A judge from the Guangzhou Internet Court recently published a commentary (available here in the original Chinese) on a case where the 2nd Chamber of the Court considered the admissibility of evidence collected by a defendant using means that circumvented China’s “National Firewall”, known colloquially as “The Great Firewall”.
In a nutshell, while noting that collection of the evidence was “flawed”, the court nevertheless refrained from excluding the evidence, and it seems clear that the evidence was given at least a certain degree of weight in deliberations over the dispute.
In her commentary, the presiding judge acknowledged that the ability of parties to civil litigation to collect evidence is relatively weak – particularly as compared with criminal cases, where evidence collection is carried out by police – and suggested that the review standards for the legality of evidence in civil litigation should not be excessively high.
The case is also notable because the court drew adverse inferences from the plaintiff’s refusal to address concerns that arose concerning the originality of the work in which he was asserting copyright ownership.
In PRC civil litigation, it is a routine tactic to challenge evidence on the basis that its collection was procedurally flawed in some way. Sure enough, when confronted with the evidence that the defendant had collected from online sources using VPNs – evidence suggesting that the plaintiff had himself copied a third party’s work – the plaintiff refused to recognize “the authenticity, legality and relevance” of the evidence. At the same time, however, the plaintiff failed to satisfy the court’s questions concerning the creative process for the work in which he was claiming copyright.
The decision leaves unclear whether the defendant was in fact authorized to use the disputed work in which the plaintiff was claiming copyright. But the court considered that the evidence presented by the defendant, including the evidence collected using “flawed” means, was sufficient to reject the plaintiff’s complaint.
Legality of Evidence Collected by “Jumping the Wall”
In the PRC, the “China National Firewall” (i.e., The Great Firewall”) blocks individual websites and specific web pages considered injurious to China’s national security. Where tools such as VPNs are used to access blocked network content, this is referred to as “jumping the wall”. The act of “jumping the wall” through use of a VPN leaves users vulnerable to fines by local police under Article 6 of China’s Interim Regulations of the PRC on the Administration of International Networking of Computer Information Networks (“International Networking Regulations”, which provides as follows:
“When computer information networks connect directly to international networks, they must use international access channels provided by the National Public Telecommunications Network of the Ministry of Posts and Telecommunications. No unit or individual may establish or use other channels for international networking.”
In practice, such fines are only rarely imposed, and VPN usage is widely tolerated. But the prohibition on their use is considered an important tool for police to address political crimes such as the spreading of rumours that can lead to “social disruption”.
In the reported case, the plaintiff claimed to have created an artistic work and complained that the defendant had made unauthorized use of the work on mobile phone cases. The defendant countered that the work in question had been published on an overseas website prior to its claimed date of creation. As access to the website in question (http://store.line.me) is blocked in China, the defendant “jumped the wall” to collect evidence in support of its rebuttal.
The defendant also produced evidence that an emoji package including the plaintiff’s disputed work had been forcibly removed from the WeChat Emoji Mall on the basis that “… the risk of infringement is relatively high…”. The plaintiff did not dispute this removal or demand that the emoji package be restored to the WeChat Emoji Mall.
In her commentary on the case, the presiding judge acknowledged that the means used by the defendant to collect evidence from overseas websites had violated Article 6 of the International Networking Regulations. Nevertheless, its acts after “jumping the wall”, i.e., searching, obtaining screenshots and carrying out downloads and simultaneous screen recordings of a website relevant to the case, did not violate legal prohibitions. For this reason, the court concluded that the evidence did not fall within the circumstances described under Article 106 of the Interpretation of the Supreme People’s Court on the Application of the PRC Civil Procedure Law, which provides as follows:
“Evidence formed or obtained by a method that seriously infringes the legal rights and interests of others, violates prohibitive provisions of the law or seriously violates public order and good customs shall not be used as the basis for determining the facts of a case.”
It therefore also concluded that it was inappropriate to exclude, as illegal evidence, the evidence collected by the defendant from an overseas website by “jumping the wall”.
As for the plaintiff’s request that the court dismiss the overseas evidence on the basis that its authenticity could not be ascertained, the court refused to do so as the plaintiff failed to allege or provide supporting evidence that the overseas evidence was not authentic. In its ruling, the court cited Article 8 of the recently-promulgated Several Provisions of the Supreme People’s Court on Evidence in Civil Intellectual Property Rights Litigation (effective November 18, 2020) which provides that “…[where] there is other evidence to support its authenticity…”, the People’s Court shall not support an objection to evidence where the only ground is that the evidence has not undergone certification procedures such as notarization or legalization.
In the current case the court believed that the defendant had produced a chain of evidence to back up its claims and it refused to ignore the evidence simply due to the failure to have its collection subjected to notarization and legalization.
Probative Force of Evidence Collected by “Jumping the Wall”
As noted above, the plaintiff’s response to the defendant’s evidence from an overseas website was simply to challenge its “authenticity, legality and relevance”. As for the defendant’s evidence that an emoji package including the plaintiff’s disputed work had been forcibly removed from the WeChat Emoji Mall, the plaintiff responded that the removal of the emoji package did not directly negate his ownership of copyright in the works, nor was it proof that the defendant was authorized to use the said works. It was therefore irrelevant.
Although the Great Firewall meant that the court could not just log onto the relevant overseas website and directly verify the evidence submitted by the defendant, the court thought it was unreasonable for the plaintiff to deny the probative power of the evidence through a simple verbal rebuttal. Instead, he should have submitted evidence relating to his creation of the disputed work to prove its originality. The court also considered it suspicious that the plaintiff had made no apparent attempt to dispute the forcible removal of his work from the WeChat platform.
In her commentary on the case, the judge commented on the probative force of the evidence collected by “jumping the wall”, i.e., whether or to what extent the evidence could prove the facts of the case. She noted the general principle that where evidence does not have full probative force, it cannot be used as the sole basis for making a ruling on the facts of the case. In the current case, the electronic evidence collected from an overseas website did have some probative force, but as it could not be verified by conventional means, it did not have full probative force. As it was “imperfect evidence”, it could not, by itself, be used as proof of the facts. But, fortunately for the defendant, the court concluded that the evidence collected overseas created a complete chain of evidence when considered together with other non-controversial evidence.
In the concluding section of her commentary, the presiding judge reiterated that the court only accepted the “jumping the wall” evidence because it formed a complete chain of evidence when considered with other evidence in the case. However, she added that this does not mean that the court supports “jumping the wall” as a way to collect evidence.
Finally, the judge noted sternly that the perpetrator might still face “corresponding penalties” for jumping the Great Fire Wall and that Internet users in China should be clear on this point. Decisions such as the foregoing may well encourage lawyers and courts to begin relying more on evidence gathered in China with the use of VPNs. But given the remaining uncertainties, litigants may be better served by collecting such evidence outside China in a form suitable for civil litigation in PRC courts. A good alternative in that regard is collecting the materials in Hong Kong or Macau via local China Appointed Attesting Officers, basically equivalent to Chinese notaries public. Materials can also be collected overseas, but that requires notarization/legalization, a more cumbersome process.