When does a foreign website become a German internet service? Or: Which foreign websites would have to meet the statutory provisions of the German internet legislation? The District Court (Landgericht) of Berlin has given a judgment setting forth one major guideline in response to these questions: Whenever a website is or significant portions thereof are in German, then it would be deemed as addressing German customers (LG Berlin, 9 May 2014 – 15 O 44/13 – WhatsApp).

The case in brief words: WhatsApp is running an internet service under a .com-Domain. When accessed from Germany the website is shown in a German version, i.e. the description of the business model, the services etc is in German. However, the website neither had a legal notice in accordance with § 5 German Telemedia Act (Telemediengesetz) nor were the Terms of Use provided to the users in German language.

The court concluded that these were breaches of the German consumer protection legislation and found in favor of the plaintiff, a consumer protection association.

The website would have had to comply with the German legislation as it was clearly addressing German users. The fact that the description of the services was in German language made obvious the intention of WhatsApp to aim at the subscription of German customers to those services. Therefore, the website would have also had to adhere to consumer rights, the breach of which can be made subject to a legal warning by the authorized consumer protection associations.

Any website addressing German customers as described above must comply with § 5 German Telemedia Act (Telemediengesetz), i.e. it has to make available the required information (e.g. name and seat of the operator, contact information such as telephone number and e-mail address as well as information regarding the formal registry). Such legal notice has to be easy to trace on the page.

Furthermore, the terms of use or any general terms and conditions have to be made available in German. According to § 305 sec. 2 German Civil Code (Bürgerliches Gesetzbuch) such terms have to be provided in a reasonable manner enabling the customer to read and understand the respective terms. The court held that it is not reasonable to believe that any German customer or even the vast majority of German customers would be able to read and understand English legal terms.

Because the German consumer protection legislation may also differ significantly from the provisions of other states – even those within the EU – any and all enterprise aiming to do internet business in Germany and thereby addressing German consumers as described above should consult a specialized German attorney prior to the market entry.