E-mail is widely used as a communication tool, and is also an evidence form recognized by Chinese courts. However, given its authenticity being easily challenged, the parties should take the right way to obtain and present evidence to ensure its effectiveness.
I. E-mail: an evidence form recognized by Chinese courts
E-mail falls within the “electronic data” stipulated in Article 63 of China’s Civil Procedure Law (CPL), and is, therefore, one of the statutory evidence forms recognized by Chinese courts. [1]The hard copies or other displayable and identifiable output media submitted by the parties consistent with the electronic data are deemed as the original electronic data. [2]Therefore, in practice, the parties would usually print a hard copy of e-mails and submit the same to the court.
II. E-mail authenticity: easily challenged in judicial practice
Compared with documentary evidence, it is much easier to forge and tamper with electronic data. E-mail is frequently questioned as evidence for the following reasons:
1. It may be difficult to verify the true identity of the e-mail recipient and sender, especially when the e-mail service provider does not require the user to register by real name or does not strictly verify the registration information;
2. If the e-mail data is saved in the user’s local storage, rather than a third-party server, the content thereof can be arbitrarily tampered with by the user;
3. The IP address of the sender can be hidden or tampered with;
4. The e-mail account may be hacked.
III. How to strengthen the weight of E-mail evidence
As e-mail faces the above problems, we suggest that the parties should pay attention to the following tips when submitting e-mail as evidence:
1. Try to use the business e-mail address to contact the other party, and indicate the sender’s real name and contact information in the e-mail signature
As mentioned before, the court has to determine the true identity of the e-mail recipients and senders before admitting the e-mail into evidence. Chinese courts generally hold that, if the parties use the business e-mail address with the e-mail signature indicating the real name and contact information of the sender, the court will thereby determine the identity of the sender and the recipient unless there is evidence proving the contrary. [3]
2. Try to use the e-mail server provided by an independent third-party platform
All the original data of e-mails sent by the parties, including the information of sender/recipient, sending/receiving time and content of the e-mail, will be saved in the e-mail server. Compared with the e-mail data saved in the local storage of the party’s own computer, the data stored in a third-party e-mail server is more reliable given its neutrality. [4]Therefore, it is better to use an e-mail with a third-party server.
3. Check the e-mail when appearing in court
The parties may log in and check the e-mail when appearing in court. If the e-mail content directly obtained can be proved consistent with the e-mail submitted as evidence, and other parties have not presented evidence proving the contrary, the on-site inspection results can directly prove the authenticity of the e-mail.
4. Notarize important e-mails
Notarization is the activity of proving certain facts and documents. In China, the notarization function is exercised by the notary office established by the government, and the specific work is carried out by the full-time notary employed by the notary office. According to China’s evidence rules, the notarial certificate issued by the notary office has a stronger probative force than the general evidence. [5]
As to the e-mail, the parties may check their own e-mail on the computer of the notary office, and the notary shall confirm the existence and content of the e-mail. Although this kind of notarization cannot prove the entire process from e-mail generation to sending (or receiving), and there is also the possibility that the parties forge the e-mail for notarization, the court shall confirm the authenticity of the notarized e-mail according to Article 94 of “The Several Provisions on Civil Litigation Evidence” (关于民事诉讼证据的若干规定) of the Supreme People’s Court, unless the other party can present evidence proving the contrary.
5. Appraise the e-mail
In addition, if the other party challenges the e-mail, the party concerned may also request the court to organize technical appraisal on the e-mail to prove its authenticity. [6]
[1] 《民事诉讼法》第六十三条、最高人民法院《关于适用〈中华人民共和国民事诉讼法〉的解释》第一百一十六条、最高人民法院《关于民事诉讼证据的若干规定》第十四条
[2] 最高人民法院《关于民事诉讼证据的若干规定》第十五条
[3] 参见上海市第一中级人民法院(2018)沪01民终10457号判决书
[4] 参见上海市闵行区人民法院（2010）闵民二（商）初字第1763号案，法院认为，由第三方网站提供的电子邮箱中收到的电子邮件，其中显示的发件人、收件人、时间和邮件内容等均系该第三方网站根据邮件发送时的客观情况所形成的，且上述内容的电子数据均保存在该第三方网站的服务器中，故电子邮箱的使用者无法对上述内容自行修改。因此，法院认为该三份邮件反映了邮件发送时的客观情况。
[5] 最高人民法院《关于民事诉讼证据的若干规定》第九十四条、最高人民法院关于适用《中华人民共和国民事诉讼法》的解释第九十三条。
[6] 参见上海市浦东新区人民法院（2012）浦民一（民）初字第40955号案，法院委托上海东方计算机司法鉴定所对4 份电子邮件是否存在篡改进行司法鉴定，司法鉴定意见书显示：由于 OUTLOOK 电子邮件系统的不可编辑性，确认所鉴定的电子邮件及其附件为真实的。
Photo by Luca Bravo(https://unsplash.com/@lucabravo) on Unsplash
Contributors: Chenyang Zhang 张辰扬 , Ran Ren 任冉
