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Is Blockchain used in an evidence record considered valid in court?

Blockchain is considered one of the safest technologies that exist in the world. In summary and without getting into complex technicalities, we can say that a Blockchain network is capable of showing that whatever has reached a node, that is to say to one of the blockchain members, is exactly that, and that the rest of the member chain nodes verify it, thus closing the blockchain and ensuring that whatever has been sent is exactly that, given that all nodes verify it.

There is a wide variety of uses of this technology in the real world. We are going to focus on the use of Blockchain applied to demonstrating the existence and content of a file, that is, as if it were an evidence record or as if one went to a notary to make a notarial deposit.

With this clear concept, now we can apply this type of evidence record to intellectual property rights, trade secrets or any other scenario where an owner would need to show that something is theirs or has been created by them.

Blockchain used for this type of systems requires for the existence of a file to be verified, using for this purpose a file hashing combined with the use of the chosen Blockchain network.

Thus, by using this technology, the owner will be able to show the existence of said file with a specific time and date, thereby showing that the content of said file was theirs at that moment.

If said file contained a Trade Secret or an Intellectual Property Right (such as a source code, algorithm, creation, etc.) the owner would be able to show their authorship, in the case of the intellectual property right or the existence of the Trade Secret, in this case.

But are these valid proofs in court?

Firstly, there should not be any procedural impediment whatsoever for a document verified by blockchain to be admitted as evidence. Despite the novelty of this technology, we already have a sentence that undoubtedly supports its use as an evidentiary tool.

Before initiating the analysis of sentences, laws, and indicators, we must say that we are yet to detect sentences that indicate that the proofs submitted by Blockchain are not admitted.

Let us analyze the current events of this type of evidence.

Regarding found sentences:

• Spain: Sentence from the Supreme Court (Criminal Chamber, 1st section) number 326/2019, dated June 20^th. It concerns the first Sentence that has taken place regarding cryptocurrency, that operates from Blockchain networks, and it is determined in it that: “Article 726 LECRIM provides for the Court’s direct assessment of the books, documents, and other pieces of evidence that may contribute to the clarification of the facts”. That is to say, the Court is bound to examine all proofs that may contribute to the evidence of a fact. This has a direct impact on the value that Blockchain technology offers, given that it allows for the verification of values, documents and transactions that cannot be corrupted. This way, evidentiary effects in criminal offenses can be validated.

• China: Sentence (2018) Internet Courts, Zhe 0192 Min Chu No. 81, in the Huatai Yimei case. It concerns a lawsuit filed for infringement of intellectual property rights, wherein the plaintiff submits as evidence the hashed files and the resulting certification of said hashes in Blockchain. The court deems the time stamp submitted by Blockchain admissible and that the content of the files corresponded to the hash calculation.

Regarding legislations

• Italy: Decree Law No. 135/2018 (Art. 8-ter) defines Smart Contract as “a computer program based on DLTs [Distributed Ledger Technologies] and whose execution legally binds two or more parties according to the effects predefined by said parties”

• China: The latest reform of the Procedural Law of China, dated July 1^st, 2017, has already included a 5^th subsection in its 63^rd article that expressly acknowledges “electronic data” as an evidence category admitted by courts.

• US: In 2018, the Delaware General Corporation Law included as accepted proof “one or more electronic networks or databases (including one or more distributed electronic networks or databases)”. In 2016, the state of Vermont approved a legislation that stated that Blockchain evidence accompanied by written witness statements of the transaction’s content was an admissible proof in court.

In 2018, the state of Arizona approved amendments on the Electronic Transactions Act to include Blockchain evidence, Smart Contracts, and digital signatures, and that they “may not be denied legal effect, validity, or enforceability”. In the same year, the state of Ohio approved the Uniform Electronic Transactions Act, admitting Blockchain as electronic evidence.

In 2019, the state of Washington approved a Law on the validity of the Distributed Ledger Text (DLT), validating Blockchain as proof and evidence accepted in court.

In 2020, the state of Illinois approved the Blockchain Technology Act, wherein it is expressly established that: “in a legal proceeding, evidence of a Smart Contract, Blockchain record, or electronic signature must not be excluded solely because a blockchain was used to create, store, or verify the smart contract, record, or signature”.

The states of New York and Virginia have created draft laws in the same sense, still pending their approval.

• Argentina: Decree 182/2019. This standard introduces concepts such as “blockchain operation for storing electronic documents, smart contract management and other digital services”.

Other indicators

• Spain: In Barcelona, its own Courts are recommending the use of Blockchain for protecting trade secrets and they are the ones who intend on protecting this information by means of this technology.

The Corporation of Registrars in Spain, and among them the Registration of Property, is implementing Blockchain technology, which will be used to provide greater security and traceability on annotations. This goes to show that institutions and government agencies are also interested in their application.

Another clear indicator of what is happening in Spain is the constant regularization of cryptocurrency that is increasingly being incorporated into other legislations such as the Money Laundering Prevention.

• France: French magistrates are recommending the use of Blockchain to be able to show the existence of designs when lawsuits are filed for infringement of unregistered designs.

• Azerbaijan: The Ministry uses Blockchain evidence for more than 30 electronic services and have implemented more than 15 official registrations, among which an electronic notary and court are included.

• United Kingdom: A pilot project is being developed since 2018. The initiative was announced by the Judicial Service with the Magistrates’ Court in order to determine if DLT technology may be used to simplify legal proceedings, focusing on granting greater security to digital evidence.

All these indicators, legislations, and sentences lead us to the conclusion that there is currently no argument that points to the fact that the proof submitted by means of this system will not be valid, but rather that all this information tells us that all proof submitted in any court will be admitted, provided we are capable of giving it the necessary evidential value it requires.

Álvaro Ramos