How to report sexual harassment in the workplace via WhatsApp?

A new tool for women to fight sexual harassment in the workplace via WhatsApp #MeToo

The situation

One of the most recent and relevant issues in Social Networks is reporting workplace sexual harassment. Just observe how often you encounter words like #metoo, and Time’s Up in the media.

Social Networks, thanks to their enormous freedom, ease of dissemination and near-absence of filters, in this case have helped amplify the voices of women who denounce, without fear, the harassment they have experienced. Like a snowball, these voices have grown over time in many countries and, as society has acknowledged the magnitude of the problem, finally women are openly reporting sexual harassment in the workplace.

Some brief history; the hashtag #metoo refers to a social movement born with the aim of denouncing sexual assault and harassment, dated October 2017, made famous by the actress Alyssa Milano; nevertheless, 10 years ago this hashtag was used for the first time by the social activist Tarana Burke.

While this movement started in the entertainment world, any woman can be a victim of this type of harassment, regardless of the sector in which she works.

Sexual harassment puts women in a very difficult position. Since the offender takes advantage of his position of power, women may feel defensless, not only because of the harassment, but also because of the fear of losing their jobs, not being promoted, being bullied in the future or being somehow blackmailed.

Often this type of harassment occurs in private communications channels such as WhatsApp, voice messages, photos and videos. A typical example can be the following: “The job can be yours, you are the perfect candidate, but let’s talk about it over dinner at my place”

Thanks to increased public attention via Social Networks and, consequently, by traditional media such as television, magazines and newspapers, a woman who suffers this type of harassment may now feel less alone and decide to denounce the harassment.

The legal point of view

Opposite to what one might think, legally, a screen-shot of WhatsApp or showing a text conversation on your Smartphone from several months ago may not be sufficient proof of sexual harassment unless these messages were sent to a group chat and the other group participants can testify to the veracity of the content and the date of the relevant messages.

Because of the various legal challenges to this type of evidence via WhatsApp, the main EU courts have become aware that they can be easily manipulated and also have no date certain, two fundamental factors for such evidence to have probative force.

As a further complication, the WhatsApp chat platform does not allow Judicial Authorities to intercept communications, as they can easily do in the traditional cases of telephone or SMS communications. This happens because the communications between the WhatsApp terminals are encrypted directly by the users’ devices and there is no copy of the transit of the encrypted messages on the WhatsApp servers (the content of a strongly encrypted communication cannot be extracted even if it is intercepted). We are therefore facing a new complex, distributed and encrypted system.

The judges of the Italian Supreme Court and of the Spanish Supreme Court have already dealt with the risk of manipulating chats, as well as other European courts. All courts have come to the same conclusion: it is not enough to prove harassment to present only evidence from the chat extrapolated from their cell phone without the intervention of a court-appointed expert.

IT – Corte di Cassazione, Sez. QUINTA PENALE, Sentenza n.49016 del 25/10/2017 (ECLI:IT:CASS:2017:49016PEN), udienza del 19/06/2017,- link qui

ES – Tribunal Supremo (nº300/2015, de 19 de mayo, ROJ: STS 2047/2015 – ECLI:ES:TS:2015:2047) –enlace oficial al Tribunal Supremo aquí

A quick, cheap and effective way of obtaining probative force for the conversations via WhatsApp from the moment messages are received is to certify the conversations by recording a video of them and sending it to an institutional certifier as soon as possible.

The protocol

The protocol to obtain from these conversations the integrity (the possibility to find out if the evidence has been manipulated), the date certain (non-posteriority), the non-priority and the certification of an institutional authority, is described as follows:

1. Get a second Smartphone or recording device ready other than the Smartphone where the relevant conversations are stored

2. Write down or memorize the main title of today’s important local or international newspaper (will be used in point 4).

3. Open the chat in the Smartphone where the relevant WhatsApp conversation is stored

4. Record a video where you introduce yourself by showing your face clearly, recite the main headline of today’s news; immediately after show the WhatsApp numbers of the senders and recipients, then scroll through the relevant conversation and end the video. Everything must be contained in a single video.

5. In the shortest possible time, certify the video with a timestamp issued by a qualified and advanced accredited EU Certification Authority.
6. Store the video and its associated certified time stamp in order to present it as evidence in court or to negotiate between the parties when needed.

Following this protocol can be used in several situations: in negotiations with the offender, in the negotiations between lawyers and to present as evidence in court.
With this procedure, a woman who is harassed has one additional tool to defend herself and exert further pressure so that future reprisals might not occur and that her evidence might not be easily invalidated or challenged in a judgment.

Conclusion

In conclusion, at this time of social changes, new tools such as the certification of WhatsApp conversations allow us to make a small contribution to the fight against these unfortunate but still so frequent cases.

Workplace sexual harassment is an extremely complex and delicate subject. With this post, we aim to protect the legitimate interests of women who experience sexual harassment, using new tools arising from the impetus of new EU laws.