WhatsApp is a multi-platform messaging app that allows its users from all over the globe, the ability to communicate with each other via texts, videos and even voice chats.
WhatsApp is increasingly being used by organizations and employees alike to maintain a line of correspondence with their clients. It is easier to maintain secure contact with clients and to get in touch with them without the hassle of E-mails. It is also simpler for the organization to maintain confidentiality. Through many cases, it has been laid down that WhatsApp texts, SMS/MMS and every other electronic evidence is fully admissible in Indian Courts as a form of secondary evidence.
Major businesses conduct their daily meetings and deals via virtual platforms including E-mails and WhatsApp. Hence, it is crucial to understand the nuances of online messaging and conversation platforms, how electronic records of conversations are stored and how they can be used to produce as evidence in court, if need be.
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Legal Enforceability of WhatsApp Messages
In India, two major laws are in existence that govern electronic records (which includes WhatsApp messages) and their admissibility. They are
a) The Indian Evidence Act, of 1872 (now known as Bhartiya Sakshya Adhiniyam,2023); and
b) The Information Technology Act, of 2000.
Section 65B of the Indian Evidence Act, 1857 allows the admissibility of WhatsApp messages in the court of law.
The Information Technology Act, 2000 under Section 69 states that only authorized law enforcement agencies are empowered to intercept, monitor and/or decrypt any information from any computer resource. This includes WhatsApp conversations.
Just like every contract has some essential elements it needs to fulfill to be legally enforceable. Even a WhatsApp chat has to fulfil certain criteria to be admissible as evidence. They are as follows:
1) The messages sent through must reach the intended receiver.
It must reach the intended receiver only and it would not be admissible if the message intended to be received by one person was received by a third person.
2) The phone through which the message is sent must be in use and must not have any damage done to it.
For any message to be considered credible evidence, it must be sent from a device that has been in use and is not brand-new. This makes sure that the message originated from a functioning and in-use device which reduces the possibility of there being damage done to it. Any device from which data is sent, if it is damaged in either physical form or any other, it may raise doubts as to the authenticity and reliability of the message.
3) The sender’s intention must accompany the message.
Messages without a clear intent have a high chance of being misinterpreted or if a message has unambiguous language, its evidentiary value is reduced considerably. Establishing a concrete intent is of utmost importance to demonstrate its relevance in the case.
4) The data in the duplicate copy that’s presented in the court needs to match the data in the original electronic record.
When any person wishes to present a duplicate copy of any electronic record in court, he or she is allowed to do so, provided the produced duplicate copy is an exact match of the original record. This is so to ensure the accuracy and authenticity of the evidence presented.
5) The chat/s sent must be relevant to the case with a direct or indirect connection.
Irrelevant messages must be excluded by the court because they do not have a concrete connection to the established facts or evidence. The messages to be presented as evidence must be related to the matter in court, with a direct or indirect connection to the facts of the case.
6) The genuineness of the chats must be proved by the party presenting it as evidence
The party that wishes for the evidence to be introduced must also prove their authenticity. The party can use different methods to prove the genuineness by including sender testimony, expert opinion and the like.
7) A proper chain of custody must be established to ensure the evidence hasn’t been tampered with.
A chain of custody must be established that is proper and relevant. Establishing such a chain of custody involves documentation of evidence from when it was created to when it is to be presented in court. There must be no gaps, inconsistencies, or irrelevance of data which may lead to doubts about the authenticity of the evidence.
Section 65 of the Indian Evidence Act of 1857 deals with the admissibility of evidence including emails, chats, and texts and even considers social media posts.
Due to tampering with the messages, it becomes difficult to make them admissible. If a message sent through WhatsApp is not authentic, the case may require expert opinion. It has become relatively easy to alter messages, hence their authenticity must be proved before presenting them as evidence. The court has adopted stringent measures to evaluate the authenticity of electronic records.
Under Sections 65 and 65A of the Indian Evidence Act, 1872, electronic records and their authenticity are questioned. Section 65 states the situations where a party may lead to secondary evidence. Section 65A states that the contents of electronic records may be proved per the provisions given in Section 65B of the Act which provides the mode for proof of contents of electronic records and it applies to any computer output.
WhatsApp messages are a form of secondary evidence. They are also considered hearsay evidence as they are made outside of court by a person who is not testifying. The personnel in court believe that enabling electronic evidence to be admitted in court is difficult as it is very technical. Even though presenting a WhatsApp chat as evidence poses challenges, it can be made easier by proving its authenticity. The process can surely be made easier by fulfilling the criteria given to us.
Landmark Judgments
1) Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another
The Supreme Court has made reference to chats on WhatsApp as evidence. The WhatsApp messages that are virtual and verbal communications are a matter of evidence. The Judges observed that ‘emails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not’.
2) Anvar P.V v P.K Basheer
The extent of deciding the admissibility of secondary evidence was overruled in the judgement of this case. It curbed the controversies relating to the admissibility of electronic evidence and it also tried to bring uniform practice in admissibility requirements. The Supreme Court ruled that electronic evidence to be produced in court must strictly comply with the requirements of Section 65B of the Indian Evidence Act. The SC also overruled the earlier decisions that allowed the admission of electronic records without sticking to the conditions given in section 65B.
3)Arjun Panditrao Khotkar v Kailash Kushanrao
In this case, the Supreme Court held that conditions under Section 65B(4) are essential to admit electronic records as evidence. It upheld the previous order stated in Anvar P.V v P.K Basheer. The court further held that whosoever brings information and does not have such possession of the computer or original device, then such person can acquire a proper certificate from the concerned person.
This case redefined the admissibility of secondary evidence by re-interpreting the applications of Sections 65 and 65B of the Indian Evidence Act. The court had initially declined to accept electronic records as being prima facie evidence without any certificate or signature and it also stated the requirement of proving an electronic certificate under section 65B, being mandatory for treating evidence as admissible.
4) Monica S. Bedi v. State of Andhra Pradesh (2010)
In this case, the WhatsApp messages were presented as evidence to demonstrate communication between Monica S. Bedi and others involved in the case. The WhatsApp chats presented a crucial aspect in establishing a timeline of the events and the interactions. The messages involved in the case were essential in verifying the identity of Monica Bedi. This case brought the use of WhatsApp messages and issues related to privacy, the extent to which personal communications can be scrutinized in legal proceedings. All in all, the case presented important questions about the admissibility, authentication and privacy of WhatsApp texts.
Conclusion
Even though Indian Law is still underdeveloped when it comes to electronic records such as WhatsApp messages and texts or SMS, MMS etc, the current standing is not in favour of the Legal Enforceability of WhatsApp messages. The messages cannot be admitted as evidence in court as they are easily tampered with and can be deleted and changed by anyone. They do not hold 100 % evidentiary value. If only it is proven that the messages are authentic and are related to the case, they can be admitted as evidence.
Even though the current scenario is not in support of admitting WhatsApp chats as evidence, we hope to see changes soon by way of amendments and judgements around the admissibility of digital evidence.
Frequently Asked Questions
Q1. Are WhatsApp messages admissible as evidence in court?
A) Yes, WhatsApp messages are admissible as evidence but only if they meet certain criteria such as authenticity of the messages, relevancy of the messages to the case at hand and establishing a clear chain of custody.
Q2. What law governs the admissibility of WhatsApp messages in India?
A) In India, the law that governs the admissibility of WhatsApp messages is The Indian Evidence Act, 1872 (now known as Bhartiya Sakshya Adhiniyam of 2023) and the Information Technology Act,2000.
Q3. How can one prove the authenticity of a WhatsApp message?
A) Authenticity of a WhatsApp message can be proved by testimony, expert opinion, analysis experts, demonstration of evidence being in good condition and the like.
Q4. Is the sender’s intention important to make a WhatsApp message admissible in court?
A) Yes, it is of utmost importance because it ensures the relevancy of the message and it aims to avoid misinterpretation. This enhances the evidentiary value in court.
Q5. Which sections of the Indian Evidence Act are relevant for the admissibility of electronic records?
A) Under the Indian Evidence Act, Sections 65, 65A and 65B are relevant for the admissibility of electronic records and this includes WhatsApp messages.
Important Note: With effect from 1st July 2024,
Section 65 of the Indian Evidence Act of 1872 is replaced by Section 60 of the Bhartiya Sakshya Adhiniyam of 2023.
Section 65-A of the Indian Evidence Act of 1872 is replaced by Section 62 of the Bhartiya Sakshya Adhiniyam of 2023.
Section 65-B of the Indian Evidence Act of 1872 is replaced by Section 63 of the Bhartiya Sakshya Adhiniyam of 2023.
This Article is written by Tanaya Moholkar, a final year law student at Yashwantrao Chavan Law College, Pune.
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Very informative