Case Digests

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EXPERTRAVEL & TOUR, INC. vs COURT OF APPEALS and KOREAN AIRLINES

G.R. NO. 152392

May 26, 2005

FACTS

            Korean Airlines (KAL) filed a complaint against Expertravel & Tours, Inc. (ETI) for the collection of the principal amount of Php260,150.00 plus attorney’s fees and exemplary damages. The verification and certification against forum shopping was signed by Atty. Aguinaldo, who indicated therein that he was the resident agent and legal counsel of KAL and had caused the preparation of the complaint. ETI files a motion to dismiss the complaint on the ground that Atty. Aguinaldo was not authorized to execute the verification and certificate of non-forum shopping. Atty. Aguinaldo claimed that he had been authorized to file the complaint through a resolution of the KAL Board of Directors approved during a special meeting held on June 25, 1999 through a teleconference which he and its general manager Suk Kyoo Kim attended.

ISSUE

            Whether or not a teleconference is a valid medium of conducting board meetings and making resolutions?

HELD

            YES. Republic Act No. 8792, gives light to the reality of teleconferencing and video conferencing among members of board of directors of private corporation. The Securities and Exchange Commission issued SEC Memorandum Circular No. 15, on November 15, 2001, providing the guideline to be complied with related to such conferences.

            However, in the abovementioned case, the court was not convinced that such a teleconference was conducted.

(2/10)

MCC INDUSTRIAL SALES CORPORATION vs SSANGYONG CORPORATION

G.R. NO. 170633

October 17, 2007

FACTS

            MCC Industrial Sales(MCC), a domestic corporation with office at Binondo, Manila, is engaged in the business of importing and wholesaling stainless steel products. One of its suppliers is the Ssangyong Corporation (Ssangyong), an international trading company with head office in Seoul, South Korea and regional headquarters in Makati City, Philippines. The two corporations conducted business through telephone calls and facsimile or telecopy transmission. Ssangyong would send the pro forma invoices  containing the details of the steel product order to MCC; if the latter conforms thereto, its representative affixes his signature on the faxed copy and sends it back to Ssangyong, again by fax.

ISSUE

            Whether or not photocopies of facsimile transmissions are electronic evidence and admissible as such?

HELD

            NO. The court rule by determining first and foremost, whether original facsimile transmissions are “electronic data messages” or “electronic documents” within the Electronic Commerce Act. The Implementing Rules and Regulations of R.A. No. 8792, defines the terms as:

Sec. 6. Definition of Terms. For purposes of this Act and these Rules, the following terms are defined as follows:

Xxx

(e) “Electronic Data Message” refers to information generated, sent, received or stored by electronic, optical or similar means, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy. Through these Rules, the term “electronic data message” shall be equivalent to and be used interchangeably with “electronic document.”

Xxxx

(h) “Electronic Document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stores, processed, retrieved or produced electronically. Through these Rules, the term “electronic document” shall be equivalent to and be used interchangeably with “electronic data message”

The construction of the term “electronic data message” excludes telexes or faxes, except  computer-generated faxes, is in harmony with the Electronic Commerce Law’s focus on “paperless” communications and the “functional equivalent approach”. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence.

            Since a facsimile transmission is not an “electronic data message” or an “electronic document,” and cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such fax transmission not electronic evidence.

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ELLERY MARCH G. TORRES vs PHILIPPINE AMUSEMENT and GAMING CORPORATION

G.R. No. 193531

December 14, 2011

FACTS

            Ellery March Torres was a Slot Machine Operator Supervisor of Philippine Amusement and Gaming Corporation. On the basis of an alleged intelligence report of padding Credit Meter Readings of the slot machines at PAGCOR-Hyatt Manila, then Casino Filipino-Hyatt, involving the slot machine and internal security personnel of PAGCOR; and in connivance with slot machine customers. On May 4, 2007, Corporate Investigation Unit serves Torres with a Memorandum of Charges for dishonesty, serious misconduct, fraud and violation of office rules and regulations which were considered grave offenses where the penalty imposable is dismissal. Torres contends that he filed his letter reconsideration of his dismissal on August 13, 2007, and that he did so by means of a facsimile transmission sent to PAGCOR’s Office of Board of Directors, which the latter denied.

ISSUE

            Whether or not transmission by facsimile is a valid mode of filing motion for reconsideration?

HELD

            NO. Sec. 39  of the Revised Uniform Rules on Administrative Cases in the Civil Service states:

            “When deemed filed. A motion for reconsideration sent by mail shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case and in case of personal delivery, the date stamped thereon by the proper office.”

            Clearly, a motion for reconsideration may either be filed by mail or personal delivery. The mode used by Torres in filing his reconsideration is not sanctioned by the Uniform Rules on Administrative Cases in the Civil Service. Facsimile transmission is not considered as electronic evidence under the Electronic Commerce Act.

(4/10)

NATIONAL POWER CORPORATION vs HON. RAMON G. CODILLA, JR. and WALLEM SHIPPING, INC.

G.R. No. 170491

April 4, 2007

FACTS

            M/V Dibena Win, a vessel of foreign registry owned and operated by Bangpai Shipping , Co., allegedly bumped and damaged NAPOCOR’s Power Barge 209 which was then moored at the Cebu International Port. Thus, NAPOCOR filed before the Cebu RTC a complaint for damages against Bangpai Shipping Co., for alleged damages caused on the barges. NAPOCOR, after adducing evidence during the trial of the case, filed a formal offer of evidence before the lower court consisting of Exhibits “A” to “V” together with the sub-marked portions thereof.

ISSUE

            Whether or not photocopies are admissible as electronic evidence?

HELD

            NO. Photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of the original as decreed in the law.

(5/10)

SINFOROSO P. ANG vs ARNIEL E. CRUZ

A.M. No. P-04-1822

February 6, 2006

FACTS

            Arniel E. Cruz , Clerk III, of the Office of the Clerk of Court, Regional Trial Court, Cabanatuan was accused of having leaked the Order directing Deputy Sheriff Angelito Annang to take custody of Yza from her mathernal grandmother Erlina Sta. Maria, and entrust her temporary custody to Sinforoso Ang. A few minutes before the oder was issued, Sheriff Annang received a text message stating “Pre, pamangkin ko yung bata, baka puede mong gawan ng paraan, kawawa naman yung nanay.” When Ang and Sheriff Annang proceeded to the school of Yza to implement the Order, Yza was no longer there, her teacher informed them that she was fetched by her mother the day before.

ISSUE

            Whether or not a text message is admissible as evidence?

HELD

            YES. The court noted that the respondent does not deny sending the text message to Sheriff Annang, neither did he dispute of the message. By this act alone, respondent is administratively liable.

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VIRGILIO O. GARCILIANO vs THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORA REFORMS

G.R. No. 170338

December 23, 2008

FACTS

            The case at bar originated from incident regarding tapes ostensibly containing a wiretapped conversation purported between the President of the Philippines and a high-ranking official of the COMELEC. The tapes, notoriously referred to as the “hello Garci” tapes, allegedly contained the President’s instructions to COMELEC Commissioner Garcillano to manipulate in her favour results of 2004 presidential elections. Years later, Senator Panfilo Lacson, in his privilege speech promised to provide the public “the whole unvarnished truth-the what’s, when’s, where’s, who’s and why’s” of the alleged wirtap, and sought an inquiry into the perceived willingness of the telecommunications providers to participate in nefarious wiretapping activities.

            On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, filed a Petition for Prohibition with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, seeking to bar the Senate from conducting its scheduled legislative inquiry on the ground that it violates RA No. 4200 and Section 3, Article III of the Constitution. The senate cannot be allowed to continue without duly published rules of procedure, in clear derogation of the constitutional requirement.

ISSUE

            Whether or not publication through the internet meets the publication requirement of the constitution?

HELD

            NO. The organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of legislation only in accordance with duly published rules of procedure, and does not make any distinction whether or not these rules have undergone amendments or revision. The constitutional mandate to publish the said rules prevails over any custom, practice or tradition followed by the Senate. The use of the respondents of the Electronic Commerce Act of 2000 to support their claim of valid publication through the internet is all the more incorrect; the said Act considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes.

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EMMANUEL B. AZNAR vs CITIBANK, N.A., (Philippines)

G.R. No. 164273

March 28, 2007

FACTS

            Aznar, a known business man in Cebu, is a cardholder of a Preferred Master Credit Card issued by Citibank with a credit limit of Php150,000.00. As he planned to take an Asian tour with his wife and two grandchildren, he made a total advance deposit of Php485,000.00 with Citibank with the intention of increasing his credit limit to Php635,000.00. During the tour his card was dishonoured on some establishments. One particular establishment in Indonesia, Ingtan Tour and Travel Agency, gave them a print-out showing that the card was dishonoured because it was over limit.

ISSUE

            Whether or not the print-out issued by Ingtan Tour and Travel Agency is an electronic document and is admissible as evidence?

HELD

            NO. The prevailing rule at the time of the promulgation of the RTC Decision is Sec. 20,Rule 132 of the Rules of Court. It provides that whenever any private document is offered as authentic is received in evidence, its due execution and authenticity must be proved either by (a) anyone who saw the document executed or written; or (b) by evidence of the genuineness of the signature or handwriting of the maker. Even if examined under the Rules on Electronic Evidence, the authentication of the said print-out would still be found wanting.

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RUSTAN ANG y PASCUAL vs THE HONORABLE COURT OF APPEALS and IRISH SAGUD

G.R. No. 182835

April 20, 2010

FACTS

            Rustan Ang is the former boyfriend Irish Sagud. Before Rustan got marries, he got in touch with Irish and tried to convince her to elope with him, saying that he did not love the woman he was about to marry. In the early morning of June 5, 2005, Irish received through MMS a picture of a naked woman with spread legs and with her face superimposed on the figure. The sender’s cellphone number was one of the numbers used by Rustan. Rustan also sent Irish a message threatening her of spreading the photo in the internet.

ISSUE

            Whether or not the obscene picture presented in the case is an electronic document and is admissible as evidence?

HELD

            NO. The Rules on Electronic Evidence does not apply to criminal cases; it applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.

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ANNA JANE D. LIHAYLIHAY vs JUDGE ALEJANDO T. CANDA

A.M. No. MTJ-06-1659

June 18, 2009

FACTS

            Anna Jane Lihaylihay is a Clerk III of Branch 28, RTC of Zamboanga del Norte. Judge Alejandro Canda is a MCTC Judge in Liloy-Tampas, Zamboanga del Norte. Canda threatened Lihaylihay through text messages, thinking that Lihaylihay was assisting Alimpolo in his application as Sheriff IV.

ISSUE

            Whether or not text messages or SMS is admissible as evidence?

HELD

            The court rules in this case that in administrative proceeding, the complainant has the burden of proving, by substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, the allegations in the complaint. The Court cannot rely on mere conjectures or suppositions.

(10/10)

TERESITA G. NARVASA vs BENJAMIN A. SANCHEZ, JR.

G.R.No. 169449

March 26, 2010

FACTS

            Sanchez was accused of sending text messages to De la Cruz and Gayaton which amounted to sexual harassment.

ISSUE

            Whether or not text messages or SMS are admissible as evidence?

HELD

            The Court having recognized the findings of the Municipal Mayor that Sanchez in guilty of grave sexual harassment admits to the admissibility of the text messages sent to Dela Cruz and Sanches.

            

DOWNLOAD=GUILTY

DOWNLOAD=GUILTY

If you are reading this blog you could either be a music lover who thinks buying records is a waste, a movie lover who has never set foot on a theatre or maybe just someone who has plenty of time to read. In the age that we are in, everything is literally in our fingertips; one need not lift his hand to have what he desires. A few clicks on the computer, voila, your favourite movie or your theme song or the game you’ve been eagerly waiting for, and the best part of it, it’s FREE. A few harmless clicks that you didn’t even shed a sweat, but is it really harmless? Let us get to know the pastime that is addictive as well, DOWNLOADING.

Download(noun)

An act of moving or copying a file, program, etc., from a usually larger computer system to another computer or device (http://www.learnersdictionary.com)

               So far, nothing harmful yet, the tricky part is what people are downloading, let’s think of movies, songs, games and even books:

Copy or Economic Rights

Copy or Economic Rights. Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

·        Reproduction of the work or substantial portion of the work;

·        Dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work;

·        The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;

·        Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental;

·        Public display of the original or a copy of the work;

·        Public performance of the work; and

·        Other communication to the public of the work. (Sec 177, RA 8293)

..now, having second thoughts? Wait, there’s more:

 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. (Sec. 33 (b), RA 8792)

               ... and some more; Hon. Irwin Tieng and Hon. Mariano Michael Velarde introduced House Bill No. 6187, The Anti-Online Piracy Act of 2011. Section 3 of said bill, prohibits and declares unlawful for any person to:

a)      Make in a manner not authorized by the copyright owner, copies of music recordings or films, in complete or substantially complete forms, by any means, including but not limited to uploading, downloading, or streaming.

b)      Offer goods or services, or provides access in a manner not authorized by the copyright owner, copies of music recordings or films, in complete or substantially complete form, by any means, including by means of downloading, streaming, provisions of a link or aggregated links to other sites.

After reading these, we can generally say that downloading copyrighted works, shared by others who are not copyright owners of such works constitutes a copyright infringement even on the part of the now, not so innocent downloader.

As of the moment, not only the Philippines is on the battle against online piracy, the US has Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).

How would SOPA work? 

It allows the U.S. attorney general to seek a court order against the targeted offshore Web site that would, in turn, be served on Internet providers in an effort to make the target virtually disappear. It's kind of an Internet death penalty.

More specifically, section 102 of SOPA says that, after being served with a removal order:

 A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order...Such actions shall be taken as expeditiously as possible, but in any case within five days after being served with a copy of the order, or within such time as the court may order.[1]

The Protect IP Act says that an "information location tool shall take technically feasible and reasonable measures, as expeditiously as possible, to remove or disable access to the Internet site associated with the domain name set forth in the order." In addition, it must delete all hyperlinks to the offending "Internet site."[2]

               ... and there is ACTA,

What ACTA is about

• ACTA is an international trade agreement that will help countries work together to tackle more effectively large-scale Intellectual Property Rights violations. Citizens will benefit from ACTA because it will help protect Europe's raw material – innovations and ideas 
• Europe's economy can only remain competitive if it can rely on innovation, creativity, quality, and brand exclusivity. These are some of our main comparative advantages on the world market, and they are all protected by Intellectual Property Rights. As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights means protecting jobs in the EU. It also means consumer safety and secure products.
• The EU's national customs authorities have registered that counterfeit goods entering the EU have tripled between 2005 and 2010.
• Statistics published by the European Commission in July 2011 show a tremendous upward trend in the number of shipments suspected of violating IPR. Customs in 2010 registered around 80,000 cases, a figure that has almost doubled since 2009. More than 103 million fake products were detained at the EU external border[3]

Something should be done about the rampant copyright infringement through the internet, we do have legislations, but they are not enough. We may follow the lead of the international community, but we must always put into consideration the rights granted by the Constitution. The international community are trying drastic measures to eradicate such evils; technology is always moving forward, our laws must be able to cope with such change to better protect our right.

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[1] http://news.cnet.com/8301-31921_3-57329001-281/how-sopa-would-affect-you-faq/

[2] http://news.cnet.com/8301-31921_3-20062398-281.html

[3] http://ec.europa.eu/trade/tackling-unfair-trade/acta/

Fan Art, Are You A Fan?

Have you ever seen an Avenger’s poster that really caught your eyes, tickled your brain and made you wonder “there is something different, but you just can’t tell?” It might be an FAN ART. There is no legal definition for fan art yet. Right now it is commonly referred as creations of fans such as images and drawings based on characters of films, comics, books and other literary forms.

After seeing this thing called fan art, you would start to think, is this legitimate? To answer this, we would have to first get to know the law. Here in the Philippines, we have RA 8293, the Intellectual Property Code of the Philippines gives protection to original intellectual creations in the literary and artistic domain from the moment of their creation[1] it further provides that works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.[2] It gives the author  the exclusive right to carry out, authorize or prevent the following acts: 1) reproduction of the work or substantial portion of the work; 2) dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work; 3) the first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; 4) Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; 5) public display of the original or a copy of the work; 6) public performance of the work and 7) other communication of the public of the work. [3] We also have the so called “derivative works” which are also protected by the copyright, which are dramatizations, translations, adaptations, abridgments, arrangements, and or other alterations of literary or artistic works; and collection of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents;[4] these works shall be protected as new work provided:  That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. [5]

Based on the abovementioned provisions, we can say that fan art in a copyright infringement, but then the law also provides for the fair use of the copyright which does not constitute infringement, which is the tricky part. Under the fair use of a copyrighted work: The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include: (a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (b) The nature of the copyrighted work; (c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) The effect of the use upon the potential market for or value of the copyrighted work; the fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[6]

Based on these provisions, we can say that fan art may be legal and may be an infringement, how to determine this is up to the courts. Where fair use ends, is also up to the court to determine. As of now, fan art is rampant, some for profit and some just for fun. We may have enough legislation, but it is up to the authors to raise their right and to put a stop if they feel that their right is being violated.

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[1] Sec. 172.1, RA 8293

[2] Sec. 172.2, RA 8293

[3] Sec. 177, RA 8293

[4] Sec. 173.1, RA 8293

[5] Sec. 173.2, RA 8293

[6] Sec. 185, RA 8293

Data Privacy Act of 2011, Comment

Data Privacy Act of 2011

Comment:

The Data Privacy Act of 2011 in its declaration of policy recognized the privacy of communication as a fundamental human right and the importance of information and communications technology in nation-building. Along with this declaration, is the statement of the State’s obligation of ensuring that such communications and information are secured and protected.

The Act covers the processing of all types of personal information, defining processing as any operation or set of operations performed upon personal information including, but not limited to, the collection, recording, organization, storage, updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data. It also covers natural and juridical persons involved in personal information processing such as personal information controllers and processors. However, some information are not covered, among those are information about all individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, information relating to any discretionary benefits of a financial nature, personal information processed for journalistic, artistic, literary or research purposes, and personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions.

The Act laid down the requirements for lawful processing of personal information, rights of the data subject, and the penalties for unauthorized processing, accessing, improper disposal, wrongful processing of personal information.

At first look on the Data Privacy Act of 2011, I thought they were just words and letters passing my eyes, the Act was worded very technically, that I myself had a hard time getting through the definition part alone. I think the words used to define the technical terms, were, in themselves, technical. I think it is a short coming of the act that it did not give more attention to the web where there is more threat. I also think that mere establishing a commission is not enough to implement said law and to guarantee protection.

After getting the hang of all the technical terms, I now come to the more important matter which is, is there really a need for such a law? In the modern day that we are in, and with all the marketing schemes that there are, and the hype to take advantage of freebees, we are easily drawn to give out our name, our number, and some information. Ever received a telemarketing call? Where do you think they get your information? We may not realize it yet, but this is a product of lack of legislation on data processing, that is lack of protection on our part. I think it is now time to enact a law that would protect one’s privacy in personal information. A lot of people have not realized yet the dangers of giving away personal information without protection.