German Porras on the validity of WhatsApp texts in Court.
The adaptation of judicial procedures to new technologies is a notorious fact. More and more frequently, the evidence presented before the Courts starts from a digital support through instant messaging systems, social networks, or recordings of calls, which entails bringing the two sciences closer to a common goal: to demonstrate in court the veracity of communications made between two or more parties.
We must begin by stating that the evidence presented in the process must be obtained under the parameters of legality of the evidence regulated at article 287 of the LEC, that is, without violating fundamental rights such as, for example, the right to privacy. Each party may use the list of evidence it deems appropriate for the purpose of clarifying the controversial facts to the Judge, who must assess the object and necessity of the evidence, as well as its relevance and usefulness in relation to the judicial protection sought in the process. Within the evidence provided, may be included in the appropriate medium those obtained by electronic means that reproduce telephone conversations, images or sound, among others.
To the question of whether we can include as evidence in a judicial process a chain of messages obtained through WhatsApp format, article 299.2 of Law 1/2000, of 7 January, on Civil Procedure, contemplates the admission of electronic means of evidence, admitting the means of reproduction of the word, sound and image, as well as the instruments that allow to file and know or reproduce words, data, figures and mathematical operations carried out for accounting or other purposes relevant to the process.
Therefore, what is the nature of a document provided in electronic form to a lawsuit? Article 3.6 c) of Law 59/2003, of 19 December, on electronic signatures, establishes that the electronic document will support private documents, among which we can highlight the aforementioned WhatsApp messages, SMS messages, the reproduction of call recordings, or e-mails, among others. Having defined the character of private document of the messages contributed to the lawsuit in electronic support, article 326 of the LEC provides that they will make full proof in the process when their authenticity is not contested by the party who is harmed. In order to avoid the probative impugnation, we can advise other means of evidence on the authenticity of WhatsApp messages, such as the notarial act that certifies the content of the message; as well as the exhibition or comparison of the two devices in which the information provided as evidence before the lawyer of the administration of justice is recorded.
However, if the evidence is challenged, we will examine its authenticity and the integrity of WhatsApp’s message, i.e., the authenticity of the message as the apparent author’s concordance with the actual author; and the integrity of the message as an admissibility presupposition between the concordance of the copy, testimony or certification with the original message. In this way, the one who has presented it will be able to request the expert comparison in the terms of the article 3.8 of the Law 59/2003, of December 19, that will verify besides its authenticity and integrity, if in the support in which the electronically signed data are found it is an advanced electronic signature based on a recognized certificate, or if the signature has been generated by means of a secure device of creation of electronic signature.
The possible manipulation of the evidence obtained in digital support makes its validity in the process very restrictive, finding ourselves before a means of evidence that needs other means of secondary evidence in case of dispute (as is the expert report), to agree its authenticity and validity, and with it, its inclusion as full evidence in the judicial process. We must bear in mind that WhatsApp does not store the messages on its servers, so that if a terminal has deleted the conversation, it could not be validated by a court expert. For this reason, the expert must demonstrate by means of the backup copy of both devices that the departure and delivery times of the messages stored in the backups of the conversations coincide, since otherwise, without studying both devices, messages voluntarily modified by one of the parties could be accommodated.
The Supreme Court, in its Ruling no. 300/2015 dated 19 May 2015, determines the bases on which the evidentiary capacity of electronic media will be accepted, being indispensable the practice of an expert evidence that identifies the true origin of that communication, the identity of the interlocutors and, finally, the integrity of its content. It concludes that “the evidence of two-way communication through any of the multiple instant messaging systems must be approached with all caution. The possibility of manipulating the digital files through which this exchange of ideas materializes is part of the reality of things. The anonymity authorized by such systems and the free creation of accounts with a false identity, make it perfectly possible to appear a communication in which a single user relates to himself. Hence the challenge to the authenticity of any of these conversations, when they are brought to the cause by means of print files, shifts the burden of proof towards those who claim to take advantage of their evidentiary suitability. In such a case, the practice of an expert evidence identifying the true origin of that communication, the identity of the interlocutors and, finally, the integrity of its content, will be indispensable”.
Therefore, from the above we can conclude that WhatsApp will be valid as long as they are not challenged by the opposing party, and if so, if the expert report issued deduces the authenticity of them, thus all in all, making it very difficult to accredit the evidence. a secondary proof will be necessary to prove the authenticity of the text in the event of an evidentiary (expert) challenge. We consider that it is not the most appropriate link to create full proof in the process, and we recommend using other means such as, among others, e-mails that are easier to prove their authenticity.
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