By Xu Jing King & Wood Mallesons’ Intellectual Property group
The amendments to the Supreme People’s Court’s Provisions on Evidence in Civil Procedure will come into effect on May 1, 2020 (the “New Evidence Provisions”). This is the first time that the Supreme People’s Court (“SPC”) amended this judicial interpretation since it came into effect in 2002. The New Evidence Provisions has 89 amended or new provisions, and one of its significant improvements is the rules of electronic data. This note will provide an overview on the new rules related to electronic data evidence, alternatives of securing electronic data under the New Evidence Provisions, and our recommendations.
1. Electronic Data Provisions under the New Evidence Provisions
The New Evidence Provisions covers the following aspects of rules on electronic data evidence – Subject Matter (Article 14), Submission (Articles 15 and 23) and Authentication (Articles 93 and 94). It also provides that rules of documentary evidence generally apply to electronic data (Article 98).
The current authority on subject matter is Article 116.21 of the SPC’s Interpretations to the PRC Civil Procedure Law (the “Interpretations”). The general definition under the Interpretations has been making the court difficult to have consistent standards on formality and authentication for electronic data evidence that vary significantly in nature. Article 142 of the New Evidence Provisions defines electronic data into five categories – 1) information posted on electronic platforms (e.g. webpage, blog), 2) communications through services of network application (e.g. email, text message), 3) electronic records (e.g. user registration information, transactions), 4) electronic files (e.g. images, computer program) and 5) other information stored, processed or transmitted in digital means – with a listing of the most common types of electronic data under each category. This should be able to allow the court to develop consistent but specific standards for each category, and to decide admissibility of electronic data falling into the “other information” on a case-by-case basis, giving direct guidance to litigants.
Article 153 of the New Evidence Provisions formalizes that duplicate of electronic data made by the creator, print copy of electronic data, or other displayable media can be deemed as original. This change allows a litigant to produce static webpages or electronic documents by means other than notarized downloads. However, the SPC makes clear (in its explanatory materials) that a court should still focus on examining completeness and reliability of storage and transmission of electronic data.
For evidence collection or execution of an order of evidence preservation initiated or handled by the court, it is required to secure the original media or make a court record on the source of evidence and collection process if duplicate is collected4.
As discussed in the paragraph above, in determining authenticity, a court is required to examine completeness and reliability of storage and transmission of electronic data. Article 935 of the New Evidence Provisions lists seven factors in determining authenticity of electronic data, and the court may arrange a judicial appraisal or in-court or out-court inspection if necessary. The seven factors can be summarized as: 1) whether the hardware and software systems that generation, storage and transmission of the electronic data is relied on are complete and reliable, work under normal circumstances, and has implemented measures to monitor and fix bugs; 2) the completeness of the electronic data secured, and the reliability of the method of securing the data; 3) whether the electronic data is generated and stored in ordinary course of business; 4) whether the individual or entity that stores, transmits and secure the electronic data is proper; and 5) other relevant factors.
To simplify the authentication process, Article 946 also creates five presumptions for 1) electronic data stored or submitted by a litigant the interest of which is against that litigant; 2) electronic data provided or certified by neutral platforms; 3) electronic data generated in ordinary course of business; 4) archived electronic data complied with regulations and standards; and 5) electronic data which methods of storage, transmission and collection are agreed by the parties. The presumptions are overcome when rebuttal evidence meets the “preponderance of the evidence” standard. However, if the data is secured through notarization, the “beyond a reasonable doubt” standard applies.
2. Alternatives of securing electronic data evidence under the New Evidence Provisions
With the New Evidence Provisions, in addition to the traditional notarization (e.g. notarized downloads), a litigant will have the following alternatives to secure electronic data evidence in civil proceedings:
While a print copy of electronic data is deemed as original under the New Evidence Provisions, the court is likely to follow the existing approach to check authenticity – i.e. check the original electronic data through in-court inspection if the adversary challenges. Nevertheless, print copy is still a good option for securing evidence on public-accessible network that can be easily verified through a personal computer, such as webpages of your own websites, public records on government sites, etc.
Timestamp is an alternative to traditional notarized downloads to secure static electronic data on public-accessible network, and the New Evidence Provisions formalizes it as an acceptable form of evidence. It is designed to prove existence and completeness of a set of electronic data at an exact point of time. While Timestamp can be used to secure electronic data on personal computers and mobile phones, it is usually used to secure static webpages on public-accessible websites, as the whole process is executed through an online portal of Timestamp that excludes any technical interference. A litigant should check whether the equipment is clear from any manipulation and interference. The standard of checking “clearness” of the computer used for arranging Timestamp has been clearly stated in several cases7. Timestamp is also a common tool to secure proof of authorship. A private contractor (tsa.cn) offers this service and the data secured through Timestamp has been accepted by many courts (more than 1,000 cases in 2018). The cost is minimal – RMB 10 per webpage plus a fee for issuing a formal appraisal report.
Private vendors also offer services based on blockchain technologies for securing electronic data evidence in China, which can be admissible if the evidence meets the requirements under Article 93 of the New Evidence Provisions. These services pack the electronic data and its logs, generate hash value, and upload the pack. Electronic data secured based on this technology have been admitted by the two Internet Courts in Beijing and Hangzhou in several cases8, and the standard of authentication examination is also outlined in these judgments. Different from Timestamp, the process of securing electronic data under this approach is completed through a remote desktop without reliance on the local computer, and is particularly helpful to record a series of conducts, such as recording an online video, receiving and sending emails, placing an order online, etc. Costs vary depending on the services chosen, but they are generally lower than obtaining the same services from a notary public.
(4)Online Notarization Platforms
Notary offices also introduced its own notarization platforms, one of which is “Notary Cloud” (egongzheng.com) having access to 1,177 notary offices. The platform collects electronic data uploaded by its user through its platform, pack and store the data on designated servers. Upon request of the user, any notary office can check the data and issue a notary report if it is complied with notary regulations. Advantage under this option is that probative force of a notary report is stronger than other options discussed above, and only rebuttal evidence that meets the “beyond a reasonable doubt” standard can defeat the notary report. Costs are higher than Timestamp or blockchain, and normally consist of a preservation fee charged by the platform and a notary fee charged by the local notary office.
The most common types of electronic data used as evidence in IP cases are 1) webpages and blogs; 2) emails and text messages; 3) records of purchasing a good (e.g. an infringing good), and user identity information and sales data of an online account (e.g. to support degree of fame or an award of higher damages); 4) electronic files, video, audio and computer program. The traditional approach – securing the electronic data with supervision of two notary officers – is often costly if the volume of data is large (e.g. notarized downloads of webpages). And in some occasions that time is of essence, it could be delayed due to the notary’s tight schedule. With the New Evidence Provisions and court’s clarifications on the authentication standard in individual cases, the alternatives discussed above are good option for a litigant to secure electronic data evidence in a cheap and timely manner.
Please note that a notary report still has stronger probative value than the alternatives above (except the online notarization platform). In light of this, it is still recommended to secure the most critical evidence through the traditional approach – scheduling with a notary officer, going to the notary office, downloading and securing the electronic data by using the notary office’s computer and with witness of the notary officer. For other evidence that is not critical to support infringement claims or defenses, our recommendations are as follows:
- Print Copy – for webpages on permanently public-accessible government websites (e.g. the CNIPA’s online trademark database and the SAMR’s online business record system) or webpages available on your website that can be easily verified through a personal computer only.
- Timestamp – for static webpages on websites by private entities (e.g. webpages of the adversary’s online store or stand-alone website, false advertising on blogs or WeChat, prior arts, etc.) that could be intentionally or unintentionally removed before the trial. Please note that the Internet Archive is not always acceptable before a PRC court, as the site is not legally accessible in China.
- Blockchain-based Platforms – for recording video, process and dynamic webpages on private websites. For an online notarized purchase that is designed to secure critical infringement evidence, it is recommended to secure evidence of the purchase and receipt of goods through the traditional notarization, but for other information, such as conversations with the seller, request for a formal invoice or screenshots of the seller’s identity or business registration information, can be secured through this approach.
- Article 116.2 of the SPC’s Interpretation defines “electronic data” as “information generated or stored on electronic medium, such as emails, electronic data exchange, records of online chatting, blogs, microblogs text message, electronic signature, domains, etc.
- Article 14 of the New Evidence Provisions provides that “Electronic data includes the following information and electronic documents: 1) information released by network platforms, such as webpages, blogs and microblogs; 2) communication information through network application services, such as text messages, emails, instant messaging and communication groups; 3) user registration information, identity authentication information, electronic transaction records, communication records, login logs, and other information; 4) electronic documents, such as documents, images, audio, video, digital certificates, and computer programs; and 5) information otherwise stored, processed, and transmitted in digital form that can prove the facts of the case.”
- Article 15 of the New Evidence Provisions provides that “where a party uses audio/visual recordings as evidence, the original medium in which the audiovisual recordings are stored shall be provided. If a party uses electronic data as evidence, the original shall be provided. A copy made by the producer of electronic data consistent with the original, or a print copy directly derived from electronic data, or any other output that can be displayed and recognized shall be treated as the original of the electronic data. ”
- Article 23 of the New Evidence Provisions provides that “a people’s court shall, when collecting audiovisual recordings and electronic data through investigation, require the person under investigation to provide the original medium. If the original medium is compellingly difficult to provide, a reproduction may be provided. If a reproduction is provided, the people’s court shall state its source and process of making in the investigation transcripts. If the people’s court adopts evidence preservation measures for audiovisual recordings and electronic data, the provisions of the preceding paragraph shall apply.”
- Article 93 of the New Evidence Provisions provides that “a people’s court shall comprehensively judge the authenticity of electronic data in light of the following factors: 1) whether the hardware and software environment of the computer system in reliance on which the electronic data is generated, stored, and transmitted is sound and reliable; 2) whether the hardware and software environment of the computer system in reliance on which the electronic data is generated, stored, and transmitted is in a normal operating state, or whether its aberrant operating state affects the generation, storage, and transmission of the electronic data; 3) whether the hardware and software environment of the computer system in reliance on which the electronic data is generated, stored, and transmitted has effective monitoring and verification methods to prevent errors; 4) whether the electronic data is completely stored, transmitted, and retrieved and whether the methods for storage, transmission, and retrieval are reliable; 5) whether the electronic data is generated and stored during normal exchange activities; 6) whether the party storing, transmitting, and retrieving the electronic data is suitable; 7) other factors affecting the integrity and reliability of the electronic data. A people’s court may, as it deems necessary, examine and judge the authenticity of the electronic data by authentication, survey, and other means.”
- Article 94 of the New Evidence Provisions provides that “where electronic data has the following circumstances, the people’s court may confirm its authenticity, unless there is evidence to the contrary that suffices for contradiction: 1) electronic data submitted or kept by a party which is adverse to it; 2) provided or confirmed by a neutral third-party platform that records and stores electronic data; 3) generated in normal business activities; 4) kept by means of archive management; 5) stored, transmitted, or retrieved by means agreed by the parties. If the content of the electronic data is notarized by a notary office, the people’s court shall confirm its authenticity, unless there is evidence to the contrary that suffices for rebuttal.”
- (2016) Jing 73 Min Zhong No. 147
- (2018) Zhe 0192 Min Chu No. 81; (2019) Jing 0491 Min Chu No. 37452