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Can recording others' wechat chat records be used as evidence? The Beijing Internet Court has an answer

via:IT之家     time:2022/11/29 14:01:09     readed:245

IT Home news on November 29, the court can accept the lawsuit evidence formed by secretly recording other people's wechat chat records? How to balance the conflict between the rights protection of litigation and the privacy right of the witness? The official wechat public account of the Beijing Internet Court published an answer today.

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The article said the Beijing Internet Court recently concluded a dispute over the reputation rights of three people, including Xiao Lin (pseudonym) and Xiao Liu (pseudonym). In this case, the plaintiff Xiao Lin believed that Xiao Liu and other three defendants insulted and defamed him in the wechat group, so he appealed to the court to ask the three defendants to recognize the infringement of his right of reputation. The three defendants believed that the chat records obtained by the plaintiff were illegally recorded evidence without permission, and the process of obtaining evidence violated the privacy right of the defendant Xiao Liu, which was not legitimate. The court ruled that the plaintiff had seriously infringed upon the legitimate rights and interests of others in the process of obtaining the evidence involved in the case. Therefore, the evidence could not be used as the basis for ascertaining the facts of the case, so the plaintiff's claim was rejected. Neither party appealed the verdict, which has taken effect.

The plaintiff, Xiao Lin, said that he was a senior executive of a company, and Liu and other three defendants were former employees of the company. Since 2021, the three defendants have published a large number of extremely insulting words frequently, continuously and for a long time through the wechat group of "** Material Reference Discussion Group" to maliciously slander, slander and abuse the plaintiff. The three defendants openly published and spread the above insulting words in the employees' work group, deliberately belittled and defamed the plaintiff's personality, resulting in the company employees' negative perception of the plaintiff, which reduced the plaintiff's social evaluation and caused serious damage to the plaintiff's reputation and extreme mental pain. Therefore, they appealed to the court to request the three defendants to stop the infringement immediately. The plaintiff shall make a written apology, remove the influence, restore his reputation, and compensate 10000 yuan for emotional distress and 35,000 yuan for attorney's fees.

Xiao Liu and the other three defendants argued that the evidence submitted by the plaintiff was the screen recording of the offline wechat interface, and the plaintiff privately checked the offline private wechat chat records of the defendant on the company computer without permission, which violated the privacy of the defendant Xiao Liu, and the evidence was not legitimate. The chat group listed by the plaintiff is not a work group, but a private joke group created by the three defendants. It does not insult the plaintiff openly, but only jokes privately. The chat content is mostly jokes about the company's system and management style, as well as other topics related to the life of the members in the group. There are 5 members of the group in total. Except for the three defendants, there are 2 colleagues who were invited into the group and have a good personal relationship with each other. They did not spread the information publicly to an unspecified majority and did not produce the negative impact claimed by the plaintiff.

The court found that the plaintiff Xiaolin and Liu and other three defendants were originally superior and subordinate colleagues. The plaintiff obtained evidence through the built-in screen recording function of the defendant Xiao Liu's computer. During February 2021, the three defendants chatted in the wechat group involved in the case through the company computer, insulting and defaming the plaintiff. As for the specific process of evidence collection, the defendant Xiao Liu's computer used to be an office computer equipped by the company, which was used by Xiao Liu before he left the company. On a certain day in May 2021, the company terminated the labor relationship with the defendant Xiao Liu. After sending a notice to the defendant Xiao Liu through wechat, the plaintiff Xiao Lin took back the computer placed on the desktop of Xiao Liu. The defendant Xiao Liu, unable to enter the company, exited the computer wechat through remote operation. When the plaintiff Xiao Lin received the computer, the computer was not turned off, so through the offline state to look through Xiao Liu's wechat history chat records, and the defendant Xiao Liu et al in February chat records for evidence. According to the plaintiff's evidence, Xiao Liu and the other two defendants established a wechat group "** Material Reference Discussion Group" and used "the boss has no management ability", "double-dealing" and other filthy words to insult and slander the plaintiff from February 2 to 22, 2021.

The court held that although the office computer is used for work purposes, as a commonly used instant messaging software, the chat records of wechat are not necessarily all work content, and may also contain the chat records of the user's private life, that is, private information, which the user does not want others to know. The defendant Xiao Liu had quit wechat through his mobile phone when the plaintiff Xiao Lin took evidence, and clearly expressed his intention not to let others know the wechat chat records. In the process of taking evidence, the plaintiff Xiao Lin, knowing that there may be private information in the wechat chat records, scanned the chat records in the defendant Xiao Liu's personal wechat account without permission, which constitutes an infringement on the legitimate rights and interests of others.

In this case, although it is learned that the wechat chat records involved in the case are the prerequisite conditions to prove the existence of infringing speech, the plaintiff Xiaolin almost lacks other more moderate means of obtaining evidence without the illegal means involved in the case. However, from the process of collecting evidence of the plaintiff Xiaolin, it is not clear that he carried out the above behavior for the purpose of obtaining evidence or forced by the situation, nor did he accidentally learn the contents of the wechat chat involved. But in the case of knowing that it may violate the privacy of others, through the wechat chat records of others to learn the contents of the case, infringement first and evidence later. From the perspective of interest measurement, although there are conflicting interests to protect in this case, "the two interests of the right to take the weight", the plaintiff Xiao Lin needs to comply with the principle of proportionality when relieving his rights to obtain evidence. According to the current situation of interest measurement, the plaintiff Xiao Lin intends to investigate the liability of others for possible infringement of his reputation right in private group chat by infringing others' privacy, which is beyond the necessity of his rights protection. If this evidence is not excluded, it is no different from admitting and encouraging such intentional infringement of others' privacy right, which is not conducive to the maintenance of legal order. Therefore, the evidence could not be used as the basis for ascertaining the facts of the case, and the plaintiff Kobayashi failed to fulfill the burden of proof corresponding to his claim of facts, so the court rejected the plaintiff's lawsuit request.

Yan Jun, a judge at the Beijing Internet Court, said the Supreme People's Court's ruling on the application of the Civil Procedure Law of the People's Republic of China on the exclusion of illegal evidence in civil litigation. According to Article 106, evidence formed or obtained by means that seriously infringe upon the legitimate rights and interests of others, violate prohibitive provisions of the law, or seriously violate public order and good customs shall not be used as the basis for ascertaining the facts of a case. This article stipulates three situations to be excluded as illegal evidence. Among them, "serious infringement of others' legitimate rights and interests" puts forward the degree of conditions for infringement of others' legitimate rights and interests, which needs to reach a serious degree. It reflects the factors of interest measurement, including the measurement of the interests damaged by the illegality of obtaining evidence and the interests protected by litigation.

How to judge whether the infringement of the legitimate rights and interests of others has reached the level of "serious" should be analyzed according to the specific case. On the one hand, it is necessary to investigate the interests damaged by illegal evidence; On the other hand, it is necessary to investigate the interests relieved by litigation evidence collection, and make a comprehensive evaluation based on the subjective intention of evidence collection, specific means, the degree of necessity of taking illegal means of evidence collection, and whether there are alternative and palliative means of evidence collection.

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