The possibility of using correspondence in social messaging applications as evidence in the judiciary is frequently brought up in both civil and criminal cases.
WhatsApp Evidence in Civil Cases
In terms of HMK
The definition of "document" in HMK is broad; It also includes electronic records. The court may order an expert examination to determine that the evidence is original and unaltered.
Is a Screenshot Enough?
Only it is not enough. The other party can easily object. More robust methods:
- Notary determination (Web Page/Application Determination Report)
- Expert examination of the device
- Posting + notarization with WhatsApp "chat export" feature
WhatsApp Evidence in Criminal Cases
Correspondence Submitted by Complainant/Victim
It is accepted; However, it is important to support signature/password security, the natural flow of the conversation, and additional witness statements.
Correspondence Obtained Through Unlawful Means
Correspondence obtained through unauthorized access to the other party's phone may be considered within the scope of "prohibition of evidence". The Supreme Court has not established consistent jurisprudence on this issue; It is evaluated according to the circumstances of each case.
Supreme Court HGK and Chambers Approach
The Supreme Court of Appeals HGK stated that in a divorce case between spouses, one spouse opening the other's phone without permission and presenting the WhatsApp correspondence as a screenshot may be "unlawful evidence". However, he emphasized that it should be evaluated together with Article 20 of the Constitution and the violation of privacy.
Again, the HGK accepts that the correspondence obtained from the victim's phone (that is, the records taken by the victim himself) can be used as evidence, and this situation can be considered as "legitimate defense evidence".
Practical Tips
- Not deleting correspondence, not losing the phone
- If possible, collect a screenshot of the same conversation from the other party
- Having a notary determination (especially for important cases)
- Submission of the phone for expert examination (CMK art. 134-135)
- Support with witness statements before/after the correspondence
Returning WhatsApp Data
WhatsApp/Meta does not store message contents due to end-to-end encryption. Only the metadata (who, when) can be requested within the scope of judicial assistance. Backed up content may be in the cloud (Google Drive/iCloud).
Plan your evidence collection strategy with an internet law lawyer.