WeChat Records Can Now Be Used as Evidence in Court!

GiC Team GuideinChina 2018-10-04

Conversations onWeChat and QQ, the dominant messaging apps operated by Chinese tech giantTencent, will soon be admissible as evidence for civil disputes without theneed for notarization according to new rules from the Nansha People’s Court ofGuangdong Free Trade Zone.

Image: © Provided by South China Morning Post Publishers Limited

With millions of people communicating via WeChat and QQ every day, allowing these messaging platforms to be part of court records could help determine judgments in somecases, according to legal experts.

On July 18th, theNansha court issued a document titled “Internet Electronic Data Evidence Proof and Certification Procedures” and is the first court in Guangdong province to allow direct presentation of internet chat records without notarization, which isusually a costly, complicated, and lengthy procedure.

Using social media posts and records in court is now a worldwide trend.

Paul Haswell, a partner at the law firm Pinsent Mason, confirmed that WeChat and QQ chat records – as well as WhatsApp messages and emails – are alladmissible as evidence in mainland Chinese courts. “This is important in bothcivil and criminal cases as more and more communication is being conductedthrough these methods,” he said.

In the new guidelines, the Nansha Court gives a detailed explanation ofhow WeChat communication threads can be presented as evidence. WeChat, known as Weixin in China and owned by Tencent, has around 1 billion monthly active users while its sister personal messaging service platform QQ,counts about 800 million active users.

According to the new court rules, parties that decide to use WeChat records as evidence first need to log into their WeChat accounts to prove their authenticity.

However, some legal experts have raised concerns over using WeChat records in court because someusers do not use their real name to register their account.

The President of the Commercial Court of the Nansha Court, Sun Hao, has said that givenexisting circumstances it is not only difficult to identify the subject ofelectronic evidence on the Internet, but the identification ofevidence is also difficult and the content is often difficult to identify.

"Take the most widely-used WeChat as an example, because WeChat isnot all through the real name binding of mobile phone numbers; the identity ofthe sender is difficult to determine and the disputes often occur after theevent. When many parties deal with them, the exchange content is not easy; it’snot easy to form a complete chain of evidence. It is difficult to figure outwhich of the pieces of evidence available is the most effective. In contentidentification, the chat record in WeChat is easy to forge or delete bytechnical means, and it is difficult to identify whether it is authentic."

In the United States, legal experts say that a person’s social media posts could be used against them in a civil court case, especially for workers’ compensation claims where the claimant has shared photos online showing them doing physical activities after an accident, for example.

Last September, the U.K. government began looking into tightening up thecountry’s contempt of court laws to include social media posts that relate tocurrent criminal trials.

China's progress of using electronic data as valid evidence.

In 2015,the Civil Procedure Law of China stated that digital voice messages received orstored on social media platforms could be presented as evidence in court. However, this law was designed as part of China’s censorship controls tomonitor and silence public opinion, not to solve civil disputes.

Voice recordings, including those made via messaging platforms, have been used in some courtcases in China but still require notarization. In the case of Nansha court,cases involving electronic data evidence increased 130% year on year in 2017.

In the first half of 2018, the Nansha court handled 98 commercial disputes that involved electronic data evidence, up 50% from the same period last year. In some cases, WeChat records werethe only evidence the two parties could present to the court.

The type of electronic evidence has expanded greatly from call and video recordings to the use of data as evidence, the latter of which is gradually becoming the main type of evidence type presented.

According to statistics published by the Nansha court, the most important form of electronic evidence have been WeChat records which now account for 65% of all cases, followed by e-mails and text messages which account for 14%, while Alipay and QQ make up just about 7%. In financial disputes involving banks and other financial institutions, electronic contractsare making their way into being accepted as evidence for such cases.

The results from previous cases are different as the evidence provided by both parties’ WeChat records are not always sufficient.

For example, party Acumulatively borrowed RMB 66,000 from party B despite not having completed thereal name verification. Even though party B provided records of their full chathistory and the money transfer made, there is no tangible evidence proving thatthe person party B was in contact with was, in fact, party A. Therefore, partyB failed to meet the necessary requirements to move this case forward. But inother similar financial disputes, the victim may have their way and findjustice after all.

Image: Google

A joint trial practice to solve the problem of Internet electronic data evidence certification.

Deputy director of the Nansha court Li Sheng said that in civil and commercial proceedings, the legal provisions on the collection and authentication of Internet electronic evidence are scattered and not systematic, and have led to a decrease in demands of electronic evidence notarization and authentication institutions of those social services. Inresponse, the Nansha court has issued a joint trial practice to solve theproblem of Internet electronic data evidence certification.

According to various types of evidence, the rules allow both parties toprovide evidence to the court that may include the method of fixed evidence,the form of storage medium used, and the procedure of showing evidence during trial.

The court will also provide a list of proof guidelines when filing a case and delivering the respondent materials. It will guide the parties holding evidenceto submit it in a timely manner in order to reduce the non-standard proof bythe parties and improve the efficiency of the litigation.

Because of the great number of cases that involve electronic evidence, WeChat-relatedelectronic evidence accounts for the vast majority, and the regulations aregiven in detail for the requirements of the proof of WeChat.

As for the chat records pulled out of WeChat, rules and regulationsrequire that both parties provide the evidence based on the following conditions:

Firstly, a process demonstration using the terminal equipment to log in tothe WeChat account of the party, which is used to prove the legitimacy of the WeChat chat records and the authenticity of the identity of the WeChat user.

Secondly, the personal information interface of the two chat parties. Withthe help of the characteristics of the micro signal that cannot be changed, thereal identity of the parties is fixed with the mobile phone number and headimage which is displayed in the personal information interface.

Thirdly, a complete chat record. According to the WeChat chat record in the use terminal,we can only delete the features that can not be added, according to the end ofeach WeChat client of both sides. The whole chat information is compared toverify the integrity and authenticity of the information.

Because WeChat does not enforce real name certification, judges can combine the daily life experience, integrate the relevant information, and apply the principle of high probability, according to the party's micro signal,the binding cell phone number and the related information content provided by the parties.

Source : HiTouch, South China Morning Post(SCMP), Xinhua, waonews

Supervisor : Crystal Huang

Editor : XL

Proofreader : Ed Bellin

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