6/7/2021
In an appellate decision rendered on the Habeas Corpus 641.877 / SC and handed down on 03/15/2020, the 5th Panel of the Superior Court of Justice (“STJ”) understood that summons through WhatsApp are applicable.
The decision analyzed the possibility of the process server obtaining the identity of the recipient, by means of the app of sharing text and image files.
According to the decision, it is indispensable to regard three essential elements, namely: (i) the telephone number; (ii) the written confirmation and (iii) the defendant’s individual photo. Once the aforementioned elements are fulfilled, the summons may be presumed as valid.
In the case under analysis, one of the requirements was not met, namely, the verification of individual photograph. And, for this reason, the service of process via Whatsapp was considered null.
However, the possibility of using the aforementioned text message app was emphasized, provided that sufficient measures are taken to mitigate the risks regarding the authenticity of the recipient.
In the civil sphere, the precedent above was used by the TJSP in a recent decision rendered in an appeal against action for support order. In it, the TJSP authorized the summons through electronic mail and WhatsApp, following the precedent of the STJ.
The above understandings are important precedentes in the pandemic context, with regard to valid summons by alternative means, especially in those cases in which the defendants are companies that are currently in remote work regime. Due to the fact that the attempts to make the service of process via post office or through the diligence of the process server may be ineffective, it is possible to consider the use of this alternative means by State Courts, including in business conflicts.
It should be noted, however, that, although summons by electronic means is an instrument in favor of procedural speed, it should be noted that it must be adopted with caution, so it does not threaten legal certainty in our sistem, given the generality of the elements of authenticity to be considered.
Coauthors: Debora Carvalho dos Santos and Ulisses Simões da Silva
