How To Admit (Or Keep Out) WhatsApp Messages During Court Proceedings - Malaysian Litigator

9/29/23, 3:42 PM How to Admit (or Keep Out) WhatsApp Messages During Court Proceedings – Malaysian Litigator
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How to Admit (or Keep Out) WhatsApp

Messages During Court Proceedings
Posted on April 23, 2020 by Nathalie Annette Kee
This article provides practical tips on what to consider when preparing to admit electronic
evidence in Court, particularly text messages such as WhatsApp messages, and the defences
commonly used to dismiss such evidence.
To-date, WhatsApp is the most preferred online text messaging platform around the world.
Other examples of platforms storming the global front are Facebook Messenger and WeChat.
Increasing numbers of people and businesses are using electronic communication in all aspects
of social and business interaction, particularly text messaging.
Here is a step-by-step guide on how to admit text messages in Court, from the perspective of a
layperson / client:
1. Consider the relevancy

For any piece of evidence to be admitted in Court, it must be factually and legally relevant. For
example, if a woman wishes to produce evidence against her husband of WhatsApp messages
proving that her husband was unfaithful, she may do so in divorce proceedings, but not in a suit
against the husband to enforce a friendly loan.
2. Locate and secure your evidence

Although it is obvious, it bears stating that the party in possession of the relevant messages
should ensure that they are secure and available throughout the on-going legal proceedings, in
case of any unforeseen circumstances. However, not to worry, you will not be tendering your
handphone as evidence for the Court to keep.
Your text messages can be tendered as evidence in a screenshot format or in an editable text
format on a different platform, such as TextEdit, Notepad or Microsoft Word. 
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https://malaysianlitigator.com/2020/04/23/how-to-admit-or-keep-out-whatsapp-messages-during-court-proceedings/ 1/6
While both formats may pass the admissibility test (if the criteria is met), screenshots are
generally more credible
BLOGthan editable
CREW text because, on the face CONTACT
THE VOYAGE of it, tampering with a
screenshot is more difficult, as it requires more skill, and thus more evidence to prove
fabrication, than with an editable document.
3. Archive as much information as possible

Technology is becoming cheaper and more accessible by the day. As such, more people have
software and the skill to alter screenshots or text print-outs.
To ensure that your evidence appears credible and authentic, it is important that you produce
as much information as possible to show the chain of evidence between the sender / recipient
and the contents of the message. These include:
1. The date and time stamp of your messages;
2. The real contact information of the sender / recipient (e.g. phone number for SMS, phone
number or email address for WhatsApp); and
3. If your messages are one long exchange, ensure that the continuity from one page to
another is visible (this can be done by repeating one or two messages at the header of the
following page).
It is notable that, in the past, the Courts have rejected WhatsApp evidence on the basis that the
screenshot did not contain the proof of the recipient / sender’s identity (such as their name,
phone number and profile picture) and the relevant time stamps (Mohamad Azhar Abdul
Halim v. Naza Motor Trading Sdn Bhd [2017] 1 ILR 292).
4. Comply with the legal requirements on

admissibility
The legal position on the admission of text messages is Mok Yii Chek v Sovo Sdn Bhd [2015] 1
LNS 448, whereby the High Court held that where the genuineness of a print-out of an email or
text message is disputed:
1. In the event that the disputed print-out is produced by a computer in the ordinary course of
its use, the party adducing the disputed print-out may either:
give oral evidence via a witness to prove that the disputed print-out is produced by a
computer in the ordinary course of its use, or
produce a certificate under Section 90A(2) EA 1950.
2. In the event that the disputed print-out is not produced by a computer in the ordinary
course of its use, the party adducing the disputed print-out may rely on the ‘deeming
provision’ in Section 90A(6) EA 1950 provided that evidence is given to show that the
computer was operating properly and in good working order at all material times.
The above legal requirements should be properly fulfilled by a competent solicitor.



It should be noted that admissibility is one thing, and credibility is another. While evidence of a
text message can be declared
BLOG as admissible,
CREW the
THECourt may in the
VOYAGE same breath declare that it is
CONTACT
not credible due to allegations of fabrication or forgery.
Challenging text message evidence

In order to challenge WhatsApp messages in Court, the same principles above apply to build
defences, such as:
Irrelevant
Inadmissible
Fabrication
Tampering
However, it is best advised to consult with a lawyer on the defences available which are best
suited to your actual circumstances.
In respect of the defence of fabrication and tampering, one method to show the Court that the
evidence could have been fabricated or tampered with, is through legal counsel conducting a
demonstration, with the leave of Court, of how it can be done. This was the case in Mohamad
Azhar Abdul Halim v. Naza Motor Trading Sdn Bhd [2017] 1 ILR 292.
However, in the case of fabrication or tampering which can only be identified by a keener, more
expert eye, an expert witness who is learned in the area of photo or digital manipulation may
give expert testimony to assist the Court in coming to the conclusion on whether it is authentic
or not. Unfortunately, this option is often unavailable those who can afford the price tag that
comes with an expert witness.
Concluding remarks
From a review of the case law on text messages, it appears that the practical challenge is not in
the admissibility, but in proving its authenticity, reliability and integrity, due to the easily
manipulative nature of the medium.
In practice, much is dependent on the client being tech-savvy and understanding of how to save
electronic evidence in the first place, often long before the legal dispute crops up. As such, it is
important for everyone, no matter what age group, to familiarize and update themselves on
technological changes, so as to not be at a disadvantage in Court.


Author Recent PostsBLOG CREW THE VOYAGE CONTACT
Nathalie Annette Kee

Nathalie is a modern day warrior with her red lipstick and heels as her armour, and her
pen as her sword. In her past time, she fights dragons in the court of law and wrestles
giant serpents that often appear in the form of litigation paperwork.
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9/29/23, 3:42 PM How to Admit (or Keep Out) WhatsApp Messages During Court Proceedings – Malaysian Litigator

BLOG CREW THE VOYAGE CONTACT

How to Admit (or Keep Out) WhatsApp

1. Consider the relevancy

2. Locate and secure your evidence

3. Archive as much information as possible

1. The date and time stamp of your messages;

4. Comply with the legal requirements on

The above legal requirements should be properly fulfilled by a competent solicitor.

Challenging text message evidence

Author Recent PostsBLOG CREW THE VOYAGE CONTACT

Nathalie Annette Kee

The Importance of AR Cards When Serving Documents via AR Registered Post

Surrender My Shares? Over My Dead (Corporate) Body!

BLOG CREW THE VOYAGE CONTACT

© 2023 Malaysian Litigator | Powered by Minimalist Blog WordPress Theme

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