“Man is least himself when he talks in his own person. Give him a mask, and he will tell you the truth. - Oscar Wilde

Saturday, September 15, 2012

MCC Industrial Sales Corp. vs. Ssangyong Corp.

G.R. No. 170633     October 17, 2007
Nachura, J.     Third Division


            Petitioner MCC Industrial Sales (MCC) 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. The two corporations conducted business through telephone calls and facsimile or telecopy transmissions.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.

Ssangyong then filed, on November 16, 2001, a civil action for damages due to breach of contract against defendants MCC, Sanyo Seiki and Gregory Chan before the Regional Trial Court of Makati City. In its complaint, Ssangyong alleged that defendants breached their contract when they refused to open the L/C in the amount of US$170,000.00 for the remaining 100MT of steel under Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2.

After Ssangyong rested its case, defendants filed a Demurrer to Evidence alleging that Ssangyong failed to present the original copies of the pro forma invoices on which the civil action was based.

The RTC, however, excluded Sanyo Seiki from liability for lack of competent evidence.

On August 31, 2005, the CA rendered its Decision affirming the ruling of the trial court, but absolving Chan of any liability. The appellate court ruled, among others, that Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F") were admissible in evidence, although they were mere facsimile printouts of MCC's steel orders.


Whether or not photocopies of facsimile printouts are admissible in evidence.


            To be admissible in evidence as an electronic data message or to be considered as the functional equivalent of an original document under the Best Evidence Rule, the writing must foremost be an "electronic data message" or an "electronic document."

Paper records that are produced directly by a computer system, such as printouts, are themselves electronic records, being just the means of intelligible display of the contents of the record. Photocopies of the printout would be paper records subject to the usual rules about copies, but the "original" printout would be subject to the rules of admissibility of this Act.

However, printouts that are used only as paper records, and whose computer origin is never again called on, are treated as paper records. In this case the reliability of the computer system that produced the record is relevant to its reliability.

Thus, in Garvida v. Sales, Jr., where we explained the unacceptability of filing pleadings through fax machines, we ruled that:

x x x A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading.

Accordingly, in an ordinary facsimile transmission, there exists an original paper-based information or data that is scanned, sent through a phone line, and re-printed at the receiving end.

Be it noted that in enacting the Electronic Commerce Act of 2000, Congress intended virtual or paperless writings to be the functional equivalent and to have the same legal function as paper-based documents. Further, in a virtual or paperless environment, technically, there is no original copy to speak of, as all direct printouts of the virtual reality are the same, in all respects, and are considered as originals. Ineluctably, the law's definition of "electronic data message," which, as aforesaid, is interchangeable with "electronic document," could not have included facsimile transmissions, which have anoriginal paper-based copy as sent and a paper-based facsimile copy as received.

We, therefore, conclude that the terms "electronic data message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmissioncannot 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 a fax transmission not electronic evidence. In the present case, therefore, Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E" and "F"), which are mere photocopies of the original fax transmittals, are not electronic evidence, contrary to the position of both the trial and the appellate courts.

Virgilio O. Garcillano vs. The House of Representative Committees on Public Information et al.

 G.R. No. 170338     December 23, 2008
Nachura, J.     En Banc

G.R. No. 179275     December 23, 2008
Nachura, J.     En Banc


Tapes ostensibly containing a wiretapped conversation purportedly between the President of the Philippines and a high-ranking official of the Commission on Elections (COMELEC) surfaced. The tapes, notoriously referred to as the "Hello Garci" tapes, allegedly contained the President’s instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings were to become the subject of heated legislative hearings conducted separately by committees of both Houses of Congress.

In one of the Senate’s plenary session, a lengthy debate ensued when Senator Richard Gordon aired his concern on the possible transgression of Republic Act (R.A.) No. 4200 if the body were to conduct a legislative inquiry on the matter. Senator Miriam Defensor-Santiago delivered a privilege speech, articulating her considered view that the Constitution absolutely bans the use, possession, replay or communication of the contents of the "Hello Garci" tapes. However, she recommended a legislative investigation into the role of the Intelligence Service of the AFP (ISAFP), the Philippine National Police or other government entities in the alleged illegal wiretapping of public officials.

Petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, docketed as G.R. No. 179275, seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the Constitution.


            Whether or not the publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is sufficient compliance of the publication requirement prior to the effectivity of laws and other issuances.


The Supreme Court (hereafter Court) dismissed the petition in G.R. No. 170338 but granted the petition in G.R. No. 179275. A writ of prohibition was issued enjoining the Senate of the Republic of the Philippines and/or any of its committees from conducting any inquiry in aid of legislation centered on the "Hello Garci" tapes.

The Court held that the Senate cannot be allowed to continue with the conduct of the questioned legislative inquiry without duly published rules of procedure, in clear derogation of the constitutional requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the House of Representatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure."

The respondents in G.R. No. 179275 admitted in their pleadings and even on oral argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of general circulation only in 1995 and in 2006. With respect to the present Senate of the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007, no effort was undertaken for the publication of these rules when they first opened their session.

The phrase "duly published rules of procedure" requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it.

Respondents justify their non-observance of the constitutionally mandated publication by arguing that the rules have never been amended since 1995 and, despite that, they are published in booklet form available to anyone for free, and accessible to the public at the Senate’s internet web page.

The Court did not agree. The absence of any amendment to the rules cannot justify the Senate’s defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution.

Justice Carpio’s response to the same argument raised by the respondents is illuminating:

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Tañada v. Tuvera ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules "shall take effect seven (7) days after publication in two (2) newspapers of general circulation," precluding any other form of publication. Publication in accordance with Tañada is mandatory to comply with the due process requirement because the Rules of Procedure put a person’s liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate.

The invocation by the respondents of the provisions of R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes. In other words, the law merely recognizes the admissibility in evidence (for their being the original) of electronic data messages and/or electronic documents. It does not make the internet a medium for publishing laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do so only "in accordance with its duly published rules of procedure."

Expertravel & Tours, Inc. vs. The Honorable Court of Appeals and Korean Airlines

G.R. No. 152392     May 26, 2005
Callejo, Sr.     Second Division


Korean Airlines (hereafter KAL), through Atty. Mario Aguinaldo (hereafter Atty. Aguinaldo), filed a Complaint against Expertravel & Tours, Inc. (hereafter ETI) with the Regional Trial Court (hereafter RTC) of Manila for the collection of sum of money, among others. 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 filed 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 as required by Section 5, Rule 7 of the Rules of Court.

KAL submitted an Affidavit, executed by its general manager Suk Kyoo Kim, alleging that the board of directors conducted a special teleconference, which he and Atty. Aguinaldo attended. It was also averred that in that same teleconference, the board of directors approved a resolution authorizing Atty. Aguinaldo to execute the certificate of non-forum shopping and to file the complaint. Suk Kyoo Kim also alleged, however, that the corporation had no written copy of the aforesaid resolution.

Based on the foregoing Affidavit, the RTC denied the motion to dismiss. ETI filed a motion for the reconsideration of the Order, contending that it was inappropriate for the court to take judicial notice of the said teleconference without any prior hearing. The same having been denied, the matter was elevated to the Court of Appeals (hereafter CA)

The CA rendered judgment dismissing the petition, ruling that the verification and certificate of non-forum shopping executed by Atty. Aguinaldo was sufficient compliance with the Rules of Court. According to the appellate court, Atty. Aguinaldo had been duly authorized by the board resolution, and was the resident agent of KAL. As such, the RTC could not be faulted for taking judicial notice of the said teleconference of the KAL Board of Directors.


            Whether or not teleconferencing may be a matter of judicial notice.


The RTC took judicial notice that because of the onset of modern technology, persons in one location may confer with other persons in other places, and, based on the said premise, concluded that Suk Kyoo Kim and Atty. Aguinaldo had a teleconference with the respondent’s Board of Directors in South Korea. The CA, likewise, gave credence to the respondent’s claim that such a teleconference took place, as contained in the affidavit of Suk Kyoo Kim, as well as Atty. Aguinaldo’s certification.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable.

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge.

In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing. Teleconferencing is interactive group communication (three or more people in two or more locations) through an electronic medium. In general terms, teleconferencing can bring people together under one roof even though they are separated by hundreds of miles. This type of group communication may be used in a number of ways, and have three basic types: (1) video conferencing - television-like communication augmented with sound; (2) computer conferencing - printed communication through keyboard terminals, and (3) audio-conferencing-verbal communication via the telephone with optional capacity for telewriting or telecopying.

In the Philippines, teleconferencing and videoconferencing of members of board of directors of private corporations is a reality, in light of Republic Act No. 8792. The Securities and Exchange Commission issued SEC Memorandum Circular No. 15, on November 30, 2001, providing the guidelines to be complied with related to such conferences. Thus, the Court agrees with the RTC that persons in the Philippines may have a teleconference with a group of persons in South Korea relating to business transactions or corporate governance.

Emmanuel B. Aznar vs. Citibank, N.A. (Philippines)

G.R. No. 164273     March 28, 2007
Austria-Martinez, J.     Third Division


Emmanuel B. Aznar (hereafter Aznar) is a holder of a Preferred Master Credit Card (hereafter Mastercard). Aznar claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and Indonesia, the same was not honored. And when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it was again dishonored for the reason that his card was blacklisted by Citibank.

To prove that Citibank blacklisted his Mastercard, Aznar presented a computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by Ingtan Agency with the signature of one Victrina Elnado Nubi (hereafter Nubi) which shows that his card in question was "DECL OVERLIMIT" or declared over the limit.

The Regional Trial Court rendered its decision dismissing Aznar’s complaint for lack of merit. It held that as between the computer print-out presented by Aznar and the Warning Cancellation Bulletins presented by Citibank, the latter had more weight as their due execution and authenticity were duly established by Citibank.

Upon motion for reconsideration, the decision was reversed. Judge De la Peña ruled that the computer print-out was printed out by Nubi in the ordinary or regular course of business in the modern credit card industry and Nubi was not able to testify as she was in a foreign country and cannot be reached by subpoena. The same took judicial notice of the practice of automated teller machines (ATMs) and credit card facilities which readily print out bank account status, therefore the print-out can be received as prima facie evidence of the dishonor of Aznar’s Mastercard;

On appeal, the Court of Appeals (hereafter CA) ruled that the computer print-out is an electronic document which must be authenticated pursuant to Section 2, Rule 5 of the Rules on Electronic Evidence or under Section 20 of Rule 132 of the Rules of Court by anyone who saw the document executed or written; Aznar, however, failed to prove its authenticity, thus it must be excluded;


Whether or not the "On Line Authorization Report" is an electronic document."

Whether or not the "On Line Authorization Report" constitutes electronic evidence;


The Supreme Court (hereafter Court) denied the petition for lack of merit.

Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT, a computer print-out handed to Aznar by Ingtan Agency, to prove that his Mastercard was dishonored for being blacklisted. On said print-out appears the words "DECL OVERLIMIT".

As correctly pointed out by the RTC and the CA, however, such exhibit cannot be considered admissible as its authenticity and due execution were not sufficiently established by petitioner.

The prevailing rule at the time of the promulgation of the RTC Decision is Section 20 of Rule 132 of the Rules of Court. It provides that whenever any private document 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.

Aznar, who testified on the authenticity did not actually see the document executed or written, neither was he able to provide evidence on the genuineness of the signature or handwriting of Nubi, who handed to him said computer print-out.

Even if examined under the Rules on Electronic Evidence, which took effect on August 1, 2001, and which is being invoked by Aznar in this case, the authentication of the computer print-out would still be found wanting.

Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other evidence showing integrity and reliability of Exh. "G" to the satisfaction of the judge." The Court is not convinced. Aznar’s testimony that the person from Ingtan Agency merely handed him the computer print-out and that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print-out’s integrity and reliability.

Rustan Ang vs. The Honorable Court of Appeals and Irish Sagud

G.R. No. 182835     April 20, 2010
Abad, J.     Second Division


Herein petitioner Rustan Ang (hereafter Rustan) allegedly sent through the Short Messaging Service (SMS) using his mobile phone, a pornographic picture to respondent Irish Sagud (hereafter Irish), who was his former girlfriend, whereby the face of the latter was attached to a completely naked body of another woman making it to appear that it was said Irish who is depicted in the said picture.

After she got the obscene picture, Irish got other text messages from Rustan. The latter threatened to spread the picture he sent through the internet. One of the messages he sent to Irish, written in text messaging shorthand, read: "Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa lahat ng chatter."

Irish sought the help of the police. Under police supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture and his text messages. Irish asked Rustan to meet her, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the waiting police officers intercepted and arrested him. They searched him and seized his Sony Ericsson P900 cellphone and several SIM cards.

The public prosecutor charged Rustan before the Regional Trial Court ( hereafter RTC) of Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children Act or Republic Act No. 9262.

The RTC issued a Decision in favor of Irish, which was later affirmed by the Court of Appeals (hereafter CA).


Whether or not the RTC properly admitted in evidence the obscene picture presented in the case.


The Supreme Court (hereafter Court) denied the petition and affirmed the decision of the CA.

Rustan claimed that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).

But, firstly, Rustan raised this objection to the admissibility of the obscene picture for the first time before the Court. The objection was too late since he should have objected to the admission of the picture on such ground at the time it was offered in evidence. He was deemed to have already waived such ground for objection.

Besides, the rules he cited do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.

In conclusion, this Court finds that the prosecution has proved each and every element of the crime charged beyond reasonable doubt.

File-Sharing and Copyright Laws

A study of local and foreign legislation, bills and treaties about ‘downloading’ copyrighted works

            Copyright is that intellectual property right which one has over “original intellectual creations in the literary and artistic domain protected from the moment of their creation.[1]

       Most, if not all, of the works protected by copyright as enumerated under various  Sections in Part IV of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, are available on the internet. These can be viewed, streamed, copied and downloaded, often free of charge. And more often than not, these are made available or ‘shared’ by persons other than the owner of the copyrighted work.

            File-Sharing/Downloading in the Philippine Setting

Any person  other than the owner of the copyrighted work who without authorization makes available said work on the internet is liable for infringement because a copyright owner has "the exclusive right to carry out, authorize or prevent" the "communication to the public of the work."[2] This begs the question whether the person who takes advantage of the availability of the work and downloads the same is also liable for infringement.

            The rights that an author of a work enjoy is three-fold in character, viz:  (1) economic rights; (2) moral rights; and (3) neighboring rights. The violation of any of these rights constitutes infringement. The specific acts that constitute infringement are enumerated in R.A. No. 8293; however, the act of downloading a copyrighted work is not expressly, or even impliedly, prohibited. It is also unfortunate that the issue has not been tackled yet in the courts. Ergo, it is safe to say that there is no restriction on online downloading in the Philippines.

Stop Online Piracy Act (SOPA) / PROTECT Intellectual Property Act (PIPA) (US)

What it is:

The Stop Online Piracy Act (SOPA) is a United States bill (House Bill No. 3261) introduced on October 26, 2011 by U.S. Representative Lamar S. Smith (R-TX) to expand the ability of U.S. law enforcement to fight online trafficking in copyrighted intellectual property and counterfeit goods. Provisions include the requesting of court orders to bar advertising networks and payment facilities from conducting business with infringing websites, and search engines from linking to the websites, and court orders requiring Internet service providers to block access to the websites. This applies only to non-U.S. sites.[3]

On the other hand, the PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PIPA) is also a United States bill (Senate Bill No. 968) introduced on May 12, 2011, by Senator Patrick Leahy (D-VT) with the stated goal of giving the US government and copyright holders additional tools to curb access to "rogue websites dedicated to the sale of infringing or counterfeit goods", especially those registered outside the U.S.[4]

Both proposed legislation are aimed at stopping copyright infringement at the source, meaning to say they prevent the proliferation of infringing content; but it is not clear whether the act of downloading content that has not been blocked or removed is considered unlawful.

Applicability in the Philippine setting:

Many of the provisions in the SOPA and PIPA have drawn flak from various sectors. Issues have been raised as to the consitutionality of said bills, in addition to potential financial and industrial ramifications. As they are, similar legislation should not be adopted in the Philippines.

However, the SOPA and PIPA do have provisions that would be beneficial if adopted, particularly those that provide penalties for selling counterfeit drugs and consumer goods through the internet. These may be incorporated into exisiting laws on e-commerce and intellectual property (if still not provided) in order to avoid the adoption of the other controversial provisions.

The Digital Economy Act of 2010 (UK)

What it is:

The Digital Economy Act 2010 (c. 24) is an Act of the Parliament of the United Kingdom regulating digital media. Introduced by Lord Mandelson, it received Royal Assent on 8 April 2010, and came into force on 8 June 2010.[5]

The copyright provisions in the Act and in the proposed regulatory code of the Office of Communications outlines how to proceed against a person who commits copyright infringement. It begins with rightsholders gathering lists of Internet Protocol addresses which they believe have infringed their copyrights. They would then send each IP number to the appropriate Internet Service Provider, along with a "copyright infringement report".[6]

The ISP must then determine whether the infringement report is valid and send a notification to the subscriber in question if it is. The report and the subscriber it refers to are recorded by the ISP, but no further action is taken.[7]

The next stage in proceedings involves the rightsholder requesting a "copyright infringement list" from the ISP. The rightsholder can then approach a judge to gain a court order to identify some or all of the subscribers on the list, and with that information launch standard copyright infringement litigation against them.[8]

Further, the Act allows the Secretary of State - with the consent of the Lord Chancellor, upper and lower houses of Parliament and a court of law - to block access to a location on the Internet "from which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright", or a location which "facilitates" such behaviour.[9]

            However, it was reported that the key provision of the act - sending out warning letters - has been continually delayed. The first letters are not expected to be sent until at least 2014.[10]

Applicability in the Philippine setting:

            A comparison between the SOPA/PIPA and the Digital Economy Act of 2010 reveals that the latter is less strict, and premium is given on due process (as can be seen above). A similar legislation may be adopted in the Philippines, although the “website banning” measure may have to be deliberated upon, because it may infringe on the constitutional right to freedom of expression in the Philippines.

            Moreover, under the Digital Economy of Act of 2010 a website that hosts content or even links that lead to other sites that violate copyright protection may be banned. The issue here is that other content or links that do not violate copyright protection will also be banned. This collateral damage borders on internet censorship and violation of the right to freedom of expression. This kind of provision may not receive major approval in the Philippines, since in the country constitutional rights are zealously guarded.

HADOPI Law (France)

What it is:

            The law creates a government agency called Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (HADOPI) (English: the High Authority for Transmission of Creative Works and Copyright Protection on the Internet) and it was adopted by the French Senate on May 13, 2009. On October 22, 2009, the Constitutional Council approved a revised version of HADOPI. The agency is vested with the power to police Internet users. The agency’s mandate is to ensure that internet subscribers "screen their internet connections in order to prevent the exchange of copyrighted material without prior agreement from the copyright holders."[11]

On receipt of a complaint from a copyright holder or representative, HADOPI may initiate a 'three-strike' procedure. On the third violation, the internet access subscriber is blacklisted and other ISPs are prohibited from providing an internet connection to the blacklisted subscriber. The service suspension does not, however, interrupt billing, and the offending subscriber is liable to meet any charges or costs resulting from the service termination.[12]

Further, action under the HADOPI law does not exclude separate prosecution under the French code of Intellectual Property, particularly its articles L331-1 or L335-2, or limit a claimant's other remedies at law.[13]

Applicability in the Philippine setting:

            The HADOPI law provides for a “three-strike” rule similar to that implemented in New Zealand, among others. This concept is very simple. On the first instance of copyright infringement, a reminder will be sent via email message  to the offending internet subscriber. On the second instance, a certified letter-reminder will be sent. Finally, a third violation will warrant the suspension of internet access for a specified period of time. This can only be done upon a written order from a judge.

            The HADOPI law is a good measure to curb copyright infringement, mainly because of the “three-strike” rule , which provides stringent measures but puts premium on due process, a right that is given great importance in the Philippines.

The mandate may be given to the Intellectual Property Office. However, the question of feasibility or practicability arises. It would seem that in the current Philippine setting, this would only apply to internet service subscribers whose e-mail addresses and physical addresses are registered with the internet service provider. The problem is, majority of Filipinos avail of internet service using pre-paid subsciption, broadband service or Wi-Fi hotspots, among others. In the latter cases, the e-mail and physical addresses are usually not registered. Some subscribers may not even have an e-mail account. The offending person may be located by tracking the internet protocol (IP) address, but then this is a tedious process, and some would say that this is violative of the constitutional right to privacy.

            Beside that, the addition of personnel to monitor internet traffic and send notices, not to mention the operational expenses, would make the implementation of this scheme very expensive.

Copyright (Infringing File Sharing) Amendment Act 2011 (NZ)

What it is:

The Copyright (Infringing File Sharing) Amendment Act of 2011 is an Act of the Parliament of New Zealand which amended the Copyright Act of 1994. It commenced on September 01, 2011.[14]

The Copyright (Infringing File Sharing) Amendment Act 2011 provides for what is known as graduated response. Under the Act copyright owners notify fixed-line ISPs (the Act does not apply to mobile networks until 2013) that they believe an internet subscriber is infringing their copyright through peer-to-peer filesharing, the ISPs in turn send warning notices to the relevant subscribers, and after three such warnings the copyright owner may take their case to the Copyright Tribunal.[15]

Applicability in the Philippine setting:

            Please see above discussion on applicability in the Philippine setting of the HADOPI law.

Anti-Counterfeiting Trade Agreement

What it is:

            The Anti-Counterfeiting Trade Agreement (ACTA), is a multinational treaty for the purpose of establishing international standards for intellectual property rights enforcement. The agreement aims to establish an international legal framework for targeting counterfeit goods, generic medicines and copyright infringement on the Internet, and would create a new governing body outside existing forums.[16]

The treaty is according to Article 39 open for signature until May 01, 2013 for the participants involved in the negotiations as well as all members of the World Trade Organization (WTO) of which the participants agree. After entry into force, the treaty would only apply in those countries that ratified it. The finalized agreement text was published on April 15, 2011 and includes six chapters with 45 articles.[17]

Applicability in the Philippine setting:

            A perusal of the text of the ACTA reveals that the treaty stipulations are in keeping with the general principles of international law. There is a focus on enforcement and international cooperation, which is prudent because online piracy spans then entire globe.

            The ACTA drew a lot of criticism because of the fact that the negotiation stage was not public, and prior requests for the full text of the same was withheld from the public. Moreover, the public has no access to the deliberations on the ACTA provisions. This poses some difficulty for countries who have yet to enter into agreement or ratify the treaty because most of the provisions are couched in general terms.

            However, it would seem that there is no downside to enter into and ratify the ACTA because even after ratification, the Supreme Court has the power of judicial review over the constitutionality of any treaty, international or executive agreement[18], and must hear such cases en banc.[19] Also, there are certain grounds to invalidate a treaty or even to terminate the same.


            Discussed above are two (2) bills (SOPA and PIPA), three (3) legislative acts (The Digital Economy Act 2010 [UK], HADOPI Law [France] and Copyright Amendment Act 2011 [NZ)]) and one (1) treaty (Anti-Counterfeiting Trade Agreement). If any or all of them are adopted or ratified in the Philippines, there will be issues of infringement of the constitutional rights to privacy and free speech.

            Below is a quick run-down of possible scenarios:

1.       Search engines, e.g. Google, Yahoo and Altavista, may be required to delete or not show a domain name or website which contains material or links that infringe copyright, although some or most of the other contents are legitimate.
2.      The three-strike rule discourages many to use the internet for fear of fines, suspension of account or blacklisting.
3.      Stringent laws could discourage e-commerce because of the difficulty of storing, transmitting and receiving files in the internet.
4.      Regulatory agencies/boards that monitor internet use also have access to IP addresses, email addresses and even physical addresses of internet subscribers.
5.      Internet Service Providers (ISPs) may be liable for action of subscribers, especially if they do not cooperate with regulatory aegncies; hence they may be constrained to provide confidential information to avoid being impleaded during litigation.
6.      Free software will not be distributed with facility because peer-to-peer (P2P) hosts are regulated.
7.      The ACTA is said to promote invasive searches even without probable cause as long as there is suspicion of infringement.

Any of the above-mentioned scenarios can arguably lead to an infringement of constitutional rights to privacy and free speech as iterated in Sections 3 and 4 of Article III of the 1987 Philippine Constitution. Altough these rights are not absolute, still these should be treated of paramount importance; hence, extreme caution must be exercised in the adoption of any similar legislation.