WhatsApp English Language Terms and Conditions do not bind German consumers – Terms and Conditions must be in German Language, Berlin Court of Appeals rules

Dr. Marcus Dittmann (Lawyer)

Last updated 1 June 2016

The Berlin Court of Appeals has ruled that WhatsApp’s Terms and Conditions do not bind German consumers, as long as they are available only in English and as long as there is no German version or translation (Kammergericht, Urteil vom 08.04.2016, Az. 5 U 156/14, link to the full decision on the Verbraucherzentrale website).

The law suit against WhatsApp Inc., based in California, was brought before the local German court in Berlin (Landgericht Berlin = Berlin District Court) in 2013 by the Verbraucherzentrale Bundesverband, an important German consumer protection organization. The organization alleged that the fact that WhatsApp was providing its services to German users while having its terms and conditions only in English constituted a violation of German consumer rights.

Under German civil law, there is a rule that standard terms and conditions which companies use in their relationship to consumers (B2C) and, to a lesser extent, other business partners even in a B2B situation, are subject to judicial review for fairness and reasonableness (sections 305 ff. German Civil Code).

One statutory requirement is that contract terms and conditions which are used as a standard must be ‘clear and comprehensible’ (section 307 subsection 1 German Civil Code).

The court held that terms and conditions which are available only in English, let alone if they are complex and long such as typical terms and conditions tend to be, do not meet this test when seen through the eyes of a typical German consumer. While that court admitted that nowadays, some English language skills may be found with many consumers (for better or for worse), the average consumer could under no circumstances be expected to be able to read let alone comprehend long and complicated English language legal texts, contracts und terms and conditions such as the WhatsApp terms and conditions in this case.

Therefore, in effect, according to the statutory rule found in the German Civil Code, such English language terms and conditions do not become incorporated into the contractual relationship between the company and the end user. In effect, regardless of what they may otherwise contain, they become invalid under German law, as a whole.

The court assumed its jurisdiction over the case on the basis that WhatsApp was specifically targeting the German market, in that it provided a German language website and interface, therefore opening itself up to the jurisdiction of the German courts.

In a separate item of the ruling, the court further held that a company, including an international company, that provides its services (also) to German customers and specifically addresses the German market, must provide contact information on its website or platform that not only identifies the company and its postal address, but also at least two separate ways of direct contact. Just having an email contact address is not enough. A link to the company’s social media account on Twitter, Facebook, Google plus etc. also is not enough. In effect, for a company to comply with German laws, it must provide detailed contact information on its website including postal address (which does not need to be in Germany, though), an email address and also at least one more channel of direct communication such as a telephone or fax number.

The decision is final. An appeal to the German Federal Court of Justice (Bundesgerichtshof, BGH, the highest appelate court in Germany for civil cases), while possible in theory, was not granted.

This German court decision, while in theory only binding to the parties of this particular case, sets and important precedent which will likely be observed by other courts throughout Germany.

This German court decision means in effect that international companies offering their services to German consumers must translate their terms and conditions into German Language. Failing to do so may lead to (a) the terms and conditions being held invalid and unenforceable against German users and (b) the international company being subjected to cease and desist letters and, possibly, injunctions and other court actions from competitors and consumer protection organizations under German consumer protection and competition laws.

In the light of this ruling, it is highly advisable that international companies seeking to offer their online and mobile services and products to German customers, addressing the German market, make sure to have a German language version of their user terms and conditions, preferably compliant with all other relevant aspects of German law.

If you have any questions please feel free to contact:

Dr. Marcus Dittmann