Some of us may be aware of the instant messenger application WhatsApp's new feature- disappearing messages.

The feature has created a new legal challenge on the back of the recent decision, which recognises contracts concluded on WhatsApp as legally binding. How do we provide the existence or contractual terms of the agreement if the messages have disappeared?

The introduction of the Electronic Communications and Transactions Act 25 of 2002, as amended, has been a  positive step towards recognising contracts as legally binding, which may have been seen as invalid in the past.

Electronic Communications And Transactions Act 25 Of 2002 (“ECTA”)

The first significant development was seen with ECTA, confirming that data messages can be seen as legally binding obligations.

Section 11 of the ECTA, in particular, provides that information is not without legal force and effect simply because it is in the form of a data message.

Furthermore, Section 22 of the ECTA confirms that agreements formed from data messages have legal effects. It also provides that contracts are concluded at the time when and the place where, the person making the offer receives acceptance.

Section 24 also provides that the intention to conclude the agreement can still be ascertained from data messages.

If one looks at Section 14 of ECTA, it states:

“14. (1) Where a law requires information to be presented or retained in its original form, that requirement is met by a data message if-

the integrity of the information from the time when it was first generated in its final form as a data message or otherwise has passed assessment in terms of subsection (2); and that information is capable of being displayed or produced to the person to whom it is to be presented.”

These sections provide the starting point from which it may be argued that data messages constitute a contract. In the case of disappearing messages however, an extra level of “diligence” may be required in order to protect a contracting party’s interests.

Screenshots

Screenshots can be used, if it was taken. However, a major issue presents itself with screenshots, as they can easily be faked. Therefore, a digital forensic expert should be consulted to confirm if a screenshot is fake or real. 

Contacting WhatsApp

You could always go through the legal channels and contact WhatsApp.

According to WhatsApp’s Policy:

“Unless we receive a valid preservation request before a user deletes that data from our service, we do not retain it for law enforcement purposes. Our service does not store messages once they are delivered or transaction logs after they have been delivered; as a general rule, WhatsApp does not store messages once they are delivered.”

Upon further enquiry to WhatsApp with regards to being able to retrieve disappearing messages for evidence, the following response was received:

“We access, preserve, and share your information described in the "Information We Collect" section of this Privacy Policy [above] if we have a good-faith belief that it is necessary to: (a) respond pursuant to applicable law or regulations, legal process, or government requests; (b) enforce our Terms and any other applicable terms and policies, including for investigations of potential violations; (c) detect, investigate, prevent, or address fraud and other illegal activity or security and technical issues; or (d) protect the rights, property, and safety of our users, WhatsApp, the other Meta Companies4,  or others, including to prevent death or imminent bodily harm.”

As you may see, it would be a long shot to receive such data messages from WhatsApp. However, it remains an option.

Conclusion

It is easy to conclude agreements on social media platforms, especially WhatsApp. However, with the disappearing messages feature, you face the possibility of not being able to prove that such a contract existed. If you have to contract through WhatsApp, save the messages or confirm them in an email. 

Written by Kavita Kooverjee, Labour and Social Media Legal Expert, SchoemanLaw