Study On The Determination Of Electronic Data In The Network Infringement Litigation

The settlement of the dispute occurred in the network environment needs a proper determination for electronic data in litigation. Electronic data in the network has many characteristics: Firstly, it is stable, objective, but at the same time, easy to be tampered.Secondly, it exists in a variety of performance, and thirdly, it’s controlled by the third party in most cases. These characteristics of the network electronic data have put forward many new troubles for the court to examine it. Therefore, further research and reasonable regulation are urgently needed. According to the determination rules of evidence in Civil Procedure and empirical analysis for typical cases of copyright network infringement litigation in China, we can find that there still exist many difficulties in identifying the electronic data, although the legal status of electronic data has already been established in China. In general, existing problems are as follows: Firstly, the determination rules for electronic data are not specific and systematic enough. For instance, for the Exclusionary Rule, there is no specific definition for the situation of “A serious violation of the legitimate rights and interests of others” and“Violation of prohibitive rules of law”, which make it difficult to be applied in the determination of network electronic data. Secondly, in practice, there is sometimes a divergence and an inadequate comprehension in applying the Rules of Competence of Evidence and Rules of Weight of Evidence. For example, there exist a divergence in determining a defective notarial evidence. In addition, if the standard of proof can not be reasonably measured, an inappropriate distribution on the burden of proof will be caused.Thirdly, the construction of technical forensics platform for electronic data has not been given its due attention.Compared with China, some detailed rules have already been formed in determining the electronic data in other foreign countries. In foreign countries, there are mainly two modes of legislation for the electronic data. One is a flexible modification based on the existing laws,and the other is an independent legislation for it. No matter what mode is adopted, ome detailed regulations are established on the basis of the characteristics of electronic data. In addition, certain evidence rules such as Best Evidence Rule, Authentication Rule and Hearsay Rule are always applied to identify an evidence, meanwhile, some exceptions of Hearsay Rule and Best Evidence Rule are set to avoid an unreasonable exclusion. Furthermore, when determining the weigh of the evidence, the principle of discretion should be followed. Andmeanwhile, it noted that the judge can identify the weigh of the evidence by examining the affidavit, the reliability and integrity of electronic data and by other indirect means.In order to solve the problems existing in the determination of the electronic data in China,the following aspects should be improved by learning from the judicial experience of other countries. Firstly, there should have a further stipulation in the judicial interpretation for Exclusionary Rule, and the rule to determine the objectivity and the weigh of evidence. For example, a network electronic data should not be excluded when the trade secrets or privacy containing in the evidence will not seriously harm the interests of the infringer, and the harm is smaller than the interest that should be protected in the litigation. Secondly, the stipulation about the notrial preservation of electronic evidence should be perfected. On one hand, the procedures for notarial preservation of electronic data should be further detailed in Notarization Law, on the other hand, specific provisions for the determination of notrial preservation of electronic data should be set in Civil Procedure Law and its judicial interpretation. Thirdly, the burden of the proof should be fairly distributed. Judge should pay attention to the possible manipulation of electronic data. When there exist flaws in the electronic data, other more evidence should be put forward to give it an explanation, even though it’s belongs to notarial preservation. And if the defendant is an internet service provider, however, the data concerning the infringement has been deleted and lost by himself,then, the burden of proof can be reversed. Finally, the construction of network forensics platform for electronic data should be strengthened. If the electronic data is provided by a qualified network forensics platform, in principle, the competence of the electronic evidence should be recognized.