The Supreme Court recently observed that messages sent on Social Media Platform Whatsapp have no evidential value and the person sending the Whatsapp messages cannot be tied to them, especially in business partnerships governed by agreements.
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In this article, the nature of the evidentiality of WhatsApp messages has been discussed.
Introduction:
Since the spread of Coronavirus whole world has gone Online. From schools to businesses, everything is currently running online. There has been a significant increase in the use of Social Media platforms. Almost everything is available on the internet and social media platforms these days.
The role of Social Media in Crimes has also consequently increased.
Role of Social Media in Crimes:
Social Media Platforms play an important in crimes. Social Media has become a useful tool in the hands of investigating agencies. Electronic records are playing an important part as evidence in determining a case.
‘Evidence’ is an important term in the field of Law. The two most important laws governing evidence in the form of electronic records are the Indian Evidence Act, 1872, and the Information Technology Act, 2000. Nowadays a frequently asked question is whether chats done on social media platforms are admissible as evidence in the court of law?
Statutes:
Section 2(1)(t) of the Information Technology Act, 2000 defines ‘electronic record’ as data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche”. Section 62 of the Evidence Act defines Primary evidence while Section 63 defines Secondary evidence.
Primary evidence is the document itself produced for the inspection of the court. Secondary evidence briefly includes certified copies and oral accounts of the contents of the document.
Whatsapp Chats as Evidence:
From the definition of section 63 of the Evidence Act, Whatsapp messages can be considered secondary evidence. The Honorable High Courts have few times in recent times had accepted print-outs of WhatsApp chats as secondary evidence.
Four basic conditions have been given under section 65B (2) of the Indian evidence act to admit the secondary nature of electronic evidence as evidence in a court of law:
1. The computer/device from which the concerned information was produced must be used regularly over that period of time and by the person having lawful control over that computer;
2. The concerned information, during the said period, was of such kind that it is regular and ordinary in such activity;
3. The computer must be functioning properly during the concerned period; and
4. The information contained in the duplicate copy which is produced before the court must be the same as it is in the original electronic record.
The above four conditions must be fulfilled to produce WhatsApp chats as evidence in the courts of law.
Landmark Cases:
In the case of Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another, the Supreme Court observed that “the WhatsApp messages which are virtual verbal communications are a matter of evidence with regard to their meaning and its content to be proved during the trial by evidence in chief and cross-examination”.
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In the case of Arjun Panditrao Khotkar v. Kailash Kushanrao, the Supreme Court of India observed that the condition mentioned under Section 65B(4) of the Evidence Act is essential for admissibility of electronic records. Section 65B(4) says that “in order to admit the electronic record as an evidence, it must be accompanied with a certificate signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities stating that the electronic record fulfills the above-mentioned four conditions”. The Court also held that the person producing the chats as evidence can seek help from the Hon’ble Court to produce required certificates.
In the case of Sri. P. Padmanabh v. Syndicate Bank Limited. the Karnataka High Court held that chats sent due to computer malfunction cannot be considered as evidence. The computer was malfunctioning should however be duly proved before the Court.
Conclusion:
Hon’ble Supreme Court of India and several High Courts have recently accepted print-outs of WhatsApp chats as secondary evidence. However, the recent observation made by the Supreme Court has again put evidentially of WhatsApp messages in question. Due to the extensive use of WhatsApp as a social media platform, the Supreme Court has questioned its reliability while denying to admit WhatsApp messages as evidence in a case.
Author:
Vaibhav Kalia
Advocate
Allahabad High Court at Lucknow
