Introduction:

WhatsApp is a free-to-use, cross-platform messaging application that allows users to send text messages, voice messages, images, videos, and documents, as well as make voice and video calls over the internet. It was created in 2009 and quickly became one of the most popular messaging apps globally. It uses end-to-end encryption to ensure the privacy and security of user communications, meaning that only the sender and recipient can read the messages, and not even WhatsApp itself can access the content.

In addition to individual messaging, WhatsApp supports group chats, allowing multiple users to communicate with each other simultaneously. It also provides features like status updates, where users can share photos, videos, or text updates visible to their contacts for 24 hours.

As technology evolves, legal systems grapple with the challenge of integrating digital evidence into courts. This chapter explores the admissibility of WhatsApp messages as screenshots, examining the principles, challenges, and precedents surrounding the acceptance of this form of evidence.

The legal basis for the admissibility of Whatsapp messages:

The admissibility of WhatsApp messages is legally supported by Section 8 of the Electronic Transaction Act. This provision highlights that in legal proceedings, the rules of evidence shall not be applied so as to deny the admissibility of a data message or an electronic record; (a) merely on the ground that it is constituted by a data message or an electronic record; (b) if it is the best evidence that the person adducing the evidence could reasonably be expected to obtain; or (c) merely on the ground that it is not in its original form.

The above provision was relied on in Wen Jie v. Nabimanya Isaac and Anor.[1], where counsel for the plaintiff sought to rely on a string of WhatsApp messages to prove that the plaintiff had contracted the defendant to ship the container on his behalf. The defendant tried to challenge the admissibility of the WhatsApp chats but court held that the chats could be admitted as evidence.  Justice B. Kainamurawhile allowing the evidence stated that, “Counsel for the defendant tried to dispute the admissibility of the WhatsApp messages. However, Section 8 of the Electronic Transaction Act provides for the admissibility of the electronic or data messages and in my view PE 13(Whatsapp messages) was properly admitted in evidence.” 

The Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions, 2019 under Rule 5 provides for use of Technology in Courtrooms; In every judicial proceeding, the court and the parties to the case may, as much as possible, use technology to expedite the proceedings and make them more efficient and effective.

The above provision also supports the admissibility of WhatsApp messages as evidence in court due to the fact that WhatsApp messages fall within the realm if technological tools.

Do WhatsApp messages qualify as electronic records?

Section 2 of the Electronic Transaction Act defines an “electronic record” to mean data which is recorded or stored on any medium in or by a computer system or other similar device, that can be read or perceived by a person or a computer system or other similar device and includes a display, print out or other output of that data.

Basing on the above provision, it can be argued that WhatsApp chats can be taken to be electronic records and are permissible as conventional documents. Section 5 of the Electronic Transactions Act gives legal effect to the admissibility of electronic records. It states that information shall not be denied legal effect, validity or enforcement solely on the ground that it is wholly or partly in the form of a data message.

In general, for electronic records to be admissible as evidence, they need to satisfy certain criteria set in Section 8(4) of the Electronic Transactions Act which provides that when assessing the evidential weight of an electronic record, the court shall have regard to— (a) the reliability of the manner in which the data message was generated, stored or communicated; (b) the reliability of the manner in which the authenticity of the data message was maintained; (c) the manner in which the originator of the data message or electronic record was identified; and (d) any other relevant factor.

Do WhatsApp message printouts qualify as a “document” in evidence law?

The Evidence Act defines a document to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter[2]. In the case of Mok Yii Chek v Sovo Sdn Bhd & Ors[3], the court held that the printouts of the WhatsApp messages fall within the meaning of “document” under the Evidence Act therefore it shall be admitted as evidence in court if agreed by both parties. The court further held that even if one party challenges the genuineness of a printout of a WhatsApp conversation, such disputed printout may still be admitted in court if it meets the following requirements: –

1. The disputed printout concerns the existence or non-non-existence of fact in issue, or it serves relevant to the proceedings at hand; and
2. The disputed printout shall meet the procedural requirements of admitting a document produced by a computer provided in Evidence Act.

According to Section 60 of the Evidence Act, the contents of a document can be proved using primary or secondary evidence.

Since WhatsApp messages are considered as documents, they must be proven through either of these means.

Section 61 of the Evidence Act defines Primary evidence of a document to mean the document itself produced for the inspection of the court, i.e., primary evidence is the original document itself (originals of the messages contained in the WhatsApp Application).

Section 63 of the Evidence Act requires that documents must be proved by primary evidence except in cases where exceptions come in as secondary evidence.

In the case of WhatsApp messages, primary evidence would be the original messages stored within the WhatsApp application itself. These messages can be accessed directly from the app and are considered the most authentic representation of the communication. On the other hand, secondary evidence for WhatsApp messages would include printouts or digital copies of the messages.

In practical legal scenarios, litigants commonly submit printouts of WhatsApp messages as evidence instead of presenting the original messages from the app. This approach is more feasible as it is not practical to attach physical phones as annexures to legal documents. Consequently, the printouts are considered secondary evidence since they are not in their original form.

Under Section 62 of the Evidence Act, “Secondary evidence means; (a)certified copies; (b)copies made from the original by mechanical processes; (c)copies made from or compared with the original………”

Based on the interpretation of the above provisions, it is evident that WhatsApp chats can be presented as evidence in court. However, the process and conditions for their admissibility may vary depending on their nature. In most cases, WhatsApp chats are considered secondary evidence since it is common to present only the printouts of these chats before the court.

However, it is crucial to acknowledge that the admissibility and significance attributed to WhatsApp message printouts or original digital messages remain subject to thorough examination and evaluation by the court. Various factors, including the authenticity, integrity, and method of obtaining the evidence, will be taken into account to determine its admissibility and relevance in a particular case.

Who is entitled to prove the particulars of a Whatsapp screenshot?

The responsibility of proving the details contained in the screenshot image of WhatsApp messages lies with the person who took the screenshot. When a person receives a screenshot from someone else, they cannot independently verify or prove the particulars present in the screenshot. In the Kenyan case of Rachael Njoki Kahara v. Gideon Migiro Nyambati[4], court found that it was clear that the screenshots were taken by some other person other than the plaintiff and later sent to the plaintiff whereupon she downloaded and saved the screenshot image. It was thus necessary for the plaintiff to file a certificate pertaining to the person who took the screenshot of the WhatsApp messages describing the particulars of the device involved in the production of the image. Court referred to the case of Richard Nyagaka Tong’i v. Independent Electoral & Boundaries Commission & 2 others[5] where it was noted that;

 “In the present……………the person who operated the computer and printer during the printing of the photographs was not called to testify as to the condition of the machines and the integrity of process of the printing of the photographs. The person who testified was the photographer who although he stated that he was with the computer operator when the photographs were made cannot vouch for the due operation of the computer and printer and the integrity of the photographs having himself admitted that they would at times sit with the operator to choose colors in which the photographs would be printed. The court cannot rule out the possibility of doctored photographs, and in accordance with section 106B, the photographs are inadmissible and shall not be considered.”

Do WhatsApp forwarded messages have any evidential value?

This question was answered by the Delhi High Court in National Lawyers Campaign for Judicial Transparency and Reforms v. Union of India[6]  which held that WhatsApp forwarded messages cannot be treated as evidence and cannot even be regarded as a ‘document’ under the Evidence Act, without having its original. In this case, learned counsel for the petitioners was several times asked what the source of the alleged information in Annexture A. He stated that the source of information was information circulated and received on social media “WhatsApp” platform. Neither the name of the sender of the alleged WhatsApp post was stated nor was it stated as to which of the petitioners received the WhatsApp post. Court found that Annexure – A did not even qualify as a document in terms of the Evidence Act, in as much as, neither the original nor the copy of the original had been produced. It was an admitted position that the petitioners had not seen the original and also had no occasion to even compare Annexure – A with the original.

If a party admits the authenticity of the messages, there is no need to prove authenticity;

In Kyewalabye Majegere v. Kubeketerya and Another[7], the trial judge had rejected the evidence comprised of WhatsApp messages whose printout was attached to the Petitioner’s Affidavit. Counsel for the Appellant faulted the trial judge for expunging the appellant’s WhatsApp message for two reasons. First, that the message was between the appellant and the 2nd Respondent’s Returning officer who admitted its correctness during the cross examination in court. Second, that the law recognizes that a blue tick in the WhatsApp message of the sender is legitimate evidence of proof that the recipient has acknowledged the communication. Court found that the trial judge ought to have admitted the Whatsapp messages because the respondent had admitted to their authenticity. The Learned Justices of the Court of Appeal stated that;

It is our finding that the consequence of the admission was that all the issues of authenticity and integrity of its storage, retrieval and printing into hard copy ceased to be relevant’ all the safeguards put in place by Section 8 of the Electronic Transactions Act are intended to ensure that the electronic record is indeed what it claims to be. The burden to prove that the integrity of the electronic message is placed on the party seeking to rely on it by Section 8(2) of the Electronic Transactions Act. Through the admission of the WhatsApp communication between, the appellant discharged the burden to prove the authenticity and integrity of the said messages which are preconditions for their admissibility.”

Gadget used in preparation of the WhatsApp messages printout;

The person presenting the evidence does not have to confirm or establish ownership of the gadget used to prepare the screenshot printout. In a Kenyan case of Rachael Njoki Kahara v. Gideon Migiro Nyambati[8], the defendant argued that the gadgets used in the preparation of the computer printout were not confirmed to have been owned by the person preparing the report. The plaintiff averred that the computer used to generate the printout was under her lawful control during the process and she was duly authorized to extract and print documents from it. Court found that, it is not necessary to indicate the proprietorship of the devices used to prepare the computer printout. The person who reports the evidence may be a person holding a responsible position in relation to the operation of the relevant device or a person holding a responsible position in relation to the management of the activities to which the document relates in the ordinary course of business.

WhatsApp blue ticks serve as evidence that the recipient has received the information that was sent.

In Kyewalabye Majegere v. Kubeketerya and Another[9] court noted thatthe law recognizes that a blue tick in the WhatsApp message of the sender is legitimate evidence of proof that the recipient has acknowledged the communication.

The Bombay High Court, in the case of, SBI Cards and Installment Administrations Pvt. Ltd. v. Rohit Jadhav[10], observed that after sending a message through WhatsApp, if a blue tick appears, it is a verification that the Respondent had gotten that notice which is viewed as legitimate Evidence.

However, there is a challenge posed due to the fact that some WhatsApp users hide their blue ticks by making adjustments in their WhatsApp settings (disable read receipts). It can therefore be difficult for a litigant to infer that the message was received and therefore rely on the blue ticks. This tactic can be employed by the recipient to potentially dispute their awareness or involvement in specific communications and thus complicating the legal proceedings.

Under such circumstances, if the recipient has a track record of responding to messages without displaying the blue ticks, it may be reasonably inferred that they have viewed the message pertaining to the legal dispute but intentionally chose not to provide a response. Consequently, it can be argued that their previous pattern of replying to messages despite the absence of blue ticks indicates that they have indeed seen the message in question. One can rely on Section 20(4)(b) of the Electronic Transactions Act which indicates that the acknowledgement of a data message may be given by; any conduct of the addressee which is sufficient to indicate to the originator that the addressee received the data message. Therefore, based on the recipient’s consistent conduct of responding to messages despite the absence of blue ticks, it can be argued that their behavior serves as an indication that they have indeed seen and received the specific message in question.

Proof of a binding contract or agreement made on WhatsApp.

Many businesses conduct essential meetings and business deals on platforms such as e-mail, and even on instant messaging apps such as WhatsApp and other similar applications.

The admissibility of contracts and agreements made online is protected by Section 14 of the Electronic Transactions Act which provides that a contract shall not be denied legal effect merely because it is concluded partly or wholly by means of a data message.

A substantial and enforceable understanding can be made by means of WhatsApp. In the case of Shamsudin Bin Mohd. Yosuf v. Suhaila Binti Sulaiman[11] the Court held that in any case, when most of the communication between the parties is done in WhatsApp, there was a substantial oral agreement which is enforceable by law.

In Ambalal Sarabhai Enterprise v. KS Infraspace LLP Limited[12], court observed that the WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidence-­in­-chief and cross examination. The WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not.

In a Ugandan case of Wen Jie v. Nabimanya Isaac and Anor. (High Court Commercial Division Civil Suit No. 605 Of 2014 the judge found that there was an agreement between the plaintiff (Wen Jie) and the defendant (Isaac) to devise ways of illegally reducing the tax liability. The Learned Judge explained that the WhatsApp chats showed that the underlying agreement between Wen Jie and Isaac Nabimanya was one of evading tax liability. The learned Judge highlighted the whatsapp messages as seen below;

On June 26^th 2015 Wen Jie texted; “Isaac, Money is spent, but why are they still delaying us?”

Isaac replied, “the lady just called to go to her office tomorrow, so let’s meet tmrw.”

Wen Jie asked, “so is it finished or not yet?” Isaac replied and stated, “one person is remaining, he is fearing for his job.”

Wen Jie asked, “then how do we handle it,” to which Isaac replied. “No, he’s going to work, we talked enough, so be patient unless you want them to follow you up, which I don’t want.”

Later on, July 3^rd 2015 Isaac texted Wen Jie,” from what I have been told, just pay for the container, the issue has gone to another level, there’s no way the tax can be dodged. So just pay, we shall be able to help on the next containers.”

The Learned Justice concluded by saying “all this shows that the underlying agreement between Wen Jie and Isaac Nabimanya was one of evading tax liability”

However, a different position was taken by the Indian Supreme Court in A2Z Infraservices Ltd. v. Quippo Infrastructure Ltd[13] which observed that messages sent on WhatsApp have no evidential value and the person sending the WhatsApp messages cannot be tied to them, especially in business partnerships governed by agreements. Court said that anything can be created and deleted on social media these days and therefore we cannot attach evidential value to WhatsApp messages.

Deliberately deleting WhatsApp messages while anticipating their potential use as contentious evidence in court proceedings;

When a party to a lawsuit intentionally deletes the original WhatsApp messages in an attempt to deprive the other party of evidence to support their case, this constitutes Spoliation of evidence, which is subject to legal sanctions and consequences. The doctrine of spoliation of evidence requires a party to preserve evidence when they know, or should know, that the evidence is likely to be relevant to pending or future litigation. In the leading case of McDougall v. Black & Decker Canada Inc.[14] court said that Spoliation refers to the intentional destruction of relevant evidence when litigation is existing or pending.

Social media evidence spoliation can be done by; Deleting posts, comments, messages, or profile information, removing published photos or videos, retroactively altering or deleting content created or shared on an account and deactivating an account, without first properly preserving it, in order to prevent access to information. Section 102 of the Penal Code Act provides for the offence of destroying relevant court evidence. It highlights thatany person who, knowing that any document or thing of any kind is or may be required in evidence in a judicial proceeding, removes or destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, commits an offence and is liable to imprisonment for a term not exceeding seven years.

CIRCUMSTANCES UNDER WHICH WHATSAPP MESSAGES MAY NOT BE ADMITTED AS EVIDENCE IN COURT.

If the authenticity of the messages is in doubt.

In Sharmila A/P Maniam v. Sivamani Pillay A/L Veerasanan[15], the respondent claimed that the petitioner was an unfit person to raise the child by adducing their WhatsApp conversation as his supporting evidence. However, there were no handphone numbers to say from which handphone these WhatsApp messages were coming from. The Petitioner challenged the authenticity of the messages and argued that the Respondent had not been able to provide any evidence that these messages are in fact in his handphone with his phone number. On the other hand, the Respondent had failed to obtain the confirmation from the telecommunication company for the authenticity of the said messages and the ownership of the handphones concerned.

It is, therefore, of utmost importance to provide sender and recipient identification through their respective mobile phone numbers. Relying merely on a contact name accompanying a message lacks the necessary authenticity verification. In particular instances, confirming ownership of the involved phone numbers may require collaboration with the telecommunications company. Presently, telecommunication companies mandate phone number owners to register with their National ID information. Accessing this information becomes pivotal in proving the legitimacy of the parties in the lawsuit and their association with the phone numbers.

Receiving the WhatsApp screenshot messages from another person.

Case law requires that a person who receives a Whatsapp screenshot from another person cannot prove the particulars contained in the WhatsApp screenshot. In Rachael Njoki Kahara v. Gideon Migiro Nyambati[16], court found that it was clear that the screenshots were taken by some other person other than the plaintiff and later sent to the plaintiff whereupon she downloaded and saved the image. It was thus necessary to file a certificate pertaining to the person who took the screenshot of the WhatsApp messages describing the particulars of any device involved in the production of the image.

Courts have also found that evidence of WhatsApp message screenshots cannot be admitted as evidence without frontloading or providing the original messages in the phone as secondary evidence. In a Nigerian case of Orogun & Anor v. Fidelity Bank[17], the evidence in issue was of a digital message. The respondent denied/disputed the information in the printout of the purported conversation. It was held that it is fundamental that the printout should be tendered alongside with the operating digital device– phone used in the communication. Joseph S. Ikyegh J.C.Aopined therein that the essence of the operating device following the printout is to render “Proper Records” which cannot be seen on the face of a printout. The learned judge went further to lay down what constitutes proper records, to wit:

1. Evidence of conversation (date, time of the message & whether the message was received by the other party)
2. Identification of the sender/receiver of such message.

In Mohamad Azhar Abdul Halim v Naza Motor Trading Sdn Bhd[18] , the claimant who adduced evidence of WhatsApp screenshots was tasked to produce the original messages from her phone. She stated in evidence that she had changed her handphone since and hence she did not have the original WhatsApp messages in its original form/format. Court declined to rely on the screenshot alone because there was a possibility that it could have been fabricated.

HOW TO PRINT WHATSAPP MESSAGES TO USE AS EVIDENCE IN COURT PROCEEDINGS.

In the realm of law, it is widely acknowledged that WhatsApp messages hold the potential to be admitted as evidence in legal proceedings. These messages, referred to as “electronic records” in legal terminology, may be necessary to substantiate claims in various legal cases. In certain situations, it may be prudent to preserve and reproduce WhatsApp chats in hard copy format to be presented as admissible evidence in court.

Here are several methods you can employ to convert WhatsApp messages into a physical format and the authenticity challenges associated:

Screenshots

To take screenshots of WhatsApp messages, you can follow these general steps, which may vary slightly depending on your device and operating system:

1. Open WhatsApp: Launch the WhatsApp application on your smartphone or computer.
2. Navigate to the Conversation: Go to the specific conversation or chat where you want to capture the messages.
3. Position the Messages: Scroll to the specific messages or content that you wish to include in the screenshot.
4. Capture the Screenshot: Use the appropriate method to take a screenshot based on your device:
   • Smartphone: Depending on the device model and operating system, you can usually capture a screenshot by pressing a combination of physical buttons, such as the power button and volume down button simultaneously, or by using gesture controls.
   • Computer: On a computer, you can use built-in screenshot functionality, such as pressing the Print Screen (PrtScn) key on Windows or using keyboard shortcuts like Command + Shift + 3 on Mac to capture the entire screen. Alternatively, you can use third-party screenshot applications.
5. Save the Screenshot: After capturing the screenshot, it will typically be saved in your device’s default image gallery or in a designated folder. You can access and view the screenshot from there.

Clients often supply screenshots of their WhatsApp conversations, but depending on how and when they are taken, problems may occur. The screen shot can be challenged in court on grounds of lack of authenticity or risk of fabrication.

A WhatsApp screenshot which does not show particulars such as the Claimant’s name, date of the WhatsApp message, Claimant’s handphone number, Claimant’s profile picture can be challenged on grounds of lack of authenticity by arguing that there is a possibility that they were fabricated. In Mohamad Azhar Abdul Halim v Naza Motor Trading Sdn Bhd[19], the court refused to attach any weight to a snapshot image of a WhatsApp conversation. In this case, there was a dispute as to whether the Claimant was the person who sent the alleged Whatsapp message. The Court held that the snapshot did not conclusively prove that the Claimant was the sender, since the image did not show the particulars of the Sender’s name, date of the Whatsapp message, Sender’s handphone number and Sender’s profile picture.

Practical considerations: Issues concerning date and time of Whatsapp messages:

The “Yesterday” stamp appears for messages sent on the previous day. The timestamp update typically occurs automatically based on the device’s system clock.

The change from “Today” to “Yesterday” happens at midnight according to the local time on the device. However, the exact timing can depend on the device’s time settings, time zone, and synchronization with the network.

Therefore, the “Yesterday” stamp will appear on the message as soon as the clock strikes midnight, transitioning from the previous day to the current day.

In WhatsApp, the transition from the “Yesterday” stamp to displaying the specific date when a message was sent typically occurs at midnight according to the local time on the device. Once it is past midnight, WhatsApp will update the timestamp of the message from “Yesterday” to the actual date on which the message was sent.

The specific time at which this transition occurs can depend on the device’s time settings, time zone, and synchronization with the network. Generally, it should happen shortly after midnight, but the exact timing can vary based on these factors.

It’s important to note that the “Yesterday” stamp will only be displayed for messages sent on the previous day. Messages sent on the same day will be labeled as “Today” until the clock strikes midnight, and then the specific date will be shown.

When a WhatsApp conversation displays the day of the week (e.g., “Monday,” “Wednesday”), it typically occurs when the message was sent on a previous day that is not within the immediate 24-hour timeframe. In other words, if the message was sent more than 24 hours ago, WhatsApp will display the day of the week instead of “Yesterday.”

A day stamp (e.g., “Monday,” “Wednesday”) is displayed when a message was sent on a previous day, but not within the past 24 hours. The day stamp is shown without including the specific time, only indicating the day of the week.

Here are a few scenarios where a day stamp is used instead of the “Yesterday” stamp:

1. Messages sent more than 24 hours ago: If a message was sent more than 24 hours ago, WhatsApp will display the day of the week when viewing the conversation. For example, if the message was sent on Monday and you are viewing the conversation on Wednesday, WhatsApp will display “Monday” as the day stamp.
2. Conversations spanning multiple days: If a conversation takes place over multiple days and you scroll back to view previous messages, WhatsApp will show the day of the week for each message based on when it was sent. This helps provide a chronological context for the conversation.

Messages sent in the past are date-stamped, indicating the date of sending. However, screenshots taken on the same day are labeled as “Today” without specifying the date. Moreover, the “Today” label only appears at the top of the first messages sent on that day. If the conversation extends beyond that point, subsequent screenshots will not display any date information, making it difficult to determine when they were sent.

Messages sent one day before the screenshot are usually labeled as “Yesterday,” but the specific date is not indicated on the screenshot. Similar to the “Today” label, the “Yesterday” label only appears at the top of the first messages sent on that day. If the conversation continues beyond that point, subsequent screenshots will lack a date attachment, making it challenging to establish when they were sent.

This poses a particular challenge for contemporaneous screenshots. Counsel should advise their clients about these issues if they frequently capture screenshots during ongoing conversations.

EXPORTED WHATSAPP CHATS:

When faced with the need to export a significant number of WhatsApp messages for court purposes, relying on the traditional method of taking screenshots can be both time-consuming and frustrating. Manually capturing each conversation becomes increasingly challenging as the volume of messages grows. However, there are more efficient and convenient options available to simplify the process and overcome these difficulties.

WhatsApp conversations can be exported using the app’s settings (go to the Settings/Chats/Chat history/Export chat – then select the conversation to export). This will create a plain text file (a .txt file) which you can save to your device or share via another app (to email to yourself).

Exporting WhatsApp messages offers the advantage of having a complete record with date and time stamps for each message, making it a more comprehensive and organized method compared to taking screenshots. Exported chats provide a clear transcript-like format, which can be particularly useful when dealing with lengthy conversations that need to be referenced as evidence.

It’s worth noting that if you access a WhatsApp conversation through WhatsApp Web on your laptop or desktop, you can manually copy and paste the desired messages into a text file or document, creating a similar transcript-like output.

Overall, exporting WhatsApp messages or creating transcript-like outputs from WhatsApp Web can provide a more reliable and structured way of introducing WhatsApp conversations as evidence, ensuring that the information is accurately represented and easily navigable.

Challenges with Exported messages:

There are certain challenges associated with exported WhatsApp messages:

1. Exclusion of Media/images and photos: Exported messages typically only include the text content of the conversation, omitting any media such as photos or videos. This can be a limitation if the presence or content of media files is relevant to the evidence being presented.
2. Lack of Identity Verification: The exported transcript alone cannot provide conclusive proof of the other party’s identity in the conversation. It only displays the name as saved in your contact book. It does not include the phone number or any other means of verifying the identity of the participants.
3. Absence of Highlighted Phone Numbers: Exported transcripts do not highlight the phone numbers of either party in the conversation. This can make it challenging to establish or reference specific phone numbers associated with the messages.

These limitations should be considered when relying on exported WhatsApp messages as evidence. Additional supporting evidence or contextual information may be necessary to address these challenges and provide a more comprehensive representation of the conversation.

ISSUES OF MANIPULATION AND FABRICATION:

In Mohamad Azhar Abdul Halim v Naza Motor Trading Sdn Bhd [2017] 1 MELR 383 court noted that, “………a WhatsApp conversation can be fabricated and thus questions arise as to its credibility and authencity, a point this Court considers manifestly important as the entire subject of the allegation against the Claimant is based on this alleged WhatsApp snapshot image of a conversation.”

How fabrication can be made;

• Editing text. WhatsApp has introduced a new feature that allows users to edit their sent messages.[1] While this can be convenient for fixing typos or clarifying statements, it also opens the door for potential misuse, particularly in cases where someone wants to manipulate evidence. If a person alters the content of a message after sending it, it may lead to a situation where the modified text contradicts the original intention. However, WhatsApp makes edited messages to be accompanied by an “edited” label, making it evident that changes were made after sending. For individuals involved in legal disputes, the “edited” label could serve as a crucial piece of evidence to support claims of tampering with messages. To strengthen their position further, litigants are advised to take screenshots of potentially significant messages promptly, either before the 15-minute editing window expires or immediately upon receiving the message. By capturing screenshots within this time frame, litigants can preserve the original content, ensuring a more accurate representation of the communication and potentially helping them in their legal case.

The other way WhatsApp messages can be edited comes from the fact that WhatsApp’s “export chat” function generates only .txt files that are editable by anyone. This means that once the chat is exported, anyone with access to the file can open and modify its contents.

• Falsely saving a contact name: One can as well chose to save a contact number in a given name which supports his/her case so that it appears on the transcript of the exported messages of photo screenshot as the name of the plaintiff or defendant.
• Editing Tools: There are photo editing tools and software available that allow users to modify the content of screenshots. These tools can be used to change message content, dates, or even create entirely fake conversations.
• Image Overlay: Screenshots can be altered by overlaying text or images on top of the original screenshot. This can be done using image editing software or specialized apps.
• Emulator or Simulators: Emulators or simulators can be used to create virtual instances of WhatsApp on a computer or other devices. These emulated instances can be manipulated to display fake conversations or messages.
• Third-Party Apps: Certain third-party apps or unauthorized versions of WhatsApp may offer features to manipulate or fake screenshots.
• Photoshop or Image Manipulation Software: Advanced image manipulation software like Adobe Photoshop can be used to modify WhatsApp screenshots, allowing users to alter the content, appearance, and timestamps.
• Inspecting Web Elements: In some cases, when WhatsApp Web is used, it is possible to inspect web elements and modify the HTML code to change the appearance of the conversation or alter the displayed information.
• Device Manipulation: Screenshots can be fabricated by modifying the device’s system clock settings. By changing the date and time on the device itself, users can create screenshots with misleading timestamps.

SOLUTIONS TO CHALLENGES POSED WITH SCREENSHOTS AND EXPORTED MESSAGES.

Much as both the admissibility of WhatsApp messages screenshots and Exported messages might pose challenges which might be relied on by the opposite party to challenge its authenticity, there are solutions to these challenges as highlighted below;

1. Comparison with Original Source: The safest course of action would be to produce the original WhatsApp messages as they appear on the witness’ phone. In a Nigerian case of Orogun & Anor v. Fidelity Bank[2], the evidence in issue was of a digital message. The respondent denied/disputed the information in the printout of the purported conversation. It was held that it is fundamental that the printout should be tendered alongside with the operating digital device– phone used in the communication. In Mohamad Azhar Abdul Halim v Naza Motor Trading Sdn Bhd[3], the claimant who adduced evidence of WhatsApp screenshots was tasked to produce the original messages from her phone. She stated in evidence that she had changed her handphone since and hence she did not have the original WhatsApp messages in its original form/format. Court declined to rely on the screenshot alone because there was a possibility that it could have been fabricated.
2. Forensic Analysis: Digital forensic techniques can be applied to WhatsApp message screenshots to identify signs of manipulation or tampering. This involves analyzing the image file structure, metadata, compression artifacts, and other technical aspects to detect any inconsistencies or abnormalities.
3. Metadata Analysis: Examining the metadata associated with the WhatsApp message screenshot can provide valuable information about its origin and integrity. Metadata includes details such as file creation dates, modification dates, and device information. Discrepancies or inconsistencies in the metadata may indicate manipulation.
4. IP Address and Metadata Analysis: IP address information associated with the messages can be examined to determine if it aligns with the expected locations or devices involved in the conversation. Additionally, analyzing the metadata of the message files, such as EXIF data, can provide details about the device used, timestamps, and any potential alterations.
5. Message Content Analysis: Analyzing the content of the messages themselves can provide insights into their authenticity. Look for consistency in language, tone, grammar, and vocabulary throughout the conversation. Inconsistencies or unusual patterns may indicate manipulation or fabrication.

HOW TO EXAMINE A WHATSAPP SCREENSHOT ALONGSIDE THE ORIGINAL WHATSAPP MESSAGES IN THE PHONE.

The court may request information regarding the source of the screenshots, such as the device used, the method of capture, and any relevant metadata. The integrity of the screenshots and the original messages may be examined to ensure they have not been altered or manipulated.

When comparing a WhatsApp screenshot alongside the original WhatsApp messages in a court setting, it is crucial to focus on the following key aspects:

1. Verification of contact numbers: It is important to verify whether the contact number associated with the WhatsApp conversation corresponds to the actual WhatsApp number of the opposing party. This is because someone could potentially use a different number and save it with the name and picture of the opposing party, making it appear as if the conversation was initiated by the opposing party.
2. Comparison of timestamps: Careful attention should be given to comparing the time and date displayed in the screenshot with those in the original WhatsApp messages on the phone. Discrepancies or inconsistencies in timestamps may indicate tampering or manipulation of the conversation. This may also involve cross-referencing the timestamps with other evidence, such as call logs or timestamps from other sources.
3. Comparison of the content: The court would typically compare the content of two WhatsApp conversations. This could involve a side-by-side analysis of the conversations. This can well be done by;
4. Highlighting relevant sections: Identify specific messages or sections within the conversations that are crucial to the case. Use highlighting techniques, such as color-coding or underlining, to draw attention to these sections. This will help guide the court’s focus during the analysis.
5. Analyzing message content: Go through each message in both conversations systematically, drawing attention to similarities, differences, or any other significant details. Compare the wording, language style, tone, and any relevant contextual information to identify patterns or inconsistencies.

Article By: AZIZ KITAKA | SOCIAL MEDIA LAW UGANDA | SOCIAL MEDIA EVIDENCE UGANDA | NABASA AND COMPANY ADVOCATES

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[1] https://blog.whatsapp.com/now-you-can-edit-your-whatsapp-messages

[2] (2018) LPELR 46601

[3] [2017] 1 MELR 383

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[1] High Court Commercial Division Civil Suit No. 605 Of 2014

[2] Section 1, Evidence Act

[3] [2015]1 LNS 448

[4] High Court of Kenya at Kisii in Civil Case No. 12 of 2017

[5] ELECTION PETITION NO. 5 OF 2013 [2013] eKLR

[6] W.P. (C) 4447/2017, Judgment delivered on: 22nd May, 2017

[7] Election Petition Appeal 78 of 2021) [2022] UGCA 207

[8] High Court of Kenya at Kisii in Civil Case No. 12 of 2017

[9] Election Petition Appeal 78 of 2021) [2022] UGCA 207

[10] Notice No. 1148 Of 2015 in Execution Application No. 1196 Of 2015

[11] [2017] MLJU 2236 

[12] AIR 2020 SC 307

[13] App 225/ 2020

[14] 2008 ABCA 353

[15] [2020] 1 LNS 14

[16] High Court of Kenya at Kisii in Civil Case No. 12 of 2017

[17] (2018) LPELR 46601

[18] [2017] 1 MELR 383

[19] [2017] 1 MELR 383