In the first case heard by the Beijing Internet Court after its establishment in September 2018, i.e. the online video infringement dispute between Toutiao and Baidu, the parties submitted the electronic data preserved by the third party to the court as the evidence.
In fact, this case is by no means an exception. In recent years, a large number of companies engaged in online electronic data preservation have emerged in China. Their business aims to help enterprises and individuals to extract and preserve electronic data from the Internet in batches which are proposed to be used as evidence so that they can produce the evidence for the litigation afterward. So why is this emerging business starting to be one of the most popular fields in the Chinese legal tech market?
China said the number of Internet users in the country reached about 253 million in June 2008, putting it ahead of the United States as the world's biggest Internet market. As of March 2017, there are about 700 million Chinese internet users, and many of them have a high-speed internet connection, which has led to more and more Internet-related disputes in China.
For example, there are contractual disputes arising from e-commerce activities; intellectual property disputes caused by posting infringed pictures, videos or literary works online; privacy disputes arising from disclosure of personal privacy or disputes over rights to reputation arising from posting humiliating and defamatory information in online communities, and social media, and so on.
In these disputes, if the parties want to prove the breach of contract or infringement, they must provide electronic data as evidence in the form of e-mail, digital pictures, website content, posted information, etc.. However, the electronic data can be easily modified, and if the parties do not preserve it in time, it may be difficult to obtain data or data in its entirety in the future. According to the PRC Civil Procedure Law (CPL) and the relevant evidence rules, any photocopy or reproduction that cannot be verified against the original document or item cannot be used independently as a basis for fact-finding. Generally speaking, it is difficult for a party to obtain an "original" of electronic evidence from the Internet, and it is difficult to prove that the evidence submitted to the court is authentic and complete.
Specifically, in China, the parties can obtain and preserve electronic evidence to the court in four ways.
1. The parties obtain electronic data by themselves
The electronic data obtained by the parties themselves are difficult to be admitted by the court.
All along, Chinese judges generally believe that electronic data are easily modified and are not easily traceable after modification. In China, the perjury by the parties is also very common. In order to achieve the litigation purpose to the advantage of the parties themselves, they have the motivation and ability to modify the electronic data.
Therefore, if the electronic data are extracted by the parties and submitted to the court, then once the other party challenges the originality of the electronic data, the judge will generally prefer not to admit such evidence.
2. Notarized evidence preservation
Chinese judges prefer to use notarized electronic data, but the cost of preserving electronic data by the way of notarization is relatively high.
Notarized electronic evidence preservation refers to the process during which a notary office witnesses the data acquisition from a particular server and preserves the data obtained, thereby verifying the originality of the data and the authenticity of the data acquisition process.
Almost all Chinese judges believe that notarized online electronic data are the form of evidence they are most willing to adopt.
On the one hand, because the notarization is impartial, the judge does not have to worry about the risk of the notary tampering with the electronic data. Moreover, the China Notary Association also issued “the Guiding Opinion on the Notarized Preservation of Online Electronic Evidence” (办理保全互联网电子证据公证的指导意见) in 2012, which clearly regulates the details of how the notary office preserve the online electronic data.
On the other hand, the law allows judges to adopt notarized electronic data, so judges do not have to spend too much time on reviewing such evidence, and will not be held liable even if mistakes occur. Because according to the provisions of the CPL and relevant judicial interpretations, the parties do not need to produce any evidence to confirm the notarized facts. However, at present, the notary office adopts a method of taking screenshots from the computer and printing hard copies for electronic data preservation, and the notarization fee is charged according to the documents pages number. Normally, whether it is in the form of e-mail or web page, the notary fee for screenshot and printing a page of A4 paper is RMB 100 (around USD 14.5).
For some large Internet companies, the number of e-mails and web pages that need to be certified in a year can reach tens of thousands or even hundreds of thousands of pages. If all are preserved by notarization, the cost will reach several million or even tens of millions of RMB yuan, which costs greatly.
3. Forensic examination institutions to preserve electronic evidence
The parties or the court may entrust a forensic examination institution to preserve the online electronic data, but this method is difficult to maintain timeliness.
According to the CPL, only after the case is registered, the parties file an application to the judge and the forensic examination procedure is later initiated by the judge, can the expert opinion issued by a forensic examination institution become the admissible evidence that meets the legal requirements.
However, before the case is registered, the judge will not accept the expert opinion issued by the forensic examination institution which is entrusted by one party, unless it is approved by the other party.
However, online electronic data are a kind of evidence vulnerable to losses and damages. If the data holder (such as the website operator involved in the infringement) knows that someone is going to sue him/her, then he/she will delete the related content as soon as possible and even shut down the entire website. At this time, it is almost impossible for the forensic examiner to obtain any evidence related to the alleged infringement.
4. Electronic data preservation platforms to preserve electronic evidence
Faced with the above difficulties, some enterprises that have a large demand for online evidence preservation, especially Internet companies and e-commerce companies, are beginning to seek for more efficient, cheaper, and legally effective way to preserve the evidence. Therefore, companies for electronic data preservation began to emerge in such context.
These electronic preservation platforms obtain the evidence from the parties, disinterested third-party data holders or third-party data holders which provide services to the parties (such as online shopping websites), and third-party data service providers (such as electronic contracting platforms). When the party submits the electronic evidence to the court, the platform automatically compares the electronic data submitted by the party with the electronic data it has saved, and determines whether the party has modified the data, thereby assisting in verifying the authenticity of the electronic evidence.
The court is also actively responding to this trend. On June 28, 2018, Hangzhou Internet Court confirmed the legal effect of the electronic data obtained by the parties using the blockchain technology for the first time in a dispute over the infringement upon the right of communication through the information network. In September 2018, the Supreme Court of China (the SPC) promulgated “the Provisions on Several Issues Concerning the Case Trial by Internet Courts” (关于互联网法院审理案件若干问题的规定, hereinafter referred to as the Provisions), and Article 11 thereof stipulates that if the evidence submitted by the parties can be certified by the electronic evidence preservation platform and can be proved its authenticity, the Internet court shall make confirmation. In December 2018, the Beijing Internet Court also cooperated with a third-party company to launch a blockchain-based electronic evidence platform, namely Scale Chain ( “Tianping Lian” in Chinese ).
The case described at the beginning of this article is exactly the first application of the SPC Provisions by the local court.
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Contributors: Xiaokai Li 李小恺