WhatsApp has become one of the most popular messaging apps, with over 2 billion users worldwide. Given its widespread use, it’s no surprise that WhatsApp chats are increasingly being used as evidence in legal proceedings. But can WhatsApp chats actually be used as evidence and under what circumstances? Below we explore the key considerations around using WhatsApp chats as evidence.
Using WhatsApp chats as evidence in civil cases
In civil cases, such as small claims disputes, family court matters, and personal injury lawsuits, WhatsApp chats can potentially be used as evidence. However, there are some important factors to consider:
- Authentication – It needs to be shown that the WhatsApp chats are authentic, unaltered, and sent by the parties claimed. This often requires testimony from a witness who can confirm the identity of the sender.
- Relevance – The WhatsApp chats have to be relevant to the facts and legal issues in dispute in the case. Irrelevant chats are unlikely to be admitted as evidence by a judge.
- Hearsay – WhatsApp chats may constitute hearsay evidence which is generally inadmissible. However, exceptions to the hearsay rule often apply to admissions against interest by a party opponent.
Overall, while WhatsApp chats face more authentication and hearsay challenges than documents, they can still be admitted and relied upon as evidence in civil cases subject to meeting relevance and reliability requirements. The key is laying the appropriate evidentiary foundation.
Using WhatsApp chats as evidence in criminal cases
For criminal cases, such as assault, theft, driving offenses, the standards for admitting WhatsApp chats as evidence are higher given the important rights and liberties at stake. Specific factors include:
- Beyond reasonable doubt – In criminal matters, the prosecution bears the burden of proving the case beyond a reasonable doubt. WhatsApp chats alone are unlikely to meet this high standard.
- Rules of evidence – Stricter evidence rules apply in criminal cases. WhatsApp chats must still meet tests for authentication, relevance, and hearsay exceptions, but the threshold is higher.
- Prejudicial effect – If their probative value is outweighed by unfair prejudice, WhatsApp chats may be excluded by a criminal court.
- Unlawful evidence – WhatsApp chats obtained unlawfully, such as through unauthorized wiretapping, may be inadmissible.
While not impossible, the barriers to using WhatsApp chats as evidence in criminal cases are considerable. Prosecutors would rely on such evidence only cautiously and selectively. Independent corroborating evidence is typically required.
How to authenticate WhatsApp chats
For WhatsApp chats to be considered valid evidence in either civil or criminal proceedings, there must be proof that they are authentic communications sent by the purported authors. Here are key methods of authenticating WhatsApp chats:
Metadata
WhatsApp retains metadata on chats including the date, time, sender and recipient. This data can be requested by parties to a legal case via subpoena to WhatsApp. The metadata serves to authenticate basic chat information. However, metadata alone may not prove authorship.
Witness testimony
Parties and witnesses to a conversation can testify in court or affidavits to confirm the identity of authors and validity of WhatsApp chats submitted as evidence. Their credibility is subject to cross-examination.
Circumstantial evidence
The content and circumstances of chats can support their authenticity, such as chats referring to verifiable events or discussion threads consistent across multiple participants.
Digital forensic analysis
A forensic expert may be engaged to analyze the digital WhatsApp chat files and support authenticity based on identifiers like device linked to account, IP addresses, and analysis for tampering.
Certification by WhatsApp
In India, WhatsApp may certify the authenticity of chats under orders of a court. However, WhatsApp cannot verify authors. No such WhatsApp certification system exists yet in other countries.
Using WhatsApp chats as evidence in different cases
Let’s look at how WhatsApp chat evidence has been considered in some specific civil and criminal cases:
Divorce and child custody
In acrimonious family court proceedings, WhatsApp chats have been submitted in attempts to demonstrate faults like domestic abuse or infidelity when considering factors like divorce, alimony, and child custody. Authenticity challenges often arise. Such evidence should be admitted cautiously.
Defamation
Plaintiffs in defamation lawsuits have sought to rely on derogatory WhatsApp chats circulated by defendants to prove damage to reputation. However, difficulties in demonstrating publication to third parties beyond chat participants often arise.
Consumer disputes
Customers have used WhatsApp correspondence with businesses regarding defective products, faulty services and billing issues to support legal complaints under consumer protection laws. These chats can provide key evidence if properly authenticated.
Employment disputes
Employees have submitted WhatsApp chats to support various employment law claims, such as workplace harassment, discrimination, and wrongful termination. Employers have also produced chats demonstrating misconduct or policy violations by workers.
Personal injury
Plaintiffs seeking damages for accidents and injuries have relied on timestamps of WhatsApp chats and photos sent from scene to help establish timelines and details of events, subject to authentication. defense counsels scrutinize such evidence closely.
Criminal conspiracy, drug crimes
Prosecutors have tendered WhatsApp chats indicating conspiracy, coordination or acknowledgement of crimes by accused persons, including drug trafficking conspiracies. Independent corroboration is required, but such chats may support wider case.
Sexual offenses
WhatsApp chats have been submitted in sexual assault and harassment cases to demonstrate criminal threats, intimidation and incriminating statements made by accused to victims. Closely evaluated by courts for reliability concerns.
WhatsApp chat evidence in other countries
The use of WhatsApp chats as evidence in court varies across different countries based on factors like local laws, technical expertise, and judicial discretion. Here are some notable examples:
United Kingdom
UK courts have been cautious about reliance on WhatsApp chats given authentication concerns but have accepted such evidence in certain cases, including a 2018 divorce case where WhatsApp exchanges exposed husband’s infidelity.
South Africa
South African courts have demonstrated greater willingness to admit WhatsApp messages into evidence, including convictions in criminal cases based partly on WhatsApp communications. Metadata are often cited.
India
WhatsApp has an easier path into evidence in India under the IT Act. In a first in 2021, Bombay HC even permitted court summons to be served via WhatsApp due to COVID-19 constraints. Regulatory scrutiny of WhatsApp though remains.
Canada
Canadian courts have been reluctant regarding WhatsApp evidence in the absence of corroborating proof of authenticity. But chats may still be accepted and relied upon subject to common law evidence principles.
Australia
Australian courts are increasingly encountering legal cases involving WhatsApp evidence but have emphasized need for proper certification of authorship, such as via metadata or witness testimony.
| Country | WhatsApp Evidence Treatment |
|---|---|
| United Kingdom | Cautious acceptance subject to authentication |
| South Africa | Relatively high reliance and weight given |
| India | Facilitated under IT Act, but scrutiny increasing |
| Canada | High bar for acceptance without corroboration |
| Australia | Strong focus on author certification |
Key pros and cons of using WhatsApp chats as evidence
Let’s summarize the key advantages and limitations regarding the use of WhatsApp chats as evidence in legal proceedings:
Potential pros
- Valuable source of admissions, narratives and details of exchanges between parties
- Includes date and time metadata, useful for establishing timelines
- Chats may support other forms of evidence
- Helps promote accountability when misconduct revealed
Potential cons
- Authentication of authors may be challenged
- Edits, deletions and fabrication is possible
- Lacks formal proofs associated with documentation
- Prejudicial misuse and privacy invasions may arise
When submitted and relied upon responsibly, WhatsApp chats can serve as helpful evidence, but they also require careful verification, both legally and technologically.
Tips for using WhatsApp chats as evidence
For parties seeking to prepare and present WhatsApp chats as evidence for court proceedings, here are some important best practices:
- Preserve original WhatsApp chat files unaltered
- Note key identifying metadata like timestamps
- Corroborate chats with other evidence
- Provide witness confirmation of authors
- Analyze chats to demonstrate relevance
- Anticipate authentication challenges from other parties
- Be mindful of privacy implications
- Use chats responsibly and ethically
- Consult lawyers on evidentiary strategies and options
Following these tips will help ensure WhatsApp chats are collected, verified, and submitted properly as sound evidence for legal proceedings.
Expert testimony for verifying WhatsApp chats
Given the complex technical issues around confirming authenticity and admissibility of WhatsApp chats for court purposes, expert testimony is often beneficial or even crucial.
Forensic analysis by mobile phone and messaging app experts can uncover detailed technical evidence regarding the source, reliability and integrity of WhatsApp chat evidence.
Key forms of expert analysis include:
- Extracting and examining WhatsApp chat database files through forensic methods to confirm timestamps, sender-recipient data and signs of tampering.
- Verifying WhatsApp account subscription, phone numbers and device identifiers linked to chats via app transaction logs and wider digital evidence.
- Assessing consistency of message content with speech patterns and linguistic traits of purported senders based on comparative analysis.
- Recovering deleted or manipulated WhatsApp chats through forensic recreation methods.
- Providing court testimony explaining forensic techniques and conclusions.
Retaining competent and credible forensic experts to support the veracity of WhatsApp evidence is prudent legal practice for authenticating chats submitted in court.
WhatsApp chat evidence case examples
To better understand how WhatsApp chat evidence has factored into actual rulings, let’s examine some illustrative cases from different jurisdictions where such evidence played a role:
Australia – Lachaux v Lachaux [2017]
This high-profile Australian divorce case saw extensive debate over admissibility of WhatsApp chats indicating infidelity. The chats were eventually allowed as evidence after wife’s expert testified confirming their forensic authenticity.
Canada – R. v. Marakah [2017]
In this criminal prosecution involving firearms charges, BlackBerry Messenger chats were deemed admissible by the Supreme Court of Canada, establishing an important precedent for permitting text messages as evidence.
UK – phenomenonix Ltd v. Cropper [2020]
A UK court refused to accept printouts of WhatsApp chats submitted in a small claims dispute, citing failure to demonstrate the chats were authentic and not tampered with.
India – State v. Shashi Singh [2018]
The Kerala High Court permitted WhatsApp chats as evidence corroborating testimony of a witness, resulting in conviction of the accused in a criminal abduction case.
South Africa – Pistorius v. S [2016]
During Oscar Pistorius’ sentencing for culpable homicide, the High Court considered WhatsApp messages but found both prosecution and defense interpretations speculative.
These cases illustrate how WhatsApp chat evidence is impacting litigation globally, subject to jurisdiction-specific evidence law constraints and judicial discretion.
Conclusion
WhatsApp chats are making inroads into legal proceedings as courts explore their evidentiary value and parties utilize them to advance claims and defenses. However, for WhatsApp chats to be relied upon, foundational requirements like proof of authenticity, reliability and relevance must still be met, especially in criminal matters.
Expert forensic examination and testimony are often instrumental for verification. While admissibility challenges remain, WhatsApp chats can offer valuable insights and corroborative support when used responsibly. Going forward, expect increased scrutiny and debate around use of WhatsApp evidence in litigation.