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The WhatsApp tick mark - Delivery of declarations of intent via messaging app services

The Bonn Regional Court had to evaluate the extent to which messaging app services constitute a valid alternative to post, telephone and fax for the purpose of being able to track the dispatch and, particularly, the receipt of important information - provided that this does not involve matters where the written form requirement needs to be satisfied.

The case in question was about whether or not, in the course of dealing with a property matter, a declaration of intent that had been sent or received via WhatsApp had indeed been delivered. In answering this question, it was not immaterial that the concerned parties had already exchanged information with each other via this service, therefore, this communication channel was already deemed to be have been established by both sides. The sender of the WhatsApp message took the view that the two blue tick marks indicated that the message had been delivered and read while the other side maintained that it had absolutely no knowledge of having received this message.

The Bonn Regional Court, in its ruling from 9.1.2020, (case reference: 17 O 323/19), confirmed that a declaration of intent is delivered as soon as it is arrives at the recipient’s domain in such a way that, under normal circumstances, the recipient would have the possibility to acknowledge this. Accordingly, WhatsApp messages are delivered when they reach the addressee’s smartphone, are stored and available there permanently and the recipient had esentially opened up this communication channel. Specifically, this means that for this purpose WhatsApp uses not only a number of tick marks but also displays them in colour. This was thus the case here. Two blue tick marks were an indication the message had been opened, while two grey tick marks merely that the message had been delivered. Conversely, a single grey tick mark means that while the sender has dispatched the message, nevertheless, it has not yet been delivered to the recipient. As this was not the case here, the declaration of intent was deemed to have been not only delivered but also acknowledged.

Result: Consequently, declarations of intent may be delivered via messaging app services insofar as the written form requirement does not need to be satisfied.

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