In our age where communication technologies are developing day by day, the law is constantly renewing itself and the content of legal concepts is expanding with each technological development. One of the most important innovations brought by communication technologies is internet communication tools. The conclusive force of audio, video and text transmissions made through various means over the Internet to be a means of proof in a trial should be evaluated together with the relevant legislation and case law. In this article, we will examine the conclusive force of the correspondence made via "WhatsApp", one of the most widespread internet communication applications of today, in terms of Turkish Civil Procedure Code numbered 6100 and Supreme Court decisions.

Conclusive Force of WhatsApp Correspondence Under the Turkish Civil Procedure Code

Article 199 of the HMK (Turkish Civil Procedure Code) regulates the concept of document as follows: "Written or printed texts, deeds, drawings, plans, sketches, photographs, films, data such as video or sound recordings, data in electronic media and similar information carriers that are capable of proving the facts in dispute are documents according to this Law." So it can be said that a "Whatsapp correspondence" may be considered as a document. Whether a document qualifies as conclusive or discretionary evidence depends on the issuer, the content of the document and other elements.

In Turkish law, a "Deed" is a written document signed or irrefutably certified by a person or institution to constitute proof of a fact. Not every document is recognized as a deed in law. The basic elements of a deed are not explicitly stated in the Turkish Civil Procedure Code. In the doctrine, in order for a document to be accepted as a deed, it is required that this document must have substance, be in writing, contain a declaration of will and be signed. Pursuant to Article 205 of the HMK, ordinary promissory notes that are "acknowledged before the court" or "accepted by the court as originating from the denier" shall be deemed conclusive evidence unless proven otherwise.

WhatsApp correspondence cannot be accepted as a deed as it does not meet the specified conditions. However, such electronic and digital evidence is "prima facie evidence" in terms of proof capability. According to Article 202/2 of the HMK, the prima facie evidence is a document that, although not sufficient to prove the legal transaction in question, is given or sent by the person against whom the legal transaction is asserted or his/her representative, which shows the legal transaction in question as probable. As a result of this article, WhatsApp messages sent by the person against whom evidence is claimed may also be prima facie evidence.

Article 201 of the HMK regulates the situations which proving by deed is obligatory. Accordingly, legal transactions made for the purpose of "the birth, reduction, transfer, modification, renewal, postponement, confession and redemption of a right" must be proved by deed if their amount or value at the time of their execution exceeds the amount specified in the law. This amount is 14,800.00 Turkish Liras for 2023. Prima facie evidence constitutes an exception to the rule of proof by deed. Pursuant to Article 202/1 of the HMK, in cases where there is an obligation of proving by deed, witnesses may be heard if there is prima facie evidence. The concept of witness should be evaluated more comprehensively; the claim in question may be tried to be proved with other discretionary evidence in addition to witnesses.

In transactions that are obligatory to be proving by deed in daily life, for example, WhatsApp correspondence between the parties can be prima facie evidence in the proof of sales contracts between parties who cannot be present, and legal transaction claims can be proved by witnesses even if there is no deed.

For evidence to be considered during the trials, it must have been obtained by lawful means. According to Article 189/2 of the HMK, evidence obtained unlawfully cannot be taken into consideration by the court in proving a fact. According to the jurisprudence of the Court of Cassation, in order for a WhatsApp correspondence to be legally admissible evidence, the person who wishes to present the evidence must be a party to the correspondence and the correspondence must be recorded by the person himself/herself.

The situation is different in criminal law. Although the requirement of conformity with the law is also sought here, what is essential in a criminal proceeding is to uncover the truth of the case. For this reason, in practice, in some cases, both to reveal the truth of the case and to ease the public conscience unlawfully obtained evidence can also be evaluated. At this point, the circumstances of the concrete case must first be considered. There is also a measure for accepted illegality of the evidence in question. In the case of a very serious crime, "unlawful evidence that violates the right to privacy" may be considered. In addition, in order for this evidence to be used, the claim in question cannot be proved by a lawful evidence. -Based on this information, we can say that WhatsApp correspondence that violates the confidentiality of private life can also be considered as evidence if there is no other way to obtain evidence of the crime subject to the trial.

The Conclusive Force of WhatsApp Correspondence According to The Precedents of The Court of Cassation

According to the precedents of the Court of Cassation, WhatsApp correspondence is considered as a document under Article 199 of the HMK. The Court of Cassation stated that in order for these correspondences to be legally admissible evidence, the person presenting the evidence must be a party to the conversation and the correspondence must have been recorded by him/her, and the conversation must not be of a nature to disclose the privacy of individuals' private lives. It is also stated that these documents can be considered as the prima facie evidence.

In this case, it must be accepted that the messages relied upon by the plaintiff as evidence are documents within the meaning of Article 199 of the HMK Law No. 6100. In Article 202 of the HMK (1) In cases where there is an obligation to prove by deed, witnesses may be heard if there is a prima facie evidence. (2) A prima facie evidence is a document that, although it is not sufficient to prove the legal transaction that is the subject of the claim completely, it is a document that shows the legal transaction in question as probable and is given or sent by the person or his representative who is asserted against him." and such documents are accepted as prima facie evidence. (Court of Cassation 1. Civil Chamber, 24/11/2021, E: 2021/6703 K: 2021/7141)

WhatsApp correspondence and similar electronic evidence are not considered as direct evidence because they are not concrete enough and are open to interference. However, according to the Court of Cassation, these correspondences may also be taken as evidence if they are supported by other evidence.

The court determined that the witness statements were abstract, without specifying the place and time and were not sufficient to make a decision, and that the conversations in the audio recording presented by the plaintiff and decoded, and the data such as photographs, films, images or sound recordings in electronic media and similar information carriers can only be taken as evidence if they are supported by other evidence. (Court of Cassation 2. Civil Chamber, 25/04/2018, E: 2016/16661, K: 2018/5566)

Conclusion

WhatsApp correspondence is considered as a document under the HMK. These documents alone do not constitute direct evidence in terms of the ability to prove, but they can be taken as supporting evidence together with other evidence. According to Article 202/2 of the HMK, correspondence, which also falls within the scope of "sent document", may be considered as a prima facie evidence. Thus, in disputes where proof by deed is required, they are considered as a means of proof by the court with the help of witnesses or other evidence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.