The evidentiary value of WhatsApp and SMS screenshots and ordinary emails in the Italian legal system

With the widespread use of instant messaging apps, screenshots of WhatsApp conversations, SMS messages and emails have become increasingly common in courtrooms. In the absence of specific legislation from the Italian legislature, it has been case law that has established the legal framework.

The legal basis: Article 2712 of the Civil Code
The Joint Divisions of the Court of Cassation have definitively classified WhatsApp (and SMS) screenshots as mechanical reproductions within the meaning of Article 2712 of the Civil Code, which establishes that such reproductions constitute full proof of the facts represented, unless the party against whom they are produced disputes their conformity with the facts themselves.

What happens in the event of a denial?
The denial must be specific and timely: a generic challenge is not sufficient. If the denial is valid, the document loses its value as full proof and is downgraded to mere circumstantial evidence, to be freely assessed by the judge. In such a case, the party that produced the document may demonstrate its authenticity through:
An application for verification, with an incidental assessment by the judge;
A court-appointed expert report (CTU), involving a forensic analysis of the digital document (metadata, file integrity, analysis of the original device);
Presumptive evidence, deriving authenticity from known and consistent elements (origin of the account, consistency with other communications, absence of a timely out-of-court challenge);
Witness evidence, based on circumstances confirming the document’s authenticity.

WhatsApp and injunctions
A further aspect concerns the possibility of obtaining an injunction based on WhatsApp conversations. Case law has clarified that:
WhatsApp screenshots satisfy the requirement for written evidence under Articles 633 and 634 of the Italian Code of Civil Procedure, also in light of Law No. 40/2008, which equates digital messages with paper documents;
To obtain provisional enforceability of the order, the content of the conversation must allow for the cause of action, the amount owed and the attribution of the message to the debtor to be identified with sufficient precision.
In several cases, Italian courts have recognised admissions contained in WhatsApp conversations as having the value of extrajudicial confessions, resulting in a reversal of the burden of proof to the opposing party.

The precedent of ordinary emails
Even before the rise of instant messaging, case law had already recognised ordinary emails (without a digital signature) as having the value of electronic reproductions under Article 2712 of the Italian Civil Code, constituting full proof in the absence of a valid repudiation. The principles established for emails were then applied, by analogy, to WhatsApp messages.

Conclusions
Italian case law therefore recognises the full evidential value of digital messages, provided that the conditions and procedures laid down by law and confirmed by the case law of the Court of Cassation are complied with.

Read the full IBA article here: https://www.ibanet.org/evidentiary-value-whatsapp-SMS-screenshots-emails-Italy