In a dispute brought before the court, the truth of the facts asserted by the parties is established through the means of proof that shape the judge’s conviction; in legal language these means are called evidence. The precondition for a piece of information or a record entering the case file is that it must have been obtained within the limits drawn by the legal order. That condition becomes all the more decisive where the privacy of communications, the sphere of private life and the protection of personal data are in issue. For exchanges conducted over WhatsApp the criterion is this: the record must have been taken by one of the parties to the exchange personally, and it must be submitted to the file in that capacity.
The second decisive element is that it must be possible to show that the data submitted is authentic and has not subsequently been tampered with. In some files images taken from the conversation screen, or a written transcript, will suffice on their own, while in others technical data supporting the genuineness of the content is also expected to be added to the file. For that reason it is of practical importance that exchanges liable to give rise to an evidential problem later on be preserved in an orderly manner and their integrity maintained.
Beginning with the concept of evidence, we examine below the circumstances in which records obtained from messaging applications are treated as lawful, the evidential weight of screenshots and the use of such evidence in different types of action.
The Concept of Evidence
The means of proof resorted to in order to shed light on the event underlying the dispute and to form a conviction in the judge are termed evidence. Through these means the parties seek to show that the facts in their favour occurred and that those against them did not, and thereby to persuade the judge to give judgment in their favour.
The System of Evidence in Turkish Law
Our law divides evidence into two categories: conclusive evidence and discretionary evidence. These two groups, used to establish the contested facts that will affect the outcome of the action, are distinguished from one another by the weight they carry in point of proof.
Conclusive Evidence
This is evidence separately regulated in the law, the conditions and consequences of which are determined in advance. Where the required conditions are met, the fact is regarded as conclusively proved; the judge becomes bound by the truth of the fact so established and retains no discretion on the matter. Provided the conditions laid down by law are present, written instruments, the oath and res judicata are evidence of this nature.
Discretionary Evidence
This is evidence whose conditions and consequences are not specifically laid down in the law and which does not have the power to establish a fact conclusively on its own. The judge is not bound by it; on the other hand, the judge must give legal reasons for why a particular item of evidence was relied on and on what basis the judgment was founded. Witness statements, examination by a court-appointed expert, expert opinion, on-site examination and other evidence not enumerated in the law fall within this group.
The Legal Nature of Data Obtained from Messaging Applications
With the spread of mobile telephone use, WhatsApp has become one of the principal means of communication resorted to across the world. The application does not merely make everyday communication easier; it also enables people gathered around a common purpose to form groups and interact rapidly. It is legally possible for people to record these exchanges, whether conducted one-to-one or within a group, and to advance them as evidence in a dispute that has come before the courts.
The Manner in Which the Evidence Is Obtained
The fundamental criterion determining whether an item of evidence is lawful is the route by which it was reached. Any data seized in excess of the limits of the legal order is treated as unlawfully obtained evidence and is not taken into account by the court. What is more, these methods sometimes constitute an offence in themselves. Content obtained by covertly recording sound or images without consent, by drawing up false documents, or through force, threat, deception or intimidation cannot be used in the proceedings and is deemed unlawful. In this respect the method of reaching the evidence is itself decisive for the assessment before the court.
By contrast, evidence obtained in a manner consistent with the legal order and placed in the file may be taken into account by the judge or the panel of judges in the decision-making process. The submission of contracts, written instruments, expert reports, signed minutes of meetings and similar information and documents held by the parties or recorded with official institutions is as a rule lawful conduct; there is no impropriety in the court assessing evidence of this kind.
When Exchanges Are Treated as Lawful Evidence
Although the assessment belongs to the court, two criteria must be met together before WhatsApp records can be made the basis of a judgment in the course of proceedings:
- The record must have been taken personally by the person who will advance the evidence
- The person submitting the evidence to the file must hold the capacity of a party to the exchange in question
What this means is the following: everyone who appears as an account holder in a WhatsApp conversation may use the statements made in that conversation as evidence. In group messaging, every member belonging to the group has the same opportunity. Since messages sent to a group are in any event disclosed to all the members, no infringement of the privacy of private life can be spoken of here. For that reason, no allegation of unlawfulness may as a rule be raised in respect of message records placed in the case file by a member of the group.
When Exchanges Are Treated as Unlawful
WhatsApp records obtained by accessing an account not belonging to the person concerned, without the account holder’s consent, are unlawfully obtained evidence. Moreover, such conduct may be made the subject of criminal proceedings under Article 243 of the Turkish Penal Code No. 5237, which concerns the offence of accessing an information system. For this offence to arise it is sufficient that a person’s digital platform used over the internet be accessed without that person’s consent. No further fact or result is required; the offence is regarded as committed once the system is entered without consent. Indeed, the explanatory memorandum to the article expressly states that unlawful entry into the system suffices and that whether the data is used is immaterial. Wrongful and intentional entry into the system is enough for the offence to arise. Beyond this, manipulating an exchange after a screenshot has been taken so as to create a picture contrary to the true facts also constitutes unlawfully obtained evidence.
The Fate of Unlawfully Obtained Evidence
Evidence obtained by unlawful means cannot be used in actions for the purpose of proving material facts. Even where such evidence has been submitted to the court, the judge or the panel of judges cannot found the judgment on it when deciding the dispute.
Conditions for the Admission of Messages as Evidence by the Court
The acceptance of WhatsApp messages as evidence by the court depends first and foremost on those records having been obtained by lawful means. As we noted in the earlier parts of this note, for data to be submitted to the court through applications of this kind to have the quality of lawful evidence, the person advancing the evidence must be a party to the messaging and must have taken the record personally. Alongside these two criteria, it is also required that the evidence placed in the file be capable of proving the material fact and not be of such a nature as to infringe a person’s private life.
The Evidential Value of Screenshots and Printouts
Interfering with screenshots and printouts of them is technically extremely easy. For that reason such material is not regarded as suitable to found a judgment on its own; it may, however, be made the basis of a decision where it is supported by other evidence.
In criminal proceedings the criterion is stricter. Where only a screenshot of an exchange containing elements of an offence is available, where the message has been deleted, where the original cannot be reached through the device and where no message determination report has been drawn up before the public prosecutor’s office or the police station, a screenshot alone is not regarded as sufficient in point of proof. In debt recovery actions too, the Court of Cassation — on the ground that screenshots may be added to and subtracted from — requires, in disputes where proof by written instrument is mandatory, that the images submitted to the file be compared with the records on the person’s mobile telephone and that they correspond with one another before the messaging can be used as commencement of written evidence.
For that reason, having the offending exchange recorded in a message determination report through the police station or the public prosecutor’s office in criminal files, and, in civil files, either delivering the telephone to a court-appointed expert so that the genuineness and content of the exchange are established by expert examination, or having the electronic data determined through a notary and submitted to the court in notarised form, will markedly increase the evidential weight of the evidence.
In Which Types of Action May They Be Used?
In Debt Recovery Actions
For monetary claims exceeding the monetary threshold set each year by law, the rule is proof by written instrument. In disputes above that threshold, the existence of the claim cannot be established by evidence such as messages alone or witnesses alone. There is, however, a particular exception to this rule.
Article 199 of the Code of Civil Procedure No. 6100 brings data in electronic form within the concept of a document:
Code of Civil Procedure No. 6100, Art. 199
“Data such as written or printed text, written instruments, drawings, plans, sketches, photographs, film, image or sound recordings capable of proving the facts in dispute, together with data in electronic form and similar carriers of information, are documents for the purposes of this Act.”
Within this framework, WhatsApp exchanges containing statements that are persuasive as to whether the debt exists are not treated as conclusive evidence, the final assessment remaining with the court; they may, however, be assessed as commencement of written evidence. Where the message is regarded as an electronic document supporting the dispute within the meaning of Art. 199 of the Code of Civil Procedure, it becomes possible to reinforce it with witness statements.
In Employment Actions
In employment proceedings WhatsApp records most often come up in files where they are made the basis of the termination of the employment contract. In particular, it has been a matter of controversy where employers or employer representatives have unlawfully gained access to conversations in groups formed by employees among themselves, although they were not members of the group, and have terminated an employee’s contract by reference to that content. The Court of Cassation has held that conversations of this nature are protected as personal data and that, so long as they do not disrupt the flow of work and do not affect performance, the content of messages in employee groups cannot be made the basis of a termination.
In Divorce Actions
Where certain conditions are present, WhatsApp messages may also be used as evidence in divorce proceedings. Even so, the admission of such records to the file may depend on certain conditions being satisfied. For instance, messages advanced in support of an allegation of adultery must have been obtained by lawful means. It must also be capable of being shown that the content is genuine, that it has not been altered and that it was obtained with the parties’ consent.
The courts separately scrutinise both the accuracy and the lawfulness of records of this nature. While in some files messages may be regarded as sufficient on their own in respect of an allegation of adultery, in others additional proof or information reinforcing the reliability of the records may be required. Each case is therefore assessed within its own circumstances; in examining the validity of the evidence, the court has regard both to the statutory criteria and to the persuasive weight the evidence carries.
An example of this would be the submission to the file by one spouse of message records showing that infidelity was admitted in an exchange between the spouses.
In Criminal Proceedings
Provided they have been obtained lawfully, WhatsApp exchanges may also be used as evidence in criminal proceedings. Since there is a risk that messages containing elements of an offence will later be deleted, these records should be reduced to a report at the police station or the public prosecutor’s office and a message determination report drawn up.
Where there is strong suspicion and no other means of reaching the evidence remains, it is possible, by decision of the public prosecutor’s office or the court, to access the content of the messaging within the WhatsApp application, which is a computer program.
Frequently Asked Questions
Is a WhatsApp Exchange Alone Sufficient in Debt Relations?
For debts falling below the monetary threshold for mandatory proof by written instrument, WhatsApp exchanges obtained lawfully have the quality of evidence. For debts above that threshold, proof is possible only by written instrument. In such cases, depending on the content of the exchange, one may at most speak of commencement of written evidence, on the basis of which witnesses may be called.
Can the Court Request WhatsApp Records from the Company?
It is possible for the court to make such a request. However, since the company that owns the application has no representative office in Türkiye, there is no sanction the court can apply if the records are not sent. Indeed, in the great majority of files in which message records have been requested, the company declines to share them, citing the protection of personal data and the privacy of private life.
Is a Screenshot Treated as Evidence?
A screenshot has the quality of evidence. However, because such images can be altered very easily, their evidential weight is weak. Although a screenshot may be advanced as evidence on its own, supporting it with other evidence will make it easier to establish the material facts and will increase the likelihood of a favourable outcome in the action.
May Third Parties’ Exchanges Be Submitted to the File?
Messages may be used in court only where they have been recorded by a person who is a party to the exchange. It is not possible to submit as evidence before the court messages sent between third parties to whose exchange one is not a party.
Independent Legal Assessment
The entry of digital exchanges into the case file is today a situation encountered in almost every type of dispute; the real question is not the existence of the record but the route by which it was obtained and whether its integrity can be established. In practice, what determines the fate of an action is most often not the content itself but whether the procedural steps supporting the authenticity of that content were taken in good time.
A second observation is that these records carry a two-way risk. Data obtained by unlawful means is not merely left out of account; it may also expose the party who placed it in the file to criminal proceedings under headings such as accessing an information system. The evidence-gathering stage should therefore be planned separately, before the statement of claim is prepared.
In a concrete file we prioritise the following headings:
- Clarifying from the very outset whether the person who took the record was a party to the exchange
- Preserving and backing up the original data on the device without deletion
- Having a message determination report drawn up without delay in files with a criminal dimension
- Assessing which of the routes of expert examination and notarial determination is appropriate in civil files
- Positioning the exchange as commencement of written evidence in claims exceeding the threshold for proof by written instrument
- Raising the objection of unlawfulness in due time in respect of records submitted by the opposing party
Independent Legal provides advisory services and litigation support in the field of information technology law, from the gathering of electronic evidence to its proper procedural presentation in proceedings.