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
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
"It is an important message to other international
companies that the millions of German users of WhatsApp will not
language," said Klaus Müller, Executive Director of
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.
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