Improving Vietnamese law on the pre-action collection of evidence of law violations in cyberspace

Abstract

In this technological era, illegal acts are surging in cyberspace and causing considerable damage by exploiting the fast and convenient features in connecting and making online transactions. Obtaining evidence and information related to those acts is a prerequisite for the victims of law violations in cyberspace to use legitimate tools to secure their rights and interests. Such an activity must be conducted as soon as possible, even before the proceeding starts to prevent the important evidence and information of the violators from being permanently dispersed or deleted. However, such data is often stored by an opposite party or placed under the management of third parties such as banks, internet service providers and social media platforms. These parties tend to refuse information disclosure due to the conflict of interests, assurance of confidentiality and other business issues. In this regard, Vietnamese civil procedure law still encounters several difficulties for the victims to collect evidence at the pre-action stage. The law has neither clarified the victims’ right to request the evidence-holders to disclose nor provided the victims with any other effective measure to support such collection in this crucial period. Meanwhile, the procedure law of foreign jurisdictions, namely the UK and the Netherlands, is integrated with effective mechanisms to deal with this specific issue. In general, such mechanisms entitle the victims to request the court to order the evidence-holders to disclose crucial evidence of the violations and information about the violators before the commencement of a civil action. Using both doctrinal and comparative methods, this article examines these foreign schemes to determine several vital points for improving Vietnamese civil procedure law regarding the request for court assistance in collecting evidence at this pre-action stage.