E-mail is widely used as a communication tool, and is also an evidence form recognized by Chinese courts. However, given its authenticity being easily challenged, the parties should take the right way to obtain and present evidence to ensure its effectiveness.
I. E-mail: an evidence form recognized by Chinese courts
E-mail falls within the “electronic data” stipulated in Article 63 of China’s Civil Procedure Law (CPL), and is, therefore, one of the statutory evidence forms recognized by Chinese courts. [1]The hard copies or other displayable and identifiable output media submitted by the parties consistent with the electronic data are deemed as the original electronic data. [2]Therefore, in practice, the parties would usually print a hard copy of e-mails and submit the same to the court.
II. E-mail authenticity: easily challenged in judicial practice
Compared with documentary evidence, it is much easier to forge and tamper with electronic data. E-mail is frequently questioned as evidence for the following reasons:
1. It may be difficult to verify the true identity of the e-mail recipient and sender, especially when the e-mail service provider does not require the user to register by real name or does not strictly verify the registration information;
2. If the e-mail data is saved in the user’s local storage, rather than a third-party server, the content thereof can be arbitrarily tampered with by the user;
3. The IP address of the sender can be hidden or tampered with;
4. The e-mail account may be hacked.
III. How to strengthen the weight of E-mail evidence
As e-mail faces the above problems, we suggest that the parties should pay attention to the following tips when submitting e-mail as evidence:
1. Try to use the business e-mail address to contact the other party, and indicate the sender’s real name and contact information in the e-mail signature
As mentioned before, the court has to determine the true identity of the e-mail recipients and senders before admitting the e-mail into evidence. Chinese courts generally hold that, if the parties use the business e-mail address with the e-mail signature indicating the real name and contact information of the sender, the court will thereby determine the identity of the sender and the recipient unless there is evidence proving the contrary. [3]
2. Try to use the e-mail server provided by an independent third-party platform
All the original data of e-mails sent by the parties, including the information of sender/recipient, sending/receiving time and content of the e-mail, will be saved in the e-mail server. Compared with the e-mail data saved in the local storage of the party’s own computer, the data stored in a third-party e-mail server is more reliable given its neutrality. [4]Therefore, it is better to use an e-mail with a third-party server.
3. Check the e-mail when appearing in court
The parties may log in and check the e-mail when appearing in court. If the e-mail content directly obtained can be proved consistent with the e-mail submitted as evidence, and other parties have not presented evidence proving the contrary, the on-site inspection results can directly prove the authenticity of the e-mail.
4. Notarize important e-mails
Notarization is the activity of proving certain facts and documents. In China, the notarization function is exercised by the notary office established by the government, and the specific work is carried out by the full-time notary employed by the notary office. According to China’s evidence rules, the notarial certificate issued by the notary office has a stronger probative force than the general evidence. [5]
As to the e-mail, the parties may check their own e-mail on the computer of the notary office, and the notary shall confirm the existence and content of the e-mail. Although this kind of notarization cannot prove the entire process from e-mail generation to sending (or receiving), and there is also the possibility that the parties forge the e-mail for notarization, the court shall confirm the authenticity of the notarized e-mail according to Article 94 of “The Several Provisions on Civil Litigation Evidence” (關(guān)于民事訴訟證據(jù)的若干規(guī)定) of the Supreme People’s Court, unless the other party can present evidence proving the contrary.
5. Appraise the e-mail
In addition, if the other party challenges the e-mail, the party concerned may also request the court to organize technical appraisal on the e-mail to prove its authenticity. [6]
[1] 《民事訴訟法》第六十三條、最高人民法院《關(guān)于適用〈中華人民共和國民事訴訟法〉的解釋》第一百一十六條、最高人民法院《關(guān)于民事訴訟證據(jù)的若干規(guī)定》第十四條
[2] 最高人民法院《關(guān)于民事訴訟證據(jù)的若干規(guī)定》第十五條
[3] 參見上海市第一中級人民法院(2018)滬01民終10457號判決書
[4] 參見上海市閔行區(qū)人民法院（2010）閔民二（商）初字第1763號案，法院認(rèn)為，由第三方網(wǎng)站提供的電子郵箱中收到的電子郵件，其中顯示的發(fā)件人、收件人、時間和郵件內(nèi)容等均系該第三方網(wǎng)站根據(jù)郵件發(fā)送時的客觀情況所形成的，且上述內(nèi)容的電子數(shù)據(jù)均保存在該第三方網(wǎng)站的服務(wù)器中，故電子郵箱的使用者無法對上述內(nèi)容自行修改。因此，法院認(rèn)為該三份郵件反映了郵件發(fā)送時的客觀情況。
[5] 最高人民法院《關(guān)于民事訴訟證據(jù)的若干規(guī)定》第九十四條、最高人民法院關(guān)于適用《中華人民共和國民事訴訟法》的解釋第九十三條。
[6] 參見上海市浦東新區(qū)人民法院（2012）浦民一（民）初字第40955號案，法院委托上海東方計算機(jī)司法鑒定所對4 份電子郵件是否存在篡改進(jìn)行司法鑒定，司法鑒定意見書顯示：由于 OUTLOOK 電子郵件系統(tǒng)的不可編輯性，確認(rèn)所鑒定的電子郵件及其附件為真實的。
Photo by Luca Bravo(https://unsplash.com/@lucabravo) on Unsplash
Contributors: Chenyang Zhang 張辰揚(yáng) , Ran Ren 任冉
