STJ justices ruled in a specific judgment that screenshots of the application could not be used; determination does not oblige other judges to follow the same understanding.
Unanimously, the 6th Panel of the Superior Justice Tribunal (STJ) reaffirmed, in March this year, the understanding that messages obtained through the application’s print screen WhatsApp Web they cannot be used as evidence. In the case analyzed, one of the defendants accused of corruption in Pernambuco he claimed that the screenshots presented by an anonymous tip “did not enjoy authenticity” and that the conversations could have been “purposefully forged”. In analyzing the defense’s appeal, the state court found that it did not have evidence of the tampering with the conversations mirrored by WhatsApp Web or the alteration in the chronological order of the dialogues. However, the 6th Panel of the STJ has a precedent that considers the evidence obtained by mirroring the application’s messages to be invalid, because the tool allows the sending of new messages and the deletion of old or recent messages, and any deletion leaves no trace in the application or on the computer. “Messages obtained through the screen print of the WhatsApp Web tool should be considered illicit evidence and, therefore, removed from the records”, declared the STJ. But does the decision apply to all investigations? To answer the question, the Young pan spoke with the specialist in Digital Law, Nina Ramalho Pinheiro, and the professor of Digital Law and Data Protection, Caio César Lima.
Does the decision apply to any type of investigation?
“The Code of Civil Procedure actually states that the author can produce any kind of proof. So, there are no limitations whatsoever. The print will be able to be used, as a rule, in any case. There is no type of restriction regarding the validity of using this test”, explains Nina, an associate lawyer at the Opice Blum office. “The general rule is that evidence is recruited as true unless someone challenges it. So, if you have a process and are presenting that print, you depend on the opposing party, as a rule, to prove that it is false”, he adds. Another point is that the decision was made for the specific case and does not oblige other judges to follow the same understanding. Despite this, the decision does set a precedent for the understanding to be followed in other cases. “Every decision is a precedent. Regardless of whether it is a decision of first instance, of second instance, it is a precedent that can be used in other similar cases”, stresses the lawyer.
In order for the decision to be followed by all lower courts, there must be a binding precedent, which at the moment does not exist. “These specific precedents are created from repetitive. It’s a question that has to be raised several times by the court. So, from the moment that many conflicting decisions start, the court treats that topic as repetitive, and, from that, a thesis is formed to be applied in all similar cases, avoiding legal uncertainty and ensuring a more effective application the understanding of the law”, points out Nina. “But we are very far from a binding precedent that prohibits the use of WhatsApp print screens as evidence. There are no decisions regarding the validity of prints in a judgment in the STJ. We still don’t have this issue being taken to the Superior Court of Justice on a recurring basis, because, in the STJ, the analysis of evidence is not even allowed. This discussion, whether we like it or not, is much more in the state courts”, he assesses. “If the decision does not fit in that particular case, you must dismiss it. You manage to rule out the application of that precedent just by showing that the facts are not the same, that the discussed law is not equal and, from that, that the precedent is not valid to be applied in that specific case.”
How to ensure that print screens are valid proofs?
One of the tips given by experts is to bring the conversation in its entirety, avoid clippings. “If you don’t have the chronological order of the fact, you already create a distrust regarding the proof, even if it’s not a manipulation, an edit made in an application like Photoshop or a tool aimed at creating false messages, you already create a distrust of the judge”, says Nina Pinheiro. Another tip is not to use only the screenshot. “Is it possible to support the print with testimonial evidence? Was the conversation in a group? Are there other people in this group? Call someone as a witness”, recommends the lawyer, who points out that, in cases of print screens on other social networks, it is important to save the page’s HTML, because, through it, the provider can be accessed. Another recommendation is the production of a notarial act, a public instrument by which the notary public proves the existence of facts. “The notarial act is very important indeed. You guarantee, at the very least, that the content being shown was there at that exact moment. Just plan, you already rule out the possibility of the screenshot having been created, for example, in a fake application, because you will open your social network and show the notary public that those images are effectively there”, he explains.
Another alternative is the Blockchaim, which, according to the NuBank, is a system that allows you to track the sending and receiving of certain types of information over the internet. “I think the technological issue is a little more distant from the general population, but it’s something more affordable. You can do it through the internet, it’s something that works 24 hours a day. You download the program or hire a company that offers this digitally certifying service. And, from that, he is able to verify as if it were a notarial act that that content exists on the date and at that time.” For Caio César Lima, partner at the Opice Blum Office, the process is the same for any test. “We fall into thethe same points that we need to observe in a physical evidence, which is, precisely, to demonstrate the authenticity and integrity of that evidence, that is, to prove that it was not tampered with between the time of its preparation and presentation in court”, he points out.
How is the decision seen by experts?
Attorney Caio César Lima believes the decision could be harmful. “We are moving towards a digitalization of our society. Not just because of the pandemic, but also because of it, basically everything we’ve been doing today involves digital deals. So it is natural that more and more evidence is in digital media, indicating the use of electronic documents as a way to demonstrate a fact or something”, he says. “ANDu can’t help but accept proof for the simple fact that there is a possibility of it being tampered with. Because if that’s the case, we won’t accept any evidence, we won’t even hear a witness”, argues the expert. “The trend is that, more and more, we have the use of electronic mechanisms with the formation of electronic evidence to achieve the reality we want. And, generally speaking, evidence collected from a passive device tends to be much better than evidence collected by a witness, precisely because the traces that are left on the internet are traces that we may not even know about, but they are also passive evidence, that don’t depend on anyone’s feelings”, adds Lima.
For the lawyer, this type of evidence can be essential in some cases. “One of the points of our legislation is to guarantee the parity of arms, to guarantee that all parties can use the same evidence and equally. With a few exceptions we have a reversal of the burden of proof. A consumer, for example, is in a lower position than a company. Now imagine that this consumer needs to produce a notarized act, which has a high cost. So, the person wants to discuss a purchase they made using WhatsApp and they have two options? Or will she have to do a notarial act or will she not be able to use that evidence? We also have to weigh that, in some situations, it can be especially relevant for us to use tests that may be carried out in a digital environment”, he justifies. “Basically, all proofs can be falsified. We can fake a criminal body exam, we can fake a vehicle crash scene and technical engineering expertise. Everything, basically everything, is liable to be faked. Basically, if we say: ‘It’s on WhatsApp, it’s not worth it’, we lose a great wealth of information”, concludes the lawyer. Nina Pinheiro also believes that the print screen cannot be discarded, but that means are needed to make it viable as proof. “If we go to see, how many hires are not made by WhatsApp? You enter, for example, an Instagram link to buy a product directly on WhatsApp and your every attempt will be made there. And this won’t be able to be used as evidence? The Labor Court itself conducts hearings via WhatsApp and often sends subpoenas through the application. This incentive to technological evolution is necessary”, he says. “What we have to look for from the Judiciary are ways to make this test viable and not rule it out completely without this deepening of what is technically appropriate. We need to try to bring this to reality as a valid possibility and look at the decision carefully so that it is not applied in any case.”