Do I need to provide the original copy of the electronic evidence? How to save the parties? How does the court review? A detailed explanation

With the normalization of Internet applications, the four commonly used communication applications such as mobile phone text messaging, WeChat chat, email, and Alipay have long become indispensable tools for life and work. The Decision of the Supreme People’s Court on Amending the “Provisions on Evidence in Civil Litigation” (hereinafter referred to as the “New Evidence Regulations”) formally implemented on May 1, 2020 provides relevant provisions on electronic evidence.

Where is the “new” of the electronic data evidence in the “New Evidence Regulations”? How to review? Let’s study with Xiaobian today!

1. The provisions of the “New Evidence Regulations” on electronic data evidence

Article 14  Electronic data includes the following information and electronic files:

1. Information published on web platforms such as webpages, blogs, and microblogs;

2. Communication information of network application services such as mobile phone 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 files such as documents, pictures, audios, videos, digital certificates, computer programs, etc.;

5. Other information that can prove the facts of the case that is stored, processed, and transmitted in digital form.

Article 15  If the parties use audiovisual materials as evidence, they shall provide the original carrier storing the audiovisual materials.

If the parties use electronic data as evidence, they shall provide the original. A copy made by the producer of the electronic data consistent with the original, or a printed copy directly derived from the electronic data or other output media that can be displayed and identified shall be regarded as the original of the electronic data.

Article 23 The  people’s court shall request the person under investigation to provide the original carrier when investigating and collecting audio-visual materials and electronic data.

If it is really difficult to provide the original carrier, a copy can be provided. Where a copy is provided, the people’s court shall state its source and production process in the investigation record.

Where the people’s court adopts evidence preservation measures for audiovisual materials and electronic data, the provisions of the preceding paragraph shall apply.

Article 93 The  people’s court shall comprehensively judge the authenticity of electronic data in combination with the following factors:

1. Whether the hardware and software environment of the computer system on which the generation, storage and transmission of electronic data depend is complete and reliable;

2. Whether the hardware and software environment of the computer system on which the generation, storage, and transmission of electronic data depend is in a normal operating state, or whether it has an impact on the generation, storage, and transmission of electronic data when it is not in a normal operating state;

3. Whether the hardware and software environment of the computer system on which the generation, storage, and transmission of electronic data depend has effective monitoring and verification methods to prevent errors;

4. Whether the electronic data is completely stored, transmitted, and extracted, and whether the method of storage, transmission, and extraction is reliable;

5. Whether electronic data is formed and stored in normal communication activities;

6. Whether the subject of storing, transmitting, and extracting electronic data is appropriate;

7. Other factors that affect the integrity and reliability of electronic data.

If the people’s court deems it necessary, it may examine and judge the authenticity of the electronic data through methods such as appraisal or inquiries.

Article 94:  The people’s court may confirm the authenticity of electronic data in the following circumstances, unless there is sufficient evidence to the contrary:

1. Unfavorable electronic data submitted or kept by the parties;

2. Provided or confirmed by a neutral third-party platform that records and saves electronic data;

3. Formed in normal business activities;

4. Keep in the way of file management;

5. Saved, transmitted, or retrieved in the manner agreed by the parties.

Where the content of electronic data is notarized by a notary public, the people’s court shall confirm its authenticity, unless there is evidence to the contrary that it is sufficient to overturn it.

2. What’s new in the “New Evidence Regulations”

1  Supplement and improve the scope of electronic data evidence

Article 14 of the “New Evidence Regulations” clarifies the scope of electronic data evidence. According to Article 6 of the “Several Issues Concerning the Understanding and Application of the New “Civil Evidence Regulations” issued by the Supreme Court, the author believes that electronic data evidence can be technically divided into four categories:

Content data: refers to documents, pictures, images, etc. related to the case;

Derivative data: refers to the data related to the operation behavior that is automatically generated by the computer when the content data is operated;

Environmental data: refers to the software and hardware environment on which data is generated, added, deleted, modified, and transmitted;

Communication data: refers to the data about communication generated when using the network to transmit data.

In short, electronic evidence includes information released by the network platform, communication information of network application services, registration information, transaction records and other trace information, as well as electronic files such as documents, audio and video.

In addition, Article 15 of the “New Evidence Regulations” also mentions audio-visual materials. The difference between the two is:

Audiovisual materials: Audiovisual materials include audio and video materials . The original carriers are magnetic tapes, video tapes, and film (storage of analog signals).

Electronic data: Electronic data refers to information formed or stored in electronic media through e-mails, electronic data exchange, online chat records, blogs, microblogs, mobile phone text messages, electronic signatures, domain names, etc. The original carriers are floppy disks, hard disks, optical disks, and U disks (digital signal storage).

Of course, the regulations on electronic data should also be applied to the sound recording and video data stored in electronic media such as voice recording pen recording and mobile phone recording.

II  clear the original requirements

For the proof and cross-examination of electronic data evidence, the “New Evidence Regulations” mainly stipulate the original rules in Article 15, paragraph 2 and Article 23.

Original carrier

As evidence for case review, submitting the original is the principle. For electronic data evidence, the original refers to the various storage media where it was first generated and fixed, such as a camera for shooting videos, a computer for sending emails, and a mobile phone for sending WeChat.

Functionally equivalent

Regarding the situation in practice that the original carrier for recording the electronic evidence is inconvenient to be presented in court, given that what the court really needs to review when hearing a case is the specific content recorded by the medium or carrier, the “New Evidence Regulations” stipulate that if electronic data If the producer makes a copy that is consistent with the original, or is directly derived from a printed copy of electronic data or other output media that can be displayed and identified, it can be regarded as the original of the electronic data. In short, if it can achieve functional equivalence, its copy can be regarded as the original evidence. As for how to determine whether it can achieve functional equivalence, the author believes that the following elements can be referred to:

  • Can it accurately reflect the content of the original data
  • Whether it has final integrity or is it available for retrieval at any time
  • Whether both parties did not raise original objections
  • Whether a reliable electronic signature or other security procedures are attached

3.  Review of electronic data evidence

Under normal circumstances, the review of evidence should focus on its “three characteristics”. Among them, the relevance and legitimacy of electronic evidence is no different from the general type of evidence, so the “New Evidence Regulations” also did not provide for it, but focused on its authenticity. This is because compared with other evidence, electronic evidence has a certain degree of fictitiousness and fluidity. There is a certain time and space difference between the information itself and the storage medium, and electronic evidence itself, as a new type of evidence, needs new evidence. Regulations of laws and regulations.

Check authenticity

Article 93 of the “New Evidence Regulations” stipulates the factors that need to be paid attention to when examining authenticity, which is briefly summarized as follows:

The authenticity of the carrier means that the medium and equipment storing the electronic data maintain the originality, identity, and integrity during the litigation process, and there is no forgery, alteration, replacement, or destruction.

The authenticity of the data itself refers to whether the electronic data is true at the technical level, whether the original data is consistent, whether there is any modification, deletion, or addition.

The authenticity of the content Whether the content recorded in the electronic evidence is true and whether it can prove the facts of the case.

for example

The two parties entered into a sales contract through the WeChat chat process. In the litigation, the plaintiff provided the WeChat chat record as evidence to prove that the two parties had reached a legal relationship in the sales contract. At this point, we should first check whether the mobile phone is the mobile phone that sends the above-mentioned chat content, which is the authenticity of the carrier. Secondly, we need to review whether the above WeChat chat records are complete and true, whether they have been modified or deleted. This is the authenticity of the data itself. Finally, we need to review whether the content represented by the WeChat chat record is the true meaning of both parties, which is the authenticity of the content.

Presumed authenticity

Article 94 of the “New Evidence Regulations” stipulates the presumption of truth.

1. Unfavorable electronic evidence submitted or kept by the parties

This can be related to the self-admission system, that is, the party will submit the unfavorable electronic evidence to the court, and the judge can infer the authenticity of the electronic evidence.

2. Provided or confirmed by a neutral third-party platform that records and saves electronic evidence

In general, the storage methods of electronic evidence include: self-storage , that is, the parties themselves save by taking photos, downloads, screenshots, etc.; notarization storage , that is, the notarization agency checks the authenticity of the electronic evidence in accordance with the legal procedures on the basis of the party’s application. , Legitimacy to be proved; time-stamp deposit certificate , that is, the electronic data submitted by the parties, through the technical means of credible timestamp or through the electronic forensics deposit platform certification, can prove its authenticity; blockchain deposit certificate , That is, a technical solution composed of multiple network technologies such as timestamp, asymmetric encryption algorithm, and hash algorithm. Through decentralization, multiple blocks that meet the conditions and have computing capabilities form a chain. Each block on the chain saves the complete transaction information storage method.

Except for self-storage, the other three storage methods are provided or confirmed by third-party platforms. Because of their neutrality, the electronic data they save and provide are complete and reliable, so their authenticity can be inferred.

3. Formed in normal business activities

If the electronic evidence prepared by the parties for the purpose of litigation is inconsistent with the electronic evidence formed in normal business activities, the latter will have greater probative power.

4. Keep in the way of file management

Archives are the original records of texts, images, sounds, and other forms that are formed and kept for reference by state agencies, social organizations and individuals in social activities. The electronic evidence of electronic archives management usually strictly abides by the laws, regulations and standards of archives management. It is highly reliable, reversible and verifiable, and its authenticity can generally be presumed.

5. Save, transmit, and retrieve in the manner agreed by the parties

If the parties have agreed on the preservation and transmission of electronic evidence, which has fully guaranteed the autonomy of the parties, it can be indirectly determined that the two parties have approved the authenticity of the data stored in this way, so the authenticity can also be directly inferred.

6. Notarized electronic evidence

The second paragraph of Article 94 of the “New Evidence Regulations” specifically stipulates that the authenticity of notarized electronic evidence can be presumed. This is also in line with Article 10 of the “New Evidence Regulations” that “the parties do not need to provide proof for the facts that have been proved by a valid notarization document.”

Regardless of whether it is the authenticity of the court review or the authenticity of the presumption, when the court deems it necessary, it can initiate an appraisal or inspection procedure, and review the authenticity of the electronic data with the help of professionals.

Three, the elements of electronic evidence review

Several common forms of electronic evidence

1. SMS

  • Hair, recipient’s name and phone number ; send, receive time ; hair relationship between the recipient and the parties to the case,;
  • Whether the location of the mobile phone text message has changed; whether the sent (received) message is still in the sent (received) box;
  • Whether the content of the mobile phone text message is complete; whether there is any contradiction with other evidence; whether it is related to the fact to be verified;
  • If necessary, you can apply for an appraisal or conduct an investigation with a telecom operator.

2. WeChat chat history

  • The parties have prepared their WeChat mobile phones in advance for inspection;
  • Whether the provided WeChat chat records are complete and whether they are selectively submitted after screening;
  • To review the identities of both parties in the WeChat chat records, you can find the other party’s user in the address book through the original mobile phone and click to view personal information, and display the remark name, nickname, WeChat ID, avatar photo and other identity-oriented content displayed on the personal information interface;
  • For text files, pictures, audios, videos, or transfers involved in WeChat chat records, you should click to open the display.

3. Email

  • The source of the email, including the sender, recipient, and provider of the email, and whether it is the email address stipulated in the contract;
  • The relationship between the above-mentioned personnel and the parties to the case;
  • The generation and reception time of the mail and the content of the mail;
  • When necessary, the network service provider shall provide assistance to directly preserve the evidence from the transmission and storage links of the e-mail.

4. Alipay information

  • Alipay users log in to the Alipay APP and click on the “My” menu to display their Alipay account and identity authentication information;
  • Look up the other party’s user in the Alipay address book and click to view personal information, showing the other party’s Alipay account name and real name;
  • Check whether the dialogue process in the communication dialog box is complete; what is the transfer information involved; whether the transfer has remarks.

5. Recording, video

  • When providing audio and video CDs, a complete transcript should be provided at the same time, and the consistency of the two should be checked;
  • Whether the provided recordings and videos are complete, whether they have been edited, edited, forged or tampered with;
  • Whether the audio or video is the person himself;
  • Does the audio and video contain basic elements such as time, location, people, events, etc.;
  • Whether there is a clear answer to the key core content and whether the other party confirms it;
  • Whether the method of obtaining the audio or video itself is legal, whether it seriously infringes the legal rights and interests of others, violates the prohibition of the law, or seriously violates public order and good customs;
  • Whether the audio and video content truly reflects the intention of the other party, and whether there is coercion, kidnapping, etc.

6. Webpage screenshot

  • Provide the website address, time, and present the web page in court to indicate the content of the web page associated with the case. Under normal circumstances, the process of using a webpage as evidence to cross-examine is to open the webpage in court for display;
  • Relevant websites can be requested to provide assistance to directly preserve the evidence from the link of computer system transmission and storage, or experts from relevant units can be asked for identification to provide expert opinions on the reliability of the generation, storage, transmission and output environment of web evidence.

New type of electronic evidence review elements

As shown above, with the continuous development of information technology, new forms of electronic evidence and storage methods are gradually emerging. Time stamp storage and blockchain storage are gradually being applied to justice due to their high efficiency, neutrality, and low cost. Practice.

1. Time stamp deposit

The common time-stamp deposit in current practice refers to the use of the trusted timestamp Internet electronic data forensics system of the Joint Trust Timestamp Service Center to store or preserve electronic evidence. The Joint Trust Timestamp Service Center is a timestamp service organization guaranteed by the national time service and punctuality. According to the operation guidelines (V1.0) for Internet electronic data forensics and solidification preservation of trusted timestamps, the solidification of electronic evidence of trusted timestamps is Taking the center as a third party, using credible timestamps as a technical means to ensure the originality of electronic data, and after inspecting the security and cleanliness of the forensic computer and network environment in accordance with standardized operating procedures, the entire forensic process is recorded and recorded. Video files apply for credible timestamp certification.

The evidence collection method can be used to trace the process, method and content of the evidence collection after the fact to form a complete evidence chain. Therefore, if the relevant electronic evidence is preserved and fixed in strict accordance with the operating guidelines, if there is no evidence to the contrary, the authenticity of the fixed electronic evidence can be confirmed.

2. Blockchain deposit certificate

The so-called blockchain deposit certificate refers to the use of blockchain technology to store electronic evidence on the blockchain. The so-called blockchain technology refers to connecting data blocks in chronological order to form a chain data structure, and then using cryptographic technology to ensure that it is not tampered with or forged.

At present, the application of blockchain technology in the field of judicial evidence has gradually begun to be promoted in various Internet courts. In the future, with the construction of smart courts and the increasing number of courts incorporated into blockchain nodes, this method will gradually be expanded to various courts. In judicial trials, therefore, it is also necessary to understand the basic review elements and content.

First of all , unlike the time stamp storage method, the blockchain does not have a unified national storage organization and service center, but is scattered in multiple data platforms. Therefore, when the party submits the electronic evidence that is deposited through the blockchain, it is also necessary to provide additional evidence to prove the qualifications of the blockchain deposit platform involved in the case and its internal regulations, etc., in particular, it is necessary to prove the relationship between the platform and the parties involved in the case. There is no stake, and the platform’s evidence storage method is scientific and effective, and the data stored on the platform will not be tampered with or forged.

Secondly, when reviewing electronic evidence deposited through blockchain technology, the elements of the authenticity review of electronic evidence should be analyzed in detail in conjunction with the provisions of Articles 93 and 94 of the “New Evidence Regulations”. Unlike self-deposited electronic evidence, because the blockchain deposit platform itself is a third-party depository institution and has a certain degree of neutrality, the standards can be appropriately relaxed during specific review to improve the efficiency of evidence review. In addition, if the opposing party itself is also one of the nodes in the blockchain, it can be required to provide the corresponding data obtained from the blockchain platform for comparison and to ensure the authenticity of the evidence.

Finally , due to the characteristics of the blockchain technology itself, it can guarantee that the stored data will not be tampered with or forged at will, but it is impossible to screen whether the original data is true or not. Therefore, if one of the parties raises an objection to the authenticity of the original data, then the authenticity of the original data itself should be examined separately, and the authenticity of the original data cannot be directly determined simply on the basis that it already exists on the blockchain platform.

Fourth, the parties’ response measures

With the continuous development of information technology, there will be more and more new evidence in the form of electronic data in the future, but in any case, as a type of evidence in civil litigation, it must conform to the basic principle of the “three characteristics” of evidence. Therefore, for the parties involved, in the process of collecting and preserving evidence, they can also start with the “three sexes” in order to remain unchanged and respond to changes.

Authenticity

  • Must be automatically generated by the normal operation of electronic equipment, and must not be artificially tampered or processed ;
  • Completely extract and accurately copy the content of electronic data evidence;
  • Ensure that the original carrier and the electronic data evidence in it will not undergo substantial changes when it is submitted to the court.

legality

  • For self-deposited evidence, the method of obtaining it must be legal and compliant, and it must not be illegally invaded into the computer system by destroying encryption measures or in other ways;
  • Evidence kept by notarization shall not infringe on the communication secrets and personal privacy of others, and the method of notarization shall not violate prohibitive provisions of laws and regulations;
  • Entrusting a third party to deposit evidence fixed by the platform must pay attention to the legal compliance of the relevant software, and cannot use illegal software to obtain electronic data evidence.

Relevance

  • Electronic data evidence should be formed when the case is pending;
  • Electronic data evidence can determine the true and unique identity of (network users);
  • The records collected and kept shall constitute a complete chain of evidence custody, which can be mutually confirmed.

Source|Pujiang Tianping, People’s Court of Jiading District, Shanghai

Author: Liu Yujie

 

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