Text messages, whatsapp voicemails and written messages, as well as those from various other social networks are recorded on our mobile phones.  The same mobile phones - like personal computers or other devices - can effortlessly be used to make recordings of phone calls, video calls or meetings.

In my work, I am frequently asked the question whether doing so is lawful and whether it can count as evidence.

The answer is unfortunately not unequivocal, both because the legislation has not been updated to take these new tools into account and because the courts give different decisions in different cases. It is really difficult to get one's bearings.

In an ongoing civil trial, I was able to use as evidence the whatsapp messages exchanged by my client with the opposing party, because the opposing lawyer did not dispute them in time.

The Criminal Court of Cassation, however, in a recent judgment, confirming previous rulings, established that "...whatsApp messages and text 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, and their acquisition by mere photographic reproduction is legitimate...".

Despite this, many judges, applying other rules, say that each judge can freely evaluate them.

Not to mention the privacy aspects. Because recording a conversation - especially relating to a work or business relationship - may also be considered valid evidence by the judge in a trial, but it could still constitute a violation of the GDPR and thus expose whoever makes the recording to significant fines. On this point, the Italian Privacy Authority would be inclined to allow it, but judges often think otherwise.

In conclusion, anyone who intentionally or social messaging captures audio or photographic messages, in any format, should ask their lawyer for an opinion on the individual case in order to make the best use of it.

Last update January 2023