Digital Evidence Collection and Preservation

Legal Framework

Digital evidence in Vietnam is governed by multiple legal instruments:

  • 2015 Civil Procedure Code: Article 95(1)(c) recognizes "electronic data" as an evidence source; Article 95(2) requires lawful evidence collection
  • 2023 Law on Electronic Transactions (effective July 1, 2024): Replaces the 2005 Law, establishing legal value of data messages and electronic signatures
  • 2015 Civil Code: Article 119(1) recognizes civil transactions through electronic means
  • 2015 Cybersecurity Law and 2018 Cyber Security Law: Related to data protection

Under Article 12 of the 2023 Electronic Transactions Law, data messages have legal value equivalent to paper documents if they meet conditions regarding integrity, accessibility, and source authentication.

Types of Digital Evidence

### 1. Email and Messages - Commercial transaction emails - SMS, Zalo, WhatsApp, Telegram messages - Social media messages (Facebook Messenger, Instagram)

### 2. Website and Social Media Data - Social media posts - Website content, online advertising - Online reviews and comments - Blockchain data, NFTs

### 3. Transaction Data - Electronic banking transaction history - E-commerce transactions (orders, payments) - Electronic contracts, digital signatures

### 4. Device Data - GPS and location data - CCTV footage - System logs - Phone and computer data

### 5. Cloud Data - Documents stored on Google Drive, OneDrive, Dropbox - Management software data (CRM, ERP) - Enterprise cloud email (Microsoft 365, Google Workspace)

Digital Evidence Collection Process

Step 1: Identification and Scoping

  • Identify relevant electronic data types
  • Scope data sources (devices, accounts, servers)
  • Identify data custodians

Step 2: Initial Preservation

Critical principle: Do not alter original data.

Preservation measures: - Screenshots: Record date/time, URL, displayed information - Screen recording: Record the data access process - Forensic imaging: Create bit-by-bit copies of storage devices - Printouts: Print with time and source confirmation - Notarization of electronic content: Notary certifies content at the time of access

Step 3: Source Authentication

For courts to accept digital evidence, demonstrate:

  1. Authenticity: Data comes from a verified source
  2. Integrity: Data has not been altered since collection
  3. Chain of custody: Continuous preservation chain from collection to court presentation

Authentication methods: - Hash values: Create hash values (MD5, SHA-256) to verify integrity - Digital certificates: Confirm data origin - Access logs: Record who accessed, when, from where - Metadata: Analyze electronic document metadata

Step 4: Secure Storage

  • Store on encrypted, secured devices
  • Create multiple copies in different locations
  • Maintain access and modification logs
  • Ensure availability when court requires

Step 5: Court Presentation

  • Prepare certified printouts
  • Present on electronic devices at hearings
  • Explain collection and preservation procedures
  • Invite IT experts as witnesses if needed

Adjudication Practice on Digital Evidence

Acceptance Trends

Vietnamese courts increasingly accept digital evidence, particularly:

  • Zalo messages: Accepted in many civil disputes, especially loan agreements. Judgment No. 45/2024/DS-ST at Tan Binh District Court accepted Zalo messages as evidence confirming a loan.
  • Email: Widely used in commercial disputes. Courts typically require printouts with full headers (sender, recipient, timestamp, server information).
  • Electronic banking transactions: Electronic bank statements accepted when confirmed by the bank.

Rejection Cases

Courts reject digital evidence when: - Source and authenticity cannot be proven - Data is suspected of being altered - Illegally collected (unauthorized access, wiretapping) - Does not meet 2023 Electronic Transactions Law conditions

Collecting Evidence from Foreign Platforms

For platforms like Facebook and Google, data requests must go through international judicial assistance channels or the platform's home country legal processes. This remains a significant practical challenge.

Notarization of Digital Evidence

Under the 2014 Notarization Law and Ministry of Justice guidance, notaries can certify: - Screen-displayed content at the time of access - Printouts from electronic data - Website access processes and content

This method strengthens the evidentiary value of digital evidence and is encouraged.

Challenges and Solutions

Challenges

  1. Mutability: Digital data is easily modified or deleted
  2. Authentication difficulty: Accounts can be hacked or spoofed
  3. Technical requirements: IT expert support needed
  4. Incomplete regulations: Lack of detailed collection and evaluation guidance
  5. Cross-border data: Difficult to collect from foreign servers

Solutions

  1. Collect and preserve immediately upon discovering disputes
  2. Use professional forensic methods
  3. Notarize electronic content as soon as possible
  4. Combine digital evidence with traditional evidence
  5. Engage IT experts as witnesses or assessors

Conclusion

Digital evidence plays an increasingly important role in Vietnamese civil proceedings. Lawyers must master collection, preservation, and presentation techniques for digital evidence. The 2023 Electronic Transactions Law has provided a stronger legal framework, but practice still requires lawyers to continuously update their technology knowledge and digital forensics skills.