WhatsApp has become an integral part of the modern world of communication. Every day, around 60 billion messages are sent via the app worldwide. So it makes sense to use the application for more than just private purposes. But 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.
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 therefore did not apply 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 constituted 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, among other things, 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 it in the contact list is therefore sufficient.
Furthermore, the physical collection of rental agreements, which also included the defendant’s rental agreement, constitutes a filing 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 handouts 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 application 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.
