Can WhatsApp Messages Be Used as Evidence?

Can WhatsApp Messages Be Used as Evidence? Developing technology has fundamentally changed social life. The WhatsApp application is one of the most common communication tools today. Data exchanges on this platform affect legal proceedings. Messages are submitted as evidence, especially in divorce and criminal lawsuits. The Code of Civil Procedure (HMK) has regulated the types of evidence in detail. The Code of Criminal Procedure (CMK) determines the prohibitions on evidence. The acceptance of WhatsApp messages as evidence depends on how the message was lawfully obtained. In this article, the legal nature of WhatsApp messages is examined in an expanded manner. The conditions for their acceptance as evidence and the current decisions of the Supreme Court of Appeals are discussed in detail.

The Place of WhatsApp Messages in the Legal System

WhatsApp messages are legally considered within the scope of digital data. This data is used as a means of proof in different types of courts.

• Document Status According to HMK: Messages have been counted as documents pursuant to Article 199 of the HMK. Any type of data with the power to prove a fact is within this scope. This also applies to audio or video messages. The submission of digital data to the court is possible.
• Initial Evidence: Messages are counted as initial evidence, even if they are not conclusive evidence alone. Therefore, they are used to aid in the proof of the event. This is especially important in cases requiring written proof.
• Proof with Transition Words: The reliability of the evidence is taken as the basis here. For this reason, the source and integrity of the messages must be preserved. The content of the messages must not have been manipulated.

Fundamental Principle in the Use of Evidence: Prohibition of Unlawfulness

The legal acceptance of evidence is tied to its lawful obtainment. Evidence obtained through unlawful means absolutely cannot be used in court.

• Constitutional Guarantee: Article 38 of the Constitution has finalized this prohibition. Article 217 of the CMK has also adopted the same principle. A judgment cannot be based on unlawful evidence.
• Violation of Private Life Privacy: Messages are protected within the scope of the secrecy of communication. This right is secured by Article 22 of the Constitution. Obtaining without permission violates this right. Furthermore, this violation constitutes a crime under the TCK.
• Recording and Seizure Without Consent: Recording or seizure without the consent of one of the parties is unlawful. For example, secretly examining a person’s phone is a crime. Messages obtained in this way are rejected as evidence.

Differentiation of Evidentiary Value in Supreme Court Precedents

The Supreme Court of Appeals has made a distinction according to the type of court in the acceptance of WhatsApp messages. Decisions have applied the principle of lawfulness with different weights.

• Absolute Prohibition in Criminal Law: The prohibition on unlawful evidence is very strict in criminal trials. The lawfulness of the evidence used against the defendant is essential. Messages obtained without consent have been rejected. Consequently, these messages cannot be based upon for a judgment.
• Flexibility in Civil Law: The prohibition on evidence is applied with slightly more flexibility in civil courts. Divorce lawsuits are an example of this flexibility. However, the messages must not have been obtained by force or threat. The 2nd Civil Chamber of the Supreme Court of Appeals has frequently emphasized this situation.
• Ordinary Course of Life: The message must be obtained within the natural course of a criminal act. In addition to this, the message itself being the evidence of the crime has been accepted.

Criminal Consequences of Unlawful Obtainment of WhatsApp Messages

The unlawful obtainment of messages constitutes a crime. This is clearly regulated in the TCK.

• Violation of Communication Secrecy: Article 132 of the TCK defines this crime. Reading or recording messages without consent constitutes this crime.
• Recording Personal Data: Recording personal information within the message content is a separate crime. Article 135 of the TCK punishes this situation.
• Unlawful Disclosure of Data: Sharing the obtained messages with third parties is a crime. This is within the scope of Article 136 of the TCK. Moreover, the investigation of these crimes is dependent on a complaint.

7 Specialized Situations Where Messages Are Used as Evidence

WhatsApp messages are presented as evidence in different courts depending on the type of lawsuit.

1. Divorce and Infidelity Lawsuits: Messages show that the foundation of the marriage union has been severely shaken. They are submitted to prove claims of infidelity. For example, messages containing infidelity are accepted. This plays an important role in determining fault.
2. Employee and Employer Disputes: Reasons for termination between the employee and the employer are documented. Furthermore, the employer’s messages containing insults constitute a just cause for termination. The employee’s disclosure of trade secrets is also evidenced by messages.
3. Inheritance and Testament Lawsuits: The deceased’s final wishes may have been expressed through messages. These messages are considered supporting subsidiary evidence for the will. However, they do not replace the testament.
4. Debt and Receivable Relationships: Messages where the debt was admitted or payment was promised are submitted as evidence. Therefore, the existence of the contract or the amount of the debt is proven.
5. Crimes of Threat and Insult: The elements of the crime are determined by these messages. The content of the message itself constitutes the crime. Consequently, the message itself is lawful primary evidence.
6. Intellectual and Industrial Property Violations: Discussions where design or patent infringement was decided are proven. Especially, messages where trade secrets were disclosed become evidence.
7. Execution Law Pursuits: Messages showing the debtor’s intention to escape assets can be evidence. This paves the way for a lawsuit for the annulment of disposition in execution courts.

Methods to Increase Evidence Reliability and Notary Determination

Can WhatsApp Messages Be Used as Evidence? The reliability of WhatsApp messages must be increased for their acceptance by the court. This reduces the risk of manipulation.

• Notarization (Determination): The content of the messages and the phone screen are determined in the presence of a notary. This proves that the content of the document has not been altered. The notary preserves the integrity of the evidence.
• Expert Report (Expert Examination): Whether the messages are original is examined by an expert witness. Data in the phone’s memory is analyzed. Additionally, the time and place the messages were sent are technically determined.
• The Place of the Screenshot: A screenshot alone is weak evidence. It can be easily manipulated with digital tools. For this reason, notarization or an expert report is mandatory. Its acceptance as evidence alone is difficult.

Manipulation Risk of Messages and Protection Methods

WhatsApp messages are technically open to modification. This situation endangers legal security.

• Deletion and Editing: Messages can be deleted by both the sender and the receiver. The editing feature shows that the content can be changed later. Therefore, these risks reduce the evidentiary value.
• Blockchain Technology: New methods are researched to prove that messages have not been altered. Blockchain- based recording systems are proposed for this purpose. This ensures the immutability of the evidence.

Digital Evidence Requires High Legal Sensitivity

Can WhatsApp Messages Be Used as Evidence? WhatsApp messages play an important role in current legal proceedings. Firstly, these messages must be obtained through lawful means. Otherwise, their rejection by the court is certain. Technical proof methods are followed to increase the reliability of the evidence. In the digitalizing world, the meticulous conduct of legal procedures is critically important.