21.08.2017

   

The risk of using WhatsApp for business

     

Employees, who have been provided with a business cell phone, as well as employers, who provide business cell phones to their employees, should make sure that the application WhatsApp isn´t installed on the cell phone or secure otherwise that the WhatsApp provider cannot collect information from the address book of the cell phone and process them.

The Bad Hersfeld district court has ruled in a custody battle that the parents of a child under age must present declarations of agreement from all contacts listed in the child’s cell phone’s address book that the contacts agree to a disclosure of their contact information to the WhatsApp’s provider. According to the court’s opinion, the minor child as well as its caretaking parents are potentially liable for damages, if the declaration of agreement cannot be presented to the court.

The interesting part of the judgment is that the court stated that in particular insurance brokers or consultants, lawyers, bank clerks, teachers and other people, who typically deal with personal data from customers and record their clients, customers or pupil’s contact details in the address book on their cell phones, in which the application WhatsApp is installed or will be installed at a later date, may be liable for damages, provided the respective person did not agree to a disclosure and transmission of their data to WhatsApp.

With regard to the aforementioned professional groups, the topic is even more explosive since a commercial use of the data has to be assumed. Such commercial use without the appropriate consent of the respective person and the transfer of the data to third parties can be punished with a fine in accordance with the German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG). In addition to the risk of a fine, both the WhatsApp user and in case of a business cell phone the employer are exposed to potential cease and desist as well as damage claims.

To counter an allegation of negligence, the employer should prohibit the use of WhatsApp on business cell phones and business applications. Although it is discussed that a restriction of the WhatsApp usage by blocking access to the contact data of the cell phone’s address book can be possible, it is controversial whether such an action could possible violate the contractual obligations between the WhatsApp user and the WhatsApp provider. The district court has deliberately left this question open; the corresponding contractual clause is regarded invalid by many people, however a judicial decision on this has not been ruled so far.

As far as there are already regulations on the use of internet and business cell phone etc. in place in your company, those should be reviewed and if necessary amended with regard to the judgment of the district court of Bad Hersfeld. If no such regulations are in place in your company, we are happy to prepare suitable regulations for you or assist you in drafting such regulations.

Contact person: Vanessa Lichter, German Attorney in Law