11 June, 2015
In China, where an employee's employment is to be terminated, the burden of proof in showing that the statutory grounds and formalities to justify termination have been met falls on the employer. In discharging the burden of proof, an employer should be prepared to disclose evidence in support of the specified termination grounds. In recent years, due to the rapid development of mobile internet, Big Data and cloud computing, such evidence is commonly formed or stored in electronic media. To deal with the increasingly important role of electronic evidence, the Judicial Interpretation on the Application of the PRC Civil Procedure Law (issued on 30 January 2015) has, for the first time in a systematic and exhaustive way, set out a legal definition of "electronic data" in civil procedures, which recognises its position as a category of evidence. The Interpretation defines "electronic data"as including emails, electronic data interchanges (online chatting records, blogs, microblogs and short messages), and also extends to electronic signatures and domain names. Audio and visual materials which are stored in electronic media also fall within the definition.
Although the PRC law has now recognised electronic data as a category of evidence, in practice, it can be difficult to persuade the courts and tribunals to admit such evidence. This is because electronic data can be easily tampered with and as such, its authenticity is sometimes hard to verify. There are however several ways of getting round this and steps can be taken to enhance the admissibility of electronic evidence.
Notarization is commonly used in practice to prove the authenticity of electronic evidence. In many cases legal facts and documents that are notarized in accordance with applicable legal procedures shall be admitted as a basis for ascertaining facts (unless there is contrary evidence which is sufficient to invalidate the notarization). In general, notarized written evidence is more persuasive than other types of written evidence, audio-visual materials and even witness testimonies.
With regards to electronic evidence stored on a work computer, a qualified notary must be present to notarize:
- the whole process where the employer takes possession of the work computer from the employee;
- the whole process where the forensic firm makes a copy of the hard drive of the computer; and
- subsequently the sealing of the computer.
The purpose of the above arrangement is to prove that:
- the notarization is undertaken on the computer while in the direct custody of the employee, rather than after the employer has acquired it and potentially tampered with it, which would compromise the authenticity of the electronic data located on the machine; and
- the forensic firm has not revised, tampered with or performed any other act to the computer, which again, from a court's perspective, could distort the validity of the evidence recovered.
Notarization can be costly so an alternative is to present email evidence directly to the court. Whether contained in a computer, laptop, or other electronic device, for example, a mobile phone, such evidence will, in many cases, be of equal persuasive value to notarized evidence. Email evidence can be disclosed to verify the sender, recipient, sent and received times, content and any other relevant details relating to the email.
Whether emails are saved on the local drive or on the company's server, they can normally be presented to the court using a portable Wi-Fi card. Similarly, cell phones with content formed and stored in the cell phones may be presented to the court as evidence.
For further information, please contact:
Pádraig Walsh, Partner, Bird & Bird
Lesley Maclou, Partner, Bird & Bird
Ying Wang, Partner, Bird & Bird
Susan de Silva, Partner, Bird & Bird