This is the opinion of the 5th Criminal Chamber of the Italian Supreme Court in its decision n. 49016 of October 25th, 2017, where it analyze the issues relating to the role whatsapp conversation can play in trials.

In the specific case, the defendant indicted for the crime of stalking – ex article 612-bis c.p. – perpetrated against his ex-girlfriend, appealed to the Supreme Court denouncing that the Court of Appeal omitted to consider the  transcripts of the alleged whatsapp conversations – of tender nature according to his view; moreover, the texts could have also revealed the untrustworthiness of the victim who always declared in Court that their romantic liaison was over.

Requested to decide, the Italian Supreme Court confirmed the decision of the Court of Appeal by deciding that the transcriptions could not be used for proof.

More specifically the Supreme Court explained that the transcriptions of such conversations certainly is a mean of recording and that one party can use them to satisfy the burden of proof since, in consideration of their nature of documentary evidence – in fact, article 234, para. 1, of the Italian Criminal Procedure Code consent to make use of documents, describing people through photographs, videos and audios and any other means- but the Court also clarified that “the possibility to make use of it is conditioned to the acquisition of the material device [...] containing the specific recording, since the copy is nothing more than a simple copy reproducing the content of the real documentary evidence” […] “this principle descends from the fact that the procedure of assessing the paternity and the reliability of the document cannot be made without the device”.

The reasoning of the Court is founded on the frailty of IT evidences - and the high risks of modification, manipulation and damage they suffer in reason of both the intention and the negligence of investigators – is oriented to guarantee the conformity to the originals.

The decision at hand, relating to an app which is known worldwide, apart from drawing the media attention , has an incredible importance for the field of Digital Forensics and for its aim of identifying, collecting, protect and evaluate – in the aim of acquiring evidences – the information contained in computers, mobile devices (portable phones, smart-phones, tablets) and IT systems in general.