China Law Insight blog has a fascinating post (for we nerd lawyers anyway), entitled, “PRC Web Page Notarization for Evidence,” on what it takes to get a webpage into evidence in a Chinese court.
The post starts out noting how web-based information is increasingly being used as evidence in Chinese judicial proceedings and how that evidence is stored inside a web server in the form of electronic data. It then talks about how the courts require web-based information be verified by a notary. But if the downloading of the web page was not conducted properly, it will not be deemed authentic and will not be permitted into evidence. Proper downloading requires more than just a notarization that the downloading was witnessed; it must also include information proving the page actually came from the internet, and not from a page previously downloaded from the internet but still in the computer users cache:
In the NuCom Online (Beijing) Information Technology Co., Ltd. v. ChinaNetwork Communications Corporation Limited, Zigong Branch case, the Supreme People’s Court emphasized, in its (2008) Min Shen Zi No.926 Civil Ruling, the necessity of examining the origin of web-based information, as said origins are fundamental to deciding whether the notarized evidence can be used as the basis for a court’s judgment. If the notary public cannot gain access to the computer or mobile hard drive before the notarization procedure and if the notarization itself does not include a record of the state of the computer or mobile hard drive with respect to the integrity of said computer/mobile hard drive prior to the downloading, the Supreme People’s Court deems that the notarization can prove that the act of downloading occurred before a notary public, but it cannot prove that the data at issue was actually downloaded from a specific location on the Internet.
Under certain scenarios, when you use a local computer to visit a target website, the web pages displayed are actually those stored or cached in the local computer, rather than web pages downloaded from a remote website. Therefore, the actual origin of the evidence cannot be guaranteed merely by having a notary public witnessing the downloading process, as that “downloading” may be simply pulling up the web page from the cache in the local computer.
The post goes on to describe what parties must do to ensure they can get their webpage in as evidence before a Chinese court:
To ensure proper authentication of web-based evidence, parties should conduct notarized web page downloads at the notary public office using the notary public’s computer and, also, request that the notary public record the condition of the computer prior to the notarization process. If the downloading must be done on another computer, the party should initiatively request the notary public to delete all relevant files from the caches of the computer by appropriate procedures before downloading the requested web pages and record all of the detailed steps in the notarization process.
Now I would expect one has to be a lawyer to appreciate the significance of this, but I know that these days I am constantly using web based evidence in my cases all around the world, but much more casually in the United States. In an international litigation matter my firm is handling in a United States federal court right now, one of the defendants claimed to have insufficient contacts for the court to assert jurisdiction over it. This European based defendant claimed it had never advertised its product for sale in the United States and had sold only really one product. We researched this company on the internet and found multiple instances of where it was listed on directories for selling their particular product in the United States, including one that required payment. We also found internet proof of their having imported product into the United States for delivery to a company listed as one of their European subsidiaries on their website. We used a lawyer’s declaration to set out these sites for the courts, presuming that if the court had any doubts, it could check out the sites itself.
Had our case been in China, we apparently would have needed to bring in a notary public who would need to go through the steps set forth by China Law Insight above. Yet, in certain circumstances, where the date of an internet finding might be crucial, I can see where these same “Chinese” steps would actually make sense around the world.
What do your country’s courts require for admittance of internet evidence?