WhatsApp Must Speak German Because

Legal journalism is no easy thing, especially if it is about foreign law or court judgments. All too easy, all those details making the difference, or just the legal context, don’t make it to a published article.

David Meyer’s coverage for Fortune of a recent German regional court of appeal decision in a legal case that WhatsApp is fighting against a local German consumer protection association:

WhatsApp Must Speak German to Germans

Yes, but. This is by no way a suprising decision. It is long established in German legal practice that foreign companies that actively target German consumers are subject to German law, including legal provisions regulating Internet commerce. It is easy to actively target German consumers, with e.g. a German language website (like whatsapp.de) being sufficient. If you want to avoid German regulation, don’t target German customers specifically.

The appellate court said that while many Germans can understand everyday English, few speak the English legalese in which terms of service are written. Therefore, it said, it was unreasonable to expect them to do so, and WhatsApp’s terms of service and privacy policy are essentially ineffective.

Yes, but. In its decision, the court stressed that it probably wouldn’t agree to any terms of service not being in German language: “Alltagsenglisch mag verbreitet sein, für [..] überhaupt kommerzielles Englisch [..] gilt das aber nicht.”, meaning that while everyday English might be found commonly in Germany, this isn’t true for any commercially relevant situation. This is also a common line of German courts. So, if you want to do business in Germany, you need to follow German law.

If the ruling is finalized

WhatsApp has a chance to lodge a kind of final appeal to the German Federal Court of Justice (Bundesgerichtshof). However, as the recent appeal decision in this case is in line with the common sense of courts in Germany on the applicability of German law, I doubt very much that such a final appeal would have any chance to go through.