This month’s contract clinic question comes from a construction manager on a housing project, worried about security issues using WhatsApp for messaging the project team. Caroline Watkins and Chris Kirby-Turner look at the risks involved.
We’re starting work on a residential project in Kent. Our employer wants us to use a WhatsApp group for communications on site – is that a good idea?
The use of instant messaging as a mainstream communication tool looks here to stay. Fast communication to multiple recipients is achieved instantaneously. Polls allow quick feedback and rapid document-sharing speeds up record sharing.
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At a day-to-day level, messaging software can be a harmless enabler of good working relations. It sits in the same lane as countless other online groups in a multitude of workplaces.
Another asset is that it creates a date-stamped record for receipt of communications for export. This can provide a useful record of the transfer of information for later analysis. Where disputes arise, often the simplest evidence can aid their resolution – a record of when a photograph or a video was shared and seen by each relevant person.
Legal problems
In the legal context, however, communication via WhatsApp has scope to be problematic. A poorly thought-out communication could creep into the territory of constituting a formal contractual notice.
Depending on who is in the group, there could easily be a blurring of the boundaries of who the contracting parties are and who bears responsibility for the issue. It risks creating uncertainty as to who communication is for. This is particularly true where it crosses the line to being a contractual notice.
The contract may specify individuals who must receive notices. If so, it is vital to check that those individuals are within the WhatsApp group.
The sheer volume of messages that flow through WhatsApp groups can mean that more important communications, or those intended to be a formal notice under the contract, simply get overlooked or their impact is diluted.
WhatsApp communication can also present a security risk. Documents sent by text can be password protected, but WhatsApp’s speed and fluidity can lead to security measures being overlooked.
There is also a lack of control as to what commercially sensitive information may be forwarded on to third parties, particularly when communicating within a wider group.
The data in WhatsApp is not controlled by any of the companies involved in the project. It’s stored individually by each user on Meta’s servers. Recent high-profile public inquiries have highlighted instances where WhatsApp messages may be routinely deleted or claimed to have become irretrievable. This could suit a party wanting to thin out available records when dealing with a dispute.
Change instructions
Should change instructions and other directions and notices be issued through the group and what are the legal implications?
Generally speaking, standard form construction contracts state that change instructions must be either made or confirmed in writing to be effective. Notices can be served by “any effective means”. It falls to the party seeking to prove notification has been made to establish that service had been effected.
Recent case law is supportive that WhatsApp messages can constitute an effective means. In Southeaster Maritime Ltd v Trafigura (2024), Mr Justice Jacobs rejected the idea that a WhatsApp communication should be disregarded as fanciful or less significant because it came via WhatsApp rather than email.
Section 15(1) of the Electronic Communications Act 2000 defines electronic communication as including email, social media, telephone, text, facsimile and websites. If a contract states that notice can be given by electronic communication, this is not restricted to notice by email.
Accepting therefore that you can use WhatsApp to accept change instructions, the question remains whether you should, given the potential consequences of doing so.
Best practice
So how best to make use of WhatsApp on a construction site?
Allowing formal notifications and notices in the mix of general day-to-day communications runs contrary to the well-established use of designated portals for larger construction projects. The benefit of those systems is that communication of formal notifications or notices is restricted to this conduit only. This creates certainty as to what are and are not formal notifications or notices under the contract.
The principle of differentiation would seem sensible to adopt on domestic projects, for the same reason. The contract can make clear what notifications and notices need to be dealt with more formally. This will help differentiate them from the day-to-day communication, for example, by requiring any change instructions to be confirmed in email.
That distinction should provide clarity for all involved and avoid the above complications and inadvertent risks, while still gaining the benefits of WhatsApp for day-to-day communications.
Caroline Watkins and Chris Kirby-Turner are partners in the Construction & Engineering team at Thomson Snell & Passmore.
