Have you ever wondered if what you say online can be used against you in China? Or if in case you copy something from the internet that you did not write, and then publish it, if you can be sued?
The answer is yes.
In China, content on Wechat, other social media and on the internet can be used as evidence in courts.
Notarisation before use in court
For years, China’s Supreme People’s Court (SPC) already allowed Wechat to be used as evidence in court.
Normally, before this digital evidence can be used though, it needs to be notarized by a Chinese notary public in order to be allowed as evidence.
The reasoning for this is that without notarization the evidence could be tampered with, as it is quite easy to fake an online account, statement or document. Therefore, if the evidence is not notarised, it will not be allowed as evidence in court.
China’s internet courts
Anno 2018, China now has several Internet Courts that take up internet related disputes. These courts can be found in Beijing, Guangzhou and Hangzhou, and generally take up internet related cases.
With the setting-up of these courts, the question came to mind if with these specialized courts, also the rules for evidence needed to be changed in the sense that new technology evidence, in the form of blockchain, should be allowed as evidence without notarisation.
Blockchain allowed as evidence
The revolution in China with regard to the internet is going so fast that now blockchain has changed the rules with regard to the notarization of evidence in China.
For the first time ever, a court in China, the Hangzhou Internet Court has allowed blockchain as evidence in a copyright infringement case without notarization. This happened on 27 June 2018.
After this case, the SPC, last month came with a judicial interpretation for the internet courts, in which it stated that blockchain evidence does not need to be notarized anymore:
"If the electronic data submitted by the parties can be proved to be authentic by means of electronic signature, trusted timestamp, hash value verification, blockchain and other technical means of evidence collection, fixation and tamper-proof, or authenticated by electronic forensics and deposit platform, the Internet court shall confirm the authenticity."
For evidence that cannot be fixed as mentioned above, if a party objects to the authenticity of electronic data, the Internet court shall examine and judge the authenticity of the process of generating, collecting, storing and transmitting electronic data in the light of cross-examination, and shall focus on the following:
- whether the hardware and software environment on which electronic data is generated, collected, stored and transmitted is safe and reliable;
- whether the subject and time of electronic data generation are clear, and whether the contents are clear, objective and accurate;
- whether the storage and storage medium of electronic data is clear, and whether the way and means of safekeeping are appropriate;
- whether the subject, tools and methods of electronic data extraction and fixation are reliable, and whether the extraction process can be reproduced;
- whether the contents of electronic data are increased, deleted, modified or incomplete;
- whether electronic data can be verified through specific forms.
The end of notarisation in China?
As the SPC allows digital evidence, and China is further moving into the digital domain, the developments with regard to allowing blockchain as evidence in the internet courts are positive. It definitely makes it easier for rightholders to prove certain infringements upon their rights.
With all these new technologies that can be used as evidence nowadays, rightholders can prove infringements easier and uphold their rights faster. For now, this will not yet mean the end of notarization in China. However, we will keep a close eye on the developments of the use of blockchain as evidence in the higher courts in China.
With all the terms at the moment from "Internet of things", to "blockchain" to "Industry 4.0", maybe we should also speak of new evidence 4.0 in China, or maybe just simply call it evidence 2.0? We will keep you updated on the further developments with regard to law and ICT.