The Civil Cassation Chamber of the Supreme Court of Justice of Colombia, in its recent Judgment STC 16733 of December 14, 2022, made important clarifications and unified criteria to determine that the WhatsApp application is indeed a digital channel through which personal service as referred to in Article 8 of Law 2213 of 2022 can be carried out.
To reach this conclusion, the Court initially recalled that there are currently two regimes for personal service:
- In-person regime developed in Articles 291 to 293 of the General Code of Procedure.
- Digital regime, provided for in Article 8 of Law 2213 of 2022.
One must always choose one of the two regimes, adapting the service to be carried out to the respective rules of the chosen regime.
Following that, the Court clarified that at no time did the legislator limit email as the only valid digital means for providing notice of judicial decisions. However, it is evident that it is the most widely used digital channel for personal service. It is for this reason that the High Court decided to officially request information from Microsoft Corporation to inquire about points such as: What can be understood by initiator in terms of data message transmission? What can be understood by acknowledgment of receipt by the initiator? When can it be understood that the initiator acknowledges receipt?
Microsoft Corporation resolved certain questions, and thus the Court concluded: by initiator one can understand the action of the user who clicks the option to send the email; by mail server, the respective entity that provides and administers it (Hotmail, Gmail, Yahoo!, Outlook, among others); by acknowledgment of receipt, the information relating to the fact that the email was received by the sender's mail server or by the recipient's mail server, which may be different from the sender's, or failing that, by the recipient of the message itself, that is, voluntarily.
Likewise, the Court concluded in its own words that email servers offer some tools that allow verifying that the email did reach the sender's server, which does not necessarily mean that it reached the recipient's server, or the latter. Thus, email servers do not offer tools that can reliably guarantee that the recipient received an email in their inbox. For this reason, it becomes necessary to resort to third-party solutions that do have the tools to certify the receipt, opening, and reading of a data message sent via email.
Therefore, requiring the active party in a proceeding (plaintiff) to prove receipt of the email in the recipient's inbox entails a complex task and constitutes a requirement that, ultimately, would force all interested parties in notifications to incur the costs of specialized certified messaging services, which is totally contrary to the legislator's intention, which is none other than to offer a swift, economical, and effective mechanism for notice, adapted to the realities that Colombian society faces today.
Taking the above into account and without a doubt, the Court, based on the technical report issued by Microsoft Corporation, highlighted the difficulties that individuals face when making personal service via email and, conversely, endowed the WhatsApp application with virtues as a suitable digital channel for carrying them out.
WhatsApp is an instant messaging application that was launched in 2009, being one of the most widely used social networks worldwide today, as an effective means of communication in social relations. Therefore, it makes no sense for such an application to be restricted in evidentiary activity aimed at determining how events occurred or how notice was given (e.g., service), since it is frequently used in the daily activities of those involved in the judicial process.
WhatsApp can be effective when making personal service to ensure knowledge of judicial decisions in order to safeguard the rights of defense and contradiction of the other party. WhatsApp does offer various tools that can allow the judge or the parties to become aware of the sending of a data message with one tick (a checkmark) or its receipt on the recipient's device with two ticks (two checkmarks).
The opposite, and which is not a matter of dispute, is the reading of the document, because not even the ticks (checkmarks) can prove the reading of the document that we have sent. But be careful, taking into account the regulations governing the matter of electronic notification, for it to be understood as completed, what must be proven is the acknowledgment of receipt and not the reading of the document, because if that were the case, the notification would depend solely on the will of the recipient.
Finally, although WhatsApp is configured as a suitable digital channel for carrying out personal service, it must absolutely comply with the legal requirements for it to be valid and effective, which are:
- It must be affirmed under the gravity of oath that the WhatsApp number provided does correspond to the one used by the person to be served.
- Explain the manner in which the provided WhatsApp number was obtained or known.
- Prove or accredit the circumstances mentioned in the preceding numerals.
To satisfy that evidentiary burden of the third numeral, there is full evidentiary freedom, and the Judge has the duty and ex officio powers to verify the suitability and effectiveness of the digital channel chosen by the person wishing to make personal service through ICTs.
Thus, given that there is full evidentiary freedom, it is essential to know how to present and introduce the respective evidence of the performance of the notification via WhatsApp in judicial proceedings, for which we will be completely happy to advise and accompany you.
Valentina Martinez. – AZC CONSULTING ATTORNEY