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Blockchain Evidence in Court Proceedings in China – A Comparative Study of Admissible Evidence in the Digital Age (as of June 4, 2019)

This Essay focuses on the admissibility of digital evidence in courts with an emphasis on blockchain evidence. After comparing recognition criteria for courts in China, the US, and European countries, it describes how to best address the challenges identified.

Published onJan 05, 2020
Blockchain Evidence in Court Proceedings in China – A Comparative Study of Admissible Evidence in the Digital Age (as of June 4, 2019)
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Introduction

On September 11, 2018, relying on evidence stored on blockchain, the owner of short video app Douyin (also known as Tik Tok) filed a copyright infringement complaint in Beijing’s Internet Court against tech giant Baidu. While the Hangzhou Internet Court had already decided in June 2018 that blockchain evidence can be legally viable on a case-by-case basis, on September 7, 2018, in a world-wide first, China’s Supreme People’s Court formally ruled that blockchain evidence would be recognized as one form of digital evidence admitted in the newly established Internet courts.1

Blockchain and related distributed ledger technologies are understood as decentralized ledgers recording transactions and procuring a secure, time-stamped and immutable chain of information. Thus, such purportedly high quality records (compared to standard electronic archives, which can easily be altered) could prove extremely useful as evidence in court, especially in view of the abundance of online transactions in various fields today. However, restrictive rules usually apply for the acceptance of digital evidence, particularly in China, and specific criteria for its recognition have been developed around the world.

This Essay focuses on the admissibility of digital evidence in courts with an emphasis on blockchain evidence. It identifies the requirements for acceptance of digital and blockchain evidence before courts in China and further compares them with recognition criteria applicable in the United States and in European countries. After comparing the different regimes, it describes how to best address the challenges identified.

I. Admissibility of Electronic and Blockchain Evidence

Data recorded on a blockchain is in essence a chronological chain of digitally signed transactions. Thus, admissibility of blockchain evidence is highly correlated to acceptance of electronic signatures in a legal setting. Not all electronic signatures provide the same level of assurance.2 However, relevance and reliability of evidence are usually key factors for admissibility of evidence in court.3 Theoretically, a priori, there is no objection to presenting blockchain evidence (as any electronic evidence) in court in most legal systems as long as its reliability can be shown, e.g. through an expert witness.4 However, doing so would cost time and money, diminishing the advantages of the technology. To avoid such loss, a jurisdiction can support the admissibility of blockchain and electronic evidence in two ways: one, by explicitly accepting the evidence in legislation, and second, by implicitly using the technology itself in government.5 This section addresses the current state of acceptance of blockchain and electronic evidence in China and in other jurisdictions.

A. China

Today, China has the highest number of Internet users globally with over 829 million users as of December 2018, representing a 59.6% penetration6:

Number

% of Total Population

% of Netizens

Total Population

1390 million

100%

N/A

Number of Internet Users

829 million

59.6%

100%

Number of Mobile Users

817 million

54.4%

98.6%

Table 1 – Overview of Netizens in China (Figures from 43rd Statistical Report on Internet Development in China of China Internet Network Information Center (CNNIC))

Over 98% of Chinese netizens use a mobile device to access the Internet for different types of Internet services ranging from financial services to entertainment; the latest figures indicate that especially short video applications have entered a “boom” period, used by 78.2% of netizens.7 Any dispute arising in connection with the digital economy will inevitably comprise digital evidence and eventually even blockchain evidence, as seen in the copyright infringement case related to short video app Douyin. Indeed, the February 2019 report of the China Internet Network Information Center (“CNNIC”) shows that the blockchain industry in China continues to expand, with many supportive policies and heavy financing of blockchain projects.8

In the Chinese legal system, electronic evidence is admissible in Court, but the system is relatively complex as many rules such as “Electronic Signature Law,” “Contract Law,” “Civil Procedure Law,” “Criminal Procedure Law” as well as lower local norms apply.9 Furthermore, in addition to the formal Laws, Regulations, Judicial Interpretations and potentially Guiding Opinions of the courts need to be taken into account.

Electronic Signatures

Pursuant to Article 13 Electronic Signature Law (“ESL”), an electronic signature should be considered reliable when:

  1. the data used for creating electronic signature is used for electronic signing and it [the data] is owned exclusively by the electronic signatory;

  2. the data made by electronic signature is controlled only by the electronic signatory when signing;

  3. any alteration to the electronic signature after signing can be found out; and

  4. any alteration to the contents and form of any data message can be found out after signing.

If it fulfills these requirements, an electronic signature shall have the same legal effect as the hand signature or seal (Article 14 ESL).

However, there are some limitations to the use of electronic signatures in China, as provided in Article 3 ESL, for (1) documents concerning such personal relations as marriage, adoption and succession, etc.; (2) documents concerning the transfer of real estate rights and interests as land, and real estate, etc.; (3) documents concerning public utility services; and (4) other circumstances under which the electronic documents are not applicable as prescribed by laws and administrative regulations. The use limitation concerns predominantly areas which are in large part governed by the State. Nonetheless, in general, Chinese courts will favor and trust “original” and “hard copies” over electronic evidence.

Civil and Criminal Evidence Rules

The latest version of the Chinese Civil Procedure Law (“CPL”), effective July 1, 2017, in its Article 63(5) expressly recognizes “electronic data” as a statutory category of evidence. However, even though it is admissible as evidence, its weight of proof oftentimes remains weaker than other categories of evidence such as “documentary” or “physical” evidence (Article 63(3)).10 Furthermore, before a determination of reliability as facts, all evidence must be proven true (Article 63). In this regard, Article 69 CPL provides that notarized evidence shall be relied upon as facts except if there is evidence to overturn the notarized evidence. Thus, in practice, parties tend to apply for notarization of the electronic evidence to ensure such evidence is generally admitted as evidence. In fact, in Chinese court proceedings, once one presents “notarized” evidence, the court would generally admit it as evidence without challenging the veracity of the same—in practice it is quite difficult to overturn the admissibility of notarized evidence by way of contrary evidence as courts would treat the contrary non-notarized evidence as not admissible/reliable. However, it is difficult to have a Chinese notary public notarizing electronic evidence in light of extensive responsibilities and penalties set forth in the Chinese Notary Law (Articles 42 and 43).11

Thus, a priori, there is no presumption of validity of electronic records in the CPL to favor the admission of electronic records unlike in other jurisdictions, such as with Singapore’s Evidence Act.12 Still, some judicial interpretation exists showing that in certain instances, the Chinese government itself considers electronic documents to have the same legal force as paper results (e.g. “Provisions of the Supreme People's Court on Issues concerning Property Investigation during Enforcement in Civil Procedures”).

For criminal matters, the Chinese Criminal Procedural Law (last amended and effective October 28, 2018) applies. Pursuant to Article 50(8), “audio-visual recordings and electronic data” are a statutory type of evidence. Thus, “electronic data” expressly has been included as admissible evidence. Evidence must also be verified before being used as basis for deciding a case (Article 50). Furthermore, Articles 150-154 of the Criminal Procedural Law set out when technical investigation measures may be employed and collected evidence can be used as evidence in criminal proceedings. In this context, the “Regulations relating to collecting, extracting and examining electronic evidence in criminal cases,” promulgated by the Supreme People’s Court, Supreme People’s Procuratorate and Ministry for Public Security and effective October 1, 2016, provide more detailed rules with regard to the admissibility of electronic evidence in criminal cases.

Further, the Ministry of Public Security issued the “Rules for Obtaining Electronic Evidence in Handling Criminal Cases by Public Security Authorities,” which took effect on February 1, 2019 and modify and clarify the powers and procedures of the Public Security Authority for data collection in criminal cases. Article 24 of these latest Rules sets forth that for online extraction of electronic data, “the checksum of the electronic data shall be computed; and if necessary, the related information such as relevant electronic signature authentication certificates, digital signature, and registration information may be taken.” As such related information demonstrates the authenticity of the electronic record, the Rules clarifying the Regulations on electronic evidence in criminal cases expressly mention that such related information shall be admitted. The provisions related to the examination of electronic data (Articles 43-49) also mention the need to verify whether the checksum is correct and whether the data has been altered. This indicates that blockchain records, based on electronic signatures and immutable due to their cryptographic hashing, could be used as evidence in criminal proceedings in China.

In view of the above, even as electronic evidence in general becomes more common in traditional Courts in China for civil and criminal proceedings, to date there remains a requirement of verification of the evidence’s validity. However, there is a trend towards greater acceptance, as “electronic data” has been specifically introduced as a category of statutory evidence. For example, WeChat records have been accepted as valid evidence in Nansha Court without notarization.13 Furthermore, in particular the Rules regarding criminal proceedings explicitly mention electronic data with corresponding electronic signatures. If the government is able to extract such evidence to be used in criminal proceedings, blockchain evidence also might be more easily admissible as evidence in the future in all types of court proceedings.

Internet Courts

Currently, there are three Internet courts in China—the Hangzhou Internet Court (established in August 2017), the Beijing Internet Court and the Guangzhou Internet Court (established in September 2018). The Internet courts seem to be in high demand; the Beijing Internet Court announced that it received over two hundred complaints within the first twenty-four hours of its launch and concluded 1665 cases within the first one hundred days.14 Furthermore, the online auditing function of the electronic litigation platform allowed 16,000 people to attend an online trial and share their thoughts on whether a “short video can constitute a work under copyright law.”15

The Chinese Supreme People’s Court’s (“SPC”) “Rules on trial of cases by Internet Court,” effective as of September 7, 2018, clarify the type of cases within the jurisdiction of these courts and are used to regulate certain procedural issues relevant to Internet courts. They provide that the Internet courts are designated to handle disputes involving e-commerce, online lending, copyright and neighboring rights ownership and infringement, domains, infringement on personal rights or property rights via the Internet, product liability claims, and Internet public interest litigation brought by prosecutors (Article 2).16 In addition, the Rules set forth that Internet courts shall try cases largely online (Article 1).

As regards evidence in particular, the SPC confirms in its Rules that the Internet court may consider electronic evidence provided by parties that can be authenticated by electronic signature, time stamps, hash value verification, blockchain and other tamper-proof verification methods (Article 11). Furthermore, on September 18, 2018, the Hangzhou Internet court launched China’s first official judicial blockchain platform, jointly developed by public notary offices, the Certification Authority and Registration Authority, forensic evaluation centers and the Court.17

Figure 1 – Screenshot of Hangzhou Internet Court’s Website of 23 May 2019): https://blockchain.netcourt.gov.cn/portal/main/domain/index.htm

Last December, a judge of the Internet court, Wang Jiangqiao, explained that since “blockchain guarantees that data cannot be tampered […] all digital footprints stored in the judicial blockchain system […] have legal effect.”18 Thus, in China, the Internet courts which are available for most disputes related to online behavior and transactions accept blockchain evidence.

B. United States

In the United States, the Constitution and federal laws serve as the “supreme law” of the land. Thus, federal law prevails in cases of conflict between federal and state law.

Electronic Signatures

Many laws and industry-specific rules may apply to electronic transactions. Therefore, the following only constitutes an overview of key elements in respect of electronic signatures in the United States.

Two statutes are the primary sources of law for using “electronic records” and “electronic signatures” in the United States, respectively: the Electronic Signature in Global National Commerce Act (“ESIGN”) and the Uniform Electronic Transaction Act (“UETA”) (together, “eSignature Laws”). While ESIGN is a federal law, UETA is a uniform law recommended by the Uniform Law Commission for adoption by individual states.19 Furthermore, the states of Illinois, New York and Washington have their own electronic signature laws.

Both the UETA and ESIGN provide that a record or signature may not be denied legal effect or enforceability solely because it is in electronic form (UETA § 7; 15 U.S.C. § 7001(a)). While the e-signature requires intent and consent to conduct transactions electronically (opt-in), and they must be attached or logically associated with a file and in a form that is capable of being retained and accurately reproduced for later reference, federal legislation does not establish extensive security guidelines to ensure that the signature is authentic.20 In fact, only a general obligation regarding ongoing authentication, attribution and audit trail is established.21 Still, some documents are subject to special rules, including documents related to debt obligations or lease of specific goods, transfer of real property, and documents that must be notarized or filed with a public office and power of attorney.22

Civil and Criminal Evidence Rules

The Federal Rules of Evidence (“FRE”) govern the introduction of evidence at civil and criminal trials in the federal courts. To be admissible, evidence should be relevant, reliable and right. Regarding reliability, the FRE address hearsay evidence (Article VIII), which is an “out-of-court statement offered to prove the truth of the matter asserted therein” (FRE 801(c)). When it comes to ascertaining correctness, the FRE deal with authentication (Article IX), competency and presentation (Article VI) and opinions (Article VII).

Amendments to FRE 902, which took effect in December 2017, allow self-authentication of much digital evidence for “certified records generated by an electronic process or system.” In fact, the Advisory Notes to Amendments to FRE 902(13) provide that “[…] identical hash values for the original and copy attest to the fact that they are exact duplicates. This amendment allows self-authentication through the certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original. The rule is flexible enough to allow certifications through processes other than comparison of hash value, including via other reliable means of identification to be provided by future technology.” Thus, blockchain records seem to be self-authenticated and can be offered as evidence together with a certification of authenticity by an appropriate expert (similarly to what had been found in United States v. Lizarraga-Tirado, 789 F.3d 1107 (9th Cir. 2015) related to Google Earth evidence).

However, even if blockchain evidence (as with any other digital evidence) is considered correct or authenticated, this does not yet mean that the evidence is reliable. In fact, a blockchain record would presumably be used as evidence to prove the truth of the transaction detailed in the record and therefore be an out-of-court “assertion,” considered inadmissible hearsay unless it meets a hearsay exception.23 Exceptions can be found in FRE 803 and include: business records, public records and recorded recollections.24 Today, blockchain records most likely are admissible under the business record exception (FRE 803(6)) as long as they were “kept in the course of a regularly conducted activity of a business, organization, occupation, or calling,” and “making the record was a regular practice of that activity.”25

To provide some clarity regarding legal challenges, some states have introduced or amended legislation appropriately26:

  • In 2016, Vermont has adopted legislation which states that blockchain records are presumed to be authentic pursuant to Vermont Rules of Evidence if accompanied by a written statement from a qualified person attesting the transition (12. V.S.A. § 1913).

  • In 2017, Arizona amended the Arizona Electronic Transaction Act to include blockchain records, signatures and smart contracts, which “may not be denied legal effect, validity or enforceability.”

  • Also in 2017, Delaware amended the Delaware General Corporation Law to permit organizations to keep business records using “distributed electronic networks or databases” (§224).

  • In 2018, Ohio adopted legislation comparable to the legislation in Arizona. Further, Nebraska, Nevada and Tennessee amended their respective Uniform Electronic Transaction Acts to consider documents protected by blockchain electronic documents. The states of California, Colorado, Florida and Maryland also introduced bills to allow storage of information on blockchains, and Illinois even created a Blockchain Technology Act, permitting the use of blockchain technology in transactions and proceedings.27

C. Europe

In Europe, countries belonging to the European Union have harmonized rules in some areas, but the member states still enjoy sovereignty to legislate particularly when it comes to local procedural and evidentiary rules. European Directives only lay down certain goals that must be achieved and leave the member states free to decide how to transpose the Directives into national laws. European Regulations are directly applicable and have binding legal force in all member states. Besides the European Union, it is also worth looking at the legal framework in Switzerland, one of the friendliest blockchain jurisdictions with over 600 blockchain companies, including the Ethereum Foundation and Libra Networks LLC (Facebook’s new entity for its Libra Project based out of Geneva).28

Electronic Signatures

Again, various laws and industry specific rules may apply to electronic transactions within European countries. In order to promote a digital single market, in particular in the European Union, there have been initiatives to harmonize the legal framework for electronic signatures.

In fact, as of July 1, 2016 the EU “Regulation on electronic identification and trust services for electronic transactions in the internal market" (“eIDAS”) has aimed for uniformity in this matter across the EU. It provides for mutual recognition of e-identification means and electronic trust services (e-signature, e-seals, e-registered delivery services, time stamping, website authentication). In comparison to previous rules, it introduced “advanced” and “qualified” electronic signatures, which provide a higher level of assurance.29 The requirements for each level build on the requirements of the level below30:

Electronic Signature

Simple

Advanced

Qualified

Requirements

“[D]ata in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign.” (Article 3 eIDAS)

  • Uniquely linked to and capable of identifying the signatory;

  • created in a way that allows the signatory to retain control;

  • linked to the document in a way that any subsequent change of the data is detectable.

  • Created by a qualified signature creation device;

  • and is based on a qualified certificate for electronic signatures.

Example

Writing your name under an e-mail or attaching a scan of your handwritten signature on a document.

Through the use of public key encryption.

Signature creation devices could comprise smartcards, SIM cards or UBS sticks.

Qualified certificates are provided by (public and private) providers, which have been granted a qualified status by a competent national authority.

Level of Trust and Assurance

Low: additional supporting evidence required.

High: however, could potentially be inappropriate where national law requires a handwritten signature.

High: equivalent legal effect as handwritten signature (Article 25(2) eIDAS). No additional supporting evidence required.

Table 2 – Overview of Electronic Signatures of eIDAS

Unlike the simple electronic signature, the advanced electronic signature permits unique identification and authentication of the signatory of the document and allows verification of the integrity of the signed file (e.g. through public key encryption (“PKE”)). In addition to those features, the qualified electronic signature is based on a qualified certificate.31

While the eIDAS leaves member states free to set their own signature requirements for a transaction, eIDAS provides for mutual recognition of qualified electronic signatures and qualified electronic timestamps from all member states. Moreover, Article 25 eIDAS sets forth that all electronic verification services shall be admissible as evidence in legal proceedings, including electronic signature, seals, and time stamps. It is specifically stated that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely based on the fact that it is in electronic form. Finally, a qualified electronic signature shall have the equivalent legal effect of a handwritten signature (Article 25(2)). Likewise, the qualified electronic timestamp shall enjoy the presumption of the accuracy of the date and the time it indicates and the integrity of the data (Article 41). Still, certain technical requirements must be met to confirm the integrity and correctness of the data.32

In Switzerland, the main legislation regarding electronic signatures is the “Federal Act on certification services in the field of electronic signatures or other digital certificate applications” (RS 943.03) and its corresponding Ordinances (RS 943.032 and 943.032.01). The Swiss regime is similar to that of the EU and provides for multiple types of electronic signatures with different assurance levels, depending on whether the electronic signature permits unique identification and authentication of the signatory of the document and allows verification of the integrity of the signed file. Thus, as provided in the eIDAS, only a qualified electronic signature associated with a qualified time stamp (certificate) is regarded as equivalent to a handwritten signature (Article 14(2bis) of the Swiss Code of Obligations).

Civil and Criminal Evidence Rules

Evidence rules differ from jurisdiction to jurisdiction, and most continental European civil law jurisdictions such as Germany, France or Switzerland largely allow free assessment of evidence by the judge, meaning that a party could produce any type of evidence and the court would decide its probative value. Usually, blockchain evidence would be treated as “electronic evidence,” which falls under a different category of evidence depending on the jurisdiction but is mostly accepted nowadays.33 Hence, the following will only mention countries which have promulgated specific laws in connection to blockchain, which would allow legal presumption of validity.

In France, blockchain evidence is only recognized on a case-by-case basis with respect to the use.34 In fact, blockchain has been introduced in regulations regarding mini-bonds and financial securities, where the transfer of ownership of mini-bonds results from the recordal of the assignment in the blockchain, acting as a “written contract” (the so-called “Macron 2 Law”).35 There are two additional legal bills which recognize blockchain technology as a way of efficiently recording financial and other instruments and to improve their ownership authentication.36 As previously mentioned, for most matters the assessment of evidence is not constrained by legal rules, and evidence can be provided by any means, meaning that even if blockchain evidence is not amongst a statutory category of evidence, the judge is free to accept blockchain evidence and determine its probative value. Further, since 2016, the amended French Civil Code provides that a digital copy and its original have the same probative value and that there is a presumption of reliability for authenticated documents (pursuant to eIDAS).37

In Italy, on February 13, 2019, a law relevant to the support and simplification of enterprise and public administration took effect. It contains a measure enshrining legal effects of “blockchain electronic timestamping” as evidence via reference to Article 41 eIDAS. Yet some critics have pointed out that the wording does not address critical technical and legal points surrounding blockchain evidence.38 In fact, absent a qualified trust service provider’s intervention in public blockchains, the blockchain timestamp accepted in the Italian law only appears to fulfill the use of a simple electronic timestamp. However, as under French law, a private blockchain administrator may accept the involvement of a trusted third party to benefit from the greater probative value of “qualified blockchain electronic timestamp.”39

In the United Kingdom, while there are no specific laws at the time of this writing, the UK Law Commission is in the process of codifying the use of smart contracts into British law. Since smart contracts are relevant to distributed ledger technologies, it appears that the probative value of records from such ledgers will need to be addressed.40 Furthermore, in August 2018, the UK government disclosed plans to conduct a pilot project for storing digital evidence on blockchain indicating UK courts’ potential to accept blockchain evidence.41

Governmental Blockchain Initiatives

In 2017, the European Commission launched the EU Blockchain Observatory and Forum (“EUBOF”), a European expertise hub on blockchain technology. Furthermore, in April 2018, twenty-two member states signed the Declaration for a European Blockchain Partnership (“EBP”) in order to “cooperate on the development of a European Blockchain Services Infrastructure.”42 EUBOF’s thematic report from December 2018 shows that various European governments have launched blockchain initiatives in different sectors that encompass the securing and sharing of data43:

Governmental Blockchain Initiatives to Secure and Share Data (as of May 2019)

Use Case

Countries

Identity

Switzerland, Finland

Title and Asset Registration

Sweden, UK, Ukraine

Healthcare

Estonia, Sweden

Education and Certification

Cyprus, Malta, France

E-Voting

Switzerland

Table 3 – Overview of European Governmental Blockchain Initiatives (Security & Sharing of Data)

In addition, the EUBOF’s website provides an interactive map displaying the various blockchain initiatives launched so far. This shows, upon filtering for governmental initiatives:

Figure 2 - Screenshot from EUBOF’s Interactive Map of 23 May 2019: https://www.eublockchainforum.eu/initiative-map

Furthermore, blockchain and distributed ledger technologies have been perceived as equally important by various governmental agencies such as intellectual property bodies including the EUIPO,44 EPO45 and UKIPO, in view of the impact blockchain technology could have on intellectual property.46

While not exhaustive, the above map and information show that European governments are increasingly active in the blockchain field and have placed trust in the technology, further elevating the likelihood of European courts accepting blockchain evidence.

II. Comparison, Key Challenges and Outlook

As aforementioned, it appears that most jurisdictions nowadays accept electronic signatures. However, their probative value differs depending on the jurisdiction, as shown in the comparative table below:

e-Signature

China

USA

European Countries

Acceptance

Yes

Yes

Yes

Restrictions of Use

Yes, limitation of use for some matters (e.g. marriage and real estate) (Article 3 ESL).

Yes, consent required and some documents are subject to special rules.

Restrictions only apply where national law requires a special form of signature with higher probative value than handwritten signature (e.g. notarization before public notary).

Equal legal value as handwritten signature

Under conditions of Article 13 ESL, including association of record with signature and security features such as authenticity and integrity of signature and content of message.

Under conditions of ESIGN:

1) intent;

2) consent to conduct business electronically;

3) association of signature with record and;

4) record retention.

No extensive security requirement for authenticity of signature.

In all EU member states and in Switzerland, only if a qualified signature with high security requirements on authenticity and integrity of signature through qualified certification.

Table 4 – Multi-Jurisdictional Comparison of Electronic Signature Requirements

While the use of electronic signatures is less restrictive in European countries, higher security requirements are instituted in order to have the same legal effect as a handwritten signature. Blockchain technology uses PKE, which provides for a high level of assurance. However, blockchains usually do not include a qualified certificate from a qualified certification authority for the electronic signature as required for mutual recognition in most European countries, among others, since the nodes of the network might be seated in different jurisdictions. The certification requirement also makes the use of a qualified electronic signature expensive in practice. Depending on the type of blockchain, circumstances also differ. In the case of a consortium or private blockchain, choosing not to use a certification authority but still utilizing PKE, it might be possible to argue that commercially reasonable security procedures exist, as provided in Singapore.47 In addition, it would be useful to clarify agreement of participating parties with such security measures and acceptance of the use of blockchain evidence in case of litigation, through the “club rules” or by-laws of the consortium or as part of the participation agreement when joining.48

When comparing evidence rules, it appears that blockchain evidence would be accepted, a priori, under the same conditions as other electronic evidence everywhere unless otherwise mentioned in legislation. Traditional European courts seem more inclined to accept blockchain records as evidence, as they are characterized by a lower burden of verification of validity of evidence and a greater freedom of appraisal of probative value of evidence by the judge. While blockchain might fall under the category of self-authenticated evidence in the United States if a certification from an expert is provided, it could still be considered unreliable, and it is for the party to prove reliability. Chinese evidence rules only recently incorporated “electronic data” as statutory category of evidence, and traditional courts still favor original paper documentary evidence, even if electronic records (i.e. WeChat records) are beginning to gain acceptance without notarization in view of the digital nature of conducting business today. Hence, in traditional courts around the world, blockchain evidence ideally should be accompanied by a simple explanation of the mechanics of a particular transaction from an expert in a way that highlights the intrinsic reliability and authenticity of a blockchain. Since many countries have launched governmental blockchain initiatives, this might indicate that governments more likely than not trust the technology and accept that the information stored in systems using blockchain technology is reliable. This in turn increases the probability that blockchain evidence will be accepted in courts.

Of course, the recent introduction of Internet courts in China has completely changed the status quo there, as blockchain evidence is officially accepted in those courts, and cases involving such evidence likely can be trialed before them.

For the rest of the world, it remains to be seen what could further foster the acceptance of blockchain evidence. Tailored policies and regulations clarifying and adapting current frameworks as well as implementation of new rules to allow for the acceptance of blockchain records as evidence are required. For example, eIDAS should be adapted to account fully for the reliability of blockchain timestamping.49 This would include defining common standards for blockchain technology that provide sufficient trust and allowing a presumption of validity and reliability of a blockchain record. Some ISO norms exist regarding reliability and authenticity of records as statements of facts, and these could be a good starting point to articulate standards for blockchain.50 Also, as suggested by the French Ministry of Justice, establishing a form of “certification” of the protocols could be a solution, making it possible to guarantee intangibility of data recorded on the blockchain. Similarly, an optional certification system for blockchains by a governmental agency could be considered.51

In parallel to amending the evidence rules for traditional courts, following the example of China, more “Internet court”-like state-governed online dispute resolution (“ODR”) justice systems could be implemented. However, ODR (which to date has been used mostly in the private sector and in alternative dispute resolution) raises a series of other challenges52 such as appropriateness for cases with high value in dispute, guarantee of fair trial, discrimination of less technology-savvy citizens, eID for all citizens for identification, and legality and morality associated to potential use of AI and related biases53—to only name a few.

Conclusion

In conclusion, secure, immutable and time-stamped blockchain records could prove useful as evidence in court proceedings. While China already expressly accepts such evidence in its Internet courts, it appears that there are still a number of legal barriers and practical difficulties before blockchain evidence will fully be considered legally binding in other jurisdictions. Given its association with the acceptance of digital signatures, European countries in particular will need to introduce legislative amendments to relax the difficult and expensive security requirements currently required by the eIDAS. Finally, more widespread admissibility of blockchain evidence could be fostered not only by the review of rules governing electronic signatures and electronic evidence, but also via greater use of ODR by the courts.

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