Contacting candidates over WhatsApp is legally possible, but not unconditional: under German law, a first promotional message sent via WhatsApp without prior consent counts as undue harassment under Section 7 of the Act Against Unfair Competition (UWG). The legal position clearly distinguishes between a cold first approach in active sourcing and communicating with someone who has already applied.
WhatsApp is attractive for recruiting because open and reply rates on messenger apps often clearly beat email - especially for blue-collar and frontline audiences who rarely check email regularly. That is exactly why the legal rules of the road deserve a closer look.
The legal basis: Section 7 UWG
The relevant provision is Section 7 of the German Act Against Unfair Competition (UWG). Paragraph 2 number 2 classifies advertising via "electronic mail" without the recipient's prior explicit consent as undue harassment. The prevailing view in German legal literature and case law treats a promotional message sent via a messenger service such as WhatsApp the same way as an email - the transmission method differs technically, but the promotional effect on the recipient is comparable.
A job outreach message legally counts as a "business act" under the UWG, even though it targets a private individual rather than a customer. The protective purpose of the rule - not bothering anyone with unsolicited promotional communication - applies to a cold job approach just as much as to product advertising.
Cold outreach versus an existing contact: two different cases
The legal classification depends mainly on how the contact came about.
| Situation | Legal classification | Practical consequence |
|---|---|---|
| Cold first approach in active sourcing (no prior contact) | Not permitted without consent (Section 7(2) No. 2 UWG) | Make first contact via another channel, use WhatsApp only after consent |
| Person applied and provided a phone number | Contact was initiated by the person themselves | WhatsApp usable during the active process, ideally confirm channel preference explicitly |
| Talent pool member with documented consent | Consent covers future outreach | WhatsApp usable for new role offers, keep consent documented and provable |
| Publicly found number with no prior contact at all | No consent exists, regardless of where the number came from | Not suitable for a first approach |
What valid consent looks like
Consent must exist before the first promotional message, be explicit, and specifically cover contact via WhatsApp - a general consent to "being contacted" does not automatically cover every channel under the prevailing legal view. In practice, companies collect this consent in a few places:
- In the application form itself, via a separate, not pre-ticked checkbox for WhatsApp as a contact channel.
- When building a talent pool, when the person actively provides a phone number and agrees to be contacted about future roles.
- Through a first contact on an uncontested channel (e.g. email) that explicitly asks for permission to use WhatsApp - before actually messaging on WhatsApp.
Without such consent, reaching out through another channel (email, an individual message on a professional network) remains the legally safer option for a cold first approach.
What this means for active sourcing
In active sourcing - the cold first approach to passive candidates who have had no prior contact with the company - consent is essentially always missing. The legally safer path is to make first contact through a channel that does not require prior consent (an individual message on a professional network, for instance), and only suggest WhatsApp for further communication once the person has agreed to it themselves.
After an application, the picture changes: someone who applied has actively initiated contact and usually provided contact details for communication during the process. A WhatsApp appointment confirmation or a status update during an active application is legally far less exposed than a cold promotional message.
Checklist before sending the first WhatsApp message
- Is there explicit, documented consent for this specific channel - not just a general permission to be contacted?
- Was that consent collected before the first message, rather than offered afterwards as an opt-out?
- Is it traceable when and how consent was given, in case of a later query or complaint?
- Is there a simple way to withdraw consent, and is it actually honoured?
- Is the sender clearly identifiable, rather than messaging from an anonymous or rotating number?
Checking these points before sending noticeably lowers the legal risk, whether the message is sent manually or through an automated system.
A real limit worth knowing
Even a cleanly logged consent-management process does not change the fact that the final legal assessment of any specific message always depends on the individual case - in particular on exactly how the consent was worded and whether it genuinely covers the timing and channel of that specific message. Software can make collecting and documenting consent easier; it does not replace a legal assessment of the individual case.
Frequently asked questions about contacting candidates via WhatsApp
Does the same consent requirement apply to SMS?
Yes. Section 7(2) No. 2 UWG covers advertising via electronic mail regardless of the specific transmission method - SMS, email and messenger services are treated the same way.
Can I follow up on an existing application via WhatsApp?
This is the less risky case, because the person initiated contact themselves. It is still good practice to explicitly ask in the application form whether WhatsApp is a wanted channel, rather than assuming it silently.
Is an opt-out enough instead of opt-in?
No. Section 7(2) No. 2 UWG requires prior explicit consent (opt-in). A later right to object (opt-out) is not sufficient for a first approach - the UWG allows an opt-out exception only in a narrow existing-customer scenario for email marketing (Section 7(3) UWG), which does not transfer to a cold recruiting approach.
Does a phone number from a public profile change anything?
No. Whether a number is publicly findable says nothing about whether sending a promotional WhatsApp message without consent is permitted. Having a way to reach someone and being legally allowed to use it for advertising are two separate questions.
What happens if a company gets this wrong?
A breach of Section 7 UWG can trigger a formal warning (Abmahnung) under competition law, with injunctive relief and cost-reimbursement claims. Repeated breaches against the same person can also damage trust in the employer brand - with exactly the audience a company wants to win over long-term.
Does this also apply if a recruiting agency contacts candidates on the company's behalf?
Yes. The consent requirement attaches to the business act itself, not to who carries it out. If a company outsources outreach to an external recruiting agency, the same requirement for prior consent applies as if the company's own HR team had sent the message.
This article is a general overview and does not replace legal advice for a specific case. For the broader data-protection side of direct outreach - legal basis, information duty, retention periods - see Active sourcing and GDPR. For how automated, cross-channel outreach with proper consent logic works in practice, see the Atlas People Search page; for how WhatsApp is used as a candidate channel during an active application, see the candidate portal. More articles on direct outreach live in the Active Sourcing topic hub, and the basics of the format are covered in What Is Active Sourcing?.
Jürgen Ulbrich
Jürgen Ulbrich has more than a decade of experience in developing and leading high-performing teams and companies. As an expert in employee referral programs as well as feedback and performance processes, Jürgen has helped over 100 organizations optimize their talent acquisition and development strategies.
