On 20 July 2016, a court in Brazil temporarily blocked access to WhatsApp on the basis that its owner, Facebook, had shown “total disrespect for Brazilian laws." Hours later, the decision was overturned by Brazil’s Supreme Court for being “scarcely reasonable or proportional."
Communicating through online services other than email and SMS is on the rise, and for many people, it is now the norm. WhatsApp, owned by Facebook Inc, is a service used by 1 billion people worldwide, with 2.4 million users in Australia. Facebook itself has 1.65 billion users, with more than 900 million users on its own Messenger service.
This month’s ban on WhatsApp marks the third time such a ban has occurred in Brazil – the longest being in place for 72 hours. This most recent ban arose from Facebook’s refusal to provide chat logs from WhatsApp related to a criminal investigation. Facebook declined to provide the requested chat logs because it claimed not to have access to WhatsApp users’ messages.
WhatsApp's end-to-end encryption ensures that only its customer and the person its customer is communicating with can read a message. Nobody in between, not even WhatsApp, can access that message. End-to-end encryption means that encrypted communications are only decipherable when viewed on the recipient’s device. Therefore, only those with access to the recipient’s device can see the message in readable form.
End-to-end encryption is now the only way to communicate using WhatsApp – that is, you cannot opt in or out. WhatsApp describes its service in its Privacy Notice as follows:
Users type their messages, which are sent via data service to our servers, and routed to the intended recipient (who must also be a WhatsApp user), if that recipient is online. If the recipient is not online, the undelivered message is held in WhatsApp’s server until it can be delivered. If the message is undelivered for thirty (30) days, the undelivered message is deleted from our servers. Once a message has been delivered, it no longer resides on our servers. The contents of any delivered messages are not kept or retained by WhatsApp — the only records of the content of any delivered messages reside directly on the sender’s and recipient’s mobile devices (and which may be deleted at the user’s option)…
Files that are sent through the WhatsApp Service will reside on our servers after delivery for a short period of time, but are deleted and stripped of any identifiable information within a short period of time in accordance with our general retention policies.
In July 2016, it was reported that Facebook began testing end-to-end encryption on Messenger and will be rolling out the encryption technology soon. It is possible that other online messaging services will also implement end-to-end encryption as a default on their services. If this is the way the market is moving, it may be that free email service providers start to do the same.
From an Australian perspective, the use of end-to-end encryption represents a real risk for preserving, obtaining and presenting evidence of communications.
Ordinarily, where it is suspected that evidence in digital form existed but has not been discovered by a party, it is possible to obtain that evidence by obtaining a court order for production against a third party who holds that information. For example, in the case of email accounts, a subpoena may be issued to the service provider for all emails kept on its servers for a particular email address.
Legislative reforms aimed at WhatsApp and other encrypted messaging services are being debated overseas, primarily in the context of national security issues. It remains to be seen how Australian courts will respond to the rise of these services and their impact on the evidentiary process. We will watch any such developments with keen interest.
Insight
What's Wrong with WhatsApp?
A court in Brazil temporarily blocked access to WhatsApp on the basis that its owner had shown “total disrespect for Brazilian laws." What happens now?
Related Articles
Is it Illegal to Use a Smartphone App to 'TapeACall?’
by Richard Leder
Is it a problem to use an app on your phone, such as TapeACall or Automatic Call Recorder, to record a call?
Unveiling the 2025 Best Lawyers Editions in Brazil, Mexico, Portugal and South Africa
by Jennifer Verta
Best Lawyers celebrates the finest in law, reaffirming its commitment to the global legal community.
Best Lawyers Expands 2024 Brazilian Awards
by Best Lawyers
Best Lawyers is honored to announce the 14th edition of The Best Lawyers in Brazil™ and the first edition of Best Lawyers: Ones to Watch in Brazil™.
The Best Lawyers in Brazil™ 2022
by Best Lawyers
The results include an elite field of top lawyers and firms.
Facebook Whistleblower Testimony Shines A Light On Credibility Factor
by Justin Smulison
Landmark whistleblower testimony was provided on Capitol Hill which may have a national—and even worldwide—effect on how governments regulate Big Tech companies.
Summer Voting Season Is Here!
by Best Lawyers
Summer 2021 voting is open to all lawyers listed in Best Lawyers in Chile, Colombia, Peru, Brazil, Mexico, Portugal, South Africa and Spain.
Announcing the 2021 Best Lawyers in Brazil
by Best Lawyers
Featuring the top firms and lawyers in Brazil.
Internet Speech in the Crosshairs
by Ari Holtzblatt and Jamie Gorelick
Charges of anti-right bias notwithstanding, online platforms are on solid ground when they defend their policies and procedures as neutral and protected by the First Amendment.
ACLU Says Facebook's Targeted Advertising Is Discriminatory
by Donald L. Sapir
By letting advertisers target men in job postings, Facebook may be contributing to gendered discrimination.
In the News Weekly Roundup: Facebook's Free Speech Controversy
by Best Lawyers
Recent news from Best Lawyers listed lawyers and firms. New hires at Akerman and King & Spalding, and a win for Greenberg Traurig.
Q&A with Ricardo Coelho and Júlio César Bueno of 2018 Brazilian “Law Firm of the Year” Pinheiro Neto Advogados’ Project Finance and Development Practice
by Best Lawyers
Can you tell me about the characteristics that make up your law firm and the project finance in development practice that led to being recognized as a “Law Firm of the Year”?
Paris Agreement on Climate Change: Overview and Update
by Beatriz Paulo de Frontin and Márcio Pereira
An overview of the Paris Climate Agreement.
Trending Articles
2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.
by Jennifer Verta
Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.
Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence
by Jennifer Verta
Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.
Legal Distinction on Display: 15th Edition of The Best Lawyers in France™
by Best Lawyers
The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.
Presenting the 2025 Best Lawyers Editions in Chile, Colombia, Peru and Puerto Rico
by Jennifer Verta
Celebrating top legal professionals in South America and the Caribbean.
Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom
by Best Lawyers
Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.
Unveiling the 2025 Best Lawyers Editions in Brazil, Mexico, Portugal and South Africa
by Jennifer Verta
Best Lawyers celebrates the finest in law, reaffirming its commitment to the global legal community.
Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform
by Jennifer Verta
Explore how Prop 36 could shape California's sentencing laws and justice reform.
Announcing the 16th Edition of the Best Lawyers in Germany Rankings
by Best Lawyers
Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.
Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™
by Best Lawyers
Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.
Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot
by Gregory Sirico
Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.
Find the Best Lawyers for Your Needs
by Jennifer Verta
Discover how Best Lawyers simplifies the attorney search process.
Key Developments and Trends in U.S. Commercial Litigation
by Justin Smulison
Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.
Woman on a Mission
by Rebecca Blackwell
Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.
Best Lawyers Celebrates Women in the Law: Ninth Edition
by Alliccia Odeyemi
Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.
