China has formally changed the rules. WeChat screenshots are now recognized as adequate evidence when proving a case in Court. This is huge, considering the fact that WeChat is so incorporated into our daily life.
On May 1, 2020, The Amended Provisions on Evidence for Civil Proceedings (“Amended Rules”) came into effect, after the Supreme People’s Court promulgated them in December of 2019. The Amended Rules represent a big step in China’s legal system towards formalizing what was sometimes a patchwork set of formal and informal rules and interpretations. This article briefly discusses one of the major areas of interest: electronic evidence.
Electronic Evidence Codified
While China’s civil procedural rules have long accepted the introduction of several different kinds of electronic evidence, there has never been explicit guidance on how to approach the practice, and the Amended Rules represent a significant formalization of the practice.
According to Article 14 of the Amended Rules:
“Electronic data shall include the following information and electronic documents: (i) Information published on such online platforms as webpages, blogs and microblogs; (ii) messages transmitted through network communication applications such as mobile phone text messages, emails, instant messages, group chat messages, etc.; (iii) user registration information, identity authentication information, electronic transaction records, communication records, login logs, etc.; (iv) electronic documents such as text files, pictures, audio and video records, digital certificates, computer programs, etc.; and (v) other information stored, processed or transmitted in a digital form which can prove the facts of cases.”
As you can see, this allows for a broad spectrum of electronic evidence and includes, for example, WeChat logs, if they are in an acceptable form and deemed authentic, as discussed next.
Article 15 states that the “electronic data shall be presented in its original form and the duplicates generated by the creator of the electronic data, direct printouts of the electronic data and any other media that can display the electronic data shall be considered as the original forms.”
Article 93 indicates that courts can and should determine the authenticity of electronic evidence by examining a number of factors, including, but not limited to:
- The reliability of the system where the electronic data is/was generated, stored, and transmitted;
- whether the system is/was operating normally;
- whether system based on which electronic data has/had a verification means to prevent errors;
- whether the electronic data has been stored/extracted in a complete and reliable way;
- whether the electronic data is formed and stored during normal transactions.
Additionally, courts may, at their discretion, determine that electronic evidence is authentic using other methods. For instance, Article 94 also allows courts to infer authenticity “unless there is sufficient evidence to the contrary to disprove it,” especially when the electronic evidence is notarized by an acceptable notary.
So, what does this all boil down to when using electronic evidence in litigation in China? You need to be able to demonstrate to the court that the evidence you present was collected in a transparent, technically appropriate manner. It is also probably wise to obtain a second layer of “authenticity” by engaging a notary to notarize both the evidence itself and, probably, the formal process or chain of custody involved in its collection.
Of course, you will likely need lawyers to guide you through this process. Feel free to contact DaWo Law Firm if you have questions about any of the information in this article.
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