By: Leonardo Neri
In a report published by G1, it is stated that, according to the position of the 6th panel of the STJ, unanimously decided in a hearing held in February, WhatsApp printouts will not be accepted as evidence by the Courts, and the understanding can be used on other digital platforms for the same purpose. “Messages obtained through a “print screen” of the WhatsApp Web tool screen must be considered illicit evidence and, therefore, removed from the records”. However, the decision by the panel does not create a binding precedent, even though the tendency of lower courts is to follow the standards of the 6th Panel.
For context purposes, the decision was made based on previous cases, such as in November 2018, where the Court decided not to consider these elements in a specific case of drug trafficking and in 2019 with an accusation of corruption in Pernambuco, where the defendant claimed that the screenshots of the conversation application presented in an anonymous complaint could not be used as evidence as they would be subject to easy modification, given that the application itself allows the user to delete the message, only for themselves or for the collective, without leaving any further traces.
In a report to G1, professor Carlos Augusto Silva dos Santos Thomaz, from the Law School of the Federal University of Rio de Janeiro, the defendant can present the conversation from his cell phone to demonstrate that there was a change, however, in return, he can claim that he no longer has access to the chat or that he uninstalled the application, after all, the law prohibits the defendant from producing evidence against himself.
It is worth noting that, due to WhatsApp's own data policy, end-to-end encryption only allows messages to be displayed to people involved in the conversation, preventing the platform from sending all the content.
Finally, Christiany Pegoari Conte, a criminal law professor at the Pontifical Catholic University of Campinas, states that victims of cybercrimes can take screenshots, but the ideal is to find ways to prove their authenticity, one of which is to register a notarial deed (recognition at a notary's office). However, it is still not possible to be certain that there has been no alteration. Furthermore, a new alternative is to seek out companies that specialize in digital evidence, offering greater assurance of information and avoiding breaking the chain of custody (collection, maintenance, movement and disposal of evidence). The professor also states that “Digital evidence is extremely volatile. It can be altered, modified, deleted. This is why the chain of custody is such an important point for digital evidence.”
With the collaboration of Pedro Sobolewski