Agreements made via messaging apps: Telegram, email and AI as evidence in business disputes

Just a few years ago, the main evidence of agreements between companies was a contract bearing signatures and seals, whilst business correspondence served a largely supplementary role. Today, a significant proportion of commercial relations effectively takes place on a smartphone: parties agree on a price via Telegram, send technical specifications by email, confirm deadlines via voice messages and begin work even before receiving the original paper copy of the contract.

As long as the collaboration proceeds smoothly, this speed seems like an advantage; however, in the event of a dispute, digital communication becomes one of the key elements of evidence. In such cases, it is not only important whether the court accepts the relevant screenshot, but also what specific circumstances the correspondence confirms, whether its authors can be identified, whether the original data has been preserved, and whether the digital trail is consistent with other evidence in the case.

In accordance with Article 73 of the Commercial Procedure Code of Ukraine, evidence comprises any data on the basis of which the court establishes the existence or absence of circumstances substantiating the claims and defences of the parties to the case, as well as other circumstances relevant to its resolution. One form of evidence is electronic evidence.

Article 96 of the Commercial Procedure Code of Ukraine classifies this as information in electronic form, including text, multimedia and voice messages, electronic documents, photographs, video and audio recordings, web pages, metadata and other digital data. Such evidence may be stored on mobile phones, servers, in backup systems and on the internet.

Consequently, a Telegram message, an email, an audio file or a document exchange history could potentially constitute evidence. However, the very word ‘potentially’ is key. The existence of a screenshot does not in itself mean that the court will automatically accept all the claims of the party that submitted it as proven. The court examines the relevance, admissibility, authenticity and credibility of each piece of evidence and assesses it in conjunction with the other materials in the case.

In practice, a single message stating ‘yes, agreed’ may, in itself, have little evidential value. However, if it forms part of a continuous chain of correspondence, contains the name of the goods, the price, the delivery date and address, and is followed by payment, dispatch or handover of the work, its significance increases considerably. Electronic evidence is almost always stronger not in isolation, but as part of a single chain of events.

Despite their interconnection, the concepts of electronic evidence, an electronic document and an electronic contract are not synonymous. Distinguishing between them is of practical importance, as digital information may corroborate certain facts of a case, yet not constitute an electronic document or evidence the conclusion of an electronic contract.

Electronic evidence is a broad procedural category. By contrast, in accordance with Article 5 of the Law of Ukraine ‘On Electronic Documents and Electronic Document Management’, an electronic document is a document in which information is recorded in the form of electronic data, including its mandatory details.

Consequently, an electronic document may constitute electronic evidence, but not all electronic evidence is an electronic document within the meaning of the law. For example, a message on Telegram, an email, a photograph or an audio recording may corroborate the facts of a commercial dispute, even if they do not possess all the characteristics of an electronic document.

Read the full article on the ‘Yurydychna Praktyka’ website via the links below.

Oleks
andr
Kvasha
, Lawyer at Synegor Law Firm.