Criminal proceedings, simplified acquisition of WhatsApp messages by photo

The massive spread of instant messaging applications has raised the question of the nature and, consequently, of the regime of acquisition, intake and evaluation in criminal proceedings (especially, but not only, for crimes such as stalking, revenge porn, etc.).

The Court of Cassation, in this regard, has clarified (United Sections, 11197/2023) that the Whatsapp messages stored in the memory of a mobile phone are in the nature of documents within the meaning of Article 234 of the Code of Criminal Procedure, so that their acquisition by mere photographic reproduction (screenshot) is legitimate, even by the judicial police, since neither the rules governing wiretapping nor those relating to the acquisition of correspondence (Article 254 of the Code) are applicable, since this is not a case of the interception of a flow of communications in progress, but of the mere ex post documentation of such flows.

This does not preclude the possibility of contesting, albeit in a necessarily circumstantial manner, the authenticity and, to that extent, the usability of the evidence thus gathered, where, for example, it is not admitted by the parties involved, authenticated by a public official or ascertained by means of mobile phone acquisition, as in the case of the reproduction by transcription of a recording or the forensic copy of the data extracted from the device. There is no lack, however, of recent judgments recognising the nature of correspondence, at least until the loss of the topicality requirement in relation to the interest in confidentiality (Court of Cassation, 25549/2024).