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How to Collect Evidence from Internet and Social Media- Guide to China's Civil Evidence Rules (5)

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As an essential tool in daily life, the Internet and social media are recognized as sources of evidence by Chinese courts. Given that the electronic data generated by the Internet and social media are easy to be tampered with or destroyed, Chinese courts often require the parties to use notarization and other specific methods to ensure the authenticity of electronic evidence. With the continuous development of technology, Chinese courts are also trying to use various new technologies such as timestamp and blockchain to improve the efficiency of evidence examination and reduce the cost of presenting evidence.

I. What Chinese courts review on the authenticity of the Internet and social media evidence

The electronic data generated from the Internet and social media are one of the eight types of evidence recognized by China’s Civil Procedure Law (CPL). Given the very nature of digital evidence being easily tampered with and destroyed, Chinese courts are highly concerned about the authenticity of such evidence. What Chinese courts review mainly focus on:

(1) Whether the software/hardware system where the content is generated, collected, stored, and transmitted is safe and reliable.

(2) Whether the storage and safekeeping media are definite, and whether the safekeeping methods and means are appropriate.

(3) Whether the content is clear and complete, and whether the content is added, deleted, or modified.

(4) Whether the content can be verified through a specific form.

In practice, the parties can obtain evidence from the Internet and social media by means of notarization and timestamp, so as to make the court recognize the authenticity of such evidence.

II. Evidence collection by notarization

For the contents of web pages and social media, it is a traditional way to obtain evidence under the witness of notaries. In China, notarization can only be handled by a notary office established by the government and its notaries.

The parties may check the contents of web pages and social media on the computers and mobile phones of the notary office, and the notary shall confirm that such contents exist on the Internet at a certain time point, save the same by printing or recording a CD, and issue a notarial certificate therefor. Compared with the emerging evidence collection methods mentioned below, the cost of notarization is higher; besides, it is difficult to achieve real-time evidence collection due to the need to make appointments with notaries in advance. Nevertheless, given the strongest credibility that notarization enjoys, the notarized evidence is very unlikely to be overthrown by the court.

III. Evidence collection by timestamp

1. What is the principle of evidence collection and verification by timestamp?

The timestamp is an electronic certificate issued by the timestamp service institution to prove that the electronic data have existed at a certain time point, and are complete and verifiable. The timestamp issued by an authoritative neutral institution can be recognized by Chinese courts, and therefore is legally effective.

The basic principle of evidence collection and verification by timestamp: the party uploads the hash value obtained by hashing the electronic data to the timestamp service institution, which will encrypt the hash value and the uploading time, and provide the encrypted data in the form of an electronic document (i.e., the timestamp) to the party.

Since the hash value of any electronic data is unique, so is the content of each timestamp. If the electronic data with a timestamp submitted by the party is challenged by the other side, the party concerned may ask the timestamp service institution for decryption. If the hash value and generation time of the evidence read after decryption is consistent with the evidence itself, it is enough to prove that the evidence has not been tampered with.

In addition, because the hash algorithm is irreversible, the timestamp service institution cannot obtain the specific content of the electronic data by reverse calculation according to the hash value uploaded by the user. Therefore, the evidence collection by timestamp is also highly confidential.

2. Which timestamp institutions are recognized by Chinese courts?

In judicial practice, UniTrust Time Stamp Authority (https://www.tsa.cn/) is the most commonly used and highly recognized timestamp service institution. As UniTrust Time Stamp Authority cooperates with the National Time Service Center of the Chinese Academy of Sciences, the only statutory timestamp service institution in China, the timestamps issued by it are widely recognized by courts at all levels. In addition, the Copyright Association of Guangzhou (http://www.cagz.org/), Shenzhen Copyright Society (http://www.scs.org.cn/), and other organizations also have in-depth cooperation with UniTrust for timestamp services in local areas, and the timestamps produced by such organizations can also be recognized by Chinese courts.

3. Pros and cons of evidence collection by timestamp

Taking UniTrust Time Stamp Authority as an example, the operation platform is available 24/7, and all operations can be completed by the parties themselves. For static web pages, the platform provides one-click evidence collection. The standard rate of one timestamp is only CNY 10. Therefore, for static web pages, the timestamp is a convenient, fast, and low-cost way to obtain evidence.

However, for web pages with dynamic pictures or videos, web pages that require login, web pop-ups, and mobile phone APPs, the one-click evidence collection cannot be used. The parties need to design a strict process by themselves, starting from the cleanliness inspection of equipment and network, operating manually throughout the whole process, and applying for timestamps for the results of each step. Therefore, it is not easy to use the timestamp to obtain evidence in complex forms. Once there is any omission in any step, the effectiveness of evidence may be challenged.

In addition, if the content proved by the timestamp is different from that of the notarial certificate, some courts hold that the notarial certificate shall prevail.

IV. Evidence collection by blockchain

1. What is the principle of evidence collection and verification by blockchain?

Based on the timestamp, the evidence collection by blockchain enhances the credibility of timestamp by using blockchain technology. The principles of evidence collection and verification by blockchain are as follows: the parties upload the electronic data to the network platform of the blockchain institution, which will make the timestamp of the electronic data, and then store the copies thereof in the servers of other cooperation platforms. Under the constraint of the blockchain consensus mechanism, any change to the timestamp needs to be agreed and recorded by each platform, and no platform can tamper with the timestamp alone. As a result, the probative force of timestamps has been further increased through the blockchain technology.

It is worth noting that the three existing Internet courts in China have taken themselves as a node on the chain and cooperated with different blockchain institutions to build their own blockchain verification system. Taking “Balance Chain” (天平链) established by Beijing Internet Court as an example, the parties may require the blockchain platform to store the electronic data and its hash value on “Balance Chain”, which will issue the corresponding verification number to the parties. As long as the parties submit the verification number and the original electronic data, the Internet court can automatically verify the authenticity and the generation time of the electronic data in the backstage. In addition to “Balance Chain”, “Alliance Chain” (联盟链)  developed by Ant Blockchain (蚂蚁区块链) and accessed by Hangzhou Internet Court, and “Internet Legal Chain” (网通法链) established by Guangzhou Internet Court also have such functions. This has greatly improved the efficiency of evidence examination.

Based on the successful experience of blockchain verification of Internet courts, some local courts have also established blockchain verification systems. At present, the Supreme People’s Court (SPC) is also establishing a “Judicial Chain” (司法链) for courts nationwide. It is believed that the evidence collection by blockchain can be more widely used in Chinese courts in the future.

2. Advantages of evidence collection by blockchain

As is the case in the evidence collection by timestamp, the evidence collection by blockchain is also affordable and convenient. Many blockchain platforms have developed self-help evidence collection functions. For example, on “BaoQuan.com” (保全网) (https://www.baoquan.com/), the parties can take a screenshot of the web page or record the computer operation process through this website, and upload it to the network service platform to obtain the corresponding “preservation number” and evidence data package for future verification. The standard rate for one web page evidence collection is CNY 5. For screen recording or computer operation process recording, the rate is CNY 50/10 minutes, and CNY 5/minute for each extra minute. In addition, the party concerned can also apply for the judicial authentication certificate issued by the judicial expertise institution through the website at the same time of obtaining evidence, and the certificate will explain the process and method of obtaining evidence, the cleanliness of the environment for obtaining evidence, etc. The judicial authentication certificate is helpful to further strengthen the effectiveness of evidence collection.

At present, the commonly used blockchain service institutions include, inter alia, “BaoQuan.com” cooperating with Hangzhou Internet Court and “TRUSTDO” (信任度) cooperating with Beijing Internet Court.

3. Limitations of evidence collection by blockchain

Technically, evidence collection by blockchain can only ensure that the data cannot be tampered with and deleted after being stored on the chain. If the data are “fake” before being stored, such data actually has no credibility. Although there have been many cases in which evidence collected by blockchain was admitted by courts, this evidence collection method still needs to stand the test of time.

 

 

Photo by Jerry Wang (https://unsplash.com/@jerry_318) on Unsplash

Contributors: Chenyang Zhang 张辰扬 , Zhu Mengxuan 朱梦璇

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