Article 299.2 LEC : 2. Also admitted, in accordance with the provisions of this Law, are the means of reproducing words, sounds and images, as well as the instruments that allow archiving and knowing or reproducing words, data, figures and mathematical operations carried out for accounting or other purposes, relevant to the process.
Proposing WhatsApp conversations as evidence (or any other instant messaging system) is the shareholder database same as proposing an email or a recording of a conversation as evidence. Electronic evidence is accepted. Viguerasy will help you check whether these conversations can be used as evidence in a trial and their probative value.
Validity of WhatsApp as evidence
Any evidence proposed must be obtained lawfully. That is, in order to accept WhatsApp conversations as evidence in a procedure, they must have been obtained without violating either the right to privacy or the right to confidentiality of communications.
In addition, the chain of custody must have been preserved in obtaining and preserving the evidence.
Article 287 LEC establishes the illegality of evidence. If any of the parties considers that the evidence has been obtained illegally, violating fundamental rights, they must immediately allege this.
If we want to use WhatsApp conversations as evidence in court, not only photographs or screenshots of them will be valid, but they must also be supported by a technical assessment. Likewise, only the parties to the conversation may use it, since use by third parties could imply a violation of the right to privacy and the right to confidentiality of communications, and could have criminal consequences for being a revelation of secrets.
The Supreme Court has set a precedent regarding the use of WhatsApp conversations as evidence or electronic messages.
The Supreme Court issued judgment number 300/2015 dated May 19, 2015 establishing the criteria that must be followed to admit WhatsApp conversations or electronic messages as evidence.
Although the ruling refers only to messages exchanged via WhatsApp, it also applies to text messages (SMS) and any other electronic instant messaging system and social networks (Facebook, Twitter, Telegram, e-mail, etc.)
The High Court indicates that it will be essential for a computer or telecommunications expert to validate the origin of the communication, the identity of the interlocutors and the integrity of the content. In other words, an accreditation system is necessary due to the high possibility of manipulation of this type of message.
Thus, to avoid challenging this type of evidence, there are several options:
Submit to the Court the device containing the conversation so that the Clerk of the Court of Justice (Court Secretary) can record the content with a literal transcription of the messages.
Go to a notary to obtain a public record of the content of both the chat itself and the conversations, as well as to make it clear that the phone numbers correspond to the people who sent the messages.
