REPUBLIC ACT NO. 8792
AN ACT PROVIDING FOR THE RECOGNITION AND USE OF
ELECTRONIC COMMERCIAL AND NON–COMMERCIAL TRANSACTIONS AND DOCUMENTS, PENALTIES
FOR UNLAWFUL USE THEREOF AND FOR OTHER PURPOSES
PART I
SHORT TITLE AND DECLARATION OF POLICY
Section 1
Short Title
This Act shall be known as
the "Electronic Commerce Act of 2000"
Section 2
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 telecommunications and information technology;
the need to develop, with appropriate training programs and institutional
policy changes, human resources for the information technology 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 adaptation 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
telecommunications 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.
PART II
ELECTRONIC COMMERCE IN GENERAL
Section 3
Objective
This 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 transaction in the government and general public.
Section 4
Sphere of Application
This Act shall apply to
any kind of 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.
Section 5
Definition of Terms
For the purposes of this
Act, 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. The term does
not include a person acting as an intermediary with respect to that electronic
data message or electronic document.
b. “Computer” refers to any device or apparatus which, by
electronic, electro-mechanical or magnetic impulse, or by other means, is
capable of receiving, recording, transmitting, storing, processing, retrieving,
or producing information, data, figures, symbols or other modes of written
expression according to mathematical and logical rules or of performing any one
or more of those functions.
c. “Electronic
Data Message” refers to information
generated, sent, received or stored by electronic, optical or similar means.
d.
“Information
and Communication System” refers to a
system intended for and capable of 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.
e. “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.
f. “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.
g. “Electronic
Key” refers to a secret code which
secures and defends sensitive information that crosses over public channels
into a form decipherable only with a matching electronic key.
h. “Intermediary”
refers to a person who in behalf of
another person and with respect to a particular electronic document sends,
receives and/or stores or provides other services in respect of that electronic
document.
i. “Originator”
refers to a person by whom, or on
whose behalf, the 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 document.
j. “Service
Provider” refers to a provider of –
(1) On-line 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 documents of the
user’s choosing; or
(2) The necessary technical means by which 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 who shall retain the 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 WRITING OR DOCUMENT
AND DATA MESSAGES
Section 6
Legal Recognition of
Data Messages
Information shall not be
denied legal effect, validity or enforceability solely on the grounds that it
is in the data message purporting to give rise to such legal effect, or that it
is merely referred to in that electronic data message.
Section 7
Legal Recognition of
Electronic Documents
Electronic documents shall
have the legal effect, validity or enforceability as any other document or
legal writing, and
(a)
Where the law
requires a document to be in writing, that requirement is met by an electronic
document if the said electronic document maintains its integrity and
reliability and can be authenticated so as to be usable for subsequent
reference, in that
(1) The electronic document 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
(2) The electronic document is reliable in the light of
the purpose for which it was generated and in the light of all the relevant
circumstances.
(b)
Paragraph (a)
applies whether the requirement therein is in the form of an obligation or
whether the law simply provides consequences for the document not being
presented or retained in its original form.
(c)
Where the law
requires that a document be presented or retained in its original form, that
requirement is met by an electronic document if –
(1) There exists a reliable assurance as to the integrity
of the document from the time when it was first generated in its final form;
and
(2) That document is capable of being displayed to the
person to whom it is to be presented: Provided, that no provision of this Act
shall apply to vary any and all requirements of existing laws on formalities
required in the execution of documents for their validity.
For
evidentiary purposes, an electronic document shall be the functional equivalent
of a written document under existing laws.
This 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.
Section 8
Legal Recognition of
Electronic Signatures
An electronic signature on
the electronic document shall be equivalent to the signature of a person on a
written document if that signature is proved by showing that a prescribed
procedure, not alterable by the parties interested in the electronic document,
existed under which –
(a)
A method is used
to identify the party sought to be bound and to indicate said party’s access to
the electronic document necessary for his consent or approval through the
electronic signature;
(b)
Said method is
reliable and appropriate for the purpose for which the electronic document was
generated or communicated, in the light of all the circumstances, including any
relevant agreement;
(c)
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
(d)
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.
Section 9
Presumption Relating to
Electronic Signatures
In any proceedings
involving an electronic signature, it shall be presumed 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 document unless the person relying on the electronically signed
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.
Section 10
Original Documents
(1)
Where the law
requires information to be presented or retained in its original form, that
requirement is met by an electronic data message or electronic document if:
(a) the integrity of the information from the time when it
was first generated in its final form, as an electronic data message or
electronic document is shown by evidence aliunde or otherwise; and
(b) where it is required that information be presented,
that the information is capable of being displayed to the person to whom it is
to be presented.
(2)
Paragraph (1)
applies whether the requirement therein is in the form of an obligation or
whether the law simply provides consequences for the information not being
presented or retained in its original form.
(3)
For the purposes
of subparagraph (a) of paragraph (1):
(a)
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
(b)
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.
Section 11
Authentication of
Electronic Data Messages and Electronic Documents
Until the Supreme Court by
appropriate rules shall have so provided, 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, among other ways, as follows:
(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 and 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 and/or
electronic document, or on 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 acknowledgment procedures, or similar security
devices.
The Supreme Court may
adopt such other authentication procedures, including the use of electronic
notarization systems as necessary and advisable, as well as the certificate of
authentication on printed or hard copies of the electronic document or
electronic data messages by electronic notaries, service providers and other
duly recognized or appointed certification authorities.
The person seeking to
introduce an electronic data message and electronic document in any legal
proceeding has the burden of proving its authenticity by evidence capable of
supporting a finding that the electronic data message and electronic document
is what the person claims it to be.
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 –
(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 data message and/or electronic document, and there are no other
reasonable grounds to doubt the integrity of the information and communication
system;
(b)
By showing that
the electronic data message and/or electronic document 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 data message and/or electronic document 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.
Section 12
Admissibility and
Evidential Weight of Electronic Data Message and Electronic Documents
In any legal proceedings,
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 and electronic data message or
electronic document meeting, and complying with the requirements under Sections
6 or 7 hereof shall be the best evidence of the agreement and transaction
contained therein.
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 13
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 –
(1)
Remains
accessible so as to be usable for subsequent reference;
(2)
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;
(3)
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.
Section 14
Proof By Affidavit
The matters referred to in
Section 12, on admissibility and Section 9, on the presumption of integrity,
may be presumed to have been established by an affidavit given to the best of
the deponent's knowledge subject to the rights of parties in interest as
defined in the following section.
Section 15
Cross–Examination
(1)
A deponent of an
affidavit referred to in Section 14 that has been introduced in evidence may be
cross-examined as of right 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.
(2)
Any party to the
proceedings has the right to cross-examine a person referred to in Section 11,
paragraph 4, sub-paragraph c.
CHAPTER III
COMMUNICATION OF ELECTRONIC DATA MESSAGES AND
ELECTRONIC DOCUMENTS
Section 16
Formation and Validity
of Electronic Contracts
(1)
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 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.
(2)
Electronic
transactions made through networking among banks, or linkages thereof with
other entities or networks, and vice versa, shall be deemed consummated 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.
Section 17
Recognition by Parties
of Electronic Data Message or Electronic Document
As between the originator
and the addressee of a 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 a
electronic data message.
Section 18
Attribution of Electronic
Data Message
(1)
An electronic
data message or electronic document is that of the originator if it was sent by
the originator himself.
(2)
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 system programmed by, or on behalf
of the originator to operate automatically.
(3)
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 or electronic document 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 as his own.
(4)
Paragraph (3)
does not apply:
(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 (3) sub-paragraph (b), 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.
(5)
Where an
electronic data message or electronic document is that of the originator or is deemed to be that of the
originator, or the addressee is entitled to act on that assumption, then, as
between the originator and the addressee, the addressee is entitled to regard
the electronic data message or electronic document as received as being what
the originator intended to send, and to act on that assumption. The addressee
is not so entitled when it knew or should have known, had it exercised
reasonable care or used any agreed procedure, that the transmission resulted in
any error in the electronic data message or electronic document as received.
(6)
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 19
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 or used the appropriate procedure –
(a)
That the
transmission resulted in any error therein or in the electronic document when
the electronic data message or electronic document enters the designated
information system, or
(b)
That electronic
data message or electronic document is sent to an information system which is
not so designated by the addressee for the purpose.
Section 20
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.
(c)
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.
(d)
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 in subparagraph (c), 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 21
Time of Dispatch of
Electronic Data Messages or Electronic Documents
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 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 22
Time of Receipt of
Electronic Data Messages or Electronic Documents
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 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 system: Provided, however, that if the originator and the addressee
are both participants in the designated information 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 system of the
addressee that is not the designated information 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 system, receipt occurs when the electronic data
message or electronic document enters an information system of the addressee.
These rules apply
notwithstanding that the place where the information system is located may be
different from the place where the electronic data message or electronic document
is deemed to be received.
Section 23
Place of Dispatch and
Receipt of Electronic Data Messages or Electronic Documents
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.
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
of 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, means the place where it is
incorporated or otherwise legally constituted.
Section 24
Choice of Security
Methods
Subject to applicable laws
and/or rules and guidelines promulgated by the Department of Trade and Industry
with other appropriate government agencies, parties to any electronic
transaction shall be free to determine the type and level of electronic data message
and electronic document security needed, and to select and use or implement
appropriate technological methods that suit their needs.
PART III
ELECTRONIC COMMERCE IN SPECIFIC AREAS
Section 25
Actions Related to
Contracts of Carriage of Goods
Without derogating from
the provisions of part two of this law, this chapter 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 notice 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
(f)
granting,
acquiring, renouncing, surrendering, transferring or negotiating rights in
goods;
(g)
acquiring or
transferring rights and obligations under the contract. chanrobles law firm
Section 26
Transport Documents
(1)
Where the law
requires that any action referred to contract of carriage of goods 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 data messages or electronic
documents.
(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 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
data messages are used to effect any action in subparagraphs (f) and (g) of
Section 25, 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 messages or electronic documents instead
of by a paper document.
PART IV
ELECTRONIC TRANSACTIONS IN GOVERNMENT
Section 27
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 this
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 this 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.
Section 28
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 this 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 this 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 (GII) 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. To
facilitate the rapid development of the GII, the Department of Transportation
and Communications, National Telecommunications Commission and the National
Computer Center are hereby directed to aggressively 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, lease
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.
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 GII.
Section 29
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. 337 (General Banking Act), as amended.
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 to include, but shall not be limited to, the installation
of 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 this Act.
PART V
FINAL PROVISIONS
Section 30
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 5 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 does not have actual knowledge, or 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;
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; or
c) Any obligation imposed under any written law;
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.
Section 31
Lawful Access
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. 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.
Section 32
Obligation of Confidentiality
Except for the purposes
authorized under this 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 this Act, shall not convey to or share the same with any other person.
Section 33
Penalties
The following Acts shall
be penalized by fine and/or imprisonment, as follows:
(a)
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;
(b)
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;
(c)
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;
(d)
Other violations
of the provisions of this Act, shall be penalized with a maximum penalty of one
million pesos (P1,000,000.00) or six (6) years imprisonment.
Section 34
Implementing Rules and
Regulations
The DTI, Department of
Budget and Management and the Bangko Sentral ng Pilipinas are hereby empowered
to enforce the provisions of this Act and issue implementing rules and
regulations necessary, in coordination with the Department of Transportation
and Communications, National Telecommunications Commission, National Computer
Center, National Information Technology Council, Commission on Audit, other
concerned agencies and the private sector, to implement this Act within sixty
(60)days after its approval.
Failure to issue rules and
regulations shall not in any manner affect the executory nature of the
provisions of this Act.
Section 35
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 36
Appropriations
The amount necessary to carry
out the provisions of Sections 27 and 28 of this Act shall be charged against
any available funds and/or savings under the General Appropriations Act of 2000
in the first year of effectivity of this Act. Thereafter, the funds needed for
the continued implementation shall be included in the annual General
Appropriations Act.
Section 37
Statutory
Interpretation
Unless otherwise expressly
provided for, the interpretation of this Act shall give due regard to its
international origin 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 38
Variation by Agreement
As between parties
involved in generating, sending, receiving, storing or otherwise processing
electronic data message or electronic document, any provision of this Act may
be varied by agreement between and among them.
Section 39
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.
Section 40
Separability Clause
The provisions of this Act
are hereby declared separable and in the event of any such provision are
declared unconstitutional, the other provisions, which are not affected, shall
remain in force and effect.
Section 41
Repealing Clause
All other laws, decrees,
rules and regulations or parts thereof which are inconsistent with the
provisions of this Act are hereby repealed, amended or modified accordingly.
Section 42
Effectivity
This Act shall take effect
immediately after its publication in the Official Gazette or in at least two
(2) national newspapers of general circulation.
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