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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 told Bloomberg BNA.
Employers and employees alike are bringing social media posts into court, based on a sample of recent China cases. In interviews with Bloomberg BNA, practitioners said companies should be aware of how employees use social media, formulate clear company policies that employees understand and notarize any social media posts to be used as evidence.
Social media evidence has increased in China, along with social media's booming popularity, Jasmine Chen, an associate in the corporate practice at Herbert Smith Freehills LLP in Shanghai, told Bloomberg BNA.
Social media posts in employment cases “have become a trend because people are increasingly using social media posts in their daily lives,” Chen said.
An informal search in September of a public court case database found 37 recent cases in China involving social media posts, out of which 22 had the posts themselves accepted into evidence, according to 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, practitioners said.
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 e-mail, phone records or text messages.
“It's just a new way people share information,” Feng said. The rules for collecting evidence are still the same, he added.
It may be easier in China than in the U.S. to collect social media evidence because Internet users in China must present an ID card or a mobile phone number to use social media accounts, making it relatively easy to trace messages back to the source, Feng said. The court could order an Internet service provider to provide a user's identity, he said.
According to Chen of Herbert Smith Freehills, in a July 2014 Beijing court decision, the court went online to confirm that a social media post an employee submitted as evidence was valid.
The interplay between social media and privacy so far hasn't been directly addressed in any court decisions, said Roules of Squire Sanders. “Privacy law is under development” in China, he said. “People are aware of the issue but not sure how to address it here. I think an employer is obligated not to abuse the data it has access to, but it's not clear what that would mean.”
Although employers must be cautious not to access employees' social media accounts without authorization, monitoring public available social media “may be a very good way to find out evidence against employees” during a dispute, said Chen of Herbert Smith Freehills. People are usually not as careful on social media as they are at work, so they may create evidence that 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,” Chen said.
In one case, a company successfully used an employee's public travel posts on microblogging site Weibo to prove that she went on vacation with her family during what was supposed to be a sick leave from work.
To use social media posts as evidence, companies are advised to obtain an official registered notary to observe the electronic information being gathered and then notarize printouts—the same way evidence is gathered from e-mails or other electronic data, practitioners said.
Notarized evidence will prevail over most ordinary evidence, based on China's evidence requirements for civil cases, Chen said. “There is no rule that says this evidence mustbe notarized, but notarization will be a very good tool to rely on,” she added.
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, Jonathan Isaacs, a partner in the employment law group at Baker & McKenzie in Hong Kong, said.
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 shouldn't make post negative comments about the company on social networks.
“You want to put it in writing,” Isaacs told Bloomberg BNA.
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