Using WhatsApp messages as Evidence

In present times, most of us for the sake of interchanging business transaction such as banking, insurance, telecommunication, etc. are using electronic communication. There are certain categories of electronic evidence such as websites date, messages exchange in social networking websites like Facebook, Instagram and instant messaging apps such as WhatsApp, Telegram, etc. and via Email, SMS/MMS and many more. The researcher in this paper specifically deals with the WhatsApp messages that whether they are admissible as evidence in the court of law or not. Legally speaking, WhatsApp messages and other electronic means are admissible in the court of law under section 65(B) of the Indian Evidence Act. To support this statement, the researcher firstly defines the actual definition of electronic record defined under section 2(1)(t) of Information Technology Act, 2000. Then with the help of various case laws the researcher shows how WhatsApp messages are admitted by the court as evidence.

1.    Introduction:

As a communication tool, the use of WhatsApp by the employee of the company is rapidly increasing. For close collaboration with colleagues and clients, WhatsApp is seen as the best suitable messaging platform for the employees. After seeing the increasing use of social media platform like WhatsApp, the court began to admit instant messages and pictures send on these platforms as evidence in both criminal and civil matters.

But there are some specific rules by which WhatsApp contents should be cites as a piece of evidence in the court. In Indian courts, WhatsApp chats are seen as an electronic record and are admissible in the form of a conventional document.[1] There are certain conditions which need to be fulfilled for the admissible of WhatsApp messages as evidence:

  1. The messages must be received by the receiver.
  2. The phone must be in regular use. It should not be damaged. 
  3. The sender must have intention to send that messages.

As everything is becoming digital nowadays, to make the Indian Judiciary more advanced and techno- friendly, the parliament had enacted the Information and technology Act,2000 to redefine the definition of Electronic Record.

2.     Electronic Record:

Electronic Records is data recorded or data generated image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.[2]

3.     Section 65(B) of Indian Evidence Act:

Section 65(B) of Indian Evidence Act was introduced by Information Technology Act, 2000 in order to consider electronic evidence as valid evidence in the court of law. This section is considered as most difficult concept to understand by advocates and courts. This section is seen as most difficult techno-logical concept for advocates and Judges as they had seen this section with a view of “Secondary Electronic Evidence”[3]

They compare the provisions of this section with secondary documentary evidence given right after Section 65(B) of Indian Evidence Act. The statute regarding validity of this section came in the month of October 2000. This section was first used by AMM court Egmore in the case of Suhas Katti v. State of Tamil Nadu[4].

Section 65(B) includes five sub-clauses where the very first one i.e. Section65(B)(1) sets a base for rest four sub-clauses.

Section 65(B)(1):

This section starts with a Non- Obstante clause “Notwithstanding anything contained in this act”. This statement shows that previous sections i.e. Section 62 to Section 65 of the act is not used in interpretation of this section.

Section 65(B)(1) further states that computer output can also be considered as a original document in the court of law and is admitted by the court as evidence without demanding any further proof if the conditions given under section 65(B)(20 are satisfied.

Section 65(B)(2):

This section contains certain conditions regarding admissibility of computer output as a valid evidence. These are:

  1. Information must be produced by a person who is lawfully uses that computer resource on a regular basis. 
  2. Information produces must be regularly feeded in the computer.     
  3. During the material period, the computer must be in working condition but in case it is not in working condition for a short period of time then this short break must not hinder the information feeded in the computer.
  4. The information produced must be accurate.

Section 65(B)(3):

This section provides confirmation about the conditions contained in the above section.

Section 65(B)(4):

This section contains the list of contents on the basis of which certificate to be issued. This certificate must be signed by any human being who is in possession of the source from which such electronic record is generated. Such person takes the full responsibility that information provided by him/her in the form of electronic record is true and authentic to the best of his/her knowledge.

Section 65(B)(5):

This section provides certain possibilities which can damage electronic evidence because of technical errors.

4.     Position in Indian Courts:

Till now, it is proved that SMS/MMS, WhatsApp messages and other electronic evidences are fully admissible in the courts of India. In State of Delhi v. Mohd. Afzal and others[5], popularity known as Afzal Guru case, it was held by the Supreme Court of India that electronic evidences are legally admitted in the court of law. The Supreme Court also clear the doubt regarding misuse and accuracy of these evidences due to technical errors. The Supreme court must ask for a certificate signed by a person who is operating computer resource and generating that information. That person must take full responsibility about the authenticity of such document. However, burden of proof is on that person who is challenging the electronic data.

5.     Cases where Whatsapp chats are used as evidence in the court of law:

5.1 Forse v. Secarma[6]  

 This case contains large number of defendants approx. 28 in number, who were accused of a conspiracy of resigning a company in group and joining the competitor company. When the claim had issued, there were 28 resignations which is almost half of the total employees from Secarma. Later in 2018, Secarma, a cyber- security company initiated a legal suit against its ex- employees and their new employer “Xcina”. Secarma demanded for an interim springboard injunction[7]from the High Court.   

Later in November 2018, on the behalf of Secarma Lewis Silkin was succeeded to obtain the interim springboard injunction. This injunction prevents the defendant company from approaching the employees of Secarma and engaging with the clients of Secarma. In this case, the primary evidence is WhatsApp messages which clearly shows that Managing Director of Secarma closely work with the rival company “Xcina” and planned a team move from Secarma. 

Later Secarma succeeded in the suit. The court of Appeal believed that the springboard injunction is necessary so that defendant cannot gain any undue and unfair advantage. The court of Appeal decided to maintain the interim springboard injunction.

a.     Wells and Solari v. PNC Global Logistics[8]:

Paul wells and Roberto Solari were two former company executives in PNC Global Logistics who were removed by the company for sending pornographic materials and offensive messages about female employees through WhatsApp. Both men brought a suit against a PNC Global Logistics on the ground that the actual reason for depriving them from their job is deprivation of company shares which values at £ 150,000 each.

In this case, the court justified the removal of these two employees and ruled that the WhatsApp group activities were discovered in an old work phone handed by another employee amounts to gross misconduct and is not acceptable at all.

5.3 Case v. tai Tarian[9]

Darren case was a housing officer in a social Housing provider company named as Tai Tarian in Wales. He was removed from his office by the company on the charge of making a WhatsApp group and writing offensive and abusive words to one of the female employees of the company. The case was held guilty of gross misconduct. The court held that the evidence is sufficient to include that Mr. case is guilty of harassment of his female colleague even she was unaware of it at that time.

6.     A valid and enforceable agreement can be made via WhatsApp:

in the case of Shamsudin Bin Mohd. Yosuf v. Suhaila binti sulaiman[10] the magistrate court said that even when most of the communication between the parties are done in WhatsApp, there was a oral valid agreement and is enforceable by law.

7.     WhatsApp messages as documentary evidence:

In the case of Mok Yii chek v. Sovo sdn Bhd[11] where the plaintiff produced various print-outs of Emails and WhatsApp messages to support his suit against the defendant for the breach of contract. The court held that the printouts of WhatsApp messages come under the meaning of “Document” under the Indian Evidence Act,1950[12] and can be admitted in the court of law only when:

  1. The party who wishes to produce WhatsApp messages as evidence in the court then burden of proof is on the plaintiff that these WhatsApp messages are relevant to their claim.[13]
  2. The messages must satisfy the procedural requirements for a documentary evidence produced by computers.[14]

8.     Relevance of Blue tick on WhatsApp in a legal suit:

the Bombay High Court in the case of SBI cards and payment services Pvt. Ltd. v. Rohit Jadhav[15]  observed that the defaulter had not only received the notice in WhatsApp but also opened that notice. Then Bombay High Court held that legal notice sending through WhatsApp and if blue tick is seen over the WhatsApp messaging app is considered as a valid proof that the respondent had received that notice and this is considered as a valid evidence.

9.     Conclusion:

Most of the business firms conduct their meeting on online platform and contents of the meetings are shared between the employees through instant messaging platforms like WhatsApp, Telegram and a lot more. The Legal system of India is also becoming technological advance day-by-day. Online messaging apps such as WhatsApp, Telegram, etc. are admitted by the court of law as a legal evidence. Laws relating to admissibility of electronic evidence are still facing some issues. There are various questions which are arising relating to authorship of certificate. WhatsApp chats never be admitted in the court as primary evidence rather it is admitted by the court as secondary evidence. Since admissibility of electronic evidence in the court are still facing few issues even after the twenty years of Information Technology Act came into force in the year 2000 but we are expected some major developments and amendments in regards of these loophole

 

 

Frequently Asked Questions:

Q.1 Can we submit screenshots of WhatsApp chats as evidence in the court ?

Ans:  Yes, we can submit screenshots as evidence in the court as secondary evidence under section 65 of Indian Evidence Act. Screenshots can also be viewed as primary evidence in case of online abuse and character assassination in social media.

Q.2 Can a text message conversation be used as evidence in the court?

Ans: Yes, the court accept the text message conversation as a valid evidence but plaintiff presenting such evidence must prove following things:

  1. Preservation of the evidence.
  2. Authenticity of the evidence.
  3. Hearsay.

Q.3 If someone abuses us over the WhatsApp group. What legal action can we take?

  Ans: legally speaking, we can file a suit for defamation against that person by using WhatsApp group chats as evidence.

Q.4 Can Police retrieve our WhatsApp messages?

Ans: The Police can’t retrieve our WhatsApp messages remotely due to end-to-end encryption feature given by WhatsApp. However, Police can only retrieve the WhatsApp conversation only if they have physical access to our logged in phone.

Q.5 Have WhatsApp messages ever been accepted in court provided that messages are stored in the phone and can be fabricated?

Ans: All forms of electronic evidence can be fabricated that’s why person producing such evidence must accompany the evidence with the certificate of authenticity and he has responsibility to prove the accuracy and truthfulness of such electronic evidence produced before the court of law.

References:

  1. Singh Avtar Dr., “Principles of the Law of Evidence” (2014).
  2. Chandra Ramesh, “ Forensic Science and Crime Investigation” (2016)
  3. Malik surendra, Malik Sudeep, “Supreme Court on Evidence Act”, Volume-IV (2018).
  4. https://indiankanoon.org/doc/1031426/
  5. https://www.naavi.org/wp/understanding-section-65b-of-indian-evidence-act/
  6. https://blog.ipleaders.in/whether-sms-whatsapp-message-will-considered-admissible-evidence-courts-india/amp/

[1] Section 65(b) of Indian Evidence Act.

[2]  Section 2(1)(t) of Information Technology Act,2000.

[3] Defined under Indian Evidence Act

[4] Cc No. 4680  of 2004.

[5] Crl App 80/2003.

[6] [2019] EWCA Civ 215.

[7]  It is a type of injunction which limits the advantage gained by an employee through the unlawful activities or sharing the employer’s confidential information.

[8] [2019] EWHC 2996(QB).

[9] 1601297/2018.

[10] [2017] MLJU 2236.

[11] [2015] 1 LNS 448.

[12] Section 3 of Evidence Act,1950.

[13] Section 5, ibid.

[14]  Section 61-90 ibid.

[15] (2018) 3 RCR (civil) 406.

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