The Philippine IT Law Journal

Electronic Authentication System: A Breakthrough in Notarization
by Ma. Cristina A. Ramos

Notaries public, as we know them today, originated as scribes. Scribes, Latin scribae, are literate clerks who took notes of important events and discussions and made copies both of public and private documents. The role of these scribes can be traced back to pre-Biblical times in Ancient Egypt and Greece. The importance of these scribes became more and more important when the value of official record-keeping was recognized and when societies began to formalize their rules and decisions. ^{[ 1 ]}

In Ancient Rome, scribes who performed the function of the notary were known as tabellions. Instead of paper, these tabellions used tabulae or tables or plates covered with wax. Later on, a new system of shorthand writing called notae tironinae was developed. It was a system of arbitrary marks or signs called notae. The person who adopted this method was called a notarius. Although originally applied to a shorthand writer, the term notarius became used exclusively to a publicly appointed official who performed the functions similar to that of a present-day notary. ^{[ 2 ]}

The Philippine Notarial Law

In the Philippines, notaries public are members of the Bar commissioned by, and are under The supervision of, Executive Judges of the territory where they perform their notarial functions. The laws and regulation governing notaries public include the following:

Notarization converts a private document into a public document and renders the document admissible in court as evidence without need for further proof of its authenticity. A notarized document is entitled, by law, to full faith and credit upon its face. ^{[ 3 ]} Notarization also vests upon the document the presumption of regularity unless it is impugned by strong, complete and conclusive proof. ^{[ 4 ]}

When a notary public affixes his signature and notarial seal to an instrument, after putting the affiants under oath, he makes the following warranties:

In short, notarization under existing laws necessitates personal appearance of the affiants or the parties before a notary public to satisfy the foregoing warranties.

e-Notarization under the e-Commerce Act

To keep pace with the global developments in information technology, Congress enacted into law Republic Act No. 8792, also known as the Electronic Commerce Act of 2000) on June 14, 2000. The law gave validity and legal recognition to electronic documents and electronic contracts as the functional equivalent of paper-based documents. ^{[ 5 ]} Corollary to this is the legal recognition of electronic and digital signatures affixed on electronic documents and electronic contracts. These signatures are now legally recognized as equivalent to the signature of a person on a written document. ^{[ 6 ]} Electronic contracts and documents would not be denied validity, enforceability and admissibility as evidence for as long they preserved their integrity and reliability and can be authenticated in accordance with the law and established rules of procedure.

Section 11 of the Electronic Commerce Act of 2000 authorized the Supreme Court to determine the appropriate rules governing the authentication of electronic documents and electronic contracts "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 appointed certification authorities."

Electronic notarization is the performance of a legal act that will facilitate the conversion of private documents in electronic form into "public documents" and provide them with the legal attributes and character as such. It is the digitalization" of the performance of the function of a notary public.

Current efforts of the Supreme Court ^{[ 7 ]}

At present, the Management Information System Office (MISO) of the Supreme Court, headed by Atty. Ivan John Uy, has completed ninety percent (90%) of the Rules on Electronic Notarization. According to Atty. Uy, the Rules will be presented to the Supreme Court for consideration in July this year. The rules on electronic notarization is expected to be approved, released and implemented before the end of 2004.

Critics of the implementation of the electronic notarization system argue the possible conflict of this set up with the legal requirements of the existing notarial law. Atty. Uy, however, said that this issue has already been addressed. He explained that the electronic notarization system is a sui generis. It is a concept of its own, a unique one. Nevertheless, it will have the same effect as the notarization of paper-based documents. Simply put, it will also have the "functional equivalent" of the notarization of paper-based documents.

Atty. Uy recognized that "electronic notarization is like putting a square peg in a round hole." For this reason, the proposal is to denominate the system as "Electronic Authentication System for Electronic Documents".

The MISO has conceptualized two (2) types of Electronic Authentication System. The first type is an "on-line authentication system" while the second system would require the personal appearance of the parties. The Rules that MISO is preparing are intended for these two types of election authentication system.

On-line authentication system

The first type or the on-line authentication system is intended to cater to parties who are physically remote from each other but wish to have their document authenticated to convert the same as a public document. In this system, there would be a virtual room where the parties will meet on-line via NetMeeting or net conference. An officer duly authorized by the court to conduct electronic authentication should also be present in the virtual room and after taking proper procedural safeguards, the parties and the authenticating officer similar to a notary public, shall affix their electronic signatures in the electronic document.

Prior to the drafting of the rules, some legal practitioners have commented on the potential dangers of this type of authentication system particularly on the authenticity of the document. The primary concern is how can the other parties and the authenticating officer be assured that the person attaching the digital signature is indeed the person he or she should be. According to Atty. Uy, they are going to require in the rules the use of mechanisms that will verify or ascertain the identity of the parties including probably the use of a video camera to see the person at the other end of the screen.

Utilization of biometrics technology is also being considered. "Biometrics refers to the authentication techniques that rely on measurable physical characteristics that can be automatically checked." ^{[ 8 ]} A commonly used biometrics is the computer analysis of fingerprints. In order to avail of this type of authentication system, the personal computers of the parties should have, for example, a fingerprint scanner, where each of them could place his or her index finger. The computer would analyze the fingerprint to determine the identity of the person at the other end of the screen. With this mechanism, the risk of the digital signature being accessed or used without authority will be avoided.

Another potential danger of this type of electronic authentication system is the risk that the owner of the digital signature be coerced to put his digital signature on the electronic document without the notary public knowing of such fact. This danger is something that the Electronic Authentication System may not resolve. However, It is worthy to note that even in the notarization of paper-based documents, such vitiation of consent cannot be avoided. "When you introduce something new, you should not expect that it is a 'cure-all' thing. It will definitely improve the system but it will not cure all the defects," said Atty. Uy.

Personal appearance before an authentication officer

The second type of Electronic Authentication System being proposed requires the personal appearance of the parties before an authenticating officer. This type of authentication system aims to do away with bulky paper documents. With this system, the parties who wish to have their electronic document authenticated are required to appear before an authenticating officer duly commissioned by the Court. The parties, after reading the electronic document, shall affix their electronic signatures thereon, while the authenticating officer acts as witness. The authenticating officer shall then affix his digital signature in the document, store the said document in a compact disc, reproduce a number of copies thereof as may be required by the rules and give each party his copy of the electronic document. The authenticating officer shall also keep his copy of the document.

The original of an electronic document

Section 3, Rule 130 of the Rules of Court provides that when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, also known in legal parlance as the best evidence rule.

The E-Commerce Act of 2000 and the Rules on Electronic Evidence ^{[ 9 ]} promulgated by the Supreme Court modified the concept of the best evidence rule to capture legal recognition and admissibility of evidence of electronic documents and electronic contracts.

In electronic documents, the E-Commerce Act provides that where the law requires information to be presented or retained in its original form, that requirement is met by an electronic document if the integrity of the information from the time when it was first generated in its final form as an electronic document, is shown by evidence allunde or otherwise. ^{[ 10 ]}

Rule 4 of the Rules on Electronic Evidence provides that "an electronic document shall be regarded as the equivalent of an original under the Best Evidence Rule if it is a print out or output readable by sight or other means, shown to reflect the data accurately." ^{[ 11 ]} Thus, every copy of the electronic document, whether a print out, an e-mail message, or a copy in a hard disk, compact disc or diskette may be regarded as the original. The greatest apprehension with the said provisions is the possibility that "all manner of alterations can be perpetrated in the cyberspace before the document is even printed. ^{[ 12 ]}

The Rules on Electronic Evidence further provides that "[w]hen a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original." ^{[ 13 ]} Thus, for a document to be considered as equivalent of the original, it must be executed at or about the same time as the original.

In the soon-to-be implemented Rules on Electronic Authentication System of Electronic Documents, Atty. Uy declared that a mechanism to ensure that only copies intended to be the equivalent of the original will be presented. He further explained that with the 'time and date stamp' or digital stamping, the integrity of an electronic document would be proved. Upon signing an electronic document, the parties will secure a time and date stamp. Such stamp assures the existence of an electronic document at one certain moment. Hence, the original of the electronic document and the equivalent copies of the original bear the same digital stamp. Subsequent copies of the electronic document will certainly bear a different time and date. Therefore, there would be no problem in ascertaining whether a particular electronic document is the original, an equivalent of the original, or a subsequent reproduction thereof.

Electronic notarization is certainly a new and novel concept in legal and judicial systems not only in the Philippines but worldwide. Like any process of change, it is susceptible to resistance particularly from the legal community.

The flexibility of the legal mandate accorded to the Supreme Court by the E-Commerce Act of 2000 to adopt a system of e-notarization and authentication of electronic documents as maybe "necessary and advisable" ^{[ 14 ]} is consistent with the internationally-accepted principle that 'law should be technology neutral' and effectively arrests any legal inconvenience posed by existing notarial laws.

Unfortunately, global trends in legal practice leave our judicial authorities no choice but to start the process of change in our legal system in response to the information technology revolution. The enactment of the E-Commerce Law, the Rules on Electronic Evidence and the prospective Rules on Electronic Authentication System of Electronic Documents is certainly a step in the right direction.

1. Tom Halliwell, "The Notary: A Short History" (2000, May). Retrieved on 2 April 2004. http://www.learnedcounsel.com/notaryhistory.html

12. Jaime C. N. Arroyo, "The law and the Internet Legal Community slams rules on electronic evidence," Cyberdyaryo, 22 August 2001, Retrieved on 2 April 2004. http://www,cyberdyaryo.com/features/2001_0822_02.htm