Instant messaging applications are part of any Brazilian's routine, with WhatsApp being the most widely used platform in the world. Since its creation in 2009, the application has ceased to be a mere platform for informal communication, of banal day-to-day conversations, coming to be used by many companies as a working tool. It is not uncommon for us to see job demands, meetings being scheduled, and even crucial relationship issues – such as admission and termination processes – resolved in exchanged messages from the application.
In view of the informality of many working relationships, these messages end up becoming the only means of proving matters dealt with between the worker and his employer. Therefore, many question the possibility of using audios or conversations extracted from the WhatsApp application as a means of proof in the Labor Court.
However, the question is not easy.
The Federal Constitution (art. 5, item LVI), the Consolidation of Labor Laws – CLT (art. 818) and the Code of Civil Procedure (art. 369 et al.) are clear in establishing that 'all means of proof' will be accepted, provided that obtained by lawful.
Thus, although it is an atypical evidence, not usually adopted (such as documentary, witness or expert evidence), the legal system accepts the so-called 'technological evidence' in the conviction of the judgment, ensuring the broad defense and the contradictory.
The Superior Labor Court has not yet dealt with the matter, but several Regional Labor Courts have already expressed their understanding of the lawfulness of the use of audios and messages sent by WhatsApp as evidence, as demonstrated by the court below transcribed:
PROOF. LAWFULNESS. AUDIOS SENT BY WHATSAPP. The use of recording or recording of conversation by telephone by one of the participants, even without the knowledge of the other, is a lawful means of proof. This understanding, related to telephone conversations, also applies to new communication tools, such as messages and audios sent by applications such as WhatsApp, so that there is no fence to the use of the content by one of the interlocutors as evidence in court proceedings. (TRT-3 – RO: 00101270420195030137 MG 0010127-04.2019.5.03.0137, Rapporteur: Cesar Machado, Trial Date: 10/22/2020, Sixth Class, Publication Date: 10/26/2020.)
The Regional Labor Court of the 2nd Region, the largest labor court in the country in terms of structure and procedural volume, published a video on its YouTube page where it records the use of the application not only for the production of evidence, but also for judicial agreements and even for subpoenas of the parties, further evidencing the insertion of this technological platform in the reality of the Judiciary[1].
However, another strong current of jurisprudence does not consider reliable the information extracted from exchanges of messages in the application, because it understands that its use can only be made by judicial authorization, under penalty of violation of intimacy, guaranteed in Article 5, item X, of the Federal Constitution.
The Superior Court of Justice (STJ) maintains a firm understanding that the lawfulness of evidence obtained directly from telephone devices depends on prior authorization[2].
And even if one questions about the security of this information, whether by the possibility of being altered, suppressed or removed messages from the context in which they were produced, we highlight the existence of companies specialized in the registration of evidence of conversations in digital media. Adopting forensic practices for technical mirroring and auditability of the evidence, it is guaranteed by observing international safety standards the registration of the facts as occurred.
In addition, the Notarial Ata in notary is another important form that guarantees the validity of the evidence, since one of the parties involved personally appears before a notary to attest to the factual reality of the information contained in the application.
WhatsApp itself ensures the privacy and security of the application by using the Signal end-to-end encryption protocol, which 'ensures that only you and the person you are communicating with can read or listen to the messages exchanged. No one else will have access to them, not even WhatsApp[3]'
Even in the face of caveats, it is possible to use messages exchanged by the WhatsApp application as a means of proof in the Labor Court if its obtaining has been obtained by lawful means and provided that they directly mirror the context in which they were created, without exclusions or changes that call into check its suitability.
[1] https://www.youtube.com/watch?v=EkP4yLLBhE0
[2]https://jurisprudencia.s3.amazonaws.com/STJ/attachments/STJ_RHC_73998_baf52.pdf?AWSAccessKeyId=AKIARMMD5JEAD4VJ344N&Expires=1616095307&Signature=lSujDuAQZlm51nKIoOxkbzZp1mY%3D
[3] https://faq.whatsapp.com/general/security-and-privacy/end-to-end-encryption/?lang=pt_br