In many agreements, the parties set forth the requirement that any and all changes or amendments of such agreements and any declarations and notices to the other party in connection thereto have to be done “in writing” in order to be valid. The rule that notices or declarations have to be done “in writing” and thus require the “written form” can also be found in various Austrian statutes.

Once upon a time, a communication that fulfilled the requirement of “written form” was easily defined by a paper containing handwritten notes or notes produced by typewriters, which where send to the other party by mail or courier. But, due to the technological advance especially in the communications technology, the possibilities to communicate have multiplied exponentially. Nowadays, people communicate with each other by sending text messages or images in many different ways, such as e-mail, via social media, SMS, Skype, Instagram, Snapchat, online blogs and chats and last but not least also via WhatsApp.

In former times, the Austrian Supreme Court has held that an e-mail does not fulfil the requirement of written form. The Austrian Supreme Court has long since altered its opinion and has held more recently that also e-mails fulfil the written form, because both the person of the sender and the content of the declaration of intent can be easily perceived and the e-mail can also be easily reproduced (for example by printing it out).

But do all of these other forms of communications in form of text messages, which are undoubtedly done “in writing”, fulfil the legal requirement of „written form”? Not in the opinion of the Austrian Supreme Court, which had to rule on the fulfilment of the requirement of “written form” by a WhatsApp message.

1. Rationale behind the requirement of “written form”

One reason for the requirement of “written form” is to protect the sender from rash, precipitate or premature declarations of intent - possibly made in an emotional state - he did not think through beforehand.

Another reason is to protect the interests of the recipient by providing him with a legally binding declaration of intent, the content of which and the sender of which he can easily perceive and which he can readily reproduce in order to prove that the declaration of intent has indeed been made by the sender.

The Austrian Supreme Court has thus established the ruling that the requirement of “written form” serves the purpose to protect both the sender from premature, unwanted declarations of intent as well as the recipient, who should have the possibility to easily perceive the content of the declaration of intent and to readily reproduce such content for evidentiary purposes.

2. Decision of the Austrian Supreme Court regarding WhatsApp messages

WhatsApp is a mobile communications application, which allows the users to connect and exchanges text message as well as pictures online. The Austrian Supreme Court has argued that a WhatsApp message does not protect the interests of the recipient: A WhatsApp message cannot be readily reproduced by the recipient. It is indeed hard to print out or otherwise reproduce WhatsApp messages for evidentiary purposes. The recipient is in certain instances also not able to easily determine the sender of the declaration of intent (for example in cases where the sender is not in the contacts of the recipient). Also the content of the declaration of intent is potentially not readily perceivable by the recipient. For example: The sender makes a blurry photograph of the written declaration of intent, the content of which cannot be deciphered by looking at the photograph and simply sends this photograph to the recipient via WhatsApp.

One could argue additionally that the protection of the sender is also not given in the case of a WhatsApp message, because such messages are quickly established and sent. Many people type WhatsApp messages quicker than they talk and do not pay too much attention to the content of such messages. The Website “Damn you Autocorrect” strikingly proves this point. In the case it hand, the Austrian Supreme Court did not have to dwell on this argument, because the sender had made a photograph of a letter he wrote to the recipient beforehand and has sent this photograph to the recipient via WhatsApp.

Thus, the Austrian Supreme Court has held that a text message and or a photograph of a written declaration of intent sent via WhatsApp does not fulfil the requirement of written form, because such communications do not fulfil the purposes of a declaration made “in writing”. A declaration that has to be made “in writing” is therefore not valid if sent via WhatsApp under Austrian law.

3. Conclusion/forecast

According to the Austrian Supreme Court, WhatsApp messages (and with them probably also SMS, messages via social media, skype, chats and logs online, Snapchat, Instagram and other means of quick communication) do not fulfil the legal requirement of written form and are therefore not valid declarations of intent whenever written form is required.

However, the Austrian Supreme Court has once ruled that e-mails do not fulfil the written form and has long since changed his mind. Taking into account the rapid technological changes in the communications industry, it will probably only be a matter of time until other means of electronical communications such as WhatsApp messages will become more easily perceivable and reproducible and their sender easier to identify. Once these requirements have been fulfilled, it will only be a small step towards these means of communications also being accepted as fulfilling the legal requirement of written form by the Austrian Supreme Court.

One exception from this assessment are of course Snapchat and similar communication services that delete messages and/or photographs immediately upon receipt and perception of the recipient as it is the very purpose and nature of such communication services that messages and/or photographs cannot be reproduced.