WhatsApp unreachable?

WhatsApp's terms and conditions must be accessible in German language in Germany. The Regional Court (LG) Berlin also identifies further improvements needed concerning the imprint of the messenger service.

The well-known messenger service WhatsApp offers consumers a communication programme which, inter alia, is offered for download within the company's internet presence at www.whatsapp.com. To the extent that the website is accessed in Germany, it is predominantly composed in German language. WhatsApp does not provide an imprint containing the corresponding required information, such as the naming of authorised representatives, the geographical address of the branch, the public register in which the company is registered, and a second communication channel beyond the email address. While general terms and conditions (AGB) are accessible, they are exclusively in English language. The same applies to the data protection notices.

The Consumer Centre Federation (vzbv) considered this a violation of competition law and sued before the LG Berlin following an unsuccessful warning notice. The court ultimately served the complaint including translation formally at the registered office of WhatsApp Inc. in Santa Clara, California, whereby WhatsApp Inc. refused to accept official documents. As a result, the court decided in the written preliminary proceedings by default judgment.

Court's decision

In the briefly stated grounds of the judgment dated 09.05.2014 – 15 O 44/13, the LG Berlin first stated that the complaint is deemed to have been served and that service could not be prevented by refusal to accept.

Furthermore, the court confirmed the competition law violations asserted by the Consumer Centre and ordered WhatsApp to cease and desist. Terms and conditions must be made available to consumers in a reasonable manner, the court held. This is not ensured if consumers in Germany, who are otherwise addressed by the provider in German language and of whom – as in this case – it cannot reasonably be expected that they will readily understand general terms and conditions in English (legal) language, can only access the AGB in English language.

Conclusion

US service providers must also comply with the requirements of German competition law when they offer their services to German consumers. A company headquarters outside the Federal Republic does not protect against court action, in particular also when receipt of the complaint is refused. According to the press release of the Consumer Centre, the judgment is not yet final. WhatsApp has the option of filing an objection against the default judgment. WhatsApp has not yet made any adjustment to its German internet presence. It remains to be seen whether the company will defend itself against the conviction or whether another refusal to accept service is to be expected.