Whatsapp and Privacy Issues. Can Courts order disclosure of personal Whatsapp Chats?

March 10, 2024

By: tme

Ai Law Legal Services

Whatsapp has updated its privacy policy. The latest policy clearly claims that chats are covered by end-to-end encryption and “WhatsApp cannot and does not produce the content of its user’s messages in response to government requests“. But when it comes to Whatsapp chats being evidence to a dispute, are Whatsapp chats really private or indeed outside the ambit of a discovery exercise by the courts?

We have seen questions surrounding the admissibility of personal Whatsapp chats in recent hearings, including government MP’s chats relating to the Covid lockdown and use by police officers.

Whatsapp chats can include important evidence for criminal investigations and civil cases, such as evidence in employment grievances or evidence of what was actually agreed in a contract dispute.

So how private are your Whatsapp chats and can you be ordered to disclose your personal chats as evidence when in a dispute?

Article 8: right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society…

Article 8 of the European Convention on Human Rights (ECHR) is one of the most important of the Convention rights. It protects the rights of the individual in four primary areas:

  • Private life.
  • Family life.
  • Home.
  • Correspondence.

Remember the days when people had a phone for personal use and a separate phone for business? Today, more people combine their personal phone for business use, particularly with Whatsapp, meaning often our Whatsapp chats contain a mix of personal and business chat, therefore when a Whatsapp chat contains discussions relevant to a dispute, issues of privacy are engaged.

Several leading cases in the European Court of Human Rights, and a well known case in the House of Sessions in Scotland involving a Whatsapp group between police officers that the officers claimed to be private, have confirmed that correspondence within the context of the Article 8 right includes electronic data such as instant messaging and Whatsapp.*

Justifiable Interference with the Right to Privacy

The Article 8 right is a qualified right, and can be interfered with if justified when it is pursuant to one of the qualifications, including as necessary in a democratic society or in accordance with the law.

In BC v Chief Constable of the Police Service of Scotland [2020] CSIH 61, the Inner House of the Court of Session held that it was not a breach of Article 8 for the Police Service of Scotland to use WhatsApp messages discovered on a police officer’s smartphone as the basis for misconduct proceedings against a group of officers who were members of a chat group. The court was entitled to take account of the content of the messages, which included lewd comments and crime scene photos sent in breach of police procedures. It was also entitled to take into account that the senders of the messages were subject to professional standards both on and off duty, and that the recipients were serving police officers with a duty to report misconduct.

In this case it was affirmed that privacy is a “core value… which is inherent in a democratic and civilised state”; although differentiation was drawn between ‘ordinary members of the public’ and those held to professional standards, whether on or off-duty, such as police officers. The latter people should expect a limited right to privacy.

This is an extreme but clear cut example of where Whatsapp chats can be disclosed as part of an investigation into misconduct in an employment context or crime. In this case, the officers involved had engaged in misconduct and there was clear public policy angles that justified the interference with the officer’s Article 8 rights, including as necessary in a democratic society for upholding public confidence in the police. It was deemed that the use of the messages for disciplinary purposes was necessary and proportionate to this aim.

The existence of a legitimate expectation of privacy

In a civil context it is possible to order disclosure or use personal Whatsapp chats as evidence in proceedings. It is an issue that is common in employment grievance matters.

FKJ-v-RVT [2023] EWHC 3 (KB) is a High Court case in which the claimant made an application to rule personal Whatsapp chats used as evidence relied on in an employment tribunal to be inadmissable. Whilst an interim decision, the Judge provides helpful comments on the treatment of personal Whatsapp chats in evidence. It was held that the existence of a legitimate expectation of privacy is fact sensitive and turns on a number of factors. In that case the chat appeared on the employee’s work laptop, but was clearly intended to be of a private nature. However, it was noted that even where chats are private and obtained without authority, a court can still rely on its powers of discretion where the content of the chat is relevant to the issues in dispute.

Whilst the judgment in the Scottish House of Sessions case referred to above affirms the ordinary person’s right to privacy, issues of control and possession of Whatsapp Chats and the ability to admit them into evidence is still relevant.

For employers seeking to rely on personal conversations as evidence to employment disputes, it would be prudent to include in their employment policies that use of work laptops and accounts should not be for private messaging and employers have the right to inspect such accounts and therefore employees ought not to expect the right of privacy to be extended to such conversations. For the employee, it serves as a lesson to ensure that they do not mix their personal conversations with their workplace devices.

Are your Whatsapp Chats actually private?

In a word, no. There are many instances when your Whatsapp Chats will not be considered private, including for the purpose of being used as evidence to proceedings or employment grievance hearings.

A number of instances when your Whatsapp chats will not be private are common-sense. The disclosure of correspondence to a third party, with the consent of the correspondent, does not involve an interference with the Article 8 right to privacy – of course.

When you chat with somebody, you may use one of the privacy features of Whatsapp, including being covered by end-to-end encryption as standard, or using the “Disappearing Messages” feature, but remember these are only effective if all people to the conversation adheres to the same principles. Whilst you may believe your messages sent to a third party are private and encrypted, there is nothing stopping that third party as the legitimate recipient of the messages from sending them to another, which means the conversation is no longer covered by Whatsapp’s privacy policy and has been disclosed with the consent of the correspondent.

Backing up your Whatsapp conversations to Icloud or Google cloud can also mean your chats are no longer private or become accessible to third parties, if the cloud back up service used does not adhere to the same privacy controls as Whatsapp.

It is clear that where messages have been obtained legitimately, without privacy or security breaches, they are admissible as evidence in proceedings, although a failure to maintain or prove authenticity will likely render your evidence inadmissible in court. Having said that, even were evidence has not been properly obtained it is possible for the court to still admit the evidence if it is deemed to be relevant to the issues in dispute.

Can Whatsapp chats be subject to an order for disclosure by the courts?

Yes. Where there is a proportionate and legitimate aim to interfere with the Article 8 right, or where the evidence is relevant to the issues of the dispute.

The Judgment in BC v Chief Constable of the Police Service of Scotland [2020] CSIH 61 establishes that professionals (such as solicitors, doctors or police officers) have a limited right to privacy surrounding their Whatsapp chats and may more easily become the subject of disclosure when involving misconduct proceedings.

For employees in grievance cases, it is possible for private Whatsapp chats to be used as evidence, particularly where the employee has used their work laptop or account to send inappropriate messages. In such cases, there will be an argument over whether any interference with the employee’s right to privacy is justified as proportionate to the means.

The adage “don’t mix business with pleasure” comes to mind.

Disclosure of Whatsapp Chats in Practice

In JSC Commercial Bank Privatbank v Kolomoisky and others [2022] EWHC 868 (Ch) The first defendant (D1) originally disclosed 350 pages of WhatsApp chats (around 6,209 messages, all but 272 redacted), confirming that the redacted data was “irrelevant to any issue in the proceedings and confidential” (PD 51U.16.1(1)).

D1’s solicitors should prepare a schedule identifying (for each redacted message) the recipient’s name, the date and time of the message and a generic description of the subject matter, without disclosing irrelevant and confidential data. Messages should only be grouped and dealt with together if each piece of information was identical regarding more than one redaction within a single chain. The schedule should be verified by a witness statement.

The circumstances (notably, very limited disclosure of documentation from D1’s “own sources”, as he did not use a personal email account, or store or create electronic documents on a desktop computer, and his only social media accounts were WhatsApp and Viber) satisfied the judge that, although time consuming, this exercise was reasonable and proportionate having regard to the overriding objective.

The judge observed that D1’s solicitors’ approach to relevance seemed too narrow. The Issues for Disclosure relate to the need to disclose a document, not redaction of part of it.

The Judge directed that there should be a further review of the redactions of the WhatsApp messages: (i) having regard to the need to assess them against all of the issues in the proceedings, not just the Issues for Disclosure, and (ii) taking account of his views on relevance.

D1’s solicitors should prepare a schedule identifying (for each redacted message) the recipient’s name, the date and time of the message and a generic description of the subject matter, without disclosing irrelevant and confidential data. Messages should only be grouped and dealt with together if each piece of information was identical regarding more than one redaction within a single chain. The schedule should be verified by a witness statement.

The decision provides helpful guidance to solicitors on the extent of disclosure for their clients and how they should deal with identifying irrelevant information in personal conversations, without breaching the client’s right to confidentiality.

Be aware that your personal chats may be subject to disclosure or use in proceedings or employment grievance hearings

In our modern world, it is becoming commonplace for people to transact business over informal instant messaging platforms such as Whatsapp. Social Media based businesses and influencers may carry on business entirely on platforms like Whatsapp or Instagram.
It is important to be aware of what you are saying and not to inadvertently mix personal private messages with messages intended for the workplace.

When we talk personally we use different tones, language and may say things that we would not normally say when carrying out business. People should take care about mixing business and pleasure together on a Whatsapp chat, and realise that by discussing business over a personal Whatsapp chat, that personal chat is potential evidence to a future dispute, and will be considered material to the duty to preserve and disclose evidence should a dispute arise.

Whatsapp does offer Whatsapp Business to use your account for business. You may want to consider separating your business from pleasure on Whatsapp, lest your personal chats inadvertently become evidence for disclosing in the event of a dispute. Even then, with the instant nature of Whatsapp messaging, it is all too easy to use your business account for personal use.

Seek Legal Advice:

At Ai Law, we can assist you in navigating the complexities of online reputation management and the impact of defamatory comments. If you need assistance in seeking redress for harm caused by defamatory statements or protecting your reputation and safeguarding your online presence, contact us for our support.

Source:

Wieser and Bicos Beteilungen v Austria [2007] ECHR 815;

Stefanov v Bulgaria [2008] ECHR 426)

Bărbulescu v Romania [2017] ECHR 754,

BC v Chief Constable of the Police Service of Scotland [2020] CSIH 61

https://uk.practicallaw.thomsonreuters.com/w-035-2254?transitionType=Default&contextData=(sc.Default)&firstPage=true

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