Perspective | Electronic Data Evidence: Legal Support and Practical Application in Civil Litigation

Evidence that can reflect the true situation of the case, is related to the facts to be proven, and whose source and form comply with legal provisions should be used as the basis for determining the facts of the case. Electronic data is a legally recognized type of evidence. According to Article 116 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China," electronic data refers to information formed or stored in electronic media through emails, electronic data exchanges, online chat records, blogs, microblogs, text messages, electronic signatures, domain names, etc.

In the 2007 amended "Civil Procedure Law of the People's Republic of China," electronic data was not included as one of the types of evidence. However, in the context of the information age and with the development of the internet, the electronic data evidence appearing in various forms in civil and commercial cases has gradually increased. Therefore, in 2012, the Standing Committee of the National People's Congress added "electronic data" as a new type of evidence when amending the "Civil Procedure Law," making it one of the eight types of evidence specified in the current civil procedure law. The "Interpretation of the Civil Procedure Law" in 2015 only made principled and general provisions regarding the meaning of electronic data, and in practice, there were inconsistencies in the determination of the effectiveness of electronic data evidence. To address operational issues in judicial practice, in 2019, the Supreme People's Court added multiple provisions related to electronic data when amending the "Several Provisions on Evidence in Civil Procedure" (hereinafter referred to as the "Provisions on Civil Procedure Evidence"), supplementing and refining the definition, types, investigation and collection, and review and judgment rules of electronic data, gradually forming theories such as the "technology neutrality principle, technology explanation principle, and case-by-case review principle" in the recognition of electronic data evidence.

Among them, Article 14 of the "Provisions on Civil Procedure Evidence" provides a relatively detailed definition of the scope of electronic data, while Articles 15 and 23 stipulate the requirements for parties to provide and for people's courts to investigate, collect, and preserve electronic data. Articles 93 and 94 stipulate the review and judgment rules for electronic data, improving the rule system for electronic data evidence. The formulation of this judicial interpretation has positive significance for unifying legal application standards and safeguarding the litigation rights of parties. Since then, the legal support for electronic data has become more complete, and the standards for case adjudication have tended to be unified.

Evidence must be verified to be true in order to be used as the basis for determining facts. Article 104, Paragraph 1 of the "Interpretation of the Civil Procedure Law" stipulates that the people's court shall organize the parties to conduct cross-examination regarding the authenticity, legality, and relevance of the evidence, and explain and debate the evidential power and the degree of evidential power of the evidence. Therefore, the three characteristics review (authenticity, legality, relevance) of electronic data evidence also follows the review rules of other types of evidence.

1. Original Electronic Data Evidence
 

Article 15, Paragraph 2 of the "Provisions on Civil Procedure Evidence" stipulates that if a party uses electronic data as evidence, they must provide the original. A copy made by the creator of the electronic data that is consistent with the original, or a printout or other output medium that can display and identify the electronic data, is considered the original electronic data.

2. Presumption of Authenticity of Electronic Data Evidence

Article 94 of the "Provisions on Civil Procedure Evidence" stipulates that if electronic data exists under the following circumstances, the people's court may confirm its authenticity, except where there is sufficient contrary evidence to refute it:

(1) Electronic data submitted or kept by a party that is unfavorable to them;

(2) Provided or confirmed by a neutral third-party platform that records and preserves electronic data;

(3) Formed in normal business activities;

(4) Preserved in an archival management manner;

(5) Saved, transmitted, or extracted in a manner agreed upon by the parties.

If the content of electronic data is notarized by a notary office, the people's court should confirm its authenticity, except where there is contrary evidence sufficient to overturn it.

3. Comprehensive Judgment of the Authenticity of Electronic Data Evidence

Article 93 of the "Provisions on Civil Procedure Evidence" stipulates that the people's court should comprehensively judge the authenticity of electronic data based on the following factors:

(1) Whether the hardware and software environment of the computer system relied upon for the generation, storage, and transmission of electronic data is complete and reliable;

(2) Whether the hardware and software environment of the computer system relied upon for the generation, storage, and transmission of electronic data is in normal operating condition, or whether the abnormal operating condition affects the generation, storage, and transmission of electronic data;

(3) Whether the hardware and software environment of the computer system relied upon for the generation, storage, and transmission of electronic data has effective monitoring and verification means to prevent errors;

(4) Whether the electronic data has been completely preserved, transmitted, and extracted, and whether the methods of preservation, transmission, and extraction are reliable;

(5) Whether the electronic data has been formed and stored in normal transactional activities;

(6) Whether the subject preserving, transmitting, and extracting electronic data is appropriate;

(7) Other factors affecting the integrity and reliability of electronic data.

If the people's court deems it necessary, it may examine and judge the authenticity of electronic data through identification or inspection methods.

Article 106 of the "Judicial Interpretation of the Civil Procedure Law" stipulates that evidence formed or obtained by methods that seriously infringe upon the legitimate rights and interests of others, violate prohibitive legal provisions, or seriously contravene public order and good customs shall not be used as the basis for determining the facts of the case. Due to the principled nature of Article 106 of the "Interpretation of the Civil Procedure Law" and the limitation of the degree of "seriousness," the judgment of the legality of the source or acquisition still needs to be assessed in conjunction with the specific circumstances of the case.

Extended Topic:Can audio files recorded without the consent of the other party be used as evidence to determine the facts of a case? The current authoritative and unified judicial viewpoint holds that recordings obtained without consent are not necessarily considered illegally sourced. In 1995, the Supreme People's Court issued a reply stating that materials obtained by recording conversations without the consent of the other party cannot be used as evidence (Judicial Reply [1995] No. 2) [this regulation is now invalid and has been repealed by the Supreme People's Court's decision on July 8, 2019, to abolish certain judicial interpretations (the 13th batch)]. This reply clearly stated: "The acquisition of evidence must first be legal; only evidence obtained through legal means can be used as the basis for a ruling. Recording conversations without the consent of the other party is an illegal act, and recordings obtained through this means cannot be used as evidence." Due to the existence of the above reply, many cases in judicial practice did not accept privately recorded audio as evidence for determining the facts of the case. Subsequently, this discretionary viewpoint changed. In the case (2015) Min Ti Zi No. 212, the Supreme People's Court confirmed that "according to Article 68 of the 'Several Provisions of the Supreme People's Court on Evidence in Civil Litigation' implemented on April 1, 2002, which states that 'evidence obtained by infringing on the legitimate rights and interests of others or violating legal prohibitions cannot be used as the basis for determining the facts of a case,' the 'recording of conversations without the consent of the other party is an illegal act' should be understood as involving the illegal recording of the other party's private space and infringing on the legitimate rights and interests of the other party or others." In summary, current judicial practice no longer simply denies the validity of audio evidence solely on the grounds of "private recording."

First, as evidence in a case, it should be related to the facts to be proven; electronic evidence should also point to the facts to be proven in the case. Secondly, if it points to the facts to be proven, the electronic data evidence should increase the likelihood of those facts being established. Therefore, if either of these conditions is not met, it can be concluded that the electronic data evidence lacks relevance.

The evidential value of electronic data evidence is a requirement beyond the "three characteristics" of evidence. After meeting the "three characteristics" of evidence, it is necessary to examine and judge the magnitude of the evidential value of electronic data evidence.

From the perspective of evidence form, electronic data, as one type of evidence, may conflict with other types of evidence. The general principle of identification is: (1) notarized electronic evidence has greater evidential value than non-notarized electronic evidence. Notarized electronic evidence is still electronic evidence and must also apply the rules for judging the authenticity of electronic evidence. (2) Electronic evidence created in normal business activities has greater evidential value than electronic evidence created for litigation purposes. (3) Electronic evidence preserved by the adverse party has the greatest evidential value, followed by electronic evidence preserved by a neutral third party, and electronic evidence preserved by the favorable party has the least evidential value.

From the perspective of the content of proof, electronic data, due to its dynamic nature, can only prove the state after data storage, which is a static result, but cannot prove the dynamic process before the result occurs. For example, a screenshot of a webpage can only prove that the corresponding webpage screenshot has not been tampered with after storage, but it cannot verify whether this image is original and authentic, whether the capture process is legitimate, and whether the method meets the requirements.

In summary, the evidential value of electronic data evidence should be assessed in conjunction with its content, purpose of proof, and the degree of relevance to the facts of the case, determining whether it can corroborate with other evidence to form a complete evidence system and whether it meets the standard of superior evidence, thus comprehensively determining the magnitude of the evidential value of electronic data evidence.

As one type of evidence, electronic data submitted to the judge must meet the requirement of being able to tangibly represent the content contained and be retrievable at any time, which requires presenting it on an appropriate medium. The process of presenting electronic data in tangible form involves the solidification of electronic data evidence. Of course, electronic data evidence can be provided by the parties using the original medium or a copy consistent with the original, but this usually requires bringing the original medium to court for verification by the other party and a determination of evidential validity by the judge. The method of self-preservation by the parties is less convenient. The electronic preservation mentioned below refers to methods of electronic preservation implemented with the help of third parties, aside from self-preservation by the parties.

Currently, there are two types of electronic preservation services in practice. The first type is provided by notarization institutions (notary offices), which requires the parties to entrust the notary institution to fix the electronic data to be obtained. The notary office usually witnesses the process of obtaining electronic data, using recording, photography, network printing, etc., and presents it on USB drives, CDs, or written paper, after which the notary office issues a notarization document. The second type is provided by third-party electronic data preservation institutions, where the service model generally involves the parties using a platform developed or designated by a third party to solidify the generation, storage, and output process of electronic data, with the third-party preservation institution issuing corresponding solidification preservation certification documents. The latter model has increasingly become a common method for solidifying electronic data in judicial practice, with more and more parties using and accepting this model of solidification, which, as a self-service evidence collection method, allows for the solidification of electronic data evidence anytime and anywhere. Compared to the traditional notarization preservation method, it is easier to operate, saves time and effort, is cost-effective, and is highly efficient, thus being widely applied in more and more cases.

Currently, many third parties are deeply engaged in the solidification of electronic data preservation, focusing on the development of electronic preservation platforms. Generally speaking, the technical principles of third-party electronic preservation involve hash value verification (a specific electronic file's data can only yield a unique determined value through hash function calculation, and any changes will alter the hash value. Therefore, hash value verification can confirm whether the original file has been modified. Hash value verification is a fundamental technology of electronic signatures, data encryption protection, and blockchain. Currently, all third-party electronic preservation platforms must use this technology), electronic signatures (data contained in electronic form used to identify the signer and indicate the signer's acknowledgment of the content. Electronic signatures require third-party certification provided by legally established electronic certification service providers), trusted timestamps (referring to when the parties upload the electronic evidence file to the timestamp service center TSA, which issues a "trusted timestamp certification" to prove the generation time and integrity of the electronic data file. Currently, the Joint Trust Timestamp Service Center is the only authoritative and trusted timestamp service institution in China, jointly established by the National Time Service Center and Joint Trust), and blockchain (a technical solution composed of multiple network technologies such as timestamps, asymmetric encryption algorithms, and hash algorithms).

In the daily handling of intellectual property cases, this lawyer has come into contact with and used several electronic data preservation and evidence collection platforms such as eBaoQuan (ebaoquan.org), CunNAR (cunnar.com), Trusted Timestamp (tsa.cn), and Notarization Cloud (egongzheng.com). Although these different platforms can serve to solidify the evidential validity of electronic data, in terms of ease of use and authority, the following two systems are ultimately more commonly used:

1. Trusted Timestamp (TSA) - Joint Trust Electronic Evidence Preservation System

The Joint Trust Timestamp Service Center is the only authoritative and trusted timestamp service organization (TSA) in China, jointly established by the National Time Service Center and Joint Trust, and has a high level of authority. In the judicial interpretation of the "Supreme People's Court's Provisions on Several Issues Concerning the Trial of Cases by Internet Courts", the trusted timestamp is clearly accepted as a method for fixing, preserving, collecting, and extracting evidence.

This system is divided into mobile and computer versions, with the mobile app named "Rights Guardian". It allows evidence collection through methods such as taking photos, recording videos, audio, and screen recordings in different application scenarios. After evidence collection is solidified, corresponding electronic data is generated, along with a PDF format electronic evidence package (trusted timestamp certification) for the evidence collector to download and use for verification. The verified electronic evidence meets the requirements of the original data message form as stipulated by the "Electronic Signature Law of the People's Republic of China" and is legally valid electronic evidence. Usually, after downloading "Rights Guardian" on the phone, evidence can be collected anytime and anywhere, which is quite convenient.

2. Notarization Cloud - Electronic Data Storage Platform

The electronic data storage platform is an online notarization service platform jointly created by national notarization institutions, integrating evidence collection, preservation, and issuance. It fixes electronic evidence through technical means on the cloud server of the notarization institution and uses encryption algorithms for real-time storage.

This system is also divided into mobile and computer versions, with the computer app named "Notarization Cloud". The biggest advantage of this system is that it can create a case file, forming a case in which multiple videos and photos can be taken. When using evidence, a notarization office can issue a preservation certificate for individual evidence videos and photos after preservation, or, depending on the needs of the case, issue a notarization certificate for the entire collection of photos and videos formed in the case file, providing a dual mode of "blockchain + notarization" for evidence issuance, ensuring the validity of the evidence and also having a high level of authority.

In summary, electronic data evidence has become a widely involved type of evidence in civil litigation cases. For lawyers primarily engaged in litigation, the collection and verification of relevant electronic data evidence is indispensable in their daily case handling. The saying goes, "Lawsuits are about evidence"; effectively solidifying and preserving electronic data evidence, and presenting it to the court to realize its evidential validity is the top priority for case-handling lawyers.

Extended Topic:One might consider how to effectively collect WeChat chat records as electronic data evidence and in what form to submit them for presentation more conveniently?