Electronic evidence (WhatsApp messages, emails, etc.)

1. Introduction: The Changing Understanding of Evidence in the Digital Age

Almost all aspects of daily life have moved to the digital realm. Discussions now take place in WhatsApp groups, business dealings are conducted via email, professional relationships are shaped by corporate correspondence, and private life leaves its mark on social media platforms. This naturally reflects on the judicial process, and electronic evidence is becoming decisive in many cases.

However, simply presenting electronic evidence to the court is not enough. For evidence to be considered by the court, it must meet the **"legally admissible evidence criteria"**. That is, how the evidence was obtained, how it was stored, how it was presented to the court , and the reliability of the evidence are at least as important as its content.

In this article:

• What is electronic evidence and what types of electronic evidence exist?

• The normative basis of electronic evidence in Turkish law,

• Criteria for legally admissible evidence,

• The application, especially in terms of WhatsApp conversations, email, social media, and camera recordings,

• Electronic evidence in labor and criminal proceedings,

• What lawyers and citizens should pay attention to in practice

This will be discussed in detail.

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2. The Concept and Types of Electronic Evidence

2.1. What is Electronic Evidence?

In the classical sense, evidence is any means or data that establishes whether an event that occurred in the past is true or false. Electronic evidence , on the other hand, arises when information relating to this event has been produced, recorded, or stored in a digital environment

Simply put, information relating to a dispute:

• On devices such as computers, phones, and tablets,

• In digital environments such as servers, cloud systems, and databases,

• Through electronic communication systems

If it has been created and stored, this data constitutes electronic evidence.

2.2. Types of Electronic Evidence

The most common types of electronic evidence encountered in practice can be listed as follows:

• Instant messaging applications:
  WhatsApp, Telegram, Signal, etc. for chatting, voice messages, file and image sharing.

• SMS and traditional phone records:
  SMS content, call logs, call lists.

• Email correspondence:
  Correspondence and attachments sent via personal and business email accounts.

• Social media content:
  Messages, DMs, comments, and posts on platforms like Instagram, Facebook, X (Twitter), and TikTok.

• Camera and audio recordings:
  Workplace security cameras, apartment building cameras, store cameras, audio recordings and video recordings taken during meetings or discussions.

• Log records and system logs:
  Web server logs, IP logs, login and logout logs, transaction history.

• Electronic contracts and documents:
  Contracts signed with e-signatures, documents sent via UYAP, e-invoice, e-archive, and e-delivery note records.

• Financial and business records:
  Bank transaction statements, POS records, internet banking logs, online shopping records.

These examples could be multiplied; what's important is that this data in digital format and relevant content.

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3. Normative Basis for Electronic Evidence in Turkish Law

3.1. In Civil Proceedings (Code of Civil Procedure)

The fundamental principle in legal proceedings is the freedom of evidence. While the Code of Civil Procedure lists types of evidence, a document is interpreted broadly, and electronic records are also considered within the scope of documents.

Especially:

• Freedom of evidence and the evaluation of evidence,

• Expanding the concept of documents and promissory notes to include electronic data,

• Electronically signed documents have the status of written evidence,

• Provisions regarding copies and printouts

It outlines the framework for electronic evidence in civil litigation.

In this context, a screenshot of a WhatsApp conversation, a printout of an email, or a PDF version of a social media message evidence ; the judge freely evaluates .

3.2. In Criminal Proceedings (CMK)

In criminal proceedings, to ascertain the material truth . The Code of Criminal Procedure does not prescribe any limitations regarding the type of evidence; it emphasizes that the important element evidence obtained through legally permissible methods .

Especially:

• Free assessment of evidence,

• Evidence obtained illegally cannot be used as the basis for a judgment

• Detailed provisions regarding protective measures such as search, seizure, interception of communications, listening, and technical surveillance

It determines how electronic evidence should be obtained in criminal proceedings. For example, if procedures such as seizing a phone, examining its messages, or taking a data image from a computer hard drive are not carried out according to specific procedures, the evidence becomes illegal

3.3. Personal Data Protection (KVKK) Aspect

Electronic evidence often constitutes personal data . A person's phone number, IP address, location information, message content, image, and voice are all considered personal data. Therefore:

• Obtaining evidence,

• Its concealment,

• Sharing and submitting to the court

This is also related to the provisions of the Personal Data Protection Law (KVKK). Unlawful data processing can also give rise to an allegation of unlawful acquisition of evidence.

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4. Criteria for Legally Viable Evidence: General Principles

With regard to electronic evidence, "legality" can be examined along three main axes:

1. The method of obtaining evidence must comply with legal rules

2. The content of the evidence must reflect the truth and be reliable

3. Evidence must be presented in a proper manner during the trial, and the opposing party's right to defense must be protected.

Let's detail the key criteria in this context.

4.1. Legality of the Method of Obtaining Evidence

The most basic rule is this: Evidence obtained illegally cannot, as a rule, be used as the basis for a judgment.

For example:

• Accessing people's private information and reading their messages without their consent

• Accessing data on a phone or computer through theft, threats, blackmail, or coercion,

• To carry out an unauthorized wiretapping or surveillance operation that requires a court order,

• The employee is being kept under constant surveillance through a monitoring system of which they were not previously informed and without their consent

the evidence illegal .

Against this:

• Messages in a WhatsApp group that the parties already belong to and are aware of,

• Emails that the parties have directly sent to each other,

• Camera surveillance, which is carried out to a limited extent and for which employees are informed in advance, is in accordance with workplace policy

It is more likely to be considered as legally admissible evidence.

4.2. Moderation, Necessity, and Proportionality

Even if an intervention is legally permitted disproportionate , the legality of the evidence becomes questionable. This is especially true in cases such as an employer monitoring an employee, a spouse monitoring their partner, or a parent checking a child's devices;

• Aim,

• The method used,

• Scope of the intervention

There must be a balanced approach . The emphasis on proportionality is increasingly seen in judicial precedents as well .

4.3. Integrity and Reliability of Evidence

Electronic data can be easily altered, deleted, or manipulated. Therefore, courts, especially with regard to digital evidence, must be vigilant:

• the evidence from the original source ,

• The file's creation and modification history,

• the device or system has been examined by an expert,

• Technical safeguards such as hash values, image capture, and log records

They attach great importance to this. A screenshot alone may not be considered sufficient; often, the device itself must be presented, and system logs must be obtained.

4.4. Adversarial Proceedings and the Right to Defense

The evidence must be communicated to the other party in a timely and complete manner, and the other party must also respond to this evidence:

• Don't object,

• Request a review

• Refutation with their own evidence

The court must have the opportunity to present the evidence in a way that violates the principle of adversarial proceedings. Otherwise, the evidence would be presented contrary to the principle of adversarial argumentation, which could diminish the weight the court gives to the evidence.

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5. WhatsApp, SMS and Similar Messaging Records

5.1. Evidential Value of Correspondence Between the Parties

Many court decisions show that WhatsApp or SMS messages exchanged between parties are accepted as strong evidence in courts if their authenticity can be proven . These messages include:

• As a written form of an oral statement,

• records that reveal the parties' declarations of intent, acceptances and denials

It is evaluated.

For example:

• The existence of the debt, its amount, its maturity date,

• notification of defect, intention to terminate the contract,

• The worker's claim of overtime,

• Words containing insults, threats, and slander

It is possible to prove this with WhatsApp messages.

5.2. Is the screenshot sufficient?

The most common mistake in practice is relying solely on screenshots. Screenshots alone:

• It can be easily manipulated

• It can be assembled

• Date and number information may be partially hidden.

Therefore, courts often:

• The examination of the phone or related device during the hearing,

• If necessary, the device should be given to an expert

• Review of backup files and logs

This is preferred. A screenshot serves as a starting point for verification; however, to increase the credibility of the evidence, it is absolutely necessary to rely on the original source .

5.3. Third Party Accessing WhatsApp Conversations

One of the most controversial issues is correspondence obtained by a third party . For example:

• One spouse secretly takes the other spouse's phone and takes a screenshot

• The employer accessing the correspondence on the employee's personal phone,

• A friend snooping through someone else's phone and copying their messages.

In such cases, the method by which the evidence was obtained most likely of violating the privacy of private lifeor the confidentiality of communication . Such evidence, which involves serious legal irregularities, is generally illegally obtained evidence ; it can give rise to both criminal and civil liability.

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6. Covert Audio and Video Recording: The Principle of Last Resort

6.1. Is Every Secret Recording Illegal?

Audio and video recordings made without the knowledge of the individuals involved are generally considered illegal . This is because these recordings:

• Privacy of private life,

• Personal rights of individuals,

• Confidentiality of communication

This constitutes a serious interference with fundamental rights such as these.

However, particularly in the jurisprudence of the Supreme Court, there are assessments that recordings considered as a "last resort" under certain conditions can be used as evidence in some cases. For example:

• An insult or threat that is constantly denied,

• Systematic mobbing and psychological violence,

• Domestic violence,

• Employer's severely abusive and coercive behavior

In such cases, if the individual that they had no other means of proof, that they were obligated to protect themselves, and that they only made the recordings for this purpose and within limited scope, some decisions do not completely exclude these recordings.

However, this is a very exceptional area; it depends on the specific case and the court's discretion. The practical implication for citizens is this: secretly recording in any setting, thinking it will be useful in court later, is extremely risky. In most cases, the evidence may be disqualified, and serious criminal liability may arise.

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7. Camera Recordings, Workplace and Apartment Building Cameras

7.1. Security Cameras in the Workplace

Employers can install camera systems to ensure security in the workplace. However, this system:

• Employees notified in advance and clearly .

• limited in purpose and proportionate .

• It should not include private areas such as changing rooms and toilets,

• The obligation to inform under the Personal Data Protection Law (KVKK) must have been fulfilled.

When these conditions are met, the camera recordings will show:

• Theft,

• Workplace accident,

• The employee's breach of the employment contract

In many situations, such as those mentioned above, legally admissible electronic evidence . However, if the requirements of notification and proportionality are violated, the evidence becomes unlawful.

7.2. Apartment and Site Cameras

Similar personal data and privacy principles apply to cameras at the entrance of apartment buildings, complexes, or other buildings. The areas where recordings are made are:

• It should be of a public nature (such as an apartment entrance or doorstep),

• Purpose-limited monitoring,

• Informing residents and visitors through signs and announcements

It supports the legality of the evidence. These cameras are used as strong electronic evidence in criminal and civil cases in incidents such as theft, property damage, and assault.

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8. Email, Corporate Systems and Business Relationships

8.1. Review of Employer's Corporate Email Accounts

Correspondence conducted via the corporate email address assigned by the employer to the employee is often used for business purposes. Employer:

• As required by the job,

• Protecting company secrets,

• Monitoring whether the employee is performing their job properly

They may want to check these accounts for purposes such as these.

For this inspection to be lawful:

• Employees been informed in advance .

• The investigation limited to the purpose ,

• The employee's completely private correspondence should not be targeted,

• Fulfilling the obligation to inform under the Personal Data Protection Law (KVKK)

This is necessary. Otherwise, emails illegally obtained by the employer may result in liability for both damages and (in cases of gross infringement) criminal penalties.

8.2. Personal Email Accounts

The employer's access to correspondence on a personal email account (such as Gmail or Hotmail) opened in the employee's name and not connected to the corporate infrastructure almost always constitutes a breach of the confidentiality of communication . The evidentiary value of such email content is extremely weak and open to claims of illegality.

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9. Collection of Electronic Evidence in Criminal Proceedings

In criminal proceedings, electronic evidence often includes:

• Examining telephones and computers,

• Obtaining server logs,

• IP addresses,

• Seizing camera recordings

It is obtained through these processes. While these processes are being carried out:

• The search and seizure warrant must be in accordance with proper procedure

• When digital material is seized, an exact image is taken.

• Determining the hash value of this image,

• Proof that the evidence was not altered through chain delivery records

This is critically important for the reliability of the evidence.

If a phone has been in law enforcement custody for an extended period, with unclear details about who handled it and how it was examined, the prosecution and court may question the reliability of the evidence obtained from that phone. The defense, in turn, of manipulated evidence , attempting to diminish the probative value of the digital evidence.

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10. Submission of Electronic Evidence to the Court and Evidence Collection

10.1. Gathering Evidence Before Filing a Lawsuit

Electronic evidence is highly susceptible to deletion, loss, or alteration over time. Therefore, before the trial:

• WhatsApp conversations,

• Email traffic,

• Content on websites,

• Social media posts

Having the evidence officially documented is quite effective. This process, carried out under the supervision of a court or notary public, prevents future disputes regarding the purity and authenticity of the evidence.

10.2. Presentation of Evidence During the Trial

The lawsuit petition or the response petition must include electronic evidence:

• From which device?

• On what date?

• By specifying which parties it took place between

• By being downloaded via CD, USB, printout or through the UYAP system

The evidence list should be presented clearly and concisely. a clear and understandable explanation makes it easier for the judge to trust the evidence.

Furthermore, when electronic evidence is presented:

• If necessary, an expert examination should be requested

• Given the possibility of an objection from the other party, the original device should be kept

• It should be briefly explained that the evidence was obtained lawfully.

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11. Illegally Obtained Evidence – Is It Always Completely Excluded?

Theoretically, evidence obtained illegally should not be used as the basis for a judgment. However, in practice, especially in the field of private law:

• The severity of the illegality in obtaining the evidence ,

• Whether it is possible to prove the truth without evidence,

• Mutual fault of the parties

Different approaches can be seen, taking into account factors such as these. This is a highly controversial and nuanced area.

The crucial point for citizens is this: the idea that "the court is only looking for the truth, it won't care how I obtained the evidence" is a major misconception. Evidence obtained through improper methods is often useless and can even incriminate a person.

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12. Practical Suggestions for Citizens

Here's a summary of the key points an ordinary citizen should be aware of regarding electronic evidence:

1. Instead of secretly recording conversations, prefer written communication whenever possible.
   Clearly stating your claims via WhatsApp, SMS, or email is often safer and more legally compliant.

2. Do not delete or tamper with evidence.
   If you are considering a lawsuit, do not delete messages, images, or emails on your phone; back them up when changing devices.

3. A screenshot alone may not be sufficient.
   Take a screenshot, but if possible, also save the device. It may require expert examination later.

4. Do not access other people's phones and accounts without permission.
   Secretly accessing your spouse's, friend's, or employee's phone and obtaining messages constitutes a serious crime. Evidence obtained in this way is likely to be useless.

5. Be careful with your social media posts.
   Messages containing insults, defamation, or threats are both a crime and can be used as evidence. Remember that every message you write could come before you in court tomorrow.

6. In critical disputes, pursue evidentiary documentation. If
   online content, a social media post, or correspondence is crucial to your case, consider having it documented through a notary or court before filing a lawsuit.

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13. Strategic Notes for Lawyers

Electronic evidence presents both great opportunities and serious risks for lawyers. Therefore:

• It is necessary to analyze from the outset whether the evidence was obtained legally

• The client must be clearly informed that they must not violate the law during the evidence gathering process .

• Electronic evidence in the lawsuit petition:

  • On what date?

  • With which vehicle,

  • Who were the people involved?

  • How it was obtained

  It should be explained as clearly as possible, and a chronology should be provided if necessary.

• an expert examination , the questions to be asked should be carefully determined. For example:

  • Whether the messages were subsequently deleted or not,

  • Assembly possibility,

  • The device's last modification dates,

  • Status of logs and metadata.

• Regarding objections to the opposing party's electronic evidence:

  • The method of obtaining the evidence,

  • The accuracy and completeness of the evidence,

  • The way the evidence is presented (incomplete, distorted, taken out of context)

  It should be discussed in detail.

• If necessary , it can be argued that the evidence is illegally obtained on the grounds of violations of the Personal Data Protection Law , violations of the right to privacy , and violations of the confidentiality of communication

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14. Conclusion: Electronic Evidence is No Longer the Exception, but the Primary Type of Evidence

In the digital world, electronic evidence and the criteria for legally admissible evidence have become a fundamental subject that every lawyer and citizen should be aware of. In many civil cases, and even criminal trials, the evidence that ultimately proves valid is a WhatsApp message, an email chain, or a security camera recording.

However, this evidence:

• It must have been obtained through lawful methods,

• Technical support for its reliability,

• Procedurally submitted to the trial,

• Respect for the opposing party's right to defense

It is essential. Otherwise, electronic evidence may create new problems instead of providing solutions; it could implicate the person presenting the evidence, negatively impacting the course of the trial.

Because:

• Citizens should be careful when leaving a digital footprint in their daily lives

• Not exceeding legal limits when attempting to gather evidence,

• In major disputes, it is essential to seek legal support from a lawyer

That is the healthiest approach.

In this era where the importance of electronic evidence is increasing every day, the criteria for legally admissible evidencewill both protect their rights more effectively and avoid potential criminal and compensation liabilities.