November 9, 2011
Can email and FB posts be used as evidence?
Dear Atty. Allen:
I would like to share my problem about my marriage. My husband and I have been married for almost two years. We don't have a child. My husband is a seafarer. I work in a private company. Middle of this year, I discovered that my husband is having an affair with his co-seafarer. She is a galley girl in the ship. My husband is a third officer/OIC in the ship. They were on board together on the same ship for three months. I have read all their intimate conversations and plans against me from his Yahoo! and Facebook accounts. My husband is even planning to file for an annulment. I confronted my husband about this when he came home recently and he admitted the affair. He asked for forgiveness and told me that the affair has ended. My heart wants to believe him but my mind resists. My husband is back on board on a different ship but they are still under the same agency. My question is, can Facebook posts and Yahoo! e-mails be used as evidence to file a case against my husband if ever I find out that he continues with the affair? Please enlighten me.
Atty. Allen replies:
I typically do not enjoy responding to legal problems about marital infidelity. It breaks my heart that in failed marriages, it is almost always the women who get the raw end of the deal. At the same time, however, I am always delighted to see that more and more women know what they want and are standing up for what they think they deserve. At any rate, your letter is interesting and new, and so I'm excited to attempt to answer your question.
You want to know if you can use the evidence from your husband's and her paramour's Yahoo! and Facebook accounts as evidence to prove their infidelity. On its surface, your problem is governed by evidentiary rules, specifically the Rules on Electronic Evidence (REE). The REE took effect on August 1, 2001, at a time when social networking and Facebook were unheard of. Unfortunately, since the REE and the E-Commerce Act, on which the REE was based, are fairly new, there are only a few cases decided by the Supreme Court that can help us in this discussion. To my knowledge, there is no decided case yet that is specifically instructive on the admissibility of Facebook posts.
As far as the REE is concerned, Facebook posts and Yahoo! mails are covered by the definition of "ephemeral electronic communication" under Rule 2, Section 1(k), which states that the term "refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained." This is because Yahoo! mails and Facebook posts may be accessed for any duration of time but are susceptible of being deleted, kept private, or restricted access.
In general, electronic evidence, including ephemeral ones like Facebook posts and Yahoo! mails, may be presented as evidence in any judicial proceeding, provided they are offered in the manner provided by the Rules. Section 2, Rule 11 of the REE, prescribes the manner of offering evidence of ephemeral communication as follows: "Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted."
This simply means that you, having direct knowledge of the existence of the Facebook posts and Yahoo! mails because you have seen them with your own eyes, can testify on the existence of these ephemeral communication before the court. However, since you are not a party to the communication, it could be challenging to prove by competent evidence the identity of the parties themselves.
If you were able to save a screenshot of the Facebook posts and Yahoo! mails, then the last paragraph of Section 2, Rule 11 of the REE may apply. The provision says: "If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply."
Rule 5, on the other hand, provides primarily that the party who seeks to introduce an electronic document in any proceeding has the burden of proving its authenticity. This means that should you wish to use as evidence the screenshots of the Facebook posts and Yahoo! mails between your husband and his paramour, you will have to establish their authenticity through evidence showing their integrity and reliability to the satisfaction of the judge. Unfortunately, as I previously said, there is as yet no decided cases that set the guidelines on authenticating Facebook posts.
In cases involving text messages as evidence, the Supreme Court ruled that it is sufficient for the sender to have admitted that the mobile number from whom the text messages came from was his. This served to authenticate the messages presented by the receiving party. Applying this to emails, an admission by a party that the email address of the sender belongs to him could also serve to authenticate the emails themselves.
For emails, however, it is generally believed that their integrity and reliability depends on the person offering them as evidence. Because emails may be fabricated, the capability of the person presenting and his or her motive are also taken into consideration. For example, if it seems that the party presenting has the means or ability to fabricate the email, and the motive to do so, then the email evidence could be given little or no weight.
The sub-question that you need to answer though is whether or not the Facebook posts and Yahoo! mails are privileged or private in nature. I would assume that the Yahoo! mail exchanges are private, unless your husband supplied you with his password himself, such that he had no expectation of privacy against your prying eyes. Otherwise, the email exchanges are not admissible in evidence since presenting them before the court would violate your husband and his paramour's right to privacy of communication. As for the Facebook posts, if they are public in nature, then no such violation exists, and the court is authorized to admit them in accordance with the REE.
If you have questions for Atty. Allen, email firstname.lastname@example.org.
Atty. Allen A. Liberato is head of Corporate Legal Affairs at strategic marketing communications firm TeamAsia. She earned her Bachelor's Degree from the University of the Philippines Diliman and her law education from the University of Perpetual Help under Dean Justice Isagani A. Cruz.