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  • Writer's pictureAarthi Jeyarajah

Admissibility of WhatsApp Chats


This author came across an interesting article recently published on the position in India on the evidentiary value of WhatsApp chats [1]. The article reports that the Supreme Court of India has held that WhatsApp messages have no evidentiary value, which seemed like a harsh position to take in the present day and age, which peaked this author's interest and led to the present article. This headline is not only eye-catching but also worrying given how the world has shifted in its reliance on digital technology. Accelerated by the Coronavirus Pandemic, the reliance of communication on digital platforms and social media have only increased exponentially.


The Supreme Court (of India) Approach

It is reported that a bench comprising of Chief Justice N V Ramana and Justices A S Bopanna and Hrishikesh Roy held as follows [2]:


“What is evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don’t attach any value to the WhatsApp messages.”

[Emphasis added]


The case initially in the High Court involved Quippo Infrastructure Ltd vs A2Z Infraservices Ltd & Anor [3], where parties had referred to the High Court of Calcutta on an appeal against a decision in relation to the Indian Sections 9 and 37 of the Arbitration and Conciliation Act 1996.


The salient points to note in this case are as follows [4]:


  1. On May 28 2020, A2Z terminated the contract agreement and Quippo moved the Calcutta HC on September 14 for appointment of an arbitration panel on certain issues relating to the contract agreement with A2Z. The parties agreed for an arbitrator on January 14 2021.

  2. A single judge bench of the Calcutta HC was told by Quippo counsel about a WhatsApp message of March 19, 2020 in which A2Z purportedly admitted payment of Rs 8.18 crore due to Quippo. Quippo also showed an email of year 2018 in which A2Z had agreed to deposit all money received from SDMC in an escrow account.

  3. A2Z took the position that the WhatsApp message was forged and fabricated. However, the High Court directed A2Z to “deposit all the money received by them in future from South Delhi Municipal Corporation in connection with the work covered by the Master Service Agreement in the escrow account subject to further direction in this behalf by the arbitral tribunal or the arbitral award that may be passed”.

  4. The High Court accepted the evidence of the WhatsApp message and held that: "It, however, cannot be denied that prima facie there is an admission on the part of the respondents of their liability of Rs.8,17,93,600/- towards the appellant as evident from the statement of account contained in their WhatsApp message dated 19th March, 2020. Although Mr. Bose tried to suggest that this WhatsApp was a fabricated document there was not enough evidence to support his contention. He may or may not be able to bring additional proof during arbitration.” [Emphasis added]

  5. However, on appeal to the Supreme Court A2Z argued the position that though the agreement was terminated and the dispute stood referred to arbitration, it was incomprehensible why the High Court [of Calcutta] ordered all receivables from SDMC be deposited in the escrow account. “I will not be able to pay workers engaged in the collection and transportation of solid waste management in Delhi. Why should the HC believe a WhatsApp message when we have disputed it as forged and fabricated.”

  6. In this respect, Quippo took the position that the escrow account was created on the basis of an agreement for equitable distribution of the money between the parties. However, the Supreme Court Bench led by CJI Ramana said that once the matter has been referred to arbitration, why should a party which terminated the agreement deposit the receivables in an escrow account?

  7. It is reported that the Supreme Court remarked that “Prima facie we are not satisfied with the HC direction for depositing the money in an escrow account. We are not considering the purported admission in WhatsApp message. If it is not late, then go before the arbitrator and parties would be bound by the arbitrators award,” the bench said.


It should be noted that the article published suggests that this matter is still pending.


Commentary


It should be noted that the position taken by the Supreme Court ought to be viewed in relation to the proceedings that has come before it, i.e. the issue of the appointment of an arbitrator and payment of monies into an escrow account. In a manner of speaking the nature of the application that is being heard is an “interim relief” and not as a final determination of the dispute between the parties based on the merits of the case. As such, if it is a question of whether WhatsApp messages are admissible evidence to determine the dispute between the parties (i.e. at trial, for example), it is arguable that reliance can be placed on the Indian Evidence Act of 1872 and the Information Technology Act of 2000 which provide for laws regulating electronic records.


Whilst the position taken on the weight of WhatsApp chats by the Indian Supreme Court is interesting, the Court does make a valid point that anything can be “created” or “deleted” on social media. WhatsApp provides features of deleting messages and there are a number of ways to “redact” conversation / printouts of such conversations. However, if the phone with the alleged WhatsApp chats is presented before the court itself and shown to the court for inspection it will be considered as primary evidence and there will be more weight attached to such WhatsApp conversations.


The Malaysian Approach


On the admissibility of WhatsApp messages, the law has been succinctly set out by Justice Wong Kian Kheong in Mok Yii Chek v Sovo Sdn Bhd [5] on the requirements that ought to be met when adducing WhatsApp messages as evidence.


Following this, in the case of Bergamo Development (M) Sdn Bhd v Eck Development Sdn Bhd & Anor [6] (“Bergamo”) it was held that the Plaintiff had satisfied the pre-requisites by the tendering of a certificate made pursuant to s. 90A(2) Evidence Act 1950 by the director of the Plaintiff who is responsible for the care and management of the usage of the Samsung Galaxy S6 mobile phone (serial no. R58G3246MHV) and Hewlett-Packard laptop computer (serial no. CNF1042YS7). The messages were extracted and printed therefrom. He has certified that the WhatsApp messages were generated from his personal WhatsApp account that was registered using his mobile phone Maxis number 013-3360600 as well as extracted and printed from his mobile phone and laptop computer in the course of their ordinary use.


Being satisfied that the provisions of the Evidence Act 1950 in relation to “Admissibility of documents produced by computers, and of statements contained therein”, with “computers” being widely defined as “any device for recording, storing, processing, retrieving or producing any information or other matter, or for performing any one or more of those functions, by whatever name or description such device is called; and where two or more computers carry out any one or more of those functions in combination or in succession or otherwise howsoever conjointly, they shall be treated as a single computer”, the learned Judge in the case of Bernamo admitted the WhatsApp conversation as evidence and was duly considered by the learned Judge when determining the dispute between the parties.


It should be noted that a recent case of Pannir Selvam a/l Sinnaiyah & Anor v Tan Chia Foo & Ors [7] also held that WhatsApp chats produced were relevant and admissible, albeit, on different grounds. Interestingly in this case the Court held that Section 90A of the Evidence Act 1950 does not apply, given that the “maker” of those messages had been duly cross-examined on the same.


However, it should be noted that the High Court in the case of Nazaruddin Mohd Shariff @ Masari & ors v. Samsyem Saam & Ors [8] held that it was “wholly unsafe” to rely on WhatsApp messages as conclusive evidence for a striking out application. This could be said to be in line with the Indian Supreme Court approach.


Conclusion

It appears that the Malaysian Courts are ready to accept WhatsApp messages as evidence during trial provided that the provisions of the Evidence Act 1950 have been complied with and depending on whether the conversations have been classified as Part B or Part C documents (as defined in the Rules of Court 2012) respectively. This an important development in the law of evidence given the increasing number of “deals”, “concessions” and “agreements” being struck up on this platform or other messenger platforms which are widely used worldwide (Telegram, WeChat, Facebook Messenger, to name a few).


On this basis, it is always advisable to ensure that a copy of the history of messages are saved via ‘export chat’ function (on WhatsApp) and other similar methods available on each messenger platform in order to preserve and record the conversation that had taken place between the parties.


Aarthi & Associates is a legal firm dealing with varied civil and corporate disputes, including construction disputes, injunctions and CIPAA claims. The firm's philosophy of "Providing Solutions", demonstrates a commitment to providing fast, effective and practical solution to disputes. Please visit www.aarthiassociates.com for more information and contact details.


 

References:

[3]https://indiankanoon.org/doc/188444731/

[5] [2015] 1 LNS 448

[8] [2016] 1 LNS 1434

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