The development of digital technologies has significantly influenced everyday life and the way we communicate. Consequently, it is logical that digitalization is taking on an increasingly important role in all spheres of life, including the field of law. In the court practice of the Republic of Serbia, the question is being raised more frequently as to whether messages exchanged via applications such as Viber and WhatsApp can be recognized as evidence before the courts.
The daily use of electronic communication has resulted in the need to legally regulate the use of emails, social media correspondence, recordings, and similar materials as evidence in court proceedings. This need arises from justified concerns regarding how courts will assess such evidence, whether it can be equated with evidence and documentation in paper form, and how it can be properly incorporated into the legal system. Although the law does not explicitly regulate every type of digital evidence, applicable regulations and court practice allow their use under certain conditions.
The Concept of Digital Evidence in the Legal System of the Republic of Serbia
Digital evidence refers to data stored or transmitted in electronic form that may be relevant for deciding a court case by proving legally relevant facts. In practice, digital evidence most commonly appears in the form of:
- messages from electronic communication applications (Viber, WhatsApp, Messenger),
- SMS messages,
- electronic mail (emails),
- screenshots,
- data from social networks,
- audio and video recordings.
In accordance with the Civil Procedure Act, the Criminal Procedure Code, and the Law on Electronic Documents, digital evidence may be used in court proceedings, if it has been obtained lawfully. Courts assess evidence freely, based on their own conviction, considering its legality, authenticity, and relevance to the specific case.
Are Viber and WhatsApp Messages Recognized as Evidence?
Court practice in the Republic of Serbia indicates that messages from Viber and WhatsApp applications may be recognized as evidence; however, their evidentiary value depends on the specific circumstances of each case.
When assessing such evidence, courts pay particular attention to:
- whether the identity of the message sender can be established,
- whether the content of the messages is authentic and unaltered,
- whether the entire course of communication is presented,
- whether the evidence was obtained lawfully.
A screenshot of a message alone, without additional supporting evidence, is often insufficient if the opposing party disputes its authenticity.
Evidentiary Value of Digital Messages and Court Practice
In cases where there is a dispute regarding the authenticity of messages, the court may order expert examination of a mobile phone or other electronic device, verification of metadata and communication history, and comparison of digital messages with other evidence presented in the proceedings.
In practice, digital evidence is frequently used in:
- civil proceedings (debts, contractual relationships) as proof of the existence or non-existence of a legal relationship or fact,
- labor disputes (workplace harassment, unlawful termination) as correspondence with the employer,
- family law disputes as evidence of communication between spouses,
- criminal proceedings.
Lawfulness of Obtaining Digital Evidence
One of the key conditions for accepting digital evidence is the lawful way it is obtained.
Evidence acquired through unauthorized access to another person’s phone, account, or communications may be declared unlawful and excluded from the proceedings.
In each individual case, the court performs a balancing test between the right to privacy and personal data protection on the one hand, and the right to a fair trial on the other.
Conclusion
Digital evidence may serve as valid evidence before courts in the Republic of Serbia, but its acceptance depends on its authenticity, legality, and the way it is presented during the proceedings. Each case requires individual legal analysis, considering applicable regulations and court practice. Therefore, it is important to regulate the legal framework for the use of digital evidence in a timely manner.
Final Note
Finally, we would like to highlight an interesting case from the digital era that emphasizes the importance of regulating the legal framework for the use of digital evidence, to avoid uncertainties on the one hand and to keep pace with modern trends on the other.
In this case, Canadian farmers who regularly conducted business agreed that the buyer would send an offer to conclude a contract via SMS message. Upon receiving the message, the seller responded with a symbol—an emoji depicting a “thumbs up” (commonly understood as a sign of confirmation or approval). However, when the time came for delivery and the buyer did not receive the requested goods, it became clear that the contracting parties had interpreted the emoji differently: the buyer understood it as acceptance of the contract, while the seller understood it merely as confirmation of receipt of the offer.
The court ruled that the “thumbs up” emoji constituted a non-traditional means of “signing” a document, but that under the given circumstances, it represented a valid form of signature.
This legal ambiguity ultimately cost the losing party CAD 82,000.00 and once again highlighted the growing importance of digital evidence in modern judicial practice.
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