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By Leslie A. Pappas
Oct. 27—From emoticon messages to vacation photo uploads, China's social media boom is creating a vast pool of evidence that Chinese courts are increasingly accepting in labor disputes, practitioners tell Bloomberg BNA.
A sampling of recent lawsuits shows that employers and employees alike are using social media posts as evidence. In this new environment, employers should be aware of how employees use social media and should formulate clear company policies that employees understand and notarize any social media posts to be used as evidence, according to practitioners.
The use of social media evidence has increased in China along with social media's booming popularity, said Jasmine Chen, an associate in the corporate practice at Herbert Smith Freehills LLP in Shanghai.
“Social media posts [in employment cases] have become a trend because people are increasingly using social media posts in their daily lives,” Chen told Bloomberg BNA in a telephone interview Oct. 24.
An informal search in September of a court case database found 37 recent cases involving social media posts, in 22 of which the posts were accepted into evidence, said Dan Roules, a partner with Squire Sanders (US) LLP in Shanghai.
Changes in China's Civil Procedure Law that took effect Jan. 1, 2013, specified that judges should be able to accept electronic evidence in civil disputes.
Gordon Feng, of counsel in the employment law department at Paul Hastings in Shanghai, said that in terms of evidence he doesn't see “any significant difference” between social media posts and other electronic media such as email, telephone records or text messages.
“It's just a new way people share information,” Feng told Bloomberg BNA in a telephone interview August 26. “The rules [for collecting evidence] are still the same.”
Further encouraging its increased use, social media evidence may be easier to collect in China than in the U.S. because Internet users in China must present an ID card or a mobile telephone number to use social media accounts, making it relatively easy to trace messages back to the source, Feng said.
In a July 2014 Beijing decision, the court even went online itself to confirm that a social media post an employee submitted as evidence was valid, according to Chen.
The interplay between social media and privacy has not so far been directly addressed in any court decisions, said Roules of Squire Sanders
“Privacy law is under development [in China]. People are aware of the issue but not sure how to address it here,” Roules said. “I think an employer is obligated not to abuse the data it has access to, but it's not clear what that would mean.”
While employers must be cautious not to access employee social media accounts without authorization, monitoring publicly available social media “may be a very good way to find out evidence against employees” during a dispute, Chen said. People are usually not as careful on social media as they are at work, so they may create evidence they wouldn't normally leave elsewhere. And “since social media posts are actually made by the employee, it's hard for him or her to refute.”
In one case, for example, a company successfully used an employee's public travel posts on microblogging site Weibo to prove that she went on vacation with her family when she was supposed to be on sick leave.
To use social media posts as evidence, companies are advised to get an official registered notary to observe the electronic information being gathered and then notarize printouts—the same way evidence is gathered from emails or other electronic data.
Given China's requirements for civil cases, notarized evidence will prevail over most ordinary evidence. According to Chen, “there is no rule that says this evidence must be notarized, but notarization will be a very good tool to rely on.”
If a company wants to use evidence from social media as grounds to terminate an employee, there must be written company rules in place on which to base the claim, said Jonathan Isaacs, a partner in the employment law group at Baker & McKenzie in Hong Kong.
In one case, a court upheld a company's decision to dismiss an employee after he posted negative comments about the company on Weibo, in part because the company's policy clearly stated that employees should not post negative comments about the company on social networks.
“You want to put it in writing,” Isaacs told Bloomberg BNA, adding that Baker & McKenzie recommends companies adopt “robust and comprehensive work rules and policies” about social media through employee consultation.
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For more information on Chinese HR law and regulation, see the China primer.
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