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REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF TRADE AND
INDUSTRY
DEPARMENT OF BUDGET AND
MANAGEMENT
BANGKO SENTRAL NG PILIPINAS
IMPLEMENTING RULES AND
REGULATIONS
OF THE
"ELECTRONIC COMMERCE ACT"
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
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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.
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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
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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:
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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Access to Public Records.
Government shall provide equal and transparent access to public
domain information.
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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
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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.
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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
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Definition of Terms.
For the purposes of the Act and these Rules, the following terms are
defined, as follows:
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"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.
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"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.
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"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.
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"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.
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"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."
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"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.
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"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.
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"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."
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"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.
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"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.
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"Non-Commercial Activities" are
those not falling under commercial activities.
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"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.
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"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.
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"Service provider" refers to a
provider of -
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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
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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
Legal Recognition of Electronic
Data Messages and Electronic Documents
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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:
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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.
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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.
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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.
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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
methodunless and until a functional equivalent shall have been
developed, installed, and implemented.
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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.
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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.
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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:
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maintains its integrity and
reliability; and,
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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.
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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 -
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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,
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The electronic document or
electronic data message is capable of being displayed to the
person to whom it is to be presented.
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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.
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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
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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:
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is an electronic signature as
defined in Section 6(g) of these Rules; and,
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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 subparagraph (i)
and (ii) of paragraph (b), the factors referred to in Annex "2" may be
taken into account.
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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:
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The electronic signature is the
signature of the person to whom it correlates; and,
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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
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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:
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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;
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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.
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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
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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 -
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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;
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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,
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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
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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:
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On the sole ground that it is
in electronic form; or,
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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.
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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
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Retention of Electronic Data
Message and Electronic Document.
Notwithstanding any provision of law, rule or regulation to the
contrary:
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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.
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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.
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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
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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.
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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.
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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
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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.
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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:
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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
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by an information and
communications system programmed by, or on behalf of the
originator to operate automatically.
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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:
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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,
-
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.
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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:
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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
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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
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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.
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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:
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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,
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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
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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:
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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.
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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.
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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.
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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.
-
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:
-
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.
-
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.
-
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.
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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 -
-
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.
-
If the originator or the
addressee does not have a place of business, reference is to be
made to its habitual residence; or
-
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
-
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 GOOD
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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;
(ii) stating or declaring the
nature or value of goods;
(iii) issuing a receipt for
goods;
(iv) confirming that goods have
been loaded;
(b) (i) notifying a person of
terms and conditions of the contract;
(ii) giving instructions to a
carrier;
(c) (i) claiming delivery of
goods;
(ii) authorizing release of
goods;
(iii) giving notices of loss
of, or damage to 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.
-
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
-
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:
-
accept the creation, filing
or retention of such documents in the form of electronic data
messages or electronic documents;
-
issue permits, licenses, or
approval in the form of electronic data messages or electronic
documents;
-
require and/or accept
payments, and issue receipts acknowledging such payments,
through systems using electronic data messages or electronic
documents; or
-
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 -
-
the manner and format in
which such electronic data messages or electronic documents
shall be filed, created, retained or issued;
-
where and when such
electronic data messages or electronic documents have to be
signed, the use of an electronic signature, the type of
electronic signature required;
-
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;
-
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;
-
other attributes required
of electronic data messages or electronic documents or
payments; and
-
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 aforementioned 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.
-
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:
-
Technology Neutrality.
All solutions implemented shall neither favor a particular
technology over another nor discriminate against or in favor of
particular vendors of technology.
-
Interoperability.
All implementation of technological solutions shall ensure the
interoperability of systems forming part of the government
network.
-
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.
-
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.
-
Auditability.
All systems installed shall provide for an audit trail.
-
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
-
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.
-
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.
-
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
-
Delineation of Functions and
Coordination by the DTI.
In the implementation of the Act, the following government
agencies shall have the functions stated hereunder:
-
The Department of Trade and
Industry shall:
-
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.
-
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.
-
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.
-
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.
-
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.
-
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
-
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:
-
The obligations and
liabilities of the parties under the electronic data message or
electronic document;
-
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
-
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;
-
The service provider
does not knowingly receive a financial benefit directly
attributable to the unlawful or infringing activity; and,
-
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;
-
Any obligation founded on
contract;
-
The obligation of a service
provider as such under a licensing or other regulatory regime
established under written law;
-
Any obligation imposed under
any written law; or,
-
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
-
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.
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Lawful Access to Electronic
Keys. The electronic
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