Ruling should prompt international companies to review their terms and conditions in Germany, says expert

In a recent judgment the Berlin Superior Court of Justice said communications service provider WhatsApp's terms of use and privacy policy, both published in English, did not comply with German law. The legal challenge was brought by vzbv, a body that represents consumer rights organisations in Germany.

Despite recognising that many consumers in Germany are able to understand basic English, the court ruled that WhatsApp's English-language legal terms were too complicated to expect most German consumers to understand. The court did not look into the content of the document but ruled that the mere provision in English language invalidated the used terms.

Munich-based technology law specialist Igor Barabash of Pinsent Masons, the law firm behind Out-Law.com, said that to comply with German law companies need to ensure their terms can be clearly understood by consumers and do not place those individuals at an unreasonable disadvantage.

As a result companies need to think about the content of their contracts, terms and policies as well as the language they are published in, he said.

"There is no clear statutory law that legal documentation relied on by companies operating in Germany needs to be in German," Barabash. "However, general rules around transparency and unreasonable disadvantage apply in relation to terms and conditions. In this case WhatsApp's website, app and other information was in German, but the legal information was in English. The court ruled that this is not transparent enough. It is not clear if the ruling would have been different if all the other information was also in English."

"Foreign companies coming to the German market tend to spend some money on translating terms and conditions into German. However, from the content perspective they often want to have the same clauses they use in the initial foreign language contracts or policies, which can present the risk that some of the clauses might be invalid under German law," he said.

Barabash said companies need to consider the issue of what language their terms and conditions are displayed in and what the substance of those clauses say separate. Companies cannot automatically expect that translating terms and conditions they rely upon in other jurisdictions into German will see them comply with German law, he said.

"Both issues need to be resolved in compliance with German law," Barabash said. "The risk of not complying is that the terms and conditions companies set out will be fully invalided. Companies have to keep in mind that translation is only the first step and, in order to avoid legal risks, compliance with German general terms and conditions regulations is required as well."