WhatsApp Screenshots, a Tainted Certificate and the One-Year Clock for Libel

The provision and its limits. Order VII Rule 11(d) permits rejection where the suit appears from the statement in the plaint to be barred by any law. The words 'appears from the statement in the plaint' are decisive: the court looks only at the plaint and the documents filed with it, not at the written statement or the defendant's affidavits, and the plaint is to be read as a whole and in a practical, not a pedantic, spirit.

The period of limitation. A suit for compensation for libel is governed by Article 75 of the Schedule to the Limitation Act, 1963, which prescribes one year. Limitation runs from the publication, because the wrong is complete when the defamatory matter reaches a third person. On the footing that the publication was on 12.02.2023, the suit filed on 04.03.2024 is late by twenty-one days, and the legal notice of 15.01.2024 does not extend the statutory period; a demand is not a step in a legal proceeding and cannot add to the time allowed by law.

Does the plaint show the bar on its own showing? No. The plaint pleads that the message remained visible and accessible to the members of the group until its deletion on 20.03.2023, and computes limitation from that date, from which the suit is within one year. Whether that plea is sound is a question of law and fact – whether each display of a defamatory post to a member who accesses it is a fresh publication, distinct from the original posting, is a question on which the law has not stood still. The court cannot resolve that at the threshold without evidence about the settings of the group, the deletion and the manner of dissemination.

Order. The application under Rule 11(d) is dismissed, with the observation that the plea of limitation is not thrown out but is tried. Using the discretion under Order XIV Rule 2, I would treat limitation as a preliminary issue of law if it can be decided without evidence; failing that, it will be tried as an issue along with the rest, and the defendant's right to raise it in the written statement is preserved.

The statutory requirement. Section 63 of the Adhiniyam, like Section 65-B(4) of the Evidence Act before it, requires that when an electronic record is produced as evidence of its contents, it be accompanied by a certificate in the form prescribed in the Schedule, identifying the record, describing the manner of its production, giving the particulars of the device, of the application and of the safeguards, and signed by the person in charge of the device and by an expert, in the two parts contemplated by the Schedule.

What the plaintiff has produced. The certificate is signed only by the plaintiff's son. It identifies the phone and asserts that the printouts are true copies. It contains no expert's part, and it does not conform to the prescribed form. On that material the certificate is defective.

Is the defect fatal? Two points of substance. First, the requirement of a certificate applies to a computer output produced in lieu of the original electronic record; where the device itself is produced in court and the person who operated it is examined, the original is before the court and the certificate ceases to be indispensable, though it remains prudent to file one. Second, the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal held that the certificate is mandatory, but also that it may be produced at any stage before the trial is concluded, on such terms as the court considers just, and that its late production is not to be visited by exclusion of otherwise reliable evidence. The defect is curable, and the court should lean towards cure where no prejudice is caused to the opponent.

The interested-party objection. That the certifier is the plaintiff's son does not make the certificate void; it goes to its weight. The certificate is proof of the process of production, not of the truth of what the chat says, and it does not dispel the separate question of authorship.

Order. The application for exclusion is dismissed, subject to conditions: the plaintiff shall, within four weeks, file a certificate in the prescribed two-part form, obtain the expert's part, and produce the mobile phone in court at the hearing of the application for marking, so that the device may be inspected and, if necessary, the relevant portions examined through a competent witness. Costs of the application are awarded to the defendant.

Separating the two issues. The certificate settles the question whether the printout is a true reproduction of what was stored on the device. It says nothing about whether the defendant authored the message. Authorship is a separate issue of fact which the plaintiff must prove on the preponderance of probabilities, and the burden lies on him throughout.

What the evidence must establish. Three links must be forged: that the message existed in the group; that it originated from the defendant's account; and that the account was under the defendant's control at that moment. The screenshots establish the first and, if the sender's number matches the one registered to the defendant, suggest the second. They do not establish the third, because a phone can be lent, stolen or misused, and a message can be posted by anyone holding an unlocked device.

What the court will look for. The testimony of the group administrator or of other members who read the post at the time; the defendant's conduct on being confronted, including the reply to the legal notice, which often reveals whether he owned or disputed the post; the metadata of the device; and, where relevant, an adverse inference under Section 119 of the Adhiniyam (formerly Section 114, illustration (g), of the Evidence Act) if the defendant withholds the phone or the account records in the face of a specific assertion. No such inference arises unless the party withholds evidence that it was in a position to produce and that would have been decisive.

Weighing the defence. The bare possibility that someone else may have used the phone is not enough; a defence must be founded on material and must be consistent with the probabilities. If the defendant does no more than suggest a possibility while refusing to produce the device, the suggestion will be weighed and, if it remains unsupported, rejected. If, on the other hand, he shows that the phone was lost or in another's possession on 12.02.2023, the plaintiff's case on authorship fails.

Recording the finding. The judgment should deal with the certificate's sufficiency, the authorship, and the plea of justification separately, and should record that an electronic record, once admitted, is not for that reason presumed true; its weight depends on the trustworthiness of the process by which it was produced.