WhatsApp has become an integral part of the modern world of communication. Every day, around 60 billion messages are sent via the app worldwide. It therefore makes sense to use the application for more than just private purposes. However, landlords should also be on their guard and not use WhatsApp carelessly to communicate with their tenants. This is because it is possible that even smaller landlords will have to comply with the General Data Protection Regulation (GDPR). This was decided by the Wiesbaden District Court. The use of WhatsApp is only GDPR-compliant under certain conditions.
Use of WhatsApp only in compliance with the GDPR?
The starting point for the legal dispute was an action for eviction. In the lawsuit, a tenant demanded that his landlord provide him with comprehensive information about his personal data(Art. 15 GDPR). The landlord replied that he was not an institutional landlord. He therefore did not store any data; at most, he would file the signed contracts in a folder. The GDPR was therefore not applicable to him.
However, the tenant was of the opinion that data processing by the tenant was taking place. This was because his telephone number and name were stored on the landlord’s spouse’s cell phone for the purpose of communicating via WhatsApp. This constituted automated processing of personal data within the meaning of the GDPR. In addition, the physical collection of rental agreements represents a file system.
AG Wiesbaden: Right to information under GDPR due to WhatsApp use
The Wiesbaden District Court has now ruled in favor of the tenant in its partial judgment of 26 April 2021 (Ref.: 93 C 2338/20). In its reasoning, it states that personal data within the meaning of the GDPR includes, in particular, names, addresses and telephone numbers. Furthermore, processing includes the collection, recording, storage, use and disclosure by transmission of the data.
The storage of the tenant’s name and telephone number in a cell phone therefore undoubtedly constitutes data processing. This is because this information is automatically transmitted to WhatsApp. Saving in the contact list is therefore sufficient.
In addition, the physical collection of rental agreements, which also contained the defendant’s rental agreement, is a file system within the meaning of the GDPR. This is because it is a structured collection of personal data, for which, according to the case law of the ECJ, a collection of leaflets is sufficient.
Ways out of the WhatsApp data protection trap?
Storing contact data can quickly become a data protection problem, especially in connection with WhatsApp. Caution is therefore also required when handling tenants’ data. This is because the scope of the GDPR is quickly opened up, as this case shows. The following then applies in principle: the processing of personal data and use of WhatsApp may often only take place with consent. Otherwise, there is a data protection violation that can have serious consequences.
The only secure way out is to obtain the tenant’s consent to data processing or to refrain from any communication via WhatsApp. Some landlords have also started to provide WhatsApp only “passively” as a communication channel. In this case, the tenant must send the first message. This could be interpreted as consent. However, data protection authorities also have concerns about this. Without express consent, there is always a residual risk.
Another crucial aspect in the discussion about the use of WhatsApp and the GDPR concerns the security of data transmission. Although WhatsApp uses end-to-end encryption to protect the content of messages, the app still collects metadata, such as phone numbers and contact lists, which are stored on the company’s servers. This metadata can potentially be viewed by third parties, which can be problematic, especially when it comes to sensitive personal data of tenants. For landlords who want to use WhatsApp for communication, the question therefore arises as to how this metadata can be processed in compliance with the GDPR. Even if the content itself is protected, this does not mean that the use of WhatsApp is completely legally secure. To stay on the safe side, landlords should therefore inform themselves well and consider whether alternative, more data protection-friendly communication channels can be considered that entail fewer data protection risks.
