There seems to be a widespread misunderstanding regarding WhatsApp for businesses. According to many sources, using WhatsApp commercially is illegal because its Terms of Service ban use “for any commercial solicitation or spam purposes.” But this has nothing to do with business use of WhatsApp. IAAL, and using WhatsApp for customer service or even (solicited) sales chats is perfectly legal.
More and more companies are using the popular WhatsApp messaging service to provide customer service or even sales or acquisition. The benefits are evident: chatting is more efficient than telephone calls, and in addition logs and photos can be collected to provide proof and documentation.
Several sources are reporting however that this is problematic, as the WhatsApp Terms of Service contain provisions against commercial use. However, let’s take a look at the exact provisions:
You agree not to collect or harvest any personally identifiable information, including phone number, from the Service, nor to use the communication systems provided by the Service for any commercial solicitation or spam purposes. You agree not to spam, or solicit for commercial purposes, any users of the Service.
Most of the claims that WhatsApp forbids commercial use is based on this phrase (or an earlier version of it). However, “commercial solicitation” clearly refers to things like cold calling, initiating a conversation with people who did not consent to it. In other words, spam. WhatsApp clearly does not want people to use its service to send unwanted commercial messages.
Context is important with legal clauses: the paragraph talks about harvesting and spamming. It would not be logical to conclude in that context that any use by a business would be a TOS violation.
Technically, it is a TOS violation to take a chat log and store it in a CRM system: that is “collecting” personally identifiable information (the customer name) from the WhatsApp service. However, again given the context it is clear to me that this clause is directed towards indexing or harvesting data, not merely storing a log file for later perusal.
Further, there’s this clause:
(ii) you will not duplicate, transfer, give access to, copy or distribute any part of the Service in any medium without WhatsApp’s prior written authorization;
This seems pretty damning on its face: you can’t copy any content you receive through WhatsApp to anywhere else. But again, context is important when reading clauses like this. The main concern here is to ban spidering, harvesting and the like. Merely storing a chat log for later perusal is quite different from harvesting and commercial re-selling of content.
In European countries, it is however mandatory to disclose to customers that their chat is being recorded and stored for customer service purposes. A European company therefore would have to mention this when the chat starts, for example with a short sentence like “BTW, this chat is being recorded for quality assurance – see our Privacy Policy [link] for details”. But that is between company and customer.
In short, I’m a lawyer and I don’t see anything in the WhatsApp Terms of Service that would prohibit use of that tool for customer service or even selling stuff, as long as you have a pre-established relationship with the other party. (Cold acquisition through WhatsApp is not allowed.)
