Can WhatsApp Correspondence Be Evidence?
WhatsApp is one of the most popular instant messaging platforms in the world, with more than 2 billion users. It allows people to communicate with each other through text, voice, video, and media messages. However, WhatsApp is not only used for personal or casual conversations, but also for business or professional purposes. In some cases, WhatsApp correspondence may contain important or sensitive information that could be relevant for legal disputes or investigations.
But can WhatsApp messages be used as evidence in courts or administrative proceedings? How can they be obtained and examined by authorities or parties? What are the legal and technical challenges involved in using WhatsApp correspondence as evidence? In this blog post, we will try to answer these questions by looking at some examples from different jurisdictions and contexts.
How to Obtain WhatsApp Correspondence as Evidence
One of the main issues regarding WhatsApp correspondence as evidence is how to obtain it legally and reliably. Depending on the legal system and the type of proceeding, there may be different rules and procedures for obtaining WhatsApp messages as evidence.
In some countries, such as Turkey, authorities may conduct on-site inspections at the premises of undertakings or associations of undertakings that are suspected of violating competition law. During these inspections, authorities may examine the books, paperwork, documents, and assets of the undertakings, including their computers and mobile devices. If WhatsApp Web application is open on the computer under inspection, authorities may investigate it and obtain WhatsApp correspondence as evidence. However, personal mobile devices with a personal mobile phone line may be off-limits for authorities, even if they are used for business purposes.
In other countries, such as India, authorities may request WhatsApp messages from service providers or intermediaries under certain conditions. For instance, under Section 91 of the Code of Criminal Procedure, 1973, any court or police officer may issue a summons or written order to any person to produce any document or thing that is necessary for an investigation or trial. This may include WhatsApp messages that are stored by service providers or intermediaries. However, such requests must be reasonable and proportionate, and must not violate the right to privacy or data protection of the users.
In some cases, parties may also obtain WhatsApp messages from each other through discovery or disclosure processes. For example, in civil litigation in England and Wales, parties have a duty to disclose documents that are relevant to the issues in dispute to each other and to the court. This may include electronic documents such as WhatsApp messages that are in their control. However, parties must also respect the principle of proportionality and avoid disclosing excessive or irrelevant documents.
How to Examine WhatsApp Correspondence as Evidence
Another issue regarding WhatsApp correspondence as evidence is how to examine it and assess its reliability and probative value. Depending on the legal system and the type of proceeding, there may be different rules and standards for examining WhatsApp messages as evidence.
In some countries, such as Turkey, authorities may use any type of communication between undertakings as evidence of anti-competitive conduct. However, they must also ensure that the evidence is obtained legally and that it is authentic and credible. For instance, in a recent decision by the Turkish Competition Board, WhatsApp correspondence was used as evidence of price-fixing among orthodontists. However, the Board also verified that the correspondence was recorded by a party to the conversation who owned the account and that it was not tampered with or manipulated.
In other countries, such as South Africa, courts may admit WhatsApp messages as evidence if they are relevant and admissible. However, they must also consider whether the evidence is hearsay or not. Hearsay evidence is generally inadmissible unless it falls under certain exceptions. For example, in a recent case by the Supreme Court of Appeal of South Africa, WhatsApp messages were admitted as evidence of defamation by a journalist against a politician. However, the court also held that some of the messages were hearsay and could not be used to prove the truth of their contents.
In some cases, parties may also challenge WhatsApp messages as evidence on various grounds. For example, they may argue that the messages are incomplete or out of context; that they are fabricated or altered; that they are irrelevant or immaterial; that they are prejudicial or misleading; that they violate privacy or confidentiality; or that they are protected by privilege or immunity.
Conclusion
WhatsApp correspondence can be a valuable source of evidence in various legal disputes or investigations. However, using WhatsApp messages as evidence also involves legal and technical challenges that must be addressed carefully and appropriately. Depending on the legal system and the type of proceeding, parties and authorities must follow the relevant rules and procedures for obtaining and examining WhatsApp correspondence as evidence. They must also respect the rights and interests of the users and ensure that the evidence is reliable and probative.
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