Internet Sources and Legal Blogs in Court Decisions

Law blogs, referred to as “blawgs” by some, are being cited in court decisions in the U.S. (to the cyber-challenged, the term “blog” is a contraction of the words “web log”). As reflected in a collection of court cases that cite legal blogs, there are 32 citations of legal blogs from 27 different cases in the United States, with 8 legal blogs being cited (as of 6 August 2006). 3L Epiphany notes t\hat:

As already mentioned, legal blogging allows for post-citation commentary about the very case that cited the blog. Furthermore, a blog can enable interested readers to discuss the opinion in the comments. At the time of this (3L Epiphany) blog post, the post at the Volokh Conspiracy discussing Harper has 45 comments. The original post, the one cited by the Harper dissent (from the denial of rehearing en banc), now has 258 comments. A court citation to a legal blog thus allows readers of the blog to discuss the decision both on the original (cited) post and in subsequent posts about the case.

The citation of internet sources could refer to two matters: factual and legal. Factual matters, which we loosely use to be synonymous with evidentiary matters, are generally limited to evidence presented in court. Of course, there are matters of common knowledge that a court may take judicial notice of, but the court’s discretion is subject to certain limitations. In the administrative case of State Prosecutors vs. Muro, the Supreme Court dismissed a Judge from the service on the ground, among others, of relying on a newspaper account in dismissing eleven cases against the accused. This, however, did not prevent the Supreme Court from citing a newspaper, the Philippine Daily Inquirer, in resolving certain factual matters in the petition of former President Joseph Ejercito Estrada against President Gloria Macapagal-Arroyo, Estrada vs. Arroyo. With the existing trend of newspapers and other content providers expanding their presence to the internet, the Supreme Court just may as well cite the article as posted in the web.

Speaking of the internet and cyberspace, the Supreme Court defined “internet,” by way of obiter in Mirpuri vs. Court of Appeals, as a “decentralized computer network linked together through routers and communications protocols that enable anyone connected to it to communicate with others likewise connected, regardless of physical location.” Cyberspace is a place located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet.” (Ople vs. Torres, citing Darrel Menthe, “Jurisdiction in Cyberspace: A Theory of International Spaces 4 Mich. Tel. Tech. L. Rev. 3 (April 23, 1998), http://www. law.umich.edu/mttlr/volfour/menthe.html”). You will note, of course, that internet sources are cited in these decisions.

It’s also interesting to note that in Justice Tinga’s dissent in Chavez vs. Gonzales (G.R. No. 168338, 15 February 2008) mentioned three of the most popular internet sites today — Google, YouTube and Wikipedia.

By way of epilogue, I note that the Garci tapes have found shelter in the Internet after the broadcast media lost interest in airing those tapes, after the newsprint that contained the transcript had dissembled. The tapes are widely available on the Internet and not only in websites maintained by traditional media outfits, but also in such media-sharing sites as Google-owned YouTube, which has at least 20 different files of the tapes. Internationally popular websites such as the online encyclopedia Wikipedia have linked to the tapes as well. Then there is the fact that excerpts of the tapes were remixed and widely distributed as a popular ringtone for cellular phones.

Legal citations, on the other hand, are anchored on laws, jurisprudence and authors like Tolentino (Civil Code), as well as Justices Moran, Feria, Paras, Regalado and Herrera. Still, there are already cases wherein the Supreme Court cited internet sources. For instance, in Garcia-Rueda vs. Pascasio (G.R. No. 118141, 5 September 1997), the SC used an internet source — http://www.medicalmal.com/neglig.html (this is a dead link and the working link is http://www.medicalmal.com/what_is_medical_negligence.htm) — as a citation preceding its enumeration of the four elements involved in medical negligence cases. There are questions as to the propriety of such citation, but this is not our concern in this post.

In my opinion, the citation of a legal blog or “blawg” in Philippine court cases, while not impossible, is not going to happen in the immediate future. In order to explain the reason for this assertion, we must go first to the nature of a blog vis-a-vis a website, although I may be biting off more than I could chew, as this is an extremely difficult task given the similarity between the two.

Wikipedia defines a website is a “collection of Web pages, images, videos or other digital assets that is hosted on one or more web servers, usually accessible via the Internet,” and a blog is “a website, usually maintained by an individual, with regular entries of commentary, descriptions of events, or other material such as graphics or video.” Technorati distinguishes a website from a blog in this manner: “A weblog is a website that is updated frequently, most often displaying its material in journal-like chronological dated entries or posts. Most blogs allow readers to post comments to your the post, and link from their blog to your posts using the permalink URL or address. In a blog, the content can be published and syndicated separate from the formatting using an RSS feed. Readers can then subscribe to the feed to automatically receive updates.”

To be sure, there are distinctions between a website and a blog, and it would otherwise be superfluous for certain sites to create blogs (New York Times has a main site and a blog component; the Inquirer.net also has a main site and a blog component). So far, however, we have established that a blog is a website, which does not really help our effort in distinguishing one from the other, especially if we consider that a feature in a website could be replicated in a blog, and vice versa. Still, it cannot be denied that blogs, as compared to a website, are easier to set up and because there are many free blogging tools, anyone could have a blog. A blog also allows a more dynamic and robust interaction between the author, also known as the “blogger,” and the readers.

These are some of the reasons why we conclude that a blog is less formal than a website. Legal institutions, therefore, would be more comfortable in citing a website because notwithstanding the effort to make the law more accessible and understandable to everyone, it is still formal in nature.

The citations mentioned above point to websites, not blogs. But the law is evolving, even if in a very slow pace, and it’s not impossible for courts, in the distant future, to cite a blog as a source. A blog is a website anyway.

5 comments

  1. Well, blogs are basically websites which contents are, most of the time, full of opinions… But with regard to blogs talking about legal matters, bloggers tend to just state what the law provides and sometimes give their thought about it.

    Maybe, for now the courts may only cite the formal websites, but I know in the future, blogs will be used… Especially if the blog was made by a recognized authority over a particular subject of law that is in quetion. Blogs may act like a book on laws, but with a more personal touch of the author. 😛

  2. Very well said Atty. Fred. Of course, the very first issue to be settled when quoting from a website or blog is the “reliability of information” and “field of expertise” of the said internet sources.

    In addition, I noticed that the Supreme Court E-Library has some sort of “E-Library Doc. ID” posted at the bottom of each decision/resolution in its website. I think this is also a part of the evolving law “even if in a very slow pace.”

    Cheers!

  3. @ Alpha_Mike, that would be a distant future, I suppose. I’d like to think that giving one’s “thought” is synonymous with giving one’s “opinion.” Anyway, any distinction hardly matters because the extent of opinion or thought could not adequately differentiate a blog from a website. But that’s just my opinion.

    @ Macka, indeed, the reliability of the information and the filed of expertise are crucial matters to be considered, and the Supreme Court’s citation in Garcia-Rueda is a perfect starting point for such analysis. A separate post is needed to treat that subject, although you’re very much welcome to state your initial comment here. On the other hand, the effort of the Supreme Court to keep it’s site in sync with the general developments in internet technology is impressive, I must say.

  4. you’ve raised an interesting topic here. Using blogs as evidence in courts is something I never considered before, but like you said these new components and their legal positions an usage in law should be made clear and public, understandable to bloggers alike.

  5. OT here:

    just asking can a division of the NLRC in an inter-union dispute decide a case citing the decision of another co-equal NLRC division decision involving the same parties. Even if the cited case was on appeal at Court of Appeals.
    Im thinking of filing an administrative case against the commissioner for gross ignorance of the law. however, i could not see any Admin matters or resolution from the supreme court that requires legal citation should be limited to cases decided with finality. can anyone help me on this? thanks

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