After three (3) years of issuing the Digital Justice Decree No. 806 of 2020, nowadays as a permanent Law No. 2213 of 2022, the use of technologies through civil proceedings still comes with some surprises.
Within a recent decision issued by the Colombian Supreme Court, judge Octavo Augusto Tejeiro, clarified several details to determine if WhatsApp could be an efficient digital channel to personally serve the defendants of a proceeding.
Law 2213 of 2022 reaffirmed that a person serving could be efficiently done through a data channel allowing barristers to avoid unnecessary rituals that are inefficient when personally serving a defendant.
So, according to the literal definition of “data message” as “information sent, received, stored or communicated by electronic means” (Law 256 of 1999) one should think that nowadays any app or platform can be used for serving a claim as they permit immediate communication.
This was the interpretation of the Colombian Supreme Court in decision No. STC1673 of December 14, 2022, as it ruled that the interpretation of article 8 of Law 2213 of 2022 does not restrict any digital channel to serve a claim, in that order claims can be served through other channels different than email.
The Court reaffirmed that, nowadays, the claimant can choose the most suitable personal notification/serving regime, that is, the party can choose between serving by data message as indicated in article 8 of the law 2213 of 2022, the party can serve in accordance with the General Process Code in its articles 291 and 292.
However, once the claimant chooses one of the regimens it is necessary to comply with all the law requirements to guarantee the defendant's fundamental right and due process and to guarantee that the act of serving is rightly executed.
In order to serve a claim WhatsApp - one of the most used applications around the globe-, the Court´s stressed some rules such as:
- Affirm under oath that the email or the phone number linked to WhatsApp belongs to the defendant.
- The claimant must inform the way that the address or number was obtained.
- Provide evidence of the way that the defendant was served.
To demonstrate the abovementioned circumstances (3.) the Supreme Court gave evidentiary freedom.
There is no doubt now that the parties have the power to choose the digital channel to communicate and serve the court´s decisions or the claim if the abovementioned requirements are accomplished and present evidence before the court.
The procedural reality shows us even more closely the reality of the parties and society and allows litigators to avoid excessive and unnecessary rituals. As an example, we can think of an informal business where only text messages are exchanged between debtor and creditor.
So, a WhatsApp message fully accomplishes the purpose of serving that has no other objective than to inform to the defendant of the existence of a proceeding.
