The WhatsApp messages are electronic documents
In our legal system applies the cd. principle of typicality of evidence, according to which they may have access in the civil process only expressly provided evidence and regulated by law.
As far as we are concerned, art. 2712 c.c. provides that the mechanical reproductions, photographic, IT (CAD) or cinema, the sound recordings and, generally, any other mechanical representation of facts and things form full proof of the facts and things represented, if the person against whom they are produced does not disown the conformity to the facts or the same things.
Art. 2719 c.c. also that photographic copies of the scriptures have the same effect as authentic, if their conformity with the original is certified by the competent public official that is not expressly disclaimed.
Just starting from these provisions, the Supreme Court had already recognized full probative value for SMS and MMS for images contained in, deemed "evidence" can be integrated with other elements even in case of dispute (Cass. Civ. 11/5/05 n. 9884), clarifying, however, that in the event of repudiation of the "fidelity" of the original document, fall in the Judge powers ensure conformance to the original also through other means of proof, including presumptions (Cass. 26/01/2000 n. 866, many).
Similarly, these legislative provisions have been invoked with regard to WhatsApp messages to which, however,, constituting electronic documents (now equivalent to traditional documents under L. 40/08) to all effects, apply all the rules present in our legal system.
Having clarified, So here is the main judgments in civil matters concerning the probative value of virtually entertained conversations in a chat WhatsApp.
The transcripts of the value of WhatsApp messages (Trib. Milan Sez. work, Sent., 24.10.2017)
In the first place, it notes that the transcript of WhatsApp messages is unusable and can not be considered fair trial without the production of computer media containing the conversations.
In the case of specific and formal disavowal contestation of such messages, to assess the veracity of the assertions and verify the documentation produced at the actual postings and content in the app in question, the judge may in fact have a special expert witness.
But in the absence of computer media (the art. smartphones or PC, For a Web WhatsApp) in which are contained in the chat conversations, It is not possible to confer upon them probative value, even through a production order, given the procedural foreclosures, He would exploratory nature and subrogation of procedural charges of not acquitted.
In the present case, a worker had received a disciplinary dispute for having had conversations gravely injurious of the business in a WhatsApp chat who also attended other colleagues.
These WhatsApp conversations had been found on the business phone of a colleague after his dismissal by the employer who, thanks to a backup of the company mobile, she got to learn that other employees, including the applicant, They chose and were sending resources to harm the company in economic and image plane, and boycotted the business entity, jeopardizing the success of certain events or hindering the activities of colleagues.
In judgment, however, it was produced only excerpts of these conversations via chat: considering that the product prints messages were expressly denied by the applicant and are not, therefore, be used as evidence, It was demonstrated the lack of fact challenged.
The same conclusion is reached the same Milan Court in another judgment, in which they were considered to be devoid of any probative value of the WhatsApp and Sms telephone conversations by the user and extracted with transcripts produced on sheets Word (Trib. Milan Sez. work, Sent., 06.06.2017).
The dismissal notice written off WhatsApp (Trib. Catania Sez. work Ordinance, 27.06.2017)
What if the employer intimate job dismissal using WhatsApp?
In terms of prescribed under penalty of nullity of the dismissal written form does not exist for the employer the burden of using sacramental formulas, being able, the will to dismiss be communicated to the employee even indirectly provided clear form (Cass., civ. sez. low., 13 August 2007, n. 17652).
On that occasion, the Catania Court held that the withdrawal ordered by WhatsApp fulfills the burden of writing these are electronic documents that the applicant has certainly imputed to the employer, so as to provide timely appeal to formulate stragiudiziale.
Moreover, given that the law, By providing that the dismissal must be intimated in writing, It does not specify which means should be used, but only that there is evidence that the communication has reached the recipient, WhatsApp should be considered a valuable tool for all purposes.
Thanks to the latest updates, it is possible to verify that the message has been delivered and read by the recipient: as it is known, on the phone of the writer, next to the text, It is in fact visible
a green check mark when the message was sent,
two green checkmarks when your message has been delivered
2 blue checkmarks when your message is read.
and this finding is, however, complete the date and time of reception and reading.
The message sent via WhatsApp was thus considered an information document, when received, It has full test validity, a fortiori if the employee holding the dismissal occurred so in this case, demonstrating unequivocally that he had received, and he accused the message with certainty to the employer.
Recognition of a debt via WhatsApp (Trib. Ravenna sent. 231 of the 10.3.2017)
What is the value WhatsApp messages with which it is recognized to have to pay a sum of money to the recipient?
By judgment No.. 231 of the 10.3.2017, the Ravenna court sentenced a woman to return the money that the former lover had lent her to buy a car based on the content of conversations WhatsApp entertained and produced in court.
in messages, or in Law or equivalent, the woman had agreed to repay the amounts paid by former lover, paying monthly installments and providing household cleaning services.
In addition to what detected, referring to WhatsApp conversations, the judge had also found that the parties had not been a cohabiting relationship as husband and wife or engagement but that it was merely a clandestine love affair of little effort.
Consequently, the giving of money from one place to another resulting from messages exchanged in a chat WhatsApp was considered a loan in effect, having to consider excluding donations of Use, with the consequent obligation to repay the sums.
In other words, in the light of the judgment, the message sent to a WhatsApp chat with which it claims to have a debt to the recipient amounts to a recognition of the debt the same as per article 634 c.p.c.
we can, that it should be paid special attention to what you write about WhatsApp, since chats remaining in the Smartphone's memory, They can provide full evidence before the Judge.
Conclusions: how to produce WhatsApp conversations in court?
In light of what was stated, by an examination of the most recent case-law shows clearly that the WhatsApp conversations may have evidentiary value in a civil trial, even in case of being challenged by the party against which they were produced.
It seems therefore appropriate to conclude with a discussion about the proper procedure for their production in court.
As I noted and confirmed by the Court of legitimacy (v. Cass. judgment 49016, Criminal Section of the Fifth 25.10.2017), the transcript of conversations WhatsApp can be used for evidentiary purposes but is conditioned by the acquisition of the media - electronic or figurative - containing the aforementioned recording. Indeed, the transcription is simply a reproduction of the contents of the main event of which must therefore be controlled reliability, the veracity and paternity through the direct support of the examination.
indeed, the Supreme Court has not expressly specified as acquire WhatsApp messages as evidence in a trial, but has hinted that if together with transcripts is deposited the original electronic device, the data can be accepted and used in court.
Upon placing in the above mode, smartphone or computer medium can therefore be subjected to the expertise of a technician appointed by the judge who must verify that the text has not suffered alterations.
In addition to the highlighted, to confer greater probative value to messages and overcome any possible dispute, it is also possible to obtain
a technical report of a consultant
a certified copy of Whatsapp messages and authenticated legal use (Also included SMS, messages, chat groups, or any other instant messaging system including Telegram, Viber, iMessage, Facebook Messenger o Skype), to be filed in court.
In this latter regard, You will need to obtain a certificate of conformity of the transcripts or screenshots to the original conversations performed on the computer support, by a notary or other public official (such as law enforcement).