Digital Signature Legality for Communications & Media in European Union

How to eSign a document: digital signature legality for Communications & Media in European Union

hello everybody good afternoon my name is cassie pajarillo braganza and together with the sydney and the cine messini butted the senior law office we wanted to welcome everybody who has joined us who's joining us today's webinar and today's doing digital business we are going to be talking about doing e-businesses electronic contracts documents and signatures so as the new normal sets in his has become essential to conduct businesses electronically to celebrate the 20th year of the e-commerce act which recognized the validity of conducting business online we will discuss electronic contracts specifically the legal recognition of electronic document and electric signature although we are going to be learning more on terms of how it's being executed we are also going to be talking about how it's is it proven in court through the rules of electronic evidence so again today's agenda we are going to learn the basics of e-commerce act and the basics of the rules of electronic evidence all right good morning good afternoon to everyone uh thank you for joining our uh our webinar today and uh so we will be discussing um doing business electronically which has become sort of a priority issue for a lot of businesses right now electronic contracts and electronic documents and electronic signatures so coincidentally this is in celebration of the 20th year of the e-commerce app which uh which provides the legal basis for much of what we will discuss today okay so uh what will we discuss today so first we will discuss the e-commerce app and the legal recognition under the e-commerce hack of electronic documents and electronic signatures as well as some uh some points about electronic contracts and how to enter into valid electronic contracts uh and then we will also discuss uh electronic evidence basics uh because the rules on electronic evidence uh were enacted by the supreme court uh promulgated by the supreme court the year after in 2001 and actually uh we're very fortunate in that uh the firm was involved in the drafting of the implementing rules and regulations of the e-commerce app as well as co-drafted or participated in the drafting of the rules on electronic evidence uh 20 years ago in 2000 and 2001 respectively uh so we'll just jump right in so the the first topic of course is uh the e-commerce app uh and of course the objective of the e-commerce app uh is to provide a firm legal basis for electronic uh for electronic commerce so back in uh pre-e-commerce uh the big question was you know if i entered into a contract using email uh would that be uh enforceable would the law recognize it as valid or will i have problems can i have it introduced into evidence can a court enforce it and uh the bottom line is that uh around all of these issues there's always that concern uh but actually the law already uh validated all of these things but there's nothing like an express provisioning law that says it is electronic it is recognized these types of contracts and electronic form are recognized and the courts will enforce them and that was uh what happened with the e-commerce app now the e-commerce app was supposed to apply not only to uh actually originally as you take from the from the title uh it's only supposed to cover electronic commerce and indeed our e-commerce app is based on the uncentral model on electronic commerce which was only supposed to cover business transactions or commercial transactions however in the philippines it has been expanded to cover also non non-commercial transactions and even things like family law and even wills so you can have a will uh uh done electronically of course it's tricky especially in our notarial will because we have no provisions now validating electronic notarization uh also 20 years ago the the government uh uh or the e-commerce provided for e-government and in fact required all government agencies within i believe three years from the passage of the law to allow uh filing of electronic documents as part of uh uh as part or required the filing of electronic documents as far as they are transacting with uh with um with citizens and also one of the most uh significant provisions of that law uh was the enactment or criminalization of hacking or cracking uh this is way back in 2000 and in fact at the time that the e-commerce have penalized hacking or karaking uh the philippines had the most um have the most effective or the most modern one of the most modern laws on on cyber crime because one of the things that we penalized under the e-commerce app uh was the act of interfering with the operation of a computer system and that cover distributed denial service attacks and at the time that the law was enacted in 2000 i think the philippines was only one of maybe two or three countries in the world that punished this uh this as a crime okay so just some basic principles so principles that uh underlie the e-commerce have first is the functional equivalence principle in other words the idea here is that anything in electronic form that performs the same function as a document or a signature uh will be considered that that equivalent in the real world so uh for example a signature the purpose of the signature is to identify the person uh and it's adapted by the person in order to indicate that person's consent right or authentication of a document uh and therefore anything in electronic form that performs that function that identifies the person that the person can adopt and indicate his consent to uh to a document will be considered as an electronic signature and therefore functionally equivalent as uh as a handwritten suture the second principle under the e-commerce technology neutrality or in other words the law is supposed to be technology neutral in other words it should not favor one particular type of technology okay and therefore it should admit all types of electronic documents that satisfy functional equivalence as a as equivalent of a written document and in much the same way accept any kind of electronic signature as a valid electronic signature that at least is the principle of course the implementation is different as you will discover later the third is media neutrality in other words since what is protected is information then so long as that information transfers from one media or another from a scanned document on sms from an sms to a fax from a fax to a to a uh to an email all of that uh all of those are now considered part of the e-commerce and covered by the statute and lastly of course is the principle of non-discrimination and in non-discrimination the law is not supposed to discriminate between paper documents and electronic documents between web signatures and valid electronic signatures as recognized under the law okay so what is what is the purpose of the e-commerce app the way that it operates is that there is legal recognition of electronic documents electronic signatures and of course electronic contracts so let's start with electronic documents so in the e-commerce app an electronic document is defined as referring to the information that is generated sent received or stored by electronic optical or similar means so now you see that it's a very very broad definition of what is considered an electronic document uh what's interesting is that we say there is a supreme court decision um where the supreme court the philippine supreme court said and looking back at uh the uh senate proceedings uh for the e-commerce act uh where the court said in that case that faxes are not considered uh electronic documents okay this is because during an interpolation of senator mccain by senator miriam defensor sancho she procured from him right she was asking her series of questions of course she's a lawyer and she must have intimidated uh mr senator mcsay who is not a lawyer and i asked a lot of questions and and at the end of the discussion uh the sponsor of the senator uh maxeisai relented and said that faxes are not part of electronic documents or the definition of electronic documents and on that basis the supreme court uh held that faxes are not intended to be part of electronic documents however i think the problem the problem with that decision is that the language of the statute is very clear that so long as the information is generated sent or stored by electronic means in other words if it is merely sent by electronic means then it is considered an electronic document and therefore uh there's reason to believe that that the supreme court did not follow or i think should have followed the express language of the statute also i think the other thing to consider was that the language that uh of the statute or the la the basis of senator miriam defensor sanchez uh questioning or interpolation of senator max eisenhower was that she was reading of the canadian law or counterpart of the electronic commerce act and in the canadian law faxes are excluded so therefore it was as if they were talking uh in that in that exchange with the supreme court references they were talking apples and oranges they were not talking about the same thing i think if senator sancho wanted to have a discussion with uh senator mccain about this issue she should have stuck to the definition in the uncentral modern law okay so how does the the e-commerce recognize electronic documents and it does so uh as we've quoted here in the negative uh and it says that information so remember the electronic document is the information itself it's not the electronic file it's the information contained in the electronic file okay and so the information this information or electronic document shall not be denied legal validity solely on the ground that it is in the form of a data message or an electronic document so that is a recognition that it is uh supposed to be treated at the same way as electronic uh as a written document and really that is the meaning of uh legal recognition legal recognition means that elect documents when something is in an electronic document it satisfies the e-commerce app uh in terms of integrity and reliability then it is equivalent to a writing in other words anywhere in the law that requires that something be in writing it may now be in an electronic document okay uh and these are examples right under the law where certain documents must be in uh in writing such as uh documents falling under uh the statute of frauds um negotiable instruments for example need to be in writing and also signed uh and of course mary said so these are examples an electronic document now can satisfy uh these requirements uh for in order right in other words if there is a verbal agreement uh and it is not yet performed under the statute of frauds if that agreement can be documented by sms messages by emails then it would be considered inviting you will satisfy the statute of frauds and therefore the contract will no longer be deficient in the case of electronic signatures uh what's interesting is that uh there is a disconnect between what the law defined as an electronic signature and what it finally recognized so the definition as you will see here is very very expansive and in fact the definition satisfies the functional equivalence uh principle in the sense that any mark right any mark are representing the identity of a person uh and attached or logically associated with an electronic document uh if it is adopted by the person right uh and uh with the intention of authenticating or approving a document then that electronic mark or distinctive mark is considered uh an electronic signature and therefore satisfies the definition of an electronic signature now question is that electronic signature are all types of electronic signatures that fall under this definition are they legally recognized and sadly the answer to that question is no that in fact the the e-commerce app only validates a small sub subset of electronic uh signatures and that is governed by this provision this is section eight of the e-commerce app and i've quoted here in full because it is uh in fact a very complicated uh statute right so uh it refers all of these things have to be present right uh before uh the the signature the electronic signature is considered legally recognized and what what do i mean by legally recognized it means that it is the equivalent that electronic signature is equivalent to a wet signature or a handwritten signature such that the document to which that electronic signature relates or is associated to is considered signed under filipino so if something needs to be signed under philippine law for to have for it to have some significant legal effect then it that document must satisfy these requirements of section a now a good example for example is a negotiable promissory note the cultural instruments law requires that negotiable instruments uh must be in writing and signed by the maker or drawer uh if there's anybody out there who's a student of mine a negotiable instrument which i've been teaching for about 20 years uh you will you will know this provision well because i ask you to memorize it okay so what is an electronic signature what are the requirements in order for that electronic signature to be equivalent to 100 and signature so let's go to the first one it says it is a method right unalterable by the parties which is and a method is used to identify the signer and to indicate that signers access to the document second the method is reliable and appropriate for the purpose for which the electronic uh document uh was uh uh for which for which it was generated okay uh it is necessary for the participle to be bound uh to have executed or provided the signature and finally the other party is authorized or unable to verify the signature now this is a lot and back in 2000 when uh when we were analyzing this uh about the only thing that we could uh see that satisfied all of these requirements is a uh digital signature within the context of what's known as a public key infrastructure so that's a that's a mouthful and we will unpack that next week when we talk about electronic signatures uh okay so questions right first what about scan signatures or what i call digitized signatures in other words you have you have your signature you scan it with the scanner you store it in your microsoft word or maybe you store it as a jpeg and when you're going to sign a document you cut and you paste it on the document is that a valid uh electronic signature um so first is it an electronic signature under the definition of the law yes it will satisfies an electronic signature but it but is it a legally recognized signature sadly no why because the requisites of section 8 as i mentioned before i'll bring that up again they don't satisfy these requirements in fact there's a way and i use this all the time where you can scan your signature on on apple uh on apple preview and even have it on your phone and when somebody sends you a pdf you can sign that document right using the functionality there and it's a it's an image of your signature and you can even have a color to it so you can you can use blue you can use red and then you can sign that document so the document would not be considered signed but that would be an electronic signature okay so that that those kinds of documents when you just slap on an image of your signature on an electronic document it is not considered as an equivalent of a signed document under the law now of course there are other technologies out there is one of them adobe signatures and tiwala two allies have a locally developed electronic signature system and we actually hope to to invite a representative to talk about tiwala next week um and in those cases i will reserve uh any comment right now uh tune in next week to find out um and now finally of course as i mentioned digital signatures under pki i would be considered valid uh in the philippines and there's some interesting thing uh going on right now the uh the department of ict is setting up has set up actually a digital signature system which it has offered to to the government and the big question now is would those uh signatures be considered equivalent to 100 and signature center philippine law we will discuss that next week as well okay now what about unilaterally signed documents because this is quite interesting because if you go back to the definition if you look at uh the last requirement i don't know if you see my mouse the last requirement which is the other part is authorized and enabled to verify the signature so what this implies right but the law implies that there are two parties to the signature the signer and the other party so the question now is what about a unilateral document like a certificate or maybe uh an affidavit in other words there are no two parties it's not a contract it's merely an authentication of a of a document by the signer would that be covered by section 8. and my view is yes it would be covered and that the other party right uh referred to in section 8 would be not a counterparty as in a contract but any party who is interested in in verifying or authenticating that document would be considered that other party in other words any party who's interested in the truth of an affidavit will be authorized and enabled to verify the signature okay uh and then finally of course and this is a big issue right now for lawyers what about notarized documents are notarized documents covered by the e-commerce sadly no but uh the there is authority on the uh on the part of the law given to the supreme court to enact rules on electronic authorization and in fact chief justice peralta recently constituted a committee to pro uh to propose rules on electronic notarization this is a major issue because a lot of documents are required to be in public form and of course the reason why notarization is uh popular or almost always required by your lawyer is because there are evidentiary advantages of of presenting uh an authorized document an authorized document under our rules and evidence is a public document and we don't need as lawyers to authenticate it anymore all we have to do is prove the existence of the notarization and immediately the document is admissible in evidence and that that's the reason why your lawyers require that your documents to be notarized now this now is a list of documents under the law uh which must be signed in order to have some uh some some validity in other words for example a holographic will must be in writing and sign right so the question now what kind of signature it has that signature has to satisfy section e and if it doesn't satisfy section 8 then you cannot have an uh holographic wheel you cannot have these other things that are required in the statue um so you know one of the questions i think uh or one of the concerns when it comes to electronic signatures is that well if there is limited uh recognition is that bad from the standpoint of uh of electronic signatures or does that mean that we cannot enter into electronic contracts well uh the good news is that um the it's um the number of documents required to be signed under philippine law is actually quite small right and therefore in other words contracts that have to be signed in order to be valid there are only few contracts that fall under that category and therefore if you don't fall under that category it doesn't matter whether that document is signed or not signed right because it will still be valid under filipino and we will discuss that a bit later about what the elements are of electronic contracts are legally recognized which brings us there here now to this part on electronic contracts and therefore uh how did the e-commerce recognize uh the validity of electronic contracts essentially what it says is that so long as they offer an acceptance right and these are what is known as the external elements right the external manifestations of the contract um so long as this the offer and acceptance and other elements required by law uh are embodied in an electronic data message right then they they may be used to prove the existence of an electronic contract now this is consistent with uh with philippine law because philippine contract losses uh or follows philippine contact law follows what's known as the spiritual system in other words contracts are valid in any form that uh permitted so um a verbal contract an oral contract for example is considered valid under philippine law and therefore you don't need the writing to do that okay a written document to do that now so question for example what if you send an email let's say i send you an email or an sms and i say uh if you want you can buy my car and i'll mention my car with the plate number and i'll say i'll sell it to you for 300 000 pesos and you send an sms back or an email back saying okay i accept now that's the offer my first email is the offer the the sms message or the the email message back is the the acceptance and both documents now both electronic documents now are proof and can be used as the basis to prove the existence of a contract okay so that is one way in which you can enter into valid contracts by by direct message chat in fact there's a there is a case in the u.s very interesting where uh the that it was a chat right and on that chat they amended the contract which resulted in a uh in a ceiling of five thousand dollars uh resulted in a liability of about a million and a half uh about 1.5 million us dollars all on the basis of uh uh two words in a in a private message basically said no limit on the amount that they would they would book okay so there's another type of contract which is very popular back in 2000 and actually to a certain extent it's still true now um which is known as a browse rap contract and under these types of contracts or terms of use uh it says now if you read i don't know if you bothered to read the terms of using in websites it says that when you visit our website the mere fact that you access the pages uh you are now bound by our terms and conditions i remember back in the early odds there were newspaper websites in the philippines uh news websites uh which had this provision and therefore if you go to their site immediately you're bound by their terms and conditions and uh if you uh if you don't follow their linking policy it used to be that you could not link to the story directly you can only link to the home page so if anybody violates that they said you violated our terms of use on the basis of because you browse through our website you are now subject to that to those terms and conditions okay so that's one type of contract the question now is that a valid type of contract and the answer to that question was answered way back in 2000 also uh in in the us case of spect versus netscape and in that case uh the the court recognized that when you have a browse trap contract or when you merely surf to a website you're not even aware that you're entering into a contract because you're not aware you're entering into a contract how could you be bound by terms and conditions set right unilaterally by the owner of that site and therefore these types of contracts are no longer considered not valid so if you want to have a valid contract on your website or on your app uh what you need to do is what you need is what the court referred to as a click-through contract and in a click-through contract this is one where there's a window that comes up the terms and conditions are presented to you and at the bottom you click a button that says i accept it right i'm sure a lot of you uh have seen that uh that type of contra and i'm sure a lot of you if not maybe 99 or maybe all of you none of you have read that those terms and conditions even i actually if i'm just going in i don't bother to read this click on the bottom and that's that's called the click-through contract and the validity of that has been upheld in fact there were a number of cases in the u.s uh involving arbitration clauses that were embedded in these split through contracts and the courts required the parties to go through arbitration because the click-through contract is a valid mode of contracting okay uh what about contracts that are unsigned right should we be should we be worried about them um well the answer for that is no because unless the law specifically requires that the signature is necessary for it for that document to be valid or not contract to be valid then as i mentioned earlier uh so long as the contract the elements of the contract are or the offer and acceptance are in an electronic document they would be considered valid okay in the case of would authorize documents with contracts we discussed that already okay so i'll just move uh quickly now just very briefly to the rules of electronic evidence uh then we can go through we can go to our uh q a and i think there are a number of questions that are already up there i hope you you guys have uh uh prepared uh you have a lot of questions for us so on the rules on electronic evidence so this was about a year after the e-commerce app maybe six months after the supreme court uh constituted the committee um and we were our chair was a retired port of appeals justice uh elvinas uh and he led uh he led our team uh we were uh uh francis limo akra was there myself uh uh lito averia we put this thing together and uh and we came out to the rules and electronic evidence which the supreme court enacted and initially actually it only covered civil cases and not um administrative cases but not uh criminal cases okay so there's some few misconceptions about electronic evidence so first that electronic evidence even back in 2000 right was new to the philippine legal system and i would argue that uh that even you know long before uh the e-commerce acquisition happened uh evidence of electronic optical et cetera those things are were already considered admissible uh what created i think the confusion was there was a case on uh involving ibm where back in the 90s ibm had an email system an internal email system and then there was an employee who was not performing well so the employee was received notices right saying uh i think it was about uh concerning um attendance right so this person was going coming in late and a lot of email evidence was uh was uh sent there and in fact the the notice the first the two notice rule to satisfy the two notice rule to terminate both notices and even the notice of termination was sent by email so this was you know the the person filed an uh an illegal termination case against ibm and you know in labor cases it's before the labour arbiter and there is a what you call a position paper before the arbiter the the council for ibm attached all of the emails as an attachment to the to the position paper case went all the way up to the supreme court and supreme court said that the emails were inadmissible as evidence now and this is where the confusion started because it created this presumption that presumption this perception that uh that electronic mail or email is not admissible in evidence but if you read the case closely what the court was saying was that uh it's not that the email was not admissible it's the fact that it was not authenticated because under the rules and rules and evidence if you're going to submit a document you must authenticate it so what was missing was uh those uh emails because they were printouts should have borne a stamp any signature of a company company representative saying that this is a certified true copy of the email that is within their system because if back then uh they could not uh i'm sure there was no remote access that they could have done within the labor arbiter's office okay so electronic evidence uh the loose and electronic evidence and the e-commerce did not make evidence admissible even documents prior to the time that were in electronic form were already admissible in fact i look at the rules on electronic evidence and even as an e-commerce as merely confirming right explicitly confirming uh the fact that uh electronic documents are recognized are valid electronic signatures are valid and confirming that electronic evidence is admissible okay and as i mentioned earlier the rules electronic evidence does not allow notarization electronic neutralization nor electronic filings of bleedings which is something that uh the court the supreme court now is also looking into uh neither is the rules on electronic evidence the final word of electronic evidence and in fact uh the current uh the new uh amendments the rules uh on evidence adopted some of the the uh the things that we put into the rules and electronic evidence particularly uh the duplicate um the counterparts provision for the best evidence rule uh okay also there's uh for some perception which is not true uh that the rules on electronic evidence does not apply to criminal cases so originally when the when the rules were enacted they the supreme court did exclude electronic sorry you could not use electronic evidence in criminal cases but that only lasted for a couple of months and the supreme court quickly amended the rules and electronic evidence to include criminal cases in fact this has also been confirmed by the supreme court okay so how do you present an electronic document well the short the shortcut is a printout you take an electronic document you print it out it is considered the best evidence or that is the original that you will present in court but not the print out but you also have to show that it reflects the data accurately so a simple way to do that is you have the print out and then you compare it to the electronic copy now what some lawyers do is they they even attach the soft copy they put they burn it on a cd and they present that that soft copy uh to the cord as well okay another another type of original is what's known as a duplicate original or a counterpart which accurately reproduces uh the original and and actually the intention here is to include things like photocopies so a photocopy now is really supposed to be the same as an original unfortunately there is a supreme court case uh involving the national power the national power corporation and ec uh i believe it's npc versus codilia where the supreme court held that photocopies are not considered duplicate originals but interestingly enough this duplicate original rule is now part of the rules on evidence and one of the big questions i think moving forward is whether or not photocopies will be considered uh asana as being equivalent of the of the original it used to be sorry the general rule under the rules and evidence that if you're going to present the document and evidence you have to show the original meaning the one with the actual signature of the of the person the the one with the wet signature right and you cannot present a photocopy under the duplicate original rule which is now in the rules and evidence that would now be possible so actually a few weeks from now we're going to have another episode on this where uh we will discuss the the impact of these new rules and evidence on the rules on electronic evidence i think there's some confusion on how those two interface okay and of course uh as i mentioned earlier uh a document under the rules on evidence uh must not only be the original but it must also be authenticated and how do you authenticate okay so the first you authenticate using the the rules the rules before which is uh by evidence of anyone who saw or the execution of the agreement but additionally if it is digitally signed right the fact that you can prove the digital signature the document is also authenticated so this is something that we we put into the rules because it was our position that uh digital signature was a valid signature under uh under philippine under the e-commerce app and if it's a valid signature in the course of proving uh the validity of the signature you are also authenticating the document because one of the features of a digital signature is it confirms right mathematically through encryption that the the document has not been altered from the time it was signed to the time that you have confirmed its contents okay uh and finally actually the catch all here is by evidence showing the integrity and reliability to the satisfaction of the charge it's a very broad uh standard to authenticate an electronic document when it comes to electronic signatures as i mentioned the the problem is really section eight which we discussed earlier a very long and uh complicated provision of law and in fact i like to call it the frankenstein provision because in fact many parts of the section 8 of our ecommerce act was taken from the singapore electronic transactions app and that law was a digital signature law that's why when you look at section 8 it it seems to cue closely to digital signatures unfortunately our law was supposed to be technology neutral and so it creates this uh this bizarre situation where this is we copied from something that is supposed to be for digital signatures but we want to make it apply to things that are beyond digital signatures as i mentioned earlier at the time that the rules and electronic evidence was written digital signatures were widely used and our belief at least our opinion was that they are considered valid under filipino and how do you prove a digital signature so long as you have a method to show that they exist on a document and a method to verify it once you satisfy show the court the electronic documents that satisfy this then the digital signature is authenticated and as i mentioned earlier the moment you authenticate a digital signature on a document the document itself is also authenticated so it's a two-for-one uh deal when it comes to digital signatures okay and of course the touch all again is that the the authentication of an electronic signature other than a digital signature which satisfies section eight uh by means satisfactory satisfactory to the judge would be uh would be permitted okay what about other concerns other things that are covered by the by the uh rules on electronic evidence uh first is the method of proof now we believe then that one of the problems of uh presenting uh an expert witness when it comes to electronic evidence is that it might be difficult to have a direct examination therefore we actually put in a rule that allowed the direct examination of that of that witness to be done in electronic form an affidavit form so this is a pre-researched judicial affiliate rule second we also included a provision that allowed a remote examination of witnesses via teleconferencing uh the only rule is that you have to apply for it and that the judge can impose conditions so actually uh that is now the basis right uh for for the courts also one of the bases for the courts to adopt teleconferencing uh rules uh in in terms of moving forward with uh uh presentation of of evidence it's allowed under the rules and electronic evidence another rule that uh found its way now in the main rules and evidence is the business records exception and this was uh actually suggested by uh attorney roy levine luan uh who because they have cases you know he the other cases involving corporate uh clients where their evidence consists of records of these corporations and under the business records exception you can only present uh electronic records or records of uh business uh entities you have to present the person who actually was the custodian at the time that that record was made and as you know with people changing jobs it becomes very very difficult sometimes to locate this person and the supreme court rulings got so went so far as to require that either that person was dead or that person is so far away that he cannot be brought back uh otherwise that person must be presented so now any person or any custodian of business records can authenticate so initially when the rules and electronic evidence was enacted this was an advantage to having electronic records because with electronic records any custodian can testify with paper records only uh you have to follow the rules right on the on or the jurisprudence by the court but now with the rules and electronic with the rules and evidence having been amended it followed the rule now is consistent between both types of documents we also had to include a provision on audio photo and video evidence only because in some instances these types of evidence are really documentary evidence they are documents uh and the requirement here is that if you are presenting the truth of what you are seeing in the document in the video or photo then you must authenticate it but if you're not using it to prove the truth of what is contained in the picture then you do not need to authenticate so um a favorite example of mine is let's say you have a case where uh the plaintiff right the plaintiff is suing because he was run over by the by the defender using his yellow mercedes-benz and so you are now understand and you show him a picture mr witness i'm showing you a picture of mercedes-benz uh now if the picture of the mercedes-benz is the picture of the car that was in the accident right and you're having the person and the witness identify it now you're you're treating it as documentary evidence because you're proving the truth of the information contained in the picture so in those in that case you have to authenticate that document now but what if you're showing just showing uh a let's say a promotional photo used sold by mercedes-benz and say mr witness the car that hit you did it look like this right so in that case you're not proving the truth of the the content you're using it merely what's known as object evidence and therefore you don't need to authenticate that picture because you're only using it in order to inform the court that this is what ing to the this is what the car looked like not that that was the card involved in the accident okay uh and then of course as part of that we also included a rule on ephemeral electronic communications and these are communications that uh like telephone conversations or uh um sms messages or even email messages that are routinely uh deleted they may be proven now by secondary evidence or testimonial evidence and that's it