Strict requirements imposed on German website owners: General Terms and Conditions and Privacy Policies must be provided in German

Frank Schemmel

In a recently published court ruling, the Court of Appeal Berlin (Kammergericht Berlin) ordered WhatsApp to provide its General Terms and Conditions (GTC) and privacy policy in the German language. Moreover, it declared all clauses legally void if they are not translated into German.

Background

The Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband – vzbv) complained to WhatsApp about the fact that its Terms of Use (which contain the GTC as well as the privacy policy) are only available in English on its German website. According to the vzbv the English Terms of Use are widely incomprehensible to German consumers due to the technical legal language – an ordinary customer with basic English language skills would not understand document which is several pages long. Since WhatsApp did not provide a German translation upon request of the vzbv, the latter brought the case to court.

Court’s judgement

The Kammergericht Berlin shared the opinion of vzbv and ruled against WhatsApp. In its reasoning the court held that providing GTCs and privacy policies only in English puts an unreasonable burden on German consumers. Although the court acknowledged that basic and everyday English might be widespread in Germany these days, companies cannot expect German consumers to be able to read and understand the complex type of English used in commercial and legal documents such as the disputed Terms of Use. The court therefore found that customers should not have to face a complex and extensive set of rules containing a very large number of clauses in a foreign language.

As a consequence the court ruled that all clauses of WhatsApp’s Terms of Use lack transparency and thus are legally void in the absence of a German translation.

The ruling may not be final. Although the Kammergericht Berlin has not allowed the judgement to be appealed, WhatsApp may contest its ruling and file an application for leave to appeal with the German Federal Court of Justice (Bundesgerichtshof – BGH).

Implication for companies

The current ruling does not only impact WhatsApp but other companies that do not provide German GTCs or privacy policies on their German websites. Having those GTCs or privacy policies in English or another foreign language (i.e. non-German) is not enough. Companies that maintain a German website should therefore check whether they meet the requirements set out in the court ruling of the Kammergericht Berlin and, if not, should translate the respective texts into German.

Although the decision only addresses obligations in terms of texts provided on websites, it might also influence other media such as GTCs and privacy policies on mobile apps hosted on German app stores.

Increased number of court cases expected

It is to be assumed that the vzbv and other German consumer organisations will audit German websites in the meantime, and, if they find GTCs or privacy policies in a foreign language, may request amendments or file for other lawsuits in this regard. So the recent court decision will likely lead to an increasing number of cases filed against companies for non-compliance with German language requirements.

The decision can be accessed here (German language only).

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