How to deal with the unauthorized deletion of data by an ex-employee?

In practice, some employees may delete personal information stored in computers, mobile phones and other devices provided by their employers when leaving their posts. Such deletions are understandable, because they are aimed to protect their personal information. However, some employees may delete the data or work email stored in the server, public disk, etc. without authorization due to anger or other reasons. Such behavior will undoubtedly bring different degrees of adverse effects and obstacles to the employer. If the data involves trade secrets, or any evidence which are useful in other lawsuits in the future, such deletion will bring huge direct losses and potential risk of losing the lawsuits to the employer.

In order to prevent such risks, it is recommended to have a comprehensive understanding about the liabilities related to such behaviors. For different circumstances, the liabilities may include civil liability, criminal liability and administrative liability.

First, in terms of civil liability, employees who delete data should bear tort liability. Article 16 of the “Interim Provisions on Wage Payment” stipulates that, where losses are suffered by an employer due to reasons related to an employee, the employer may require him to compensate for economic losses in accordance with the terms of the labor contract. Therefore, if an employee deleted company’s data, by which the employer suffered losses, the company is entitled to claim compensation. These losses include the costs incurred by the company in restoring the data (e.g., the court ordered the employee to compensate for the costs of restoring the data in the case (2017) Hu 02 Min Zhong No.10169), and other losses caused to the company (e.g., in the case (2021) Yue 0115 Min Chu No. 17763, the court ordered the employee to compensate 37 days wage because he deleted the data which is the work results for 37 days).

Second, from the perspective of criminal liability, the top three common crimes that may be involved in such unauthorized deletion are the crime of destroying computer information systems, the crime of destroying production and operation, and the crime of infringing trade secrets.

If the deletion destroys the function, data or application program of the computer information system, and the consequence has reached the legal threshold, the employee may constitute the crime of destroying the computer information system. In 2020, there is a popular saying in the programmer world, which is “Delete the data library and resign, let the employer cry”. However, such saying’s consequence is not as interesting as it demonstrates. For example, in the case (2020) Hu 0113 Xing Chu No. 889, the employee deleted the company’s system data and was eventually sentenced to 6 years for the crime of destroying the computer information system.

If the deletion is suspected of damaging the production and operation of the company, the employee may constitute the crime of damaging the production and operation. For example, in the case (2021) Hu 02 Xing Zhong No. 595, Xu served as the financial director, deleted the company’s accounting books, financial accounting reports and other information before leaving the company, and refused to hand over the password, which caused the financial system to fail to work, resulting in a loss of more than CNY20,000 to the company, and finally was sentenced to 1 year for the crime of destroying production and operation.

In judicial practice, an employee may commit both the above 2 crimes regarding the same behavior. For example, the deletion of data has not only destroyed the computer system but also destroyed the production and operation, then how to claim for the right crime? Despite the specific behaviors of sabotage, the significant difference between the two crimes is the threshold of the amount of losses. The threshold of the former is CNY 10,000, and the latter is CNY5,000(* The threshold may be slightly different in different cities and provinces). Therefore, many companies choose the crime of damaging the production and operation as an alternative choice.

If an employee copies or discloses the data to a third party while deleting it, and the data is a trade secret, he may constitute a crime of infringing trade secrets.

Third, from the perspective of administrative liability, Article 23 of the “Law on Administrative Penalties for Public Security” stipulates that a warning or fine may be imposed on those who disrupt the production and operation of companies, and cause the work to be unable to proceed normally, without causing serious losses; Article 29 stipulates that anyone who, in violation of national regulations, deletes data and applications stored, processed and transmitted in the computer information system may be detained.

To sum up, companies should analyze the possible accountability path and take corresponding measures according to the content and impact of the deleted data.