What this year has meant for new evidence rules on electronic evidence in China

On 25 December 2019, the Supreme People’s Court of China (SPC) published the updated version of the “Several Provisions of the SPC on Evidence for Civil Litigation” (New Evidence Rules), which took effect on 1 May 2020. The New Evidence Rules reflect the amendments adopted by the SPC’s judicial committee to existing rules which have guided Chinese court proceedings for almost eighteen years. It is widely accepted that these amendments were adopted with an aim to reform court practices to cope with significant social changes the People’s Republic of China (PRC) and the development of the country’s legal system in the past two decades.  

In the New Evidence Rules, the SPC provides further guidelines on using electronic data as evidence in Chinese court proceedings.

“Electronic data” was first introduced into Chinese Civil Procedure Law as a separate category of admissible evidence in 2012. In 2015, the SPC defined electronic data as “information stored or produced in electronic medium through email, exchange of electronic data, online chat record, blogs, microblog, text messages, electronic signature and network domain” in its “Interpretations of the SPC on Application of the CPL”. The New Evidence Rules go further, specifying the types of electronic data that can be used as evidence, its requirements for submission as evidence, and the criteria for the court to verify it.

Scope of electronic data

Under Article 14 of the New Evidence Rules, electronic data shall include:

1. Information published on online platforms, such as websites, blogs, and microblogs.
2. Communications by network application services, such as text messages, emails, instant messages, and chat groups communications.
3. User registration data, identity verification information, electronic transaction records, communication records, login records, etc.
4. Electronic files, such as documents, pictures, audio records, video records, digital certificates, computer programs.
5. Other information stored, processed or transmitted in a digital form that can be used to prove the facts relating to the case.

Requirements for a party to submit electronic data as evidence

Article 15 of the New Evidence Rules states that a party must submit the “original copy” of a piece of electronic data to the court if it wishes to use it as evidence.

“Original copy” is taken to mean:

1. A copy made by the maker of the electronic data which is identical to the original copy.
2. A copy printed, displayed, or identified by other means directly from the original copy.

The New Evidence Rules also clarify that the rules applicable to hard copy evidence apply equally to electronic evidence. This allows a party to request a counterparty to produce electronic evidence in accordance with the procedures set out in the New Evidence Rules.

Criteria for the court to verify electronic data

The New Evidence Rules also provide criteria for the courts to verify electronic evidence. Article 93 of the New Evidence Rules states that the courts shall take into consideration the following factors when determining whether electronic data are authentic:

1. Whether the hardware and software of the computer system by which the electronic data was generated, stored and transmitted are:

1. Complete and reliable.
2. Operating normally.
3. Equipped with effective monitoring and inspection functions to prevent errors.

• Whether the electronic data has been preserved, transmitted and extracted in its entirety, and whether the methods of preserving, transmitting and extracting such data are reliable.
• Whether the electronic data has been generated and stored in the usual course of business.
• Whether the electronic data has been preserved, transmitted and extracted by an appropriate person or entity.
• Any other factors that could affect the integrity and reliability of the electronic data.

Under certain circumstances, the authenticity of the electronic data can be presumed, unless there is evidence to the contrary. These circumstances include, according to Article 94 of the New Evidence Rules:

1. When the electronic data is unfavourable to the case of the party who submitted it.
2. When the electronic data is provided or confirmed by a third party who is responsible for recording or maintaining such data.
3. When the electronic data was generated in the usual course of business.
4. When the electronic data is preserved by archive management.
5. When the electronic data is preserved, transmitted and extracted by a method agreed between the parties.

In examining the evidence, a party may ask to inspect the original of the electronic data submitted by the other party, including the device or storage medium where the electronic data was first generated. It may submit to the court its opinion as to the authenticity of the electronic data. The court may also seek an expert opinion regarding whether the electronic data is authentic. 

Comments

As information technology is widely used in daily life and business it is impossible for courts to ignore electronic data as evidence. The rules regarding electronic evidence adopted by SPC in the New Evidence Rules provide, for the first time, actionable guidelines for the courts and parties to follow when introducing electronic data as evidence in court proceedings.

One the one hand, the introduction of such guidelines demonstrates a clear trend that the PRC courts are prepared to open their doors to electronic data. On the other, the guidelines on evaluating the authenticity of such data indicate that courts will remain cautious when deciding its evidentiary value, not least since it can be manipulated in ways previously unfamiliar to courts. It is reasonable to anticipate that, while courts are open to admitting electronic evidence, they and parties will scrutinise it carefully.

As these detailed guidelines are now available, companies in China should consider reviewing their practices in regard to generating, preserving, transmitting and managing electronic data so that it can be used effectively in court or arbitration proceedings. There is likely to be demand for professional support in managing electronic data in dispute resolution proceedings and expertise in reviewing electronic evidence submitted by the other parties.

Stella Hu is a senior consultant and Tianya Ma is an associate at Herbert Smith Freehills LLP, Beijing Office.

Image: AnnaliseArt, under Pixabay licence.