Austria. A change in the terms of use brought the VKI against WhatsApp on the barricades. Now the Vienna Commercial Court has been right for the time being.
the Association for Consumer Information (VKI) WhatsApp Ireland Limited had sued WhatsApp Ireland Limited on behalf of the Ministry of Social Affairs: According to the information, the reason for the lawsuit was the change in WhatsApp’s terms of use at the beginning of 2021. In the course of this, the VKI also checked the terms of use itself.
The decision
The Vienna Commercial Court (HG) has now judged the clause that changed the terms of use and the data protection guideline to be inadmissible – as well as the five clauses from the terms of use that are being sued, according to the VKI.
Among other things, it was about the way in which the change was communicated to the users. The wording in the message was unclear and there was only a button that said “Agree”. The notification could only be hidden by clicking on an “X” shown in the upper right corner.
According to the Vienna Commercial Court, this requires users to agree to the terms of use or any changes to them, but their content is unclear. According to the court, the links provided there were not clearly defined or self-explanatory, so it was doubtful which link could be used to access the changed terms of use at all. The clause is therefore not transparent for this reason alone.
WhatsApp also wanted to use this opportunity to obtain permission to change essential contractual obligations by means of a “fictitious consent”: anyone who did not actively object and continued to use the app would have given their consent. However, this is not permitted in the case of significant changes, according to the VKI. The verdict is not yet legally binding.
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