Commentary on whatsapp verdict: judge with a mission, subject doesn’t matter

A Bad Hersfeld judge rules on lack of data protection, even though it’s about child custody law. Only the mothers get conditions.

Anyone who gives WhatsApp access to their contacts without asking them first is committing a legal violation – says the Bad Hersfeld district court Photo: dpa

The mother had not expected this. Actually, she wanted to complain to the Bad Hersfeld District Court that her ex-husband was not taking sufficient care of their joint ten-year-old son during weekend contact. But then, during the hearing in March, the subject of the child’s smartphone came up, and the judge was in his element.

Because he is obviously an expert on the data protection problems with WhatsApp. So he explained to the mother that WhatsApp regularly sends records of the contacts stored on the smartphone to a server in California and that this is "tortious" behavior on the part of the child if there is not the consent of all these contacts.

The mother tried to defend herself by saying that it couldn’t be that bad, after all, so many people had "WhatsApp" on their cell phones. But with that, she had finally disqualified herself. The data protection expert and family judge now issued orders to avert dangers to the child’s well-being.

The mother would have to obtain declarations of consent from all of her son’s WhatsApp contacts as soon as possible or ensure that the contacts were removed from the smartphone. In addition, she would have to undergo further training in media education. To do this, she would have to read at least three texts a month on the "Klicksafe" website and prove this to the court. Klicksafe is an EU initiative for more safety online.

The judge’s action is not an isolated case. Two months later, in May, a divorced father came to the judge and wanted to have more reliable arrangements for the weekend contact with his eleven-year-old son. But quickly the talk turned back to the child’s smartphone, and once again it became clear that parents completely underestimate the dangers of Whatsapp under data protection law. Once again, the Bad Hersfeld judge obliged the mother (not the father) to read three texts a month on Klicksafe and so on.

Now, the Bad Hersfeld district court is not responsible for the whole of Germany, but only for around 110,000 inhabitants from Nantershausen in the north to Schenklengsfeld in the south. But the shrewd media lawyer Christian Solmecke has publicized the ruling nationwide with a press release and raised the question "Is a new wave of warning letters looming for WhatsApp users?" Does everyone now have to fear being warned off by friends and acquaintances for "tortious" use of WhatsApp. But this is a rather "theoretical" danger, the lawyer reassures.

The danger is obviously much greater if one turns to the Bad Hersfeld district court with contact problems. Soon it is then no longer about the child and the conflicts of the parents, but only about data protection in WhatsApp use. And in the end, at least the mother will have to read three articles a month on "Klicksafe.