Could Information In Wechat Be Presented As Evidence In A Labor Dispute Case?

Could Information in Wechat Be Presented as Evidence in a Labor Dispute Case?

Lucy Weng, Labor and Compliance Department   

WeChat (“Weixin”) has become one of the most important communication tools in China, acting as a mobile operating and management platform to some companies.

However, when labor disputes arise between employees and employers, is it possible for information in WeChat be accepted as evidence?

CASE BRIEF

Wu joined L Media Company in November 2013. Wu had not been to work since August 10, 2015. In February 2016, Wu filed for arbitration with the Labor Dispute Arbitration Committee, demanding that L Media Company pay economic compensation including compensation for illegal dismissal to the amount of over RMB 150,000. The Committee supported Wu’s petition for compensation for illegal dismissal.

L Media Company refused to accept the arbitration award and lodged a lawsuit. The Company claimed that on August 10, 2015, Wu sent a WeChat message to her supervisor to resign, after which Wu never returned to work. As evidence, the Company presented a notarial certificate of the aforementioned WeChat chat record to show that the Company had terminated the labor contract legitimately. However, Wu denied she had ever sent such message and argued that:

1. The WeChat account from which the resignation message was sent did not belong to her; and

2. Electronic data is easily tampered with.

Upon hearing the case, the Court made the same verdict as that which was given by the labor arbitration.

It is reported that the two parties reached a settlement during the second instance that L Media Company would pay Wu a one-time compensation expense to the amount of RMB 20,000.

ANALYSIS AND RESEARCH

The most important evidence in this case is the “WeChat message to resign”. Pursuant to this, could information in WeChat be presented as evidence? If so, what should attention be paid to?

1. The characteristics of WeChat evidence

WeChat information belongs to the category of electronic evidence which is one of the statutory types of evidence in accordance with the Civil Procedure Law of the People's Republic of China (2012 Amendment). Earlier types of electronic evidence include E-mails and SMS, etc. This has expanded to include Weibo, WeChat and QQ Chat logs, and data of electronic attendance among others.

As electronic evidence, information in WeChat has the following characteristics:

1. Information in WeChat has high interactivity. For example, the chat log with another account holder or within the WeChat group, and the comments of WeChat Moments all result from bilateral or even multilateral interaction. Because of the interactive feature of WeChat information, on the one hand, it helps in some extent to identify the identity of the other party and to confirm its authenticity through contextual information. However, on the other hand, it might cause difficulties to fact-finding when the information involves several WeChat accounts.
2. The weight of WeChat evidence could easily be affected. The information in WeChat can be easily edited and modified, as such the WeChat account might be written-off at any time. For this reason, the weight of WeChat evidence could easily be lowered if one did not conduct inquest, conservation or notarization promptly.
3. It is difficult to corroborate WeChat information. In considering the above characteristics of WeChat evidence, the party who presents WeChat information as evidence would hope to reinforce the evidence through notarization or authentication. Nevertheless, since there is no clear rule on electronic evidence corroboration, it has been found in juridical practice that some notarizations or authentications have defects. One may also find WeChat evidence in conflict with other evidence which would further increase the difficulty of corroboration.

2. Relevant points to take away

1. Hold for safekeeping. Leave the original data unmodified and upshifted.
2. Timely backup. For large volumes of data which are impossible to keep untouched (e.g. data of attendance record on WeChat), one should back them up from time to time. If the data involves potential disputes, it is strongly recommended to reinforce the evidence through notarization before you remove the original data.
3. Pay attention to the “three attributes of evidence," which are:

• Authenticity, meaning that the evidence is objective and true, not fabricated. As for WeChat information, one shall avoid any kind of modification or deletion. Otherwise, it might affect the probative force of the evidence.
• Relevancy, meaning the objective connection between the evidence and the facts to be proven by it. In other words, the WeChat evidence you provide should be able to prove what it is meant to prove.
• Validity, meaning the form and source of evidence complies with relevant laws and regulations. For instance, it is not valid WeChat evidence if it is obtained from the personal computer or mobile phone of the employee without the employee’s consent. According to Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings, Article 68, “No evidence obtained in breach of the lawful rights and interests of any other person or by any means prohibited by law may be used as a basis for confirming the facts of any case.”

1. Reinforce evidence. When one communicates important matters through WeChat, it is recommended to confirm the identity of the other person involved through asking several simple questions in order to avoid the other person denying s/he ever sent the message. Gather further evidence which could support your arguments, e.g. other documentation evidence, audio and video recordings, and witness testimony. On that account, it is also suggested to send a written document or make a phone call (which is recorded) to further confirm the matters discussed through WeChat.

Though WeChat has made communications much cheaper, quicker, and more convenient, from a legal point of view, especially for the purpose of avoiding disputes and protecting one’s own rights and interests, the important issues relating to the establishment, survival and termination of labor relationships shall always be confirmed in a written form.