Phone calls and sms (text messages) are becoming less and less common and have, for the most part, been replaced by the use of instant messaging applications.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. While many of the communications engaged in are innocuous, there may be messages which are significant to your legal or proprietary interests. For instance, when you purchase a product or service through one of these communications applications us, such message becomes a sales contract or a purchase agreement between the buyer and the seller. Similarly, when adolescents distribute inappropriate photographs among the members of the group using WhatsApp® they could be engaged in a case of illegal behavior as outlined in the Spanish Penal Code.
For communications with legal implications, the question becomes whether they can be used as documentary evidence in a judicial proceeding. Whether WhatsApp® conversations constitute legal evidence is determined essentially by the manner in which these 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. First, printing screen shots in paper format of conversations on a smartphone is a way of producing a legal document. Second, 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.
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. You 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. A Spanish 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.
The use and value of instant messaging in legal proceedings varies from country to country. If you have questions about your instant messaging transactions, or are involved in a dispute where your instant messages may constitute evidence, see your Ally Law member firm litigation team to discuss how to preserve the messaging as evidence. For more information about Ally Law member firm services and outstanding lawyers, contact us at firstname.lastname@example.org.