Can WhatsApp messages be used as evidence in court?

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Catherine Le Nevez
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If you live on Earth, you've surely discovered that the FBI wants Apple to give them a way to get into the iPhone that allows them to access the content.

While this implies a profound ignorance of how content encryption works, there is no doubt that, if they do get in, what they find inside will be used against the defendant.

However, in FBI cases the criminals have already been identified, that is, they do not need further evidence against them, and in reality what they want is to identify all the accomplices who may not be known at this time.

Another notorious case is that of the director of startup Away, Steph Corey. After some of her messages surfaced in a company chat in which she made threats and used "uneducated" language to refer to her workers, she was forced to resign, although she has now been admitted as a Co- CEO.

In our normal life, without the need for snipers or abusive CEOs who despise an entire company, we can find a stalker, a blackmailer, an abuser of his position of power ... or we can find that we are the accused and have to defend ourselves ... in in any case, they are situations that occur completely in the digital medium and that leave no "physical" traces that we can show as clear evidence.

What is digital proof?

If we want to make a report, through legal channels or within the organization to defend ourselves or to correct unwanted behavior, we must be able to use our device as proof of charge.

To be able to do this with guarantees, we must be sure that what we present, and the way we present it, is indisputable as proof.

An article on the blog of the Varona law firm explores the subject and gives us the keys:

A digital proof is all that digital information with evidential value, taking into account that:

  • It refers to any type of digital information.
  • The information must have been produced, stored or transmitted by digital means.
  • It must have the effect of proving facts in a judicial proceeding.
  • It is a category of technology testing

How can I know if it is a valid test?

If they are WhatsApp messages (or any other digital message), SMS, email, photos, etc. There are some circumstances that we must meet in order for them to be accepted as evidence.

For them to be valid, we must have respected a person's fundamental rights to obtain such proof and it must be possible to verify its origin, as well as its authenticity (i.e. not worth presenting in print and out of context).

Therefore, those proofs obtained with judicial authorization and / or provided by the company or person who keeps the data, such as telephone records, Facebook information, search records and Instagram histories, etc. will be valid.

But if such proof is provided by the party itself, it is essential to prove that it has not been tampered with and that it is presented in its entirety and authenticity.

Source: Varona

In summary, if you have evidence of a crime - or someone falsely accuses you of it - you will have to present your mobile phone as evidence (or, if you can't help it, go to a notary to give credence to the contents) so it serves to verify that the messages have not been tampered with.

If you find yourself in a compromising situation where your only (or primary) defense is your mobile device, back up everything.

You don't want your test to be broken, lost or rendered useless and you have to beg "people to believe you."

You love the Internet, sending messages and uploading photos, answering emails wherever you are or being able to access cloud services… you need to learn to live this life responsibly, and not play cards, because everything can be broken in a second.

If your credibility, your work or, even worse, your innocence depend on digital evidence, you need to have copies that protect you from the unexpected.

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