Forensic study of the authenticity of WhatsApp messages

Nowadays, technology is very present in our lives, so that more and more, computer-based evidence is part of everyday life in the judicial field. One of the most common cases is the accreditation or challenge of facts through WhatsApp messages, in which they seek to determine their origin, authenticity and integrity.

It is very common, to commit the temerity, to present a WhatsApp message printed on paper as evidence in a judicial proceeding. In this case, the evidence is rebuttable since digital images, given their nature, may be manipulated, and their mere printed presentation is not enough to prove their origin, authenticity and integrity.

As it is indicated in the Supreme Court Judgment 300/2015, May 19^th, 2015 the proof of facts by means of WhatsApp messages “… is approached with all caution by the courts of justice. The challenge of the same displaces the burden of proof on those who intend to take advantage of their probative suitability. In such a case, the practice of an expert evidence will be essential … “

Some interesting judgements

• Judgment of the Provincial Court of Barcelona 246/2020, Section 22, May 18^th, 2020, in which it is determined in point 2 of the legal grounds, that:

“The Judgment of the Supreme Court conditions the need for an expert opinion to the challenge of the authenticity of the messages by the Defense, which does not occur in the present case, since neither in the brief of provisional conclusions, nor as a preliminary question of the oral trial, the Defense challenged the authenticity of the messages, which is why an expert opinion cannot be required from the accusations where there was no challenge, and it must also be taken into account that the Defense itself proposed that documentation as evidence in its brief of provisional conclusions.“

• Judgment of the Provincial Court of Mérida 38/2018, Section 3, March 7^th, 2018, in which it is determined in point 1 of the legal grounds, that:

“Now, of course, the expert report only makes sense when the messages are contested. If the defense of the accused admits the remission of the messages, such admission allows them to be authentic.“

Considerations

“The appealed ruling is essentially based on the ineffective and invalid expert evidence that has been provided as the only justification for the facts imputed in the letter of dismissal to the plaintiff, for several reasons explained by the Magistrate of Instance in her ruling. The first is because she understands that the expert presented by the company lacks an official degree in computer science, although at this point it is recognized that the expert is the person who provides computer assistance to the company as a freelancer, which implies at least a practical knowledge of what he is hired for. On the other hand, the informal nature of the expert evidence and the questioning of the chain of custody are argued. Special mention is also made of the breach of the guarantees of the plaintiff’s right to privacy at the time of carrying out the inspection and search of the computer equipment, declaring it proven that the plaintiff was not present. In short, the Magistrate of Instance, evaluating this evidence and the testimonies provided at the oral trial concludes that the defects in the practice of the expert evidence carried out by the company prevent granting probative value to this means of proof, and given that it is essential to prove the facts imputed to the plaintiff, declares the dismissal unjustified.”

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From FORENSICTECH we provide our clients with the security of having:

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• A computer expert capable of facing the ratification in oral proceedings in all jurisdictional orders.
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