Fruit of the poisonous tree, the influence of non-competition forensics on personal information protection

By Chuanyu Dong

“Fruit of the poison tree”, derived from criminal proceedings, refers to the use of illegally obtained evidence to legally find out the facts to be proved. From the perspective of criminal proceedings, the evidence obtained by judicial personnel through illegal procedures or means has no eviatory ability and cannot be the basis for conviction and sentencing. In non-competition cases, in order to collect the evidence of the breach of contract by the former employees, the employer may use video, audio recording, photography and other means of evidence collection.

01

Criteria for judging the legitimacy of personal information evidence

According to Article 106 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, “evidence formed or obtained by means of seriously infringing upon the legitimate rights and interests of others, violating the prohibitions of the law or seriously violating the public order and good customs shall not be used as the basis for determining the facts of a case.” This is the mapping of “the fruit of the poisonous tree” in Chinese law. Therefore, whether the evidence touching personal information, such as tracking and shooting, can be used as the basis for a final case, the key lies in “not illegal, not infringing, not damaging morality”. The following levels of standards are available for reference.

(1)

Whether the content of the shooting violates privacy.

Article 1032 of the Civil Code states that “natural persons enjoy the right to privacy. No organization or individual may infringe upon the privacy rights of others by means of prying into, harassing, disclosing or making public. Privacy refers to the private life peace of natural people and private space, private activities and private information that they do not want to be known to others.” If the behavior of evidence collection destroys the peace of private life and the private space, private activities and private information that are not willing to be known by others, it may violate the privacy of others. Generally speaking, the content of the evidence shooting of restriction of competition is mainly the scenes of departing employees going to and from work and working in competing companies. The shooting content generally does not involve private space, private activities and private parts of the body. It is the state that departing employees can be publicly shown to others, so it should not be identified as the situation of infringement of privacy. On the contrary, if the shooting content involves private space, private activities and private parts of the body, it is necessary to identify the invasion of privacy. 1

(2)

Whether the shooting location belongs to a public place.

Being in a public place is also used to determine an invasion of privacy. If evidence collection is a wait-and-see strategy, shooting in a fixed area of the same public place and leaving employees entering the video screen independently should not be illegal shooting. However, if there is special tracking, entering closed or private places, invading the house or shooting at a fixed point outside the house, it may destroy the private life of natural persons, and there is still the possibility of illegal.

(3)

Whether the video is overused or diffused.

Article 6 of the Personal Information Protection Law stipulates that “personal information shall be processed for a clear and reasonable purpose, and shall be directly related to the purpose of processing, and in a manner that has the least impact on the rights and interests of individuals. The collection of personal information shall be limited to the minimum scope for the purpose of processing and shall not be excessive.” Generally speaking, the purpose of non-competition evidence collection is to provide evidence for the trial, so the evidential materials obtained shall not be expanded at will and shall only be used in specific scenes of the trial. In the case that there is no evidence that the corresponding video has been spread and used outside the litigation procedure, and there is no evidence that the corresponding video has been used for other illegitimate purposes other than the proof of disputed facts, Videos should not be deemed to violate privacy or personal information. On the contrary, if the unit obtains the personal information of employees and spreads it indiscriminately in an attempt to reduce the social evaluation of employees, it should be regarded as illegal to obtain the personal information.

(4)

Whether the filming had a legitimate motive.

The evidence collection of non-competition investigation comes from the maintenance of legal needs, the protection of trade secrets, the maintenance of contractual integrity, and does not violate social public interests and ethics. The breach of contract of competitors who join the company after leaving the company is usually hidden, and the relevant evidence is not easy to obtain. If the employer has reasonable suspicion that there is a breach of contract, the purpose of investigation and evidence collection is to better supervise the performance of the agreement, prevent the occurrence of breach of contract and avoid the infringement of trade secrets. It can be understood that the non-breaching party collects evidence for the purpose and motivation of relieving its own rights and interests. Such evidence collection has legal motivation and should be allowed.

(5)

Whether the circumstances of the infringement are serious.

From the perspective of legal interest, it is difficult to rank the superiority of personal information and unit trade secrets. However, for the severity of infringement, even if there is no explicit provision in the law, based on common sense judgment, a relatively fair conclusion can still be made: In non-competition cases, even if the shooting has a certain impact on the personal information of the resigned employees, if the damage to the personal information of the shooting is obviously weaker than the damage to the business secrets of the company caused by the personal breach of contract. For example, the company continuously shoots the pictures of employees going to and from work outside the competing company, As employees are those who have the technical know-how, product formula, customer list and other secret information of the unit, even if the shooting behavior of the unit has an impact on the personal information of employees, there is asymmetry between the impact and the potential infringement behavior of employees, so the shooting behavior should still be allowed. 

(6)

Investigate whether the behavior violates public order and good customs.

Honesty and credit is the basic principle of law. If the investigation violates the honesty and credit and the good customs acceptable to the public, the investigation should not be accepted. For example, if an employer adopts the behavior of “phishing law enforcement” during the investigation, and sends special personnel disguised as headhunters, recruiters, potential customers and other personnel to lure employees to provide personal information, this behavior itself violates the principle of honesty and credit, and the information thus obtained should not be regarded as the basis for the final case.

To sum up, the “fruit of the poisonous tree” rule can also be applied to the evidence of non-competition, that is, "the evidence obtained by infringing on the legitimate rights and interests of others or violating the prohibitive provisions of the law cannot be used as the basis for determining the facts of the case." However, different from criminal litigation, in non-competition cases, the adjudicatory authority can invoke the principle of high probability 4 to find out the facts.

02

The practical problem of defending against infringement of personal information

(1)

Whether the leaving employee must be based on the premise of self-belief

In non-competition cases, the former employees will raise the defense of the legality of evidence, claiming that the video or picture taken secretly by the employer infringes on privacy or illegally obtains personal information, and ask the adjudicative authority not to accept it. However, if the defense is established, the premise must be that the figure shown in the evidence is the resigned employee himself. If the figure has nothing to do with the defender, even if the employer infringes, it will not be dealt with by the adjudication authority because it has no relevance to the case. In this way, the risk of the resigned employee raising the defense of infringement of personal information or privacy is too large, which may "hurt eight hundred people and injure one thousand themselves". When invoking this article for defense, it should be prudent. If the resigned employee uses the argument of hypothesis or concession adverbial clause (such as "take a step back"), then the possibility of being adopted by the adjudication authority will be less because the facts are not clear.

(2)

Whether competing firms can claim infringement of filming

In addition to departing employees being filmed, the offices, factories and other employees of competing companies are also exposed to the videos, and their legitimate rights and interests may also be infringed. However, since the litigants of non-competition cases are former employers and former employees, even if the rights and interests of the competing companies are infringed, they cannot raise a defense or claim in the same case.

Based on the above two points, although the infringement of personal information or privacy is usually raised in non-competition cases, it is rarely adopted, which is also a practical problem to defend against the infringement of personal information.

03

Suggestions for improvement

(1)

The agreement stipulates employment reporting obligations and reasonable investigation commitments

The non-competition agreement shall clearly stipulate the employment reporting obligations of the workers. As the compensated party after leaving the company, the worker shall guarantee the employer's right to know information, cooperate well with the former employer after its inquiry, timely and accurately disclose the newly signed labor contract or social insurance payment certificate, provide the contact information of the new company for the employer to check, and effectively prevent hidden competition. 

In addition, Article 13 of the Law on the Protection of Personal Information stipulates that personal information may be processed if the consent of the individual is obtained, or if it is necessary to conclude or perform a contract to which the individual is a party, or if it is necessary to implement human resource management in accordance with legally formulated labor rules and regulations and legally signed collective contracts. In addition, Article 1033 of the Civil Code has similar provisions on the access to privacy. 7 In view of this, the non-competition agreement may also stipulate that when the worker fails to fulfill the obligation of employment reporting, or when the employer knows that the worker has the tendency to breach the contract or has obtained preliminary or fragmented evidence, and meets the principle of "purpose", "minimum principle" and "personal privacy protection principle", the employer may conduct necessary investigation within a reasonable scope. The laborer shall undertake to agree to accept a reasonable investigation.

(2)

Pay attention to legal evidence collection, avoid illegal areas

When obtaining evidence from non-competition, the methods and contents of obtaining evidence should avoid violating the mandatory provisions of the law and infringing upon the legitimate rights and interests of others.

1）It is strictly prohibited to use eavesdropping and photographing equipment. Article 284 of the Criminal Law stipulates that whoever illegally uses special equipment for wiretelling or stealing copies, if serious consequences are caused, shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or public surveillance.

2）Do not peep, take candid photos, wiretap, spread others' privacy, disturb others' private life and peace. Article 1033 of the Civil Code stipulates that entering, photographing and peeing into other people's houses, hotel rooms and other private Spaces; Filming, snooping, eavesdropping and publicizing the private activities of others; Filming and peeping into other people's private parts of the body are violations of privacy. Article 42 of the Law on Penalties for Public Security Administration stipulates that those who peep, take candid photos, eavestap or disseminate the privacy of others shall be detained for not more than five days or fined not more than 500 yuan; If the circumstances are relatively serious, he shall be detained for not less than five days but not more than 10 days and may also be fined not more than 500 yuan. In addition, when sending evidence demand to employees by telephone, SMS, instant messaging tools, email, mail and other means, attention should also be paid to the method and frequency, and the private life of others should not be disturbed. The information or evidence obtained shall only be used to provide evidence in a trial. If disputes are not avoided, an application may be made to the adjudicatory organ to keep the trial and judgment documents private, so as to further protect personal information and privacy from being harmed.

04

Conclusion

Non-competition is a battle of evidence, and in practice, the spread of "criminal procedure and civil fact" should not be at the cost of ignoring others' personal information or privacy. In the birthplace of the "fruit of the poisonous tree" theory, the judge held that "the essence of the prohibition against improper evidence is not merely that evidence obtained illegally should not be used by the court, but that it should not be used at all." 8 In today's more intense business war situation, although competition restriction can take the initiative, its evidence should follow the rules and not go beyond the limit, otherwise it will not only violate the privacy and personal information of employees, but also may intensify a wider range of legal disputes and contradictions.

Note:

1  (2022) Beijing 0108 Civil Judgment No. 14581 in the early Republic of China, the court held that "from the perspective of the shooting content, the shooting time is short, and the private space, private activities and private parts of Hu Xiaoyuan's body are not involved." Finally, the video was determined as the basis for determining the facts of the case.

2 (2016) Wan02 Minzhong No. 2158 civil judgment, the court held that "Xiamen Obsidian Business Consulting Co., Ltd. after the completion of evidence collection, the evidence involving Zheng Shujie was not spread at will or used for other illegal purposes and uses, but used in a specific way within a specific scope not prohibited by law, without causing damage consequences, therefore, The results of its investigation can be used as evidence in this case."

3 (2022) Beijing 0108 Civil Judgment No. 14581 in the early days of the Republic of China, the court held that Company B recorded the video without Hu's consent, but involved Hu's "trace", which damaged Hu's legitimate rights and interests. However, from the plot point of view, has not yet reached the serious infringement of Hu's legitimate rights and interests, there is no violation of legal prohibitions or serious violation of public order and good customs; From the point of view of the way of obtaining evidence, the damage of the illegal way of obtaining evidence to Hu's rights and interests is obviously weaker than the interest that can be protected by ignoring the illegal way. Therefore, adhering to the concept of interest measurement, the above video can be used as the basis for determining the facts of the case.

4 The first paragraph of Article 108 of the Interpretation of the Supreme People's Court on the application of "the Civil Procedure Law of the People's Republic of China" stipulates: "For the evidence provided by the party bearing the burden of proof, the people's court, after examining and combining the relevant facts, is satisfied that the existence of the fact to be proved is highly probable, the fact shall be determined to exist." Although labor dispute cases do not belong to civil cases in the narrow sense, they can be applied in the trial of labor dispute cases

5 Why does he continue to enter and leave the office of competitive companies? There is no rule to follow in the "dark war" of e-sports industry? , 2023-07-20 14:01, "Shanghai high court" public, https://sghexport.shobserver.com/html/baijiahao/2023/07/20/1078278.html

6  The second paragraph of Article 4 of the Personal Information Protection Law stipulates that the processing of personal information includes the collection, storage, use, processing, transmission, provision, disclosure and deletion of personal information.

7 According to Article 1033 of the Civil Code, unless otherwise provided by law or with the express consent of the right holder, no organization or individual may perform the following acts:

（1） intruding on the private life and peace of others by means of telephone, short message, instant messaging tools, E-mail, leaflets, etc.;

（2） entering, photographing or peeping into other people's houses, hotel rooms and other private Spaces;

（3）filming, snooping, eavesdropping or publicizing the private activities of others;

（4） photographing or peeping into the private parts of others' bodies;

（5） handling other people's private information;

（6） infringing upon the right of privacy of others by other means.

8  This rule was established in the case of Silverthorne Lumber Company v. United States in the 1920s, when the famous Justice Holmes proposed that "the essence of the prohibition of improper evidence is not only that the illegally obtained evidence should not be used by the court, but that it should not be used at all." This precedent challenged the police handling of the case and the public's acceptance of the judgment. In the 1960s, with the rise of the civil rights movement, the US Supreme Court formally established the "fruit of the poisonous tree" rule by a narrow majority, that is, "the evidence materials obtained by the US federal government agencies in violation of the provisions of the US Constitution have no probative power in the trial".