AGCM

 PRESS RELEASE

On 11 May 2017 the ICA closed 2 investigations opened in October 2016 concerning alleged infringements of the Consumer Code by WhatsApp.

In the first investigation, the ICA has ascertained that WhatsApp Inc. de facto forced the users of its service WhatsApp Messanger to accept in full the new Terms of Use, and specifically the provision to share their personal data with Facebook, by inducing them to believe that without granting such consent they would not have been able to use the service anymore. The consumers that already used WhatsApp Messanger on the date the Terms of Use were modified (25 August 2016) had instead the possibility to only accept part of the changes, since they could decide not to give their consent to share the information of their WhatsApp account with Facebook and still be able to use the app.

The practice has been implemented through: a) an in-app procedure for obtaining the acceptance of the new Terms of Use characterized by an excessive emphasis placed on the need to subscribe to the new conditions within the following 30 days or lose the opportunity to use the service; b) an inadequate information on the possibility of denying consent to share with Facebook the personal data on WhatsApp account; c) the pre-selection of the option to share the data (opt-in); d) finally, the difficulty of effectively activating the opt-out option once the Terms of Use were accepted in full. The second investigation, concerning the alleged unfair nature of some contractual clauses included in WhatsApp Messenger’s “Terms of Use”, assessed as illicit the contract terms concerning:

- very wide and general exclusions and limitations of responsibility in favor of WhatsApp, also in case of non-performance of contractual obligations by the operator;

- the possibility to unilaterally interrupt the service without reason or advance notice;

- a general right granted to WhatsApp to terminate / rescind the contract in any moment and for any reason and not allowing anymore the user to access / use the services, without granting the same right to the consumer;

- the general right granted to WhatsApp to introduce changes, also of economic nature, to the Terms of Use without indicating in the contract the reasons according to which the company introduces those changes and without establishing appropriate mechanisms for informing the consumer about them, together with the “tacit approval” provision allowing the company to obtain the consent to the change simply through consumer inertia;

- the choice of the law of the State of California as only governing lawin case of disputes, as well as the choice to submit litigations only to the jurisdiction of the U.S. District Court for the Northern District of California or the State Court of California;

- a general right granted to WhatsApp to terminate “orders” without refunds for the services offered, without clarifying the circumstances under which those actions would be carried out;

- the general predominance in case of conflict of the English version of the contract over the Italian one (which is accepted by Italian users), also without allowing the prevalence of the interpretation most favorable to the consumer, independently of the language in which the contractual clause is written.

Rome, 12 May 2017