Anna Mae Koo and Ann Xu of Vivien Chan & Co examine the new rules surrounding e-evidence, as well as the role blockchain and time stamps play in IP cases
The emergence and popularisation of digital communication and exchange of information in electronic forms has not only drastically transformed our daily lives, but also led to the need to produce electronic evidence (e-evidence) in court litigation. Traditionally, Chinese judges were reluctant to accept e-evidence in court proceedings as it was thought that e-evidence could be easily modified. This was difficult for parties needing to prove a case in which the only available evidence was e-evidence. With the adoption of modern evidence preservation technology like time stamps and blockchain, there has been a change in attitude in the Chinese courts when it comes to accepting e-evidence in different formats as authentic and admissible evidence.
The earliest form of e-evidence incorporated to the laws in China was “electronic data text” in the Contract Law of the PRC promulgated in 1999 which expressly included “telegram, telex, fax, electronic data exchange and e-mail” as written forms of contract. Nevertheless, e-evidence was only introduced as a new form of possible admissible evidence in civil proceedings in China in the Civil Procedure Law of the PRC in 2012.
With the increasing demand for use of e-evidence in litigation, the Supreme People’s Court of the PRC (the SPC) recently announced the Decision to Amend the Provisions on Evidence in Civil Procedures in December 2019 to clarify the requirements for e-evidence to be accepted in court proceedings. The amended Several Provisions on Evidence in Civil Procedures (the new provision) published on the same day will take effect on May 1 2020.
In particular, the new provision explicitly sets out the scope of admissible e-evidence in civil proceedings under Article 14, which includes:
• Information published on a website, blog, microblog and other online platforms;
• Communication information via SMS, e-mail, instant message, group chat and other means;
• User registration information, identity authentication information, electronic transaction record, communication record, login log and other similar information;
• Documents, pictures, audio, video, digital certificates, computer programs and other electronic documents;
• Other information stored, processed and transmitted in electronic form which can prove the facts of the case.
The new provision not only expands the scope of admissible e-evidence but also clearly sets out the types of evidence that may be relied upon in civil litigation. Subsection (5) of Article 14 also leaves discretion for the courts to accept other emerging types of e-evidence.
While different types of e-evidence are now specifically recognised as admissible in civil proceedings, proving and showing the authenticity of the same remains an issue to be resolved by the party who wishes to rely upon the e-evidence. As a recap, the court in China traditionally only accepts original paper evidence (or notarised and/or legalised reports) as authentic evidence.
To address the concern that e-evidence is easily modified and to encourage a unified standard to be adopted by different levels of courts in examining the authenticity of e-evidence, the SPC has set out various factors that the courts should consider in determining the authenticity of e-evidence under Article 93 of the new provision:
• Whether the hardware and software environment of the computer system which generates, stores and transmits the electronic data is complete and reliable;
• Whether the hardware and software environment of the computer system which generates, stores and transmits the electronic data is in normal operation state, or when it is not in normal operation state, whether it has an impact on the generation, storage and transmission of the electronic data;
• Whether the hardware and software environment of the computer system which generates, stores and transmits the electronic data is effectively monitored with verification means in place to prevent errors;
• Whether the data is completely stored, transmitted, and retrieved;
• Whether the methods for storage, transmission, and retrieval of the data are reliable
• Whether the data is formed and stored under normal circumstances;
• Whether the main body for saving, transmitting and extracting the electronic data is appropriate; and
• Other factors affecting the completeness and reliability of the electronic data.
Further, to ease the burden of proving the authenticity of e-evidence, the new provision sets out circumstances under Article 94 in which the court may presume the e-evidence to be authentic unless there is evidence to the contrary:
• The electronic data submitted or kept by one party is against its own interests;
• The electronic data is provided or confirmed by the independent third-party platform which records and stores such electronic data;
• The electronic data is formed in normal business activities;
• The electronic data is stored in the form of archives;
• The electronic data is preserved, transmitted or extracted in a manner agreed by both parties in the case.
It is still generally difficult to prove or show the fulfilment of the aforesaid, and arranging notarisation is therefore the most commonly used way. For example, to preserve the content of a website, we may engage a notary to do a “screen-cap” and to prepare a notary report for recording the content of the website at a particular point in time. However, notarisation is often found to be costly and time-consuming in relation to preservation of e-evidence. It is also not particularly feasible when the e-evidence involved is huge in volume or is rapidly changing. It is therefore a welcome development that the court is open to recently developed technologies such as time stamp and blockchain technology for authentication of e-evidence.
Trusted time stamp and blockchain technology were explicitly recognised by the SPC to be used in certifying authenticity of e-evidence in the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases by Internet Courts issued in September 2018. Although the application of the aforesaid provision is confined to cases tried at the Internet Courts, in 2019, the Jiangsu Higher People’s Court expanded the scope of use of trusted time stamps and blockchain evidence to intellectual property litigation in all courts. There is also a growing trend for e-evidence certified by trusted time stamps and blockchain to be accepted in other types of cases.
Trusted time stamp is an electronic certificate issued by the UniTrust Time Stamp Authority, the only recognised independent time stamp service provider in China for the time being, which is used to prove that the electronic data/documents already exist at a certain point in time and that the content of the data/documents remains complete and unchanged. It is useful in disputes concerning when the e-evidence is generated and whether it is forged or has been tampered with.
Compared with traditional notarisation of e-evidence, the costs in obtaining a trusted time stamp are lower and certification can usually be completed instantaneously. With the growing acceptance of trusted time stamp by the Chinese courts, particularly in intellectual property disputes, it is no doubt a cost-effective alternative to notarisation when a large amount of e-evidence is involved.
Blockchain is a shared database with a growing list of records. Electronic data will be continuously uploaded to the blockchain and be stored in a specific form to ensure that such stored data is irreversible and difficult to be tampered with. Such technology was initially used to record digital currency transaction details, but in recent years, its use has expanded to the field of e-evidence extraction and storage, and the reliability of this technology has been recognised by the Chinese courts.
In June 2018, the Hangzhou Internet Court confirmed for the first time the legal effect of e-evidence obtained using blockchain technology in a copyright infringement dispute. Shortly after the SPC published the Provisions of the SPC on Several Issues Concerning the Trial of Cases by Internet Courts in September of the same year, the Beijing Internet Court applied such provisions in the famous case Beijing Weibo Shijie Technology Co., Ltd. v Baidu Online Network Technology (Beijing) Co., Ltd. involving an infringement dispute between two popular short video streaming platforms in China, Douyin and Huopai, and accepted e-evidence preserved by third party blockchain service providers from both parties. By the end of 2018, the Beijing Internet Court further stepped up and launched a court-authorised blockchain-based electronic evidence platform, named Tianping Lian.
While notarisation and time stamp may be used to certify that e-evidence exists at a point in time, blockchain technology has the unique advantage of being able to instantaneously extract e-evidence and store it in the blockchain. It is particularly useful in real-time evidence collection and monitoring of infringement activities on websites and live videos.
The Chinese courts have traditionally been reluctant to accept e-evidence in litigation. Even when such evidence was accepted, the courts would depend heavily on notary organisations to authenticate it. The recent trend shows that courts are becoming more receptive to e-evidence. With the new provision issued by the SPC coming into effect in May 2020, we are excited to see further new developments in the new era of e-evidence, as opposed to only seeing acceptance of original paper evidence (which has to be original, or notarised and/or legalised).
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, any other of its practitioners, its clients, or any of its or their respective affiliates. This article is for general information purposes only and is not intended to be and should not be taken as legal advice. Please contact the author(s) if you have any questions about this article.
Anna Mae Koo
Anna Mae Koo is a partner at Vivien Chan & Co and leads all areas of the intellectual property practice, including non-contentious, contentious and transactional IP law in the Hong Kong and China offices. She regularly advises on all areas of intellectual property including licensing, franchising, IP due diligence, prosecution and unfair competition law in China and Hong Kong.
Anna Mae is a Techstars mentor and is actively involved in the Litigation Committee of the International Bar Association (IBA) and the Bulletin Committee of the International Trademark Association (INTA).
Anna Mae is consistently named as a rising star in intellectual property by various major legal publications. She was a Prince Philip Scholar at the University of Cambridge, where she graduated with an MA in law.
Ann Xu is a trademark attorney and heads the Beijing office at Vivien Chan & Co. She has over 20 years of experience in intellectual property cases in mainland China. She has trademark, copyright and designs expertise. She regularly advises on prosecution and portfolio management. Ann is consistently nominated as an International Who’s Who Trademark Lawyer.