Evidentiary Value of Whatsapp Messages in Lawsuits of Divorce

Upon the technology, which rapidly advanced and is advancing, has intensely come into our lives; the contents of the applications on technological devices e.g. smart phones, tablets, computers, which are used particularly as a means of communication are frequently dealt in lawsuits (divorce, receivable, etc.) and criminal cases (defamation, threat, etc.) in recent years.

Today, we observe WhatsApp as the most downloaded and also the most used application on smart phones. In the current technological era, written messages, voice recordings, photographs and videos started to be sent frequently through WhatsApp. WhatsApp and other applications, used as a means of communication, are dealt in lawsuits of divorce, when the evidence obtained from one of the spouses’ smart phone is submitted to the Courts. Sometimes recordings take place by means of hidden cameras, voice recorders and similar devices, and sometimes these contents are accessed by means of special software installed on computers or mobile phones.

It should be stated that the evidence to be submitted must be obtained lawfully, regardless of the type of the lawsuit or criminal case. As with the other lawsuits, in a lawsuit of divorce, lawfulness constitutes the most significant criterion for the submission of any evidence to the court and for the court to consider the evidence. In a lawsuit of divorce, the evidence that will be submitted to the file must absolutely have been obtained lawfully. This is because, the evidence obtained unlawfully shall not be taken as basis for the verdict and shall not be used as a means of proof.

With regard to lawfulness, it is not possible to make a generalization for WhatsApp records and messages. Within this context, it is of importance how a message submitted to the file for proof has been obtained. For instance; in the messages between the spouses, if one of the spouses has insulted or threatened the other spouse by using WhatsApp, these messages will be considered by the court as an evidence against the spouse who has insulted or threatened; and such WhatsApp messages may be submitted to the court. These records do not violate the privacy rule. However, since the circumstance where conversations or messages are recorded secretly from or without knowledge of the spouse, and similar circumstances shall mean a violation of privacy; they shall not be used as evidence in lawsuits of divorce. 

The article 134, entitled “Violation of Privacy”, in the Turkish Criminal Code contains the following mandatory provisions: “Any person, who violates the secrecy of persons’ private life, shall be punished with imprisonment from one year to three years. In case the privacy is violated by recording images or voices, the punishment to be inflicted shall be increased by one-fold. Any person, who discloses unlawfully any images or voices related to persons’ private life, shall be punished with imprisonment from two years to five years. The same punishment shall be ordered also in case these disclosed data are published via press and broadcasting”.

As can be understood; with regard to WhatsApp records, the matter “how these records have been obtained” is quite important, and it is highly likely to be faced with a sanction pursuant to the Turkish Criminal Code in case the records have been obtained unlawfully. However; even if persons are, for this reason, afraid to obtain the records of the conversations made through WhatsApp, it is always possible to find out the call frequency and the SMS contents through the channel of GSM operators, and there is no impediment in the submission of these records, requested from the GSM operator, to the court as lawful evidence.

In conclusion; in order for WhatsApp records and messages to be used as evidence in a lawsuit of divorce, this evidence that will be submitted must be obtained lawfully. Otherwise, in case such evidence obtained unlawfully is submitted to the court, it is highly likely to be faced with a sanction pursuant to the Turkish Criminal Code within the context of violation of privacy.