With the increased popularity of the Internet, web-based information is frequently used as evidence in judicial proceedings in China. In most cases, the web-based information is stored inside a web server in the form of electronic data. When submitted to a Chinese court as evidence, the web-based information must be downloaded in the presence of a notary public in order to verify its authenticity.
By Xu Jing, Partner at King & Wood
However, if the downloading process is not conducted properly, the evidence won’t be recognized as authentic, even if the downloading has been witnessed by a notary public.
In the NuCom Online (Beijing) Information Technology Co., Ltd. v. ChinaNetwork Communications Corporation Limited, Zigong Branch case, the Supreme People’s Court emphasized, in its (2008) Min Shen Zi No.926 Civil Ruling, the necessity of examining the origin of web-based information , as said origins are fundamental to deciding whether the notarized evidence can be used as the basis for a court’s judgment. If the notary public cannot gain access to the computer or mobile hard drive before the notarization procedure and if the notarization itself does not include a record of the state of the computer or mobile hard drive with respect to the integrity of said computer/mobile hard drive prior to the downloading, the Supreme People’s Court deems that the notarization can prove that the act of downloading occurred before a notary public, but it cannot prove that the data at issue was actually downloaded from a specific location on the Internet.
The Supreme People’s Court’s above judgment is based on the nature of web technology. Electronic data stored in a web sever can also be stored or cached in a local computer. Under certain scenarios, when you use a local computer to visit a target website, the web pages displayed are actually those stored or cached in the local computer, rather than web pages downloaded from a remote website. Therefore, the actual origin of the evidence cannot be guaranteed merely by having a notary public witnessing the downloading process, as that “downloading” may be simply pulling up the web page from the cache in the local computer.
The Supreme People’s Court’s opinion noted above is not only guidance for the courts when examining notarized web page evidence, but also an important instruction for those parties seeking to gather evidence in support of judicial proceedings in China. To ensure proper authentication of web-based evidence, parties should conduct notarized web page downloads at the notary public office using the notary public’s computer and, also, request that the notary public record the condition of the computer prior to the notarization process. If the downloading must be done on another computer, the party should initiatively request the notary public to delete all relevant files from the caches of the computer by appropriate procedures before downloading the requested web pages and record all of the detailed steps in the notarization process.