Be careful with WhatsApp chat! Most users of WhatsApp and similar messenger services will be familiar with the many little pictures with more or less funny comments. Once circulated, they spread quickly. Depending on the addressee and the content of the messages, however, they can become extremely critical. This is shown once again by a recent case that was recently heard by the Stuttgart Labor Court (ArbG) and the reasons for the decision are now available (Ref.: 11 Ca 3737/18).
Insulting messages sent via WhatsApp
An employee sends such messages and pictures to a Turkish colleague. He also insults him face to face with racist verbal attacks. The messages sent – perhaps meant to be funny by someone – are bluntly racist and offensive to the Turkish recipient. The labor court described the messages quite vividly in its reasons for its decision. Here is an excerpt: It starts off relatively harmlessly with a picture of a bar of Rittersport marzipan bearing the designation Hitlersport Nazipan instead of the correct name. Next to it is a portrait of Hitler with the words “I stand for this with my name”. It continues with a snowman giving the Hitler salute with a correspondingly striking hairstyle and moustache. The limits of good taste are open to interpretation but have probably already been exceeded here.
The image of the rapid-fire gun with the slogan: “The fastest German asylum procedure rejects up to 1,400 applications per minute”, at the latest, clearly crosses the boundaries – including those of criminal relevance.
Consequence: Termination without notice
The colleague did not put up with this and approached the employer. The employer gave notice of termination without notice. The labor court ultimately deemed the dismissal to be effective due to the messages sent, among other things. This was despite the fact that the employee argued that the recipient of the messages had also initially taken them as a joke. After all, he had reacted to some of the messages by sending back smileys and apparently pornographic images. In the opinion of the court, this was a defensive allegation. The colleague concerned had probably made it clear several times that he did not want the messages. In addition, the parties involved were clearly not friends and there were personal arguments. Even after that, the messages did not stop. The court believed the colleague, who explained that he had wanted to play down the situation with his reactions in order to protect himself.
Rules also apply in private chats
The decision is anything but surprising. It is remarkable how often it happens and is the subject of judicial clarification that people insult other people via messenger services or chats and cross boundaries that they would not cross in “real life”. Whether this is also the case here is difficult to judge from the outside, as the dismissed employee was obviously no pushover offline either. Nevertheless, the images and messages described speak a language that most people would not have been able to utter in front of the person they were talking to. What some people forget is that a joke is only a joke as long as it is meant as such by the teller and understood as such by the recipient. If the perceptions of the two parties involved diverge, things can get hairy very quickly and a WhatsApp message that was jokingly created at some point develops the explosive power of an insult spoken face to face.
Remember: even in private chats, you can’t behave like an axe in the forest. At least, from the point of view of the lawyer who is entrusted with such a matter, there is something good about the whole thing. Normally, it is incredibly difficult to find out what was really said when insults are used. Verbal insults are often exchanged in a heated exchange full of emotion. In the end, nobody knows exactly who said what, when and what they meant. Witnesses are rarely really reliable. This can be recorded quite well in a chat history and presented to the court as evidence. Against this background, the behavior of the dismissed employee was not particularly clever in at least two respects.