By Maarten Roos and Limeng Yang
Digital technologies have become widespread in China, and are a huge part of the economy’s success. For example, more than 750 million smartphones are currently in use in China, and tools such as WeChat and Alipay have become indispensable in daily life. In law however, the use of electronic data is still under development. In particular, China’s rules on evidence sometimes make it difficult for courts to admit electronic data into evidence. On 26 December 2019, the Supreme People’s Court (SPC, China’s highest court) took an important step forward with the Several Provisions on Evidence for Civil Actions. The new rules will go into effect on 1 May 2020, but we expect courts to start using them as guidance immediately.
The concept of digital evidence was introduced in the 2012 amendments to the PRC Civil Procedure Law, and since then courts have gained familiarity dealing with digital evidence when dealing with a case. The SPC’s new rules reconfirm that all kinds of electronic documents can serve as evidence, specifically including information released via online platforms such as web pages, blogs and microblogs, messages such as short messages sent via mobile (cell) phones and e-mails, user registration information, and computer files.
In China’s procedural system, the key challenge for courts is to determine whether electronic data is authentic. The new rules (in Article 94) establish the circumstances under which a court should ascertain the authenticity of certain electronic data, unless there is sufficient evidence to prove the opposite:
1) the data is against the party that submits them;
2) the data is provided or submitted by a neutral third party;
3) the data is created during ordinary course of business;
4) the data is kept in official files;
5) the data is stored, transmitted, retrieved as agreed by the parties;
6) the data has been notarized.
These items are not necessarily new; to a varying extent, courts already ascertain the authenticity and validity of such data in practice. Important is that the new rules give courts a clear framework that encourages them to take a close look at the evidentiary value of certain electronic evidence.
This is good news for international companies in China. In litigation and arbitration in China, it is often challenging to prove that certain evidence is authentic and this is especially the case for electronic data. The notarization of emails or WeChat messages is already a very common strategy, but the above list offers other options when notarization is no longer an option. Item 5 is particularly interesting, as it clears the path to contractual terms in which the parties agree in advance on the keeping of electronic data for a potential dispute in future.
R&P’s dispute resolution team advises and represents international companies in litigation before China’s courts, and in domestic and international arbitration under PRC laws. For support, including more detailed advice on how to maintain and collect evidences for a (potential) dispute, please contact R&P’s litigation team at [email protected] or [email protected].