The emergence of new forms of digital evidence has facilitated vast changes in how cases across the world are conducted. New methods are required to keep pace with the ever-changing litigation landscape, with the world becoming increasingly digital.
This blog looks into WhatsApp and whether conversations over the popular messaging app can serve as legitimate evidence in a courtroom.
Using digital evidence in court
The short answer to the title of this blog is: yes. WhatsApp messages, among many other forms of electronically stored information (ESI), can be used as evidence in a case.
There are many different types of ESI which can be used as evidence. Some examples include:
- Text messages
- Call logs
- Social media posts
In the ever-expanding digital world, legal professionals must be familiar with the types of ESI used to support a case. However, for digital evidence to be legitimate, it must meet specific criteria.
When will WhatsApp messages be considered evidence?
WhatsApp messages have to meet certain criteria to be classed as official evidence in court. Firstly, the messages must’ve been obtained legitimately, without crossing the right to privacy or security.
Once obtained, it’s crucial to analyse the messages’ authenticity, accuracy, relevance and completeness. Simply having a contact name above a message isn't enough to rule it as authentic. To use WhatsApp messages as evidence in a court of law, it’s a good idea for businesses to ensure they have a solid enterprise messaging solution and retain all records of work-related messaging.
A great way to demonstrate how WhatsApp messages can be used in court is to provide real-life examples.
Examples of using WhatsApp messages in court
There have been several instances where WhatsApp messages have driven a verdict in the courtroom.
By providing authentic digital evidence, lawyers can paint a timeline of events or present incriminating messages to the courtroom. Here are a few notable examples of how WhatsApp messages led to a courtroom verdict.
1. Forse v Secarma Ltd
In this case, the claimants (Secarma Ltd) accused the defendants — IT consultants for the claimants before the case — of deliberately trying to poach employees for a rival business.
When Secarma Ltd issued the claim, 28 resignations had been made from Secarma Ltd, representing almost half of the workforce.
The claimants provided WhatsApp messages as their primary evidence — messages sent between a Managing Director employed by
Secarma and a former colleague — who had already moved to the rival company.
A group chat named ‘Order of the Phoenix’ was discovered, in which members used pseudonyms to mask their identities. The messages described the plot to move several employees to the rival business as a ‘bowling championship’.
The twist was that group members discussed deleting the contents of the messages due to the potential ‘legal consequences due to non-poaching clauses,’ leading to a successful application for an injunction against the rival business.
2. D. Case v Tai Tarian
In this trial, Darren Case, a housing officer at Tai Tarian, was sacked by former bosses after setting up a WhatsApp group chat to write abusive words towards a female colleague.
The WhatsApp group was created by Mr. Case to communicate about a colleague who was signed off from work due to an operation. Case made it clear that no one should add the woman — who was referred to as ‘Colleague A’ in the tribunal hearing — to the group.
The court was shown a series of comments by Case, which were deemed wholly unacceptable. Due to the messages, Case was suspended and made the subject of disciplinary proceedings, despite a claim of unfair dismissal.
3. The ‘Wagatha Christie’ case
The ‘Wagatha Christie’ case between Coleen Rooney and Rebekah Vardy, the wives of former England footballers Wayne and Jamie, had data at its forefront — including WhatsApp messages.
Starting with an elaborate social media sting from Rooney, the court later heard several ‘explosive messages’ sent between Vardy and her then-agent, Caroline Watt, which played a crucial role in determining the result of the trial.
Towards the end of the trial, a 313-page evidence bundle was released, including many WhatsApp messages and other digital evidence.
Thanks to the role of digital evidence, Rooney was victorious in the trial. Read a more detailed account of how vital ESI was to the verdict of this case.
The importance of dealing with data in law
It isn't just WhatsApp messages that can be used as evidence in court. The modern litigation professional must be adept in handling all forms of data, as any version of ESI could be crucial in how a case swings.
Our guide, The Evolution of Legal Data, discusses how to deal with emerging new data types, how eDiscovery software can streamline your processes and how to work with large volumes of data.
To get the latest insights on handling data effectively, click below and access your free copy of the guide.