In a press release dated 17 May 2016, the Federation of German Consumer Organizations (Verbraucherzentrale Bundesverband – vzbv) announced that on 8 April 2016, the Court of Appeal Berlin (Kammergericht Berlin; “Court”) issued a judgment against WhatsApp Inc., prohibiting WhatsApp the use of English Terms & Conditions on its website for contracts with consumers in Germany, unless German T&Cs are provided as well (“Judgment”). However, the Judgment is not yet binding.
Scope of the Judgment
In the Court’s view, the fact that a complex set of contractual T&Cs is only available in English language leads to the conclusion that the whole set of contractual T&Cs shall be deemed void because of a breach of section 307(1) German Civil Code (Bürgerliches Gesetzbuch – BGB). The Court emphasized that such breach shall be given in case the T&Cs are largely incomprehensible to consumers in Germany. This shall apply in particular to difficult legal language in English, as contained in WhatsApp’s T&Cs. Further, the Court held that consumers cannot expect the T&Cs to be in English language, since the whole website is offered in German language, aimed at the German market. Therefore, the Court held that all clauses of WhatsApp’s T&Cs shall be invalid and unenforceable.
Finally, the Court ruled that WhatsApp shall provide on its website a second communication channel, in addition to WhatsApp’s (already indicated) email address. This results from section 5(1) no. 2 German Federal Telemedia Act (Telemediengesetz – TMG). In the Court’s view, the existing hyperlinks to WhatsApp’s Twitter account and Facebook page shall not be sufficient.
Although the Court has not formally admitted cassation proceedings before the Federal Supreme Court (“FSC”), WhatsApp might seek to override this decision for non-admission by filing a non-admission complaint (Nichtzulassungsbeschwerde) and then attack the Judgment before the FSC.
Impact of the Judgment
In case the Judgment becomes binding, it might have a significant impact on companies providing services vis-à-vis consumers residing in Germany. The reason is that, because of the well-known defendant, the Judgment receives particular attention across Germany. This might result in an increased number of injunctions filed by competitors or consumer organizations. Companies are called on to monitor their T&Cs and consider implementing German versions of their T&Cs.