of this Section do
not exclude other instances or circumstances when an originator may not be
liable for the reliance and consequent action of an addressee respecting an
electronic data message, which purports to have been that of the
originator.
Separate
Receipt of and Error on Electronic Data Message and Electronic
Document
Section 28. Assumption Regarding
Receipt of Separate Electronic Data Messages. - The addressee is entitled to
regard each electronic data message or electronic document received as a
separate electronic data message or electronic document and to act on that
assumption, except to the extent that it duplicates another electronic data
message or electronic document and the addressee knew or should have known, had
it exercised reasonable care or used any agreed procedure, that the electronic
data message or electronic document was a duplicate.
Section 29. Error on Electronic
Data Message or Electronic Document. - The addressee is entitled to regard
the electronic data message or electronic document received as that which the
originator intended to send, and to act on that assumption, unless the addressee
knew or should have known, had the addressee exercised reasonable care, used the
appropriate procedure or applied an agreed procedure:
(a) That the
transmission resulted in any error therein or in the electronic data message
or electronic document when the latter enters the designated information and
communications system; or
(b) That electronic data message
or electronic document is sent to an information and communications system
which is not so designated by the addressee for the
purpose.
Dispatch and
Receipt of Electronic Data Message and Electronic
Document
Section 30. Agreement on
Acknowledgment of Receipt of Electronic Data Messages or Electronic Documents. -
The following rules shall apply where, on or before sending an electronic
data message or electronic document, the originator and the addressee have
agreed, or in that electronic document or electronic data message, the
originator has requested, that receipt of the electronic document or electronic
data message be acknowledged:
(a) Where the originator has not
agreed with the addressee that the acknowledgment be given in a particular
form or by a particular method, an acknowledgment may be given by or through
any communication by the addressee, automated or otherwise, or any conduct of
the addressee, sufficient to indicate to the originator that the electronic
data message or electronic document has been received.
(b) Where the originator has
stated that the effect or significance of the electronic data message or
electronic document is conditional on receipt of the acknowledgment thereof,
the electronic data message or electronic document is treated as though it has
never been sent, until the acknowledgment is received.
(c) Where the originator has not
stated that the effect or significance of the electronic data message or
electronic document is conditional on receipt of the acknowledgment, and the
acknowledgment has not been received by the originator within the time
specified or agreed or, if no time has been specified or agreed, within a
reasonable time, the originator may give notice to the addressee stating that
no acknowledgment has been received and specifying a reasonable time by which
the acknowledgment must be received; and if the acknowledgment is not received
within the time specified, the originator may, upon notice to the addressee,
treat the electronic document or electronic data message as though it had
never been sent, or exercise any other rights it may
have.
Section 31. Time of Dispatch of
Electronic Data Message or Electronic Document. - Unless otherwise agreed
between the originator and the addressee, the dispatch of an electronic data
message or electronic document occurs when it enters an information and
communications system outside the control of the originator or of the person who
sent the electronic data message or electronic document on behalf of the
originator.
Section 32. Time of Receipt of
Electronic Data Message or Electronic Document. - Unless otherwise agreed
between the originator and the addressee, the time of receipt of an electronic
data message or electronic document is as follows:
(a) If the addressee has
designated an information and communications system for the purpose of
receiving electronic data message or electronic document, receipt occurs at
the time when the electronic data message or electronic document enters the
designated information and communications system; Provided, however, that if
the originator and the addressee are both participants in the designated
information and communications system, receipt occurs at the time when the
electronic data message or electronic document is retrieved by the
addressee.
(b) If the electronic data
message or electronic document is sent to an information and communications
system of the addressee that is not the designated information and
communications system, receipt occurs at the time when the electronic data
message or electronic document is retrieved by the
addressee.
(c) If the addressee has not
designated an information and communications system, receipt occurs when the
electronic data message or electronic document enters an information and
communications system of the addressee.
These rules apply notwithstanding
that the place where the information and communications system is located may be
different from the place where the electronic data message or electronic
document is deemed to be received.
Section 33. Place of Dispatch
and Receipt of Electronic Data Message or Electronic Document. - Unless
otherwise agreed between the originator and the addressee, an electronic data
message or electronic document is deemed to be dispatched at the place where the
originator has its place of business and received at the place where the
addressee has its place of business. This rule shall apply even if the
originator or addressee had used a laptop or other portable device to transmit
or receive his electronic data message or electronic document. This rule shall
also apply to determine the tax situs of such transaction to the extent not
inconsistent with Philippine situs rules and the regulations which may be
promulgated by the Bureau of Internal Revenue (BIR) relating to the tax
treatment of electronic commerce transactions.
For the purpose
hereof:
(a) If the originator or the
addressee has more than one place of business, the place of business is that
which has the closest relationship to the underlying transaction or, where
there is no underlying transaction, the principal place of
business.
(b) If the originator or the
addressee does not have a place of business, reference is to be made to its
habitual residence; or
(c) The “usual place of
residence” in relation to a body corporate, which does not have a place of
business, means the place where it is incorporated or otherwise legally
constituted.
Nothing in this Section shall be
deemed to amend the rules of private international law.
Security
Methods
Section 34. Choice of Security
Methods. - Subject to applicable laws and/or rules and guidelines
promulgated by the Department of Trade and Industry and other appropriate
government agencies, parties to any electronic transaction shall be free to
determine the type and level of electronic data message or electronic document
security needed, and to select and use or implement appropriate technological
methods that suit their needs.
PART
III
ELECTRONIC
COMMERCE IN CARRIAGE OF GOODS
Section 35. Actions Related to
Contracts of Carriage of Goods. - Without derogating from the provisions of
Part Two of the Act, this Part of the Rules applies to any action in connection
with, or in pursuance of, a contract of carriage of goods, including but not
limited to:
(a) (i) furnishing
the marks, number, quantity or weight of goods;
(b) (i)
notifying a person of terms and conditions of the
contract;
(ii) giving
instructions to a carrier;
(c) (i) claiming
delivery of goods;
(d) giving any other notice or
statement in connection with the performance of the
contract;
(e) undertaking to deliver goods
to a named person or a person authorized to claim
delivery;
(f) granting, acquiring,
renouncing, surrendering, transferring or negotiating rights in
goods;
(g) acquiring or transferring
rights and obligations under the contract.
Section 36. Transport
Documents. - (1) Subject to paragraph (3), where the law requires that any
action referred to in the immediately preceding Section be carried out in
writing or by using a paper document, that requirement is met if the action is
carried out by using one or more electronic data messages or electronic
documents. The transport documents referred to herein shall include, but not be
limited to, those enumerated in Annex “1” hereof. Concerned agencies such
as, but not limited to, the DTI, Department of Finance, DOTC, Philippine Ports
Authority and other port authorities, shall, within their respective mandates,
issue appropriate rules and guidelines with respect to transport documents as
provided herein.
(2) Paragraph (1) applies
whether the requirement therein is in the form of an obligation or whether the
law simply provides consequences for failing either to carry out the action in
writing or to use a paper document.
(3) If a right is to be granted to,
or an obligation is to be acquired by, one person and no other person, and if
the law requires that, in order to effect this, the right or obligation must be
conveyed to that person by the transfer, or use of, a paper document, that
requirement is met if the right or obligation is conveyed by using one or more
electronic data messages or electronic documents: Provided, That a reliable
method is used to render such electronic data messages or electronic documents
unique.
(4) For the purposes of paragraph
(3), the standard of reliability required shall be assessed in the light of the
purpose for which the right or obligation was conveyed and in the light of all
the circumstances, including any relevant agreement.
(5) Where one or more electronic
data messages or electronic documents are used to effect any action in
subparagraphs (f) and (g) of Section 25 of the Act, 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) If a rule of law is
compulsorily applicable to a contract of carriage of goods which is in, or is
evidenced by, a paper document, that rule shall not be inapplicable to such a
contract of carriage of goods which is evidenced by one or more electronic data
messages or electronic documents by reason of the fact that the contract is
evidenced by such electronic data message or electronic document instead of a
paper document.
PART
IV
ELECTRONIC
TRANSACTIONS IN GOVERNMENT
Chapter
I
Government Use of
Data Messages, Electronic Documents and Electronic
Signatures
Section 37. Government Use of
Electronic Data Messages, Electronic Documents and Electronic Signatures. -
Notwithstanding any law to the contrary, within two (2) years from the date of
the effectivity of the Act, all departments, bureaus, offices and agencies of
the government, as well as all government-owned and-controlled corporations,
that pursuant to law require or accept the filing of documents, require that
documents be created, or retained and/or submitted, issue permits, licenses or
certificates of registration or approval, or provide for the method and manner
of payment or settlement of fees and other obligations to the government,
shall:
(a) accept the
creation, filing or retention of such documents in the form of electronic data
messages or electronic documents;
(b) issue permits,
licenses, or approval in the form of electronic data messages or electronic
documents;
(c) require and/or accept
payments, and issue receipts acknowledging such payments, through systems
using electronic data messages or electronic documents;
or
(d) transact the government
business and/or perform governmental functions using electronic data messages
or electronic documents, and for the purpose, are authorized to adopt and
promulgate, after appropriate public hearing and with due publication in
newspapers of general circulation, the appropriate rules, regulations, or
guidelines, to, among others, specify:
(1) the manner and
format in which such electronic data messages or electronic documents shall
be filed, created, retained or issued;
(2) where and when
such electronic data messages or electronic documents have to be signed, the
use of a electronic signature, the type of electronic signature
required;
(3) the format of
an electronic data message or electronic document and the manner the
electronic signature shall be affixed to the electronic data message or
electronic document;
(4) the control processes and
procedures as appropriate to ensure adequate integrity, security and
confidentiality of electronic data messages or electronic documents or
records or payments;
(5) other attributes required
of electronic data messages or electronic documents or payments;
and
(6) the full or limited use of
the documents and papers for compliance with the government
requirements;
Provided, That the Act shall
by itself mandate any department of the government, organ of state or statutory
corporation to accept or issue any document in the form of electronic data
messages or electronic documents upon the adoption, promulgation and publication
of the appropriate rules, regulations, or guidelines. Nothing in the Act or the
Rules authorizes any person to require any branch, department, agency, bureau,
or instrumentality of government to accept or process electronic data messages;
conduct its business; or perform its functions by electronic means, until the
adoption, promulgation and publication of the afore-mentioned appropriate rules,
regulations or guidelines. Such rules, regulations or guidelines as well as the
underlying technologies utilized in the implementation of the Act and these
Rules shall conform the principles set forth in the immediately succeeding
section.
Section 38. Principles
Governing Government Use of Electronic Data Messages, Electronic Documents and
Electronic Signatures. - The following principles shall govern the
implementation of Section 27 of the Act and shall be mandatory upon all
departments, bureaus, offices and agencies of the government, as well as all
government-owned and-controlled corporations:
(a) Technology Neutrality.
- All solutions implemented shall neither favor a particular technology over
another nor discriminate against or in favor of particular vendors of
technology.
(b) Interoperability. -
All implementation of technological solutions shall ensure the
interoperability of systems forming part of the government
network.
(c) Elimination of Red Tape.
- Government processes shall be re-examined and if appropriate, simplified
or re-engineered to maximize the functionality of technology and to eliminate
unnecessary delays in the delivery of governmental services.
(d) Security Measures. -
Government shall implement appropriate security measures to guard against
unauthorized access, unlawful disclosure of information, and to ensure the
integrity of stored information.
(e) Auditability. - All
systems installed shall provide for an audit trail.
Section 39. Government
Information System Plan (GISP). - It is hereby mandated that the GISP shall
be adjusted, modified and amended to conform to the provisions and requirements
of the Act, RPWEB and these Rules.
Chapter
II
RPWEB
Section 40. RPWEB To Promote the
Use Of Electronic Documents and Electronic Data Messages In Government and to
the General Public. - Within two (2) years from the effectivity of the Act,
there shall be installed an electronic online network in accordance with
Administrative Order 332 and House of Representatives Resolution 890, otherwise
known as RPWEB, to implement Part IV of the Act to facilitate the open, speedy
and efficient electronic online transmission, conveyance and use of electronic
data messages or electronic documents amongst all government departments,
agencies, bureaus, offices down to the division level and to the regional and
provincial offices as practicable as possible, government-owned and -controlled
corporations, local government units, other public instrumentalities,
universities, colleges and other schools, and universal access to the general
public.
The RPWEB network shall serve as
initial platform of the government information infrastructure to facilitate the
electronic online transmission and conveyance of government services to evolve
and improve by better technologies or kinds of electronic online wide area
networks utilizing, but not limited to, fiber optic, satellite, wireless and
other broadband telecommunication mediums or modes.
Section 41. Implementing
Agencies. - To facilitate the rapid development of the government
information infrastructure, the Department of Transportation and Communications,
National Telecommunications Commission and the National Computer Center shall in
coordination with each other, promulgate the appropriate issuances in accordance
with their respective mandate to aggressively formulate, promote and implement a
policy environment and regulatory or non-regulatory framework that shall lead to
the substantial reduction of costs of including, but not limited to, leased
lines, land, satellite and dial-up telephone access, cheap broadband and
wireless accessibility by government departments, agencies, bureaus, offices,
government-owned and -controlled corporations, local government units, other
public instrumentalities and the general public, to include the establishment of
a government website portal and a domestic internet exchange system to
facilitate strategic access to government and amongst agencies thereof and the
general public and for the speedier flow of locally generated internet traffic
within the Philippines.
Section 42. Cable Television and
Broadcast as Telecommunications. - The physical infrastructure of cable and
wireless systems for cable TV and broadcast excluding programming and content
and the management thereof shall be considered as within the activity of
telecommunications for the purpose of electronic commerce and to maximize the
convergence of ICT in the installation of the government information
infrastructure.
Chapter
III
Delineation of
Functions
Section 43. Delineation of
Functions and Coordination by the DTI. - In the implementation of the Act,
the following government agencies shall have the functions stated
hereunder:
(i) Supervise and coordinate
the full implementation of Section 27 of the Act. For this purpose, all
government agencies intending to comply with the said provision of law shall
coordinate with the DTI in order to ensure adherence with the principles
provided for in Section 38 of these Rules. Observance of all laws and
regulations on public bidding, disbursements and other restrictions,
including COA policies, shall be mandatory.
(ii) Install an online public
information and quality and price monitoring system for goods and services
aimed in protecting the interests of the consuming public availing of the
advantages of the Act.
(iii) Establish a voluntary
listing system for all businesses or entities involved in electronic
commerce including, but not limited to, value-added service (VAS) providers
as this term is understood in Republic Act No. 7925, banks, financial
institutions, manufacturing companies, retailers, wholesalers, and on-line
exchanges. The list of electronic commerce entities shall be
maintained by the DTI and made available electronically to all interested
parties.
(iv) Review, study and assess
all legal, technical and commercial issues arising in the field of
electronic commerce which may be directed to the DTI and if necessary,
convene the appropriate government agencies in order to discuss, deliberate
on and resolve the same and in the proper cases, promulgate additional rules
and regulations to implement the Act.
(b) The Bangko Sentral ng
Pilipinas shall exercise and perform such functions as mandated under the Act
including the promulgation of the rules and regulations to implement the
provisions of the Act with respect to banks, quasi-banks, trust entities, and
other institutions which under special laws are subject to the Bangko Sentral
ng Pilipinas supervision.
(c) The Department of
Budget and Management shall identify the fund source for the implementation of
Sections 37, 39 and 40 of the Rules, consistent with the provisions of the
annual General Appropriations Act, and in its capacity in managing the budget
execution and accountability processes of government, shall be responsible for
putting such core processes on-line.
PART
V
FINAL
PROVISIONS
Section 44. Extent of Liability
of a Service Provider. - Except as otherwise provided in this Section, no
person or party shall be subject to any civil or criminal liability in respect
of the electronic data message or electronic document for which the person or
party acting as a service provider as defined in Section 6(n) of these Rules
merely provides access if such liability is founded on:
(a) The
obligations and liabilities of the parties under the electronic data message
or electronic document;
(b) The making,
publication, dissemination or distribution of such material or any statement
made in such material, including possible infringement of any right subsisting
in or in relation to such material: Provided, That
-
(i) The service provider: (1)
does not have actual knowledge, or (2) is not aware of the facts or
circumstances from which it is apparent, that the making, publication,
dissemination or distribution of such material is unlawful or infringes any
rights subsisting in or in relation to such material, or (3) having become
aware, advises the affected parties within a reasonable time, to refer the
matter to the appropriate authority or, at the option of the parties, to
avail of alternative modes of dispute resolution;
(ii) The service provider does
not knowingly receive a financial benefit directly attributable to the
unlawful or infringing activity; and
(iii) The service provider does
not directly commit any infringement or other unlawful act and does not
induce or cause another person or party to commit any infringement or other
unlawful act and/or does not benefit financially from the infringing
activity or unlawful act of another person or
party;
Provided, further, That nothing in this Section shall
affect:
(a) Any obligation founded on
contract;
(b) The obligation of a
service provider as such under a licensing or other regulatory regime
established under written law;
(c) Any obligation imposed under
any written law; or
(d) The civil liability of any
party to the extent that such liability forms the basis for injunctive relief
issued by a court under any law requiring that the service provider take or
refrain from actions necessary to remove, block or deny access to any
material, or to preserve evidence of a violation of
law.
Lawful
Access
Section 45. Lawful Access
to Electronic Documents, Electronic Data Messages, and Electronic
Signatures. - Access to an electronic file, or an electronic signature
of an electronic data message or electronic document shall only be authorized
and enforced in favor of the individual or entity having a legal right to the
possession or the use of the plaintext, electronic signature or file and solely
for the authorized purposes.
Section 46. Lawful Access to
Electronic Keys. - The electronic key for identity or integrity shall not be
made available to any person or party without the consent of the individual or
entity in lawful possession of that electronic key. The testimonial
disclosure of an electronic key in any proceeding shall be limited by the
Constitutional right against self-incrimination.
Section 47. Obligation of
Confidentiality. - Except for the purposes authorized under the Act,
any person who obtained access to any electronic key, electronic data message,
or electronic document, book, register, correspondence, information, or other
material pursuant to any powers conferred under the Act, shall not convey to or
share the same with any other person.
Penal
Provisions
Section 48. Hacking. -
Hacking or cracking which refers to unauthorized access into or interference
in a computer system/server or information and 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 shall be punished by a minimum fine of one hundred thousand pesos
(P100,000.00) and a maximum commensurate to the damage incurred and a mandatory
imprisonment of six (6) months to three (3) years.
Section 49. Piracy. - Piracy
or the unauthorized copying, reproduction, dissemination, distribution,
importation, use, removal, alteration, substitution, modification, storage,
uploading, downloading, communication, making available to the public, or
broadcasting of protected material, electronic signature or copyrighted works
including legally protected sound recordings or phonograms or information
material on protected works, through the use of telecommunication networks, such
as, but not limited to, the internet, in a manner that infringes intellectual
property rights shall be punished by a minimum fine of one hundred thousand
pesos (P100,000.00) and a maximum commensurate to the damage incurred and a
mandatory imprisonment of six (6) months to three (3) years. The foregoing
shall be without prejudice to the rights, liabilities and remedies under Republic Act No. 8293 or Intellectual Property Code of
the Philippines and other applicable laws.
Section 50. Other Penal
Offenses. - Violations of the Consumer Act or Republic Act No. 7394
and other relevant or pertinent laws through transactions covered by or using
electronic data messages or electronic documents, shall be penalized with the
same penalties as provided in those laws.
Section 51. Other Violations of
the Act.- Other violations of the provisions of the Act, shall be penalized
with a maximum penalty of one million pesos (P1,000,000.00) or six-(6) years
imprisonment.
Miscellaneous
Provisions
Section 52. Statutory
Interpretation. - Unless otherwise expressly provided for, the
interpretation of these Rules and the Act shall give due regard to the Act’s
international origin - the UNCITRAL Model Law on Electronic Commerce - and the
need to promote uniformity in its application and the observance of good faith
in international trade relations. The generally accepted principles of
international law and convention on electronic commerce shall likewise be
considered.
Section 53. Variation by
Agreement. - Any provision of the Act may be varied by agreement between and
among parties; Provided that such agreement involves only the generation,
sending, receiving, storing or otherwise processing of an electronic data
message or electronic document. Nothing shall authorize contracting
parties to agree upon stipulations or covenants, which defeat the legal
recognition, validity and admissibility of electronic data messages, electronic
documents, or electronic signatures.
Section 54. Reciprocity. -
All benefits, privileges, advantages or statutory rules established under this
Act, including those involving practice of profession, shall be enjoyed only by
parties whose country of origin grants the same benefits and privileges or
advantages to Filipino citizens. Inasmuch as the Act merely contemplates
the legal recognition of electronic forms of documents and signatures and does
not amend any law governing the underlying substantive validity of acts or
transactions, this provision shall be subject to existing Constitutional and
statutory restrictions relative to activities which are reserved to Philippine
citizens or juridical entities partially or wholly-owned by Philippine
citizens.
Section 55. Oversight Committee.
- There shall be a Congressional Oversight Committee composed of the
Committees on Trade and Industry/Commerce, Science and Technology, Finance and
Appropriations of both the Senate and House of Representatives, which shall meet
at least every quarter of the first two years and every semester for the third
year after the approval of this Act to oversee its implementation. The DTI, DBM,
Bangko Sentral ng Pilipinas, and other government agencies as may be determined
by the Congressional Committee shall provide a quarterly performance report of
their actions taken in the implementation of this Act for the first three (3)
years.
Section 56. DTI’s Continuing
Authority to Implement the Act and Issue Implementing Rules. - Among others,
the DTI is empowered to promulgate rules and regulations, as well as provide
quality standards or issue certifications, as the case may be, and perform such
other functions as may be necessary for the implementation of this Act in the
area of electronic commerce.
Section 57. Separability. -
If any provision in these Rules or application of such provision to any
circumstance is held invalid, the remainder of these Rules shall not be affected
thereby.
Section 58. Effectivity. -
These Rules shall take effect fifteen (15) days from the complete publication
thereof in a newspaper of general circulation.
Done this ___ day of July,
2000.
MANUEL A. ROXAS
II
BENJAMIN E. DIOKNO
Secretary
Secretary
Department of Trade
and Industry Department Of
Budget and Management
RAFAEL B. BUENAVENTURA
Governor
Bangko Sentral ng Pilipinas
ANNEX
I
UNIFORM
CUSTOMS AND PRACTICE. 500 (UCP)
Art. 23.
Marine/Ocean bill of Loading
23.1.
Late delivery, Misrouting, Mishandling,Loss and Damage
23.2
Customs Duties and Taxes
23.3 Port
Charges i.e. Arrastre Wharfage
23.4
Inbound Shipment-Cargo Handler/Operator
23.4.1
Warehouse Operator
Art. 24.
Non-Negotiable Seaway Bill
24.1.
Claim- ibid
24.2.
Customs Duties and Taxes
24.3 Port
Charges i.e., Arrastre Wharfage
24.4
Inbound Shipment-Cargo handler/operator
24.4.1
Warehouse Operator
Art. 25.
Charter Party/Bill of Lading
25.1
Claim - ibid.
25.2
Customs Duties & Taxes
25.3 Port
Charges i.e., Arrastre Wharfage
25.4
Inbound shipment-cargo handler/operator
25.4.1
Warehouse Operator
Art. 26
Multi-Modal Transport Docs.
26.1 late
delivery, misrouting, mishandling, loss and damage
26.2
Customs, duties, and taxes
26.3 Port
charges i.e. arrastre wharfage
26.4
Inbound shipment-cargo handler/operator
26.4.1.
Warehouse operator
Art. 27.
Airport Transport Documents
27.1.
Claim-ibid
27.2
Customs duties & taxes
27.3
Airport charges
27.4
inbound shipment-cargo handler/operator
27.4.1.
Warehouse operator
Art. 28.
Road, Rail, or Inland Waterway Transport Documents
28.1
Claim- ibid
28.2
Customs Duties & taxes
28.3
Terminal charges
28.4
Inbound shipment-cargo handler/operator
28.4.1.
Warehouse operator
Art 29.
Courier and Post Receipts
29.1 Late
delivery, misrouting, mishandling, loss & damage
29.2
Customs duties & taxes
29.3
Postal authority charges
29.4
Inbound shipment-cargo handler/operator
29.4.1.
Warehouse operator
Art. 30.
Transport Documents issued by freight forwarders
30.1.
Claim - ibid
30.2
Customs duties & taxes
30.3 Port
charges i.e. arrastre wharfage
30.4
Inbound shipment- cargo handler/operator
30.4.1.
warehouse operator
ANNEX
II
a) the sophistication of the equipment used by each
of the parties;
b) the nature of their trade
activity;
c) the frequency at which commercial transactions
take place between the parties;
d) the kind and size of the
transaction;
e) the function of signature requirements in a given
statutory and regulatory environment;
f) the capability of communication
systems;
g) compliance with authentication procedures set
forth by intermediaries;
h) the range of authentication procedures made
available by any intermediary;
i) compliance with trade customs and
practice;
j) the existence of insurance coverage mechanisms
against unauthorized messages;
k) the importance and the value of the information
contained in the data message;
l) the availability of alternative methods of
identification and the cost of implementation;
m) the degree of acceptance or non-acceptance of the
method of identification in the relevant industry or field both at the time the
method was agreed upon and the time when the data message was communicated;
and
n) any other relevant
factor.
