Digital evidence in civil procedure: validity, nullities, and the limits of screenshots

Abstract

This article examines the regime of nullities in Brazilian civil procedure in light of the increasing use of digital evidence, particularly from social networks and messaging applications. It is based on the premise that technological transformation requires a reinterpretation of classical evidentiary concepts, especially regarding admissibility and evaluation. Initially, the evidentiary model of the 2015 Brazilian Code of Civil Procedure is analyzed, emphasizing freedom of evidence, rational persuasion, and the instrumental nature of procedural forms. Within this framework, atypical means of proof, including digital evidence, are considered admissible if lawful. The study then addresses the specific characteristics of digital evidence, such as its volatility and susceptibility to manipulation, acknowledging the challenges related to authenticity and integrity. Nevertheless, it argues that these limitations do not justify the automatic exclusion of such evidence. Regarding screenshots, the article supports their admissibility, leaving their probative value to be assessed in conjunction with the overall evidentiary framework. Notarial acts are presented as tools to enhance authenticity, but not as mandatory requirements for validity. As for nullities, the article reaffirms the principle of harm, according to which nullification requires proof of actual procedural damage. Therefore, the absence of specific formalities does not automatically invalidate digital evidence. The chain of custody is treated as a criterion for evidentiary evaluation rather than admissibility. Its absence may reduce evidentiary weight but does not, by itself, render the evidence invalid. Finally, the article concludes that nullity of digital evidence should be exceptional, with irregularities generally affecting evidentiary weight rather than admissibility, ensuring both procedural effectiveness and legal certainty in a digital context.