WhatsApp is illegal, so suggest some headlines currently. What is the court ruling about this Facebook messenger, is one really committing an offense by using it and could a warning wave be coming our way?
Messaging apps are gaining more and more importance, even in MMOs. After all, this way you can continue to participate in guild life even when you are not online. And even WhatsApp groups are common nowadays for multiplayer games and guild activities. For a spontaneous action, a message via WhatsApp is enough, and the first ones come online, even though they were not in the game before. For cancellations, for example for planned raids, the service is also suitable.
If everyone in the group uses this program, one will probably just install it unless privacy is a concern. That one could be committing an offense by downloading and using it is something one really does not expect. Should we all quickly uninstall the messenger to avoid a warning wave, like the one known from file sharing?
Situation regarding the court ruling: A dispute between parents
How did this ruling actually come about? It was about a custody dispute, or specifically about visitation rights. The father accused the mother of failing to supervise the smartphone use. The son himself used WhatsApp and thus agreed to the following terms of service clause :
You regularly provide us with the phone numbers of WhatsApp users and your other contacts in your mobile phone address book. You confirm that you are authorized to provide us with such phone numbers so that we can provide our services.
Since the child has 20 contacts in the WhatsApp address book, he thus forwarded the phone numbers of 20 people to Facebook. The father believed this to be illegal, as the son never obtained permission from those individuals. And the mother allowed her common child to act unlawfully. For children under 13, parents or guardians must agree to the terms of WhatsApp. Based on this, the man sought visitation rights.
The district court supported this argument. In addition to several other requirements for the mother, it demanded the submission of written consent from all of the son’s contacts to share their phone numbers. The ruling states:
Anyone who allows this ongoing data transfer through their use of “WhatsApp” without having previously obtained permission from each of their contacts in their own phone address book commits a tort against these persons and risks being warned by the affected individuals.
This shifts WhatsApp’s responsibility onto the user. And who has the authorization of their phone book contacts to share their data? If one does not have it, but confirms this terms of service clause, they are acting unlawfully.
Is a warning wave imminent?
According to the ruling, it is indeed possible. Nevertheless, it is unlikely that users of this app will receive a letter from a lawyer. After all, it is their own contacts and thus friends who would have to take this route. There may be isolated cases, but not to the same extent as with file sharing. Much more likely is that WhatsApp will receive warning letters from data protectors.
Antares says: We have here a ruling that perhaps not everyone may feel is fair. After all, it is not the corporation that caused this that is being punished, but a mother whose son certainly did not intend to break the law. Can it really be that the consumer is punished and the company gets off scot-free? That would certainly be an incentive for other companies to do likewise.
The ruling is not binding.
Initially, a ruling against the mother does not mean one against WhatsApp. After all, the ruling was about visitation rights, and the court’s interest lay more with the child and monitoring their smartphone usage by the mother. For other courts, this decision is not binding. This could lead to the clause being declared invalid sooner or later, thus requiring the company to obtain permission from the contacts in the address book.
And until that happens? Well, then one must live with it, or be the first to sue. However, claiming that one did not know about this terms of service does not suffice. Or would someone who is stopped for speeding say: “I generally do not pay attention to traffic signs and signals, so they do not apply to me?” No, so one cannot say, “I generally do not read terms of service, so they do not apply to me.”
WhatsApp itself is of course legal.
However, it would be possible to refer to § 305c BGB. According to this, provisions that are so unusual that one cannot expect them – so-called surprise clauses – are ineffective. But that is something for the lawyers who may soon deal with it in a lawsuit.
In any case, the ruling changed nothing. Warnings could have been issued earlier. Now, this business practice has received renewed media attention. And concerning the legality: WhatsApp itself is not illegal. Only agreeing to this terms of service is probably not allowed without proper authorization. And that can be resolved, either through an empty address book or by asking for the aforementioned consent. If everyone in the address book uses this messenger, that should be feasible.
