Consumer advocates successfully filed a lawsuit against a large corporation

Vienna (OTS/VKI)The Association for Consumer Information (VKI) had sued WhatsApp Ireland Limited (WhatsApp) on behalf of the Ministry of Social Affairs. The reason for the lawsuit was a change to WhatsApp's terms of use in 2021. (We at Mimikama reported about it HERE ) . In the course of this, the VKI also examined WhatsApp's terms of use and complained about five additional clauses. The subject matter of the proceedings at the Supreme Court of the Republic of Austria (OGH) was only the reason clause, while the remaining five clauses had already been legally declared illegal by the second instance court. The OGH has now also confirmed that the remaining clause is inadmissible. This decision is legally binding.

WhatsApp Ireland Limited, based in Ireland, operates the international messenger service WhatsApp. In spring 2021, WhatsApp informed users that the terms of use and data protection policy would be updated. Among other things, the following was read there:  

“This update expands our Terms of Service and Privacy Policy to include additional information, such as how you can chat with companies if you want to […] Terms of Service are effective May 15, 2021. Please agree to these terms to continue using WhatsApp after this date. You can find further information about your account here. You can find out more about how we process your data in our privacy policy .“

The clause contained several hyperlinks, including to the new terms and conditions and to an exemplary list of changes associated with the “update”.

The OGH initially confirmed that this clause goes beyond simply informing consumers and shapes the content of the contract, which is why it can be the subject of a lawsuit by the VKI.

The clause does not allow consumers to get a clear and comprehensive picture of the specific points in which WhatsApp's terms and conditions change, even taking into account the hyperlinks it contains. This approach deprives consumers of the opportunity to reliably assess the effects of the change to the General Terms and Conditions on their legal position and thus to obtain a well-founded decision-making basis for the consent they require.

In the proceedings, WhatsApp argued, among other things, that the messenger service was free

The VKI, in turn, is of the opinion that consumers pay for the use of the service in the form of transmitting their contact details - which certainly represent a monetary value. The OGH stated that WhatsApp did not substantively dispute the VKI's allegations. Based on this, the WhatsApp service can be qualified as paid.

“The VKI will continue to not shy away from taking action against the large corporations. No matter where companies are based, whether at home or abroad: if companies focus their activities on the Austrian market, they must also comply with Austrian laws,” comments Dr. Beate Gelbmann, head of the lawsuits department at the VKI, announced the decision.

The full text of the decision is available at www.verbraucherrecht.at/WhatsApp032023

Source: VKI


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