HG Wien: Terms of use of WhatsApp are targeted

May 6, 2022 Benn-Ibler Rechtsanwälte

The Austrian Association for Consumer Information (Verein für Konsumenteninformation, VKI) took the operator of the well-known messaging service "WhatsApp" to the Vienna Commercial Court (Handelsgericht Wien, HG Wien) because of some of its terms of use.

More precisely, it was about 50 clauses of the terms of use, including,

1. that the operators of WhatsApp are authorised to assign their rights and obligations under the terms of use to companies affiliated with them in the event of a merger, acquisition, restructuring or sale of assets,
2. that the consumer may only transfer rights or obligations with the prior written consent of the operators,
3. that in the event that the Terms of Use are found to be unenforceable, illegal or invalid, these terms shall be deemed modified to the extent that they are again enforceable and, if that is not possible, they shall lapse and the remainder of the Terms of Use shall remain in full effect.

Regarding the operator's possibility of assignment, the HG Wien said that contractual provisions are not binding if the entrepreneur has the right to assign its obligations with debt-discharging effect to a third party who is not named in the contract. Even a reference to affiliated companies does not fulfil the required naming of the third party. Thus, this provision violates the catalogue of clauses set out in Section 6 para 2 no 2 of the Consumer Protection Act (Konsumentenschutzgesetz, KSchG).

The fact that the consumer must first obtain the consent of the operator for the transfer of rights and obligations is not compatible with Sec. 879 para 3 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), since a consumer is also deprived of the possibility to assign his claims to an association authorised to enforce them in court, if interpreted in the most anti-customer way.

Finally, the preservation of possibly invalid clauses in the terms of use is also intransparent, as it is not apparent to the consumer which clauses are valid or to what extent they are modified for validity.

The operator was thus ordered to refrain from using these provisions.

HG Wien 20 Cg 37/21a (31.03.2022)