The evidentiary value of electronic documents and social networks is becoming more and more common in the world's legislations. It seems that the growing need to recognize the use of new technologies in everyday life has made judges appreciate electronic documents to determine whether they have the value granted by law.

In this sense, it is relevant to analyze under what regulations the evidentiary value of these electronic documents and social networks is applied, but specifically how to know if they comply with the elements of conviction according to the rules of sound criticism or as a simple indication.

What is evidence in a legal proceeding?

The evidence is a material element that allows to create an argument with which it is intended to prove the truth or falsity of a fact or a thing. But it depends on the effectiveness of those means and the debates that are carried out from its admission, which means that if it is evaluated as a logical element it can give sense to a sentence dictated by the judge.

The main characteristic, for the admission and evidentiary value of each piece of evidence submitted, is that it must remain unalterable. Otherwise, when the change or alteration is proven, it becomes inadmissible according to the judge's criteria.

Can social networks be used as evidence in legal proceedings?

In the case of Venezuela, the Law on data messages and electronic signatures is the one that establishes the legal framework for these technologies. It defines data messages as any intelligible information in electronic format that can be stored or exchanged by any means. Article 4 establishes that this type of document shall have the same evidentiary effectiveness as a written document. In addition, it is governed in accordance with the provisions for free evidence in the Code of Civil Procedure.

This is why many judges have taken statements in social networks as reliable evidence of punishable acts. Because they are valid as data messages and electronic documents, in addition to the fact that they do not violate the right to privacy due to the public nature of social networks. Because at the moment of creating a profile on the platform, and accepting the terms and conditions, the ownership of the published information is transferred.

Opinion of the Supreme Court of Justice

In this sense, the precedents that exist in the country are very clear: social networks and electronic documents have an evidentiary value. As we can see in judgment number 769, issued by the Civil Cassation Chamber of the Supreme Court of Justice, dated October 24, 2007:

"The electronic document or data message is an atypical means of proof, whose original support is contained in the database of a PC or in the company's server and it is on this that the proof must fall".

Therefore, it is understood that it can be catalogued as free evidence, since it is an instrument that comes from a computer medium, and that is recorded in a support susceptible to reproduction. So it must be considered as another document that acts as a means for its transfer to the file. And it will have the same evidentiary effectiveness attributed in the law to the copies or photostatic reproductions.

Do emails and Whatsapp messages also have probative value?

In the case of emails and Whatsapp messages, this type of data messages are not transmitted in public channels, so they involve the use of different valuation systems that determine their evidentiary status. So only the persons involved in such messages, can provide them as evidence in a judicial process, otherwise it is considered to have been obtained by unlawful means and would be excluded.

Likewise, this type of conversations can serve as evidence in a trial as long as they meet certain conditions:

1. The extraction of the information must be authorized by the judge.
2.  They must be traceable and searchable after publication.
3. They must be authenticated by a computer expert.
4. They must be complemented with other means of proof.

Evidentiary value of an electronic document

The evidence will be valid if the opposing party does not challenge it, otherwise expert evidence must be added to prove the authenticity of the data messages both email, WhatsApp and social networks. It must also be proven that the messages have been obtained lawfully, either because they were provided by the participants and that they do not violate any fundamental right such as the right to privacy, right to intimacy, data protection, among others.

Likewise, security conditions must be guaranteed to nullify any attempt to modify, transform or destroy the information. Computer forensic laboratories are therefore responsible for securing this information for use in subsequent legal proceedings, and for establishing criteria for the admissibility of this type of evidence.

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