Whatsapp Messages: Admissible in Court?

Author: Donovan Cheah (Partner, Donovan & Ho)

www.dnh.com.my

Whatsapp is a text messaging application that is used by more than 1 billion users in more than 180 countries. Its use has become so prevalent that it has become a primary mode of communication for many individuals. Many parties now use Whatsapp even for business purposes, such as communicating with clients, sending documents or even negotiating contracts.

As lawyers, one of the questions we get asked frequently is whether Whatsapp messages can be adduced as evidence in court.

Some clients operate under the impression that because of its “informal” nature, Whatsapp messages would not be admissible as evidence. However, this assumption is inaccurate since there have been many instances where the Malaysian Courts have allowed Whatsapp messages to be adduced as evidence. In the case of Mok Yii Chek v Sovo Sdn Bhd & Ors [2015] MLRHU 196, the High Court held that print-outs of e-mails and Whatsapp messages fall within the wide meaning of “document” under the Evidence Act. As such, those print-outs can be treated as any other printed document when it comes to admissibility.

The High Court went on to hold that even if a party disputes the genuineness of a print-out of a Whatsapp message, the Whatsapp message may still be admitted as evidence if the following criteria is met:

      • The party who adduces the Whatsapp message must prove that the Whatsapp message concerns the existence or non-existence of a fact in issue, or that it is otherwise relevant to the proceedings; and

        • The party who adduces the Whatsapp message must meet the procedural requirements of admitting a document produced by a computer (eg: through oral evidence that the print out was produced by the computer in the course of the ordinary use of the computer, or by providing a certificate under Section 90A of the Evidence Act 1950).

In this case, the High Court not only found the Whatsapp messages to be admissible, but added that they should be given “great weight” because of the contemporaneous nature of the Whatsapp messages with the key events in that case. The High Court also found that the Whatsapp messages can be used to corroborate the oral testimonies of the witnesses, giving them more credibility.

Have there been situations where Whatsapp messages were not admissible?

In the recent Industrial Court case of Mohamad Azhar Abdul Halim v Naza Motor Trading Sdn Bhd [2017] 1 MELR 383, the court refused to attach any weight to a snapshot image of a Whatsapp conversation. This was the snapshot in question:

In this case, there was a dispute as to whether the Claimant was the person who sent the alleged Whatsapp message. The Industrial Court held that the snapshot did not conclusively prove that the Claimant was the sender, since the image did not show these particulars:

          • The Claimant’s name.

          • The date of the Whatsapp message.

          • The Claimant’s handphone number.

          • The Claimant’s profile picture.

Further, through a demonstration in Court, the Claimant was able to show the Court that a Whatsapp message can be fabricated, resulting in a fabricated Whatsapp snapshot image of that message. In another recent case, Nazaruddin Mohd Shariff @ Masari & Ors v Samsyem Saam & Ors [2017] 1 MLRH 594, the High Court found it was “wholly unsafe at this stage of the proceedings to rely on Whatsapp messages as conclusive evidence”. Here, the Defendants attempted to rely on some Whatsapp messages with the Plaintiffs to prove that the Plaintiffs had allegedly admitted that they were not the rightful beneficiaries of the estate. The High Court concluded that this issue could easily be proven by adducing the “Sijil Faraid”, a formal document which would have conclusively shown the rightful beneficiaries of the estate, which the Defendants failed to do. As such, the High Court refused to admit the Whatsapp messages as evidence.

Commentary

The general principle is that Whatsapp messages can be admissible as evidence. This is especially where there is no dispute as to the authenticity of the Whatsapp message, and no dispute as to the identity of the parties to the Whatsapp conversation. Bearing in mind the findings of the cases above, parties who intend to adduce Whatsapp messages as evidence in their court cases should still ensure that:

• the snapshots of their discussions contain the necessary information to identify the sender/recipient of the messages; and

•  they don’t wholly rely on Whatsapp messages to build their case, especially when there are other documents available that would be able to conclusively prove the facts in issue.