THE LEGAL VALIDITY OF EMAIL/WHATSAPP EVIDENCE

1. Do transactions conducted via Email/WhatsApp have legal effect?

Answer: Yes.

Under Clause 4, Article 3 of the Law on Electronic Transactions 2023, a "data message" is defined as information created, sent, received, or stored by electronic means. According to Article 7 of the Law on Electronic Transactions 2023, the form of a data message may be expressed as electronic texts, electronic documents, electronic certificates, electronic vouchers, electronic contracts, emails, telegrams, telegraphs, faxes, and other forms of electronic data exchange as prescribed by law; or generated during a transaction or converted from paper documents.

Furthermore, according to Article 119 of the Civil Code 2015, civil transactions conducted through electronic means in the form of data messages in accordance with the law on electronic transactions are considered written transactions.

Conclusion, conducting transactions via Email/WhatsApp is recognized as a civil transaction in writing and holds legal validity, provided it satisfies the statutory conditions for the validity of a civil transaction.

2. Can Email and WhatsApp messages be considered legal evidence?

Answer: Yes.

Pursuant to Article 11 of the Law on Electronic Transactions 2023:

(i) Data messages shall be used as evidence in accordance with this Law and the law on procedures.

(ii) The evidentiary value of a data message shall be determined based on the reliability of the manner in which the data message was generated, sent, received, or stored; the manner in which the integrity of the data message was ensured and maintained; the manner in which the originator, sender, or recipient was identified; and other relevant factors.

Additionally, according to Clause 1, Article 94 of the Civil Procedure Code 2015, "electronic data" is recognized as one of the sources of evidence. Under Clause 3, Article 95 of the Civil Procedure Code 2015, electronic data messages expressed in the form of electronic data exchange, electronic vouchers, emails, telegrams, telegraphs, faxes, and other similar forms are prescribed by the law on electronic transactions.

Conclusion, Email and WhatsApp messages can fully be considered legal evidence if they satisfy the conditions for determining the value of data messages used as evidence as prescribed by law.

3. Can a data message be as valid as a written document?

Answer: Yes.

Pursuant to Article 9 of the Law on Electronic Transactions 2023:

Where the law requires information to be in writing, a data message shall be deemed to satisfy such requirement if the information contained therein is accessible and usable for reference.

Where the law requires a document to be notarized or certified, a data message shall be deemed to satisfy such requirement if it is notarized in accordance with the law on notarization; or certified in accordance with the Law on Electronic Transactions and the law on certification.

Conclusion, a data message holds the same validity as a written document if it meets the statutory requirements depending on each specific case.

4. When does an Email/WhatsApp message have the same validity as an original?

Answer:

Pursuant to Article 10 of the Law on Electronic Transactions 2023, a data message shall be used and hold the same validity as an original when it satisfies the following requirements:

(i) The integrity of the information contained in the data message is assured from the time it was first generated in its final form as a complete data message.

Information in a data message is considered integral when it remains unchanged, except for changes in form that arise during the process of sending, storing, or displaying the data message;

(ii) The information in the data message is accessible and usable in its complete form.

Conclusion, an Email/WhatsApp message is as valid as an original when it meets the conditions prescribed by law.

5. How to enhance the legal validity of Email/WhatsApp?

Answer: Several measures can be taken to enhance the legal validity of emails or WhatsApp messages:

(i) Establishing a "Vi bằng" (Bailiff's Minutes) via a Bailiff:

According to Clause 3, Article 2 of Decree 08/2020/ND-CP, a "Vi bằng" is a document recording factual events or acts directly witnessed by a Bailiff, established at the request of individuals, agencies, or organizations in accordance with this Decree.

Furthermore, under Clause 3, Article 36 of Decree 08/2020/ND-CP, a "Vi bằng" serves as a source of evidence for the Court to consider when resolving civil and administrative cases as prescribed by law; it also serves as a basis for conducting transactions between agencies, organizations, and individuals.

(ii) Utilizing Electronic Signatures:

The definition of an electronic signature under Clause 11, Article 3 of the Law on Electronic Transactions 2023 is as follows: "An electronic signature is a signature created in the form of electronic data attached to or logically associated with a data message to identify the signatory and confirm their approval of the data message."

Pursuant to Article 23 of the Law on Electronic Transactions 2023:

- An electronic signature shall not be denied legal validity solely because it is in electronic form.

- A secure dedicated electronic signature or a digital signature shall have legal validity equivalent to the handwritten signature of an individual on a paper document.

- Where the law requires a document to be certified by an agency or organization, such requirement is deemed satisfied for a data message if it is signed with a secure dedicated electronic signature or a digital signature of that agency or organization.

Conclusion, current Vietnamese law, particularly the Law on Electronic Transactions, has established a flexible legal framework for recognizing the value of electronic evidence. However, the weight of an Email or WhatsApp message does not stem merely from its existence, but from the authenticity and integrity of the data. Diligence in every message sent today is the most solid legal shield for tomorrow.