We have represented numerous client in court:
Instant messaging platforms such as WhatsApp, Telegram, WeChat and etc are increasingly becoming mainstream communication tools for many SMEs in Malaysia. In fact, the Digital News Report 2017 has named Malaysia as the world’s largest WhatsApp user . The courts have acknowledged the escalating use of these instant messaging platforms by allowing instant messages and pictures on these electronic platforms to be admitted as evidence in both civil and criminal proceedings.
While WhatsApp contents are generally admissible in court, there are still specific guidelines as to how these evidences should be adduced. This article will provide instances where contents shared on WhatsApp have been successfully adduced as evidence in civil proceedings.
First things first, what is WhatsApp?
WhatsApp is a free-for-use smartphone application owned by Facebook Inc which provides online instant communication tool that allows users to send text messages, images, and other file types like document, audio, video and etc.
In Malaysia, two cases have particularly touched on the admissibility and applicability of WhatsApp messaging in civil proceedings.
CASE NO. 1: SHAMSUDIN BIN MOHD YUSOF V SUHAILA BINTI SULAIMAN
This 2017 case demonstrates that a valid and enforceable agreement can be made via WhatsApp.
The plaintiff brought a claim against the defendant for the supposed profit that he should have received based on the agreement made between him and Suhaila via WhatsApp messages.
Amongst the issues raised in the case was, whether there exists a valid oral agreement between the parties since most of the communication between the parties was done on WhatsApp.
The Magistrate Court held that there is indeed a valid oral agreement between the parties and that the agreement made on WhatsApp is valid and enforceable.
The court found that although no formal written agreement was executed, it is trite that the Contracts Act 1950 does not require an agreement to be in writing in order to be enforceable. So long as the underlying principles of a contract/agreement are fulfilled, the contract/agreement will be deemed valid and enforceable.
CASE NO. 2: MOK YII CHEK V SOVO SDN BHD
This 2015 High Court case addressed the admissibility of WhatsApp messages as documentary evidence in court.
A suit was brought by the plaintiff against the defendants for a breach of contract, total failure of consideration and unjust enrichment. The plaintiff relied on numerous print-out emails and WhatsApp messages to substantiate his claim for the defendant’s breach of contract.
The court held that the print-out WhatsApp messages fell within the wide meaning of “document” under the Evidence Act 1950 , and as such can be admitted as evidence in court so long as:
- the party who wishes to adduce the Whatsapp messages as evidence can prove that the messages are facts concerning their claim or it is relevant to their claim ; and
- the messages satisfy the procedural requirements for documentary evidence produced by computers.
Problems with adducing WhatsApp as evidence in court
Despite the more liberal approach taken by the court, there are also concerns raised in adducing instant messages as evidence.
In the cases of Mohd Azahar Abdul Halim v Naza Motor Trading Sdn Bhd  and Nazaruddin Bin Mohd Shariff @ Masari & Ors v Samsyem Bin Saam & Ors , the court voiced certain issues in the admittance of WhatsApp messages as evidence, such as:
- Proof of identity – there is insufficient proof as to the identity of the sender/recipient of the instant messages, especially in cases where the authenticity of the instant messages and/or the identity of the sender/recipient is challenged;
- Time factor – there may be no clear detail as to when the messages were sent;
- Risk of fabrication – there can be risks of fabrication of the instant messages adduced; and
- Conclusiveness – reliance on WhatsApp messages as evidence may not be appropriate as there are other forms of evidence that are more conclusive in nature.
In a nutshell, those who wish to adduce WhatsApp as evidence in court should ensure that the requirements in the case of Mok Yii Chek are satisfied and that the time factor, the identity of sender and recipient, and risk of fabrication has been properly addressed. WhatsApp messages should not be the sole evidence if there is more conclusive evidence available.
We have represented numerous client in court:
 ‘Malaysians are the world’s largest WhatsApp users’, New Straits Times, 12 September 2017, https://www.nst.com.my/lifestyle/bots/2017/09/278936/malaysians-are-worlds-largest-whatsapp-users
  MLJU 2236
 Razman Abdullah v Azim Tan Sri Datuk Abdul Aziz  1 CLJ 706
  1 LNS 448
 Section 3, Evidence Act 1950
 Section 5, Ibid
 Section 61 – 90, Ibid
  1 ILR 292
  1 LNS 1434