From 'think before you speak’ to 'think before you WhatsApp': the validity of WhatsApp and other electronic messages as evidence before Dubai courts

Samer Abou Said
The Firm, Dubai
samer.as@thefirmdubai.com

WhatsApp becoming quintessential

The author of this article, and probably many of his peers working in the Middle East, genuinely attempt to avoid using instant messaging mobile applications in the course of their communication with clients, and to limit such communication to more formal channels such as email – to no avail. Time and again my battle is lost: the client may slip you on WhatsApp a reminder, a document, a contract, important information…you name it. Colleagues create a WhatsApp group to become the de-facto forum for back channeling or completing a deal. In some instances, WhatsApp has even overtaken email as the default mode of communication. 

The current era of technology and reachable-everywhere-and-anytime lawyers imposed its rules. This wide adoption of instant messaging in some of the Middle East jurisdictions, including the UAE, has been encouraged and regularized by legislation and court decisions that afforded validity and evidentiary weight to instant messaging and electronic communications on equal footing with conventional means of communication and written documentation.  

The UAE’s leadership in advancing electronic transactions in the MENA region

The United Arab Emirates has led the path in the MENA region to the adoption and legalization of electronic transactions and electronic evidence. Majority of UAE courts are now paperless, with court proceedings and hearings conducted online. The Dubai Land Department, for instance, processes daily real estate transactions north of USD 500,000,000 all executed electronically.  

Two key legislations govern the validity of electronic transactions and their evidentiary value:

1.    Federal Decree by Law No. (46) of 2021 on Electronic Transactions and Trust Services, which comprehensively addresses electronic transactions, signatures, documents, document retention, and service provider requirements.

2.    Federal Decree by Law No. (35) of 2022 Promulgating the Law of Evidence in Civil and Commercial Transactions, which includes a dedicated chapter on electronic evidence.

Both laws overlap in asserting that electronic evidence holds the same weight as written evidence, provided certain legal conditions are met. 

While signing and exchanging legally binding documents through email has long been accepted, the situation was unclear with respect to instant messaging applications such as WhatsApp, in particular where a relationship arose without a prior formal contract. 
Under UAE Civil Transactions Law, a contract is an offer met with acceptance. In general, with some exceptions, no specific form is required for the formation of contracts. 

Dubai Courts recognise WhatsApp messages as binding contracts

The Dubai Court of Cassation recently delivered a remarkable judgment (Cassation No. 468 for year 2024 Civil) that provided an unusually detailed analysis of the conditions of validity for electronic evidence. In this case, two individuals exchanged messages on WhatsApp regarding a USD 400,000 loan, without sharing a signed contract, nor formal documentation. In spite of these circumstances, the court ruled that this exchange constituted a valid contractual agreement, treating it as equivalent to a physically signed contract.
This decision is significant because it emphasises that the mere exchange of conversations over WhatsApp, regardless of whether they contain any files or copies of the contract, can nevertheless establish the existence of a contractual agreement, on equal footing with written evidence that bears physical signature of parties. 

The ruling emphasises that the medium of communication – whether WhatsApp, email, or another electronic platform – must meet the conditions outlined in the Evidence Law. A key factor is the ability to verify the identity of the person bound by the agreement. In this case, the borrower did not deny the authenticity of the WhatsApp messages exchanged with the lender but contested the existence of a loan. However, since the borrower acknowledged sending the messages, the court concluded that the identity of the sender was confirmed.

It is worth noting here that, in the UAE, mobile numbers are used to notify a person of legal proceedings. Further, individuals through their mobile numbers assigned to them by telecommunications providers in the UAE can execute government transactions and applications. This makes it relatively easy for courts to ascertain that a certain mobile number belongs to a certain individual. In the context of judicial proceedings, this is normally done through court-issued letters to the relevant governmental authorities to inquire about the identity of the person using the mobile number. 

Additionally, the court clarified that a party cannot dispute the authenticity of an extracted copy of an email or WhatsApp message by demanding the original document – a common defence in Dubai Courts known as 'جحد' (jahed). The court ruled that a WhatsApp message in its extracted form is considered the original, and the only permissible challenge is a claim of forgery. 

WhatsApp as evidence in personal status cases: 'Ur divorced starting today'

Another anecdotal yet judicial evidence of Dubai Courts' adoption of electronic evidence is demonstrated in Cassation No. 451 for year 2021 Personal Status. The court upheld a divorce initiated through a brief WhatsApp message: 'Ur divorced starting today.' Despite the husband’s argument that the message was impulsive and not intended as a formal divorce declaration, the court ruled that the message constituted a valid pronouncement of divorce.

Conclusion

These precedents underscore Dubai Courts commitment to recognising electronic transactions and communications as legally binding in today’s era, where new generations see everything through the easy reach of mobile applications. It also serves as a cautionary reminder that casual exchanges on instant messaging platforms can carry significant legal consequences. As such, it may be time to update the old adage 'think before you speak' to 'think before you WhatsApp'.

Contents of this article are for general informational purposes only. It is not intended as professional advice and should not be used as such.