WhatsApp must translate terms and conditions

The instant messaging service WhatsApp must provide its terms and conditions in German language on its German website. The English-language terms and conditions are non-transparent for consumers from Germany and therefore ineffective. The Berlin Court of Appeal (Kammergericht) has now confirmed this as well.

WhatsApp is hardly conceivable from everyday life anymore. Almost every smartphone user knows the messenger service. In order to use WhatsApp, however, one must first register and agree to the terms of use and the data protection notices. But have the many users taken a closer look at the terms of use? So far, WhatsApp has provided these on its German website only in English. This is an extensive set of rules in which, among other things, indemnification of WhatsApp and the exclusion of liability of the messenger service are set out.

The vzbv had criticised that the lengthy terms of use containing technical terms would be largely incomprehensible to consumers from Germany. Following an unsuccessful warning to WhatsApp, the vzbv initially brought proceedings before the Regional Court (LG) Berlin. As a result of WhatsApp's refusal to accept service of the claim, the court decided by way of default judgment (WhatsApp not reachable?).

Decision of the Court of Appeal – WhatsApp terms and conditions ineffective

At the appellate stage, the Berlin Court of Appeal (Kammergericht) has Judgment of 08.04.2016 – 5 U 156/14 confirmed that the terms and conditions provided by the messenger service on the German website in English language are ineffective.

The online presence of WhatsApp is aimed at the broad general public of consumers resident in the country and addresses them throughout in German language. The link to the terms is also designated in German language. Against this background, a consumer must not and cannot expect to be confronted here with foreign-language terms and conditions, namely a comprehensive, complex set of rules with very, very many clauses. Everyday English may be widespread, but this does not apply to legal, contractual and generally commercial English. Therefore, all clauses of this set of rules, as long as they are not translated into German, are to be assessed as non-transparent from the outset.

Furthermore, the court objected to the missing second option for quick and direct contact in addition to the stated email address. The court regarded linking to Twitter or Facebook as insufficient, since these also did not provide a means of contacting the service.

Conclusion

Even though everyday English is widespread in Germany, it cannot be expected of a consumer that they understand complex terms and conditions in English, unless they are a consumer with native English language skills or specialist language skills. If an online presence is overall clearly directed at a German audience, terms and conditions that are provided exclusively in English and without a German translation are non-transparent and therefore ineffective. The provision of ineffective terms and conditions furthermore constitutes an infringement of competition law. The Court of Appeal did not permit an appeal. However, WhatsApp may lodge a petition against the non-allowance of appeal (Nichtzulassungsbeschwerde) with the Federal Court of Justice (BGH).