The integrity of data message from a legal perspective (Part 3)

-

In Vietnam, electronic documents, emails, telegraphs, faxes,… which are familiar forms and can be easily collected and evaluated the integrity, electronic data is a much more comprehensive and diverse concept. The definition of electronic data specified in Clause 1, Article 99 of the Criminal Procedure Code 2015 may refer to: ” Electronic data is a symbol, letter, digit, image, sound or similar form created, stored, transmitted or received by electronic means”. Electronic data is collected from electronic media, computer networks, telecommunication networks, online, and other electronic sources collectively referred to as the electronic environment. Electronic data is invisible and immaterial because the electronic environment is a “virtual” environment. In addition, non-border or territorial electronic data may be initiated in one country while such data is stored in another (e.g., online gambling cases in Vietnam but the server system that stores gambling data is all abroad).

With the characteristics of electronic data being easy to change, edit, delete, forge and be able to copy the original to send to many places, the division of electronic data forms is essential when conducting collection, it makes it possible for the Procedure Authority to evaluate,  analyze the electronic data collected and make appropriate comments related to the case. For convenience, we can divide electronic data into the following forms:

  • Content data: All data is stored in digital formats such as text, voice, video, images and audio. This type of data is the most recognizable in criminal cases;
  • Identity data: Any data relating to the identity of the subscriber or customer such as the name provided, date of birth, postal or geographic address, in invoice and billing data, phone or email; Its types of services and duration;
  • Access data: Data relating to the start and end of a user’s access session to a service, which is really necessary for the sole purpose of identifying the user of the service (date and time of use, login and log out from the service, IP address,  User ID…);
  • Transaction data: Data relating to the provision of services provided by the service provider in order to provide context or additional information about that service and created or processed by the service provider’s information system (e.g., metadata,  location data);

Civil Procedure Code No. 92/2015/QH13 dated November 25, 2015, stipulates: Evidence in civil cases is what is real that the involved parties and other agencies, organizations and individuals hand over and present to the court during the proceedings or collected by the court in order,  procedures prescribed by this Code and used by the court as a basis for determining the objective circumstances of the case as well as determining the request or objections of the involved parties are grounded and lawful. In current legal documents, concepts such as Data messages, Digitized text from the paper text, Electronic records are all electronic data and are referring to the form of content data.

The legal value of the data message is undeniable. However, the evidence value of the data message must be determined based on the reliability of the way the data message is initiated, stored or transmitted; ways to ensure and maintain the integrity of the data message; How to identify the originators and other appropriate factors. Specifically, the data message used as evidence needs to have the following characteristics:

  • Objectivity: the data message is authentic, exists objectively; of clear origin, not to be misrepresented or deformed, found and stored on computers, mobile phones, tablets …
  • Legality: The message of keeping the material must be collected in accordance with the law; during the whole process of searching, using technology collected by law enforcement, data backup, preservation, recovery, analysis, search and examination of data as evidence, and most importantly, must be accepted by the court to use as evidence.
  • Relevance: The data message must be relevant to the incident; used to identify spatial details; at the time of formation, the content of the data message contains information expressing transactions between the parties, accepted or implicit agreements,…

This is appropriate because, according to current practice, the evidence is that the sound and image must be accompanied by a written confirmation of its origin, not simply the written explanation of the supplier without confirmation (Clause 2 Article 95 of the Code Civil Procedure). However, when applied to other types of evidence, this can be considered a major barrier for those who collect and provide it to state agencies on their own.

Comments

Post a Comment

Popular posts from this blog

ESOP of non-public companies in Vietnam

-
In recent years, Employee Stock Ownership Plan (" ESOP ") is becoming a popular solution for Vietnamese enterprises in their human resources strategy. The issuance of shares under ESOP (" ESOP Shares ") by the public company is subject to regulations of Law on Securities, which shall not be applied to the non-public company. This article expresses some relevant respects of issuing ESOP Shares by the non-public company in compliance with current Vietnamese Law. Conditions of ESOP Shares issuance While the public companies planning to issue ESOP Shares shall closely comply with provisions of Decree No. 155/2020/ND-CP promulgated by the Government on 31 December 2020 guiding on the execution of Law on securities (hereinafter referred to as " Decree 155/2020 "), the non-public company shall not be subject to. Although conditions for ESOP Shares issuance of the non-public company are absent in Law on Enterprises as well as other legal documents, the non-public
Read more

The integrity of data message from legal perspective (Part 1)

-
Image
Recently, most parties involved in electronic transactions have been expressing an outstanding interest in the integrity of   data messages   since it is considered one of the important criteria to determine the value as evidence and the value as the original of such   data messages. According to the definition in the Law on Electronic Transactions 2005 : “Data message is information created, sent, received and stored by electronic means”.  In a guiding resolution of the Judicial Council of the Supreme People’s Court, electronic data messages used in electronic transactions must be formatted according to the provisions of the law on electronic transactions and the guidance of the Supreme People’s Court, by forms such as electronic data exchange, electronic documents, electronic mail, telegram, telegraph, fax and other similar forms. This article shall be divided into parts to thoroughly evaluate the integrity of the data message, which is the basis for determining (i) the original valu
Read more

Issuing and registering internal labor regulations

-
Internal Labor Regulations (hereinafter referred to as “ILRs”) is a document issued by an employer, in which its provisions create grounds for employment relationships that employees must implement. According to the Labor Code 2019, ILRs have the following main characteristics: (i) having a form of a document or other forms depending on the number of the enterprise’s employees; (ii) having statutory essential contents and other contents do not breach the laws; (iii) the ILRs must be registered at a competent state authority; and (iv) being one of the grounds for the enterprise to take employees under disciplinary and material responsibilities during their employment. According to the regulations of the employment laws, it is mandatory for an employer has more than 10 employees to issue ILRs in writing and carry out the procedures for registration the same with a competent labor-specializing management agency of the Provincial People’s Committee for the  ILRs  to be valid. Employers who
Read more