In recent years, courts all over the world have become more willing to admit electronic communications (like WhatsApp chats or emails) as evidence, including those in Singapore. With businesses relying heavily on messaging apps and email, electronic communications are now routinely used to prove facts in civil cases.
Singapore’s Evidence Act has been amended to treat electronic records on par with other documents. In practice, a WhatsApp chat or email is an “electronic record” under the law and must clear the usual admissibility hurdles, which we’ll go over in detail later. In short, Singapore courts take a technology-neutral approach: electronic messages are admissible so long as they meet the same legal standards as any evidence.
Legal Framework for Electronic Communications
Singapore’s Evidence Act defines an “electronic record” to include any information generated, received or stored by electronic or digital means. This covers WhatsApp chat logs, emails, text messages, and similar data.
The Act provides helpful presumptions: for example, if an electronic record is generated or stored in the usual course of business by a neutral system, the court will presume it is authentic unless there is a challenge as to its authenticity.
However, all electronic evidence must still satisfy general rules of evidence – it must be relevant and not fall into any excluded category like hearsay or privileged communication.
Key Concepts: Relevance, Authenticity and Admissibility
- Relevance. Evidence is relevant if it makes a fact in dispute more or less likely. In plain terms, a WhatsApp message or email is relevant if its content helps prove or disprove an issue before the court. For example, a WhatsApp confirming a delivery date is relevant to a sales dispute over goods delivery.
- Authenticity. Authenticity means a document or message is genuine – that it truly came from who it purports to come from and has not been altered. This often means demonstrating who typed and sent the message, and that the digital file has not been tampered with.Screenshots may not be enough since they can be edited; the best practice is to extract chat logs directly from the device or server in a forensically sound way. If an email bears the sender’s address and digital signature, that supports authenticity. The best way to prove authenticity (and that the contents are not hearsay evidence) is to call the person(s) who sent the email or is or are part of the Whatsapp chat.
- Admissibility. Even relevant, authentic documents can be barred by specific rules. For instance, hearsay is generally inadmissible: a written statement by Person A saying “Person B told me X” cannot prove X by itself.While the WhatsApp or email messages may be admissible as evidence of such, the contents of the email or chat will still have to be proven.. Other excluded evidence includes opinions by non-experts, privileged communications (e.g. confidential communications between a lawyer and his client) or without prejudice communications between lawyers or between two persons trying to negotiate a settlement.
In summary, the court first asks: Is this evidence properly relevant and authentic and not legally forbidden? If yes, it may be admitted and weighed.
Common Hurdles in Digital Evidence
Even though courts accept digital communications, one must overcome certain hurdles:
- Hearsay concerns: A message stating what a third party said remains hearsay unless an exception applies. For example, if Person A’s chat says “Person B confirmed delivery,” Person B himself must testify to this or the delivery note can be produced without calling a witness as it is part of ordinary course of doing business – otherwise Person A’s hearsay statement is inadmissible to prove delivery. Business and record-keeping exceptions may allow corporate emails or logs to be admitted.
- Chain of custody: If a phone or laptop passes through many hands, the opponent can claim that contents saved inside was altered. It would be ideal if one can show that the device was kept securely such that the opponent finds it difficult to argue that the person who has it has altered the contents, for example, if it was in the lawyer’s possession from a certain date.
- Potential tampering and fraud: Electronic messages can, in theory, be edited or fabricated. Unauthorised image editing or malware could change text. WhatsApp and email can display timestamps and senders, but these can be mimicked. The opposing party may point to any inconsistency (e.g. sudden gaps in a chat, strange timestamps) to argue the evidence is suspect. In such situations, one may have to send the electronic message for forensic testing to prove through experts that it has not been tampered with.
When planning on submitting electronic evidence, it is crucial to anticipate these arguments and ideally work with a general litigation law firm in Singapore to effectively overcome these challenges.
Challenges Specific to WhatsApp and Email
WhatsApp chats: These are end-to-end encrypted on the sender’s and receiver’s devices. WhatsApp does not retain readable server copies, so you cannot subpoena the company for the original text. Chats can be deleted or modified (by archiving or using old backups). Screenshots or exported text can be altered by anyone with access. The app’s interface (showing read receipts, timestamps, profile names) can help link a message to a user, but those indicators can be “spoofed” or outdated.
Email messages: Emails contain header metadata (date, sender IP, routing) that help prove origin. However, email addresses can be spoofed without encryption, or emails can be forwarded/edited. The chain of forwarding can be broken. On the plus side, email systems often retain archives (on servers or backup) which can be preserved. For both WhatsApp and email, any edit, no matter how minor, can raise doubts.
Preserving and Preparing Electronic Evidence
To ensure messaging evidence survives courtroom scrutiny, plaintiffs should take proactive steps:
- Early preservation. As soon as commercial litigation is considered, collect all relevant chats and emails. To ensure you don’t miss anything, it’s best to work with general litigation lawyers in Singapore who can advise you on all the documents you need to prioritise. Do not let the opposing party or natural processes (auto-deletion, app updates) erase the data. Use the app’s export or backup features immediately and send it to your lawyers. For example, WhatsApp can export chat history to a text file or PDF. Similarly, archive emails from the relevant accounts. Each export should include timestamps and participant identifiers.
- Forensic extraction. Where necessary, you can ask a qualified digital forensics expert to extract data from the original device(s) using forensic tools. Such a report from an expert will document the method of extraction and certify that messages were retrieved in a tamper-proof manner. A specialist report can confirm the file’s integrity and metadata (device IDs, message IDs, times).
- Document context and chain. Keep a record how each piece of evidence was found and handled. For instance, note: “On 10 Oct 2024, I downloaded the WhatsApp chat from my phone and emailed it to counsel,” etc. Preserve device SIM cards, phones containing crucial information, or backups. If someone else (like a messenger or employee) received or forwarded a message, document that witness’s name and role. In short, create a clear chain of custody that can be explained to a judge.
- Corroborating evidence. Back up the chat/email with other proof when possible. For example, telephone bills can show call times that line up with message times; meeting logs or CCTV can corroborate that a messenger was at the location noted in a chat. If a witness was part of a chat have him or her sign a Statement and agree to go to court to testify. Even mundane records—calendar entries, invoices, delivery receipts—can help paint a consistent story around electronic communications.
- Affidavits and summaries. Prepare witness affidavits summarising the evidence. For instance, a deponent can state “I confirm that the attached WhatsApp printout (Annex A) is a true and complete record of the chat between X and me on 1 Sept 2024”. Often lawyers will also compile a chronology or summary chart of the message exchanges (with translations or highlighted portions) to guide the court through a lengthy chat.
Conclusion
Electronic messages, be it email or WhatsApp chatlogs, are now commonly used as in commercial litigation cases and are subject to the same legal tests as other documents. To maximise these types of evidence, one must carefully preserve the records, establish their authenticity, and clearly link their content to the facts in issue. By preparing these messages methodically and presenting them clearly, they can become powerful and indisputable proof in court.
Need strategic legal guidance on using digital evidence in court? Doris Chia brings extensive experience in commercial litigation and understands the nuances of handling electronic records as admissible evidence. Whether you’re a victim of online defamation building a case or defending against one, Doris provides clear, practical advice to help protect your business interests. Reach out today to ensure your legal strategy is backed by proven expertise.
