Evidence and messaging in 2021

Whenever a lawyer gives advice to a client particularly if the client has an issue with someone else, they are always thinking about evidence. How will you ever be able to rely on what was agreed, if the matter should ever come to court?

Has the client had a significant discussion on the phone? Then follow it up with an email confirming the discussion, and what was agreed. Has the client had a chat to someone about who owns the rights to some image or software (or any intellectual property) then clarify the agreement in some form of writing. It is always worth having a contemporaneous written record of what was said or agreed in almost every commercial interaction. 

For a long time now, that advice would be to send an email but technology is moving on. There is no longer any consistent way of recording a loose agreement or course of action but multiple ways. Email, text, WhatsApp, Facebook Messenger, Instagram Direct, Signal, Telegram. The list goes on. 

A question and answer in FT Money (to which I cannot link but it was 24 April 2021 ) raised the issue of fraud, as the questioner, who ran a medium sized marketing company, wanted to know what to do about an employee who was suspected of embezzling funds by way of “marketing expenses” over several years. “The Police are not interested and I need the money”.

There’s a good response from Dan Dodman, a solicitor at Goodman Derrick in the course of which he says: “Ensure emails are obtained and backed up, and ask your IT team about restoring deleted emails (they often include the best evidence of fraud)”. Which indeed they do. 

Shortly after reading that response and thinking about the ways in which a fraudster might operate in a world that supports clandestine communications, the Good Law Project succeeded in asking for detailed disclosure of WhatsApp Messages which it argued the Secretary of State for the Department of Health and Social Care should have disclosed in the ongoing proceedings about the alleged £14 billion expenditure on PPE, a substantial proportion of which was allegedly unsuitable for use by the NHS. There is no publicly available written record of the order, but the High Court Judge apparently said that the government needed to produce the messages and the Good Law Project needed to be a little clearer about precisely what they are asking for.  The Good Law Project’s review of the hearing is here.

But what if those messages are not there? WhatsApp messages can be set to disappear so it is entirely possible there is no record. Are there any restrictions on the government using disappearing message functionality? 

Then there’s Signal, another message provider operating an encrypted message service who put up an explanation last week (27 April 2021) having been served a subpoena in the United States. There’s certainly a bit of a theme here.

I am not making any judgement on the use of encryption, which has its place, but I can foresee a world in which the establishing the requisite burden of proof may be affected by the lack of any written evidence. By definition, fraudsters and others (maybe even government departments) will want to cover their tracks. Worth thinking about as we move into a world where staff are not always in the office and messaging proliferates.

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