The swift technological evolution taking place in the mobile phone sector has led to a gradual change in the way we interact with other people.
Phone calls and sms (text messages) are becoming less and less common and have, for the most part, been replaced by the use of instant messaging applications. Among these applications, WhatsApp® is the preeminent telecommunications network, although there are many others such as Telegram®, Line®, Hangouts® or Skype®, to name some other popular ones.
We may not realize that although we send or receive hundreds of messages, which are insignificant from a legal point of view, throughout our day, there may be some messages which are significant and these latter ones may affect our legal or proprietary interests.
For example, it is no longer unusual to buy a product by means of WhatsApp®. Thus, what looks like an innocent conversation, becomes a sales contract or a purchase agreement between the buyer and the seller. Unfortunately, it is not unusual either to hear that a group of adolescents has distributed inappropriate photographs among the members of the group using WhatsApp®. In this last case, for example, we would be dealing with a case of illegal behaviour as outlined in the Penal Code.
What we are then asking is: Can I use WhatsApp® conversations as documentary evidence in a judicial proceeding? Although we can state that the answer to this question is affirmative, we must qualify this answer and point out the requirements for this type of evidence to qualify as legal evidence. Whether WhatsApp® conversations constitute legal evidence is determined essentially by the manner in which these aforementioned conversations are accredited as legal documents.
The conversations contained in an electronic device can be accredited as legal documents in different ways, and these ways determine to a greater or lesser extent their probative value. In the first place, printing screen shots in paper format of conversations on a smartphone is a way of producing a legal document. Secondly, the conversations may be accepted as part of the judicial process as accredited legal documents if they have been recorded on a smartphone or similar device. Transcripts of these conversations may also be made and notarized. Finally, there is the possibility of providing the smartphone together with the transcript and request the Lawyer of the Administration of Justice to cross-check the conversations on the phone with the transcript.
It goes without saying that these ways of transforming WhatsApp® conversations into legal documents can be combined so that screen shots may be accompanied by a notarized transcript. This type of documentary evidence can be combined with the questioning of witnesses as to whether they sent or received a certain message.
The way in which this type of evidence is gathered will greatly determine the judge’s assessment of them and, consequently, can significantly influence the outcome of the lawsuit. We must take into account that in Spanish procedural law the principle of free evaluation of the evidence is paramount, which means that the judge will assess the evidence provided, according to the rules of sound judgement.
The conclusions to be drawn from these last considerations are that the judge is not obliged to accept or give full probative value to WhatsApp® conversations provided as documentary evidence. That is to say, a judge is not obliged to deem the facts that emerge from this type of evidence as inconvertible and indubitable, but will value it as a whole considering its weight in the legal process and the way in which it relates to other evidence. On the principle of a sensu contrario, the onus and burden of proof lies with the opposing council to challenge the aforementioned WhatsApp® evidence by alleging its lack of authenticity or inaccuracy.
