Antitrust authorities follow closely the transformation in communication technologies with the intent to preserve the efficiency of their investigative practices and evidence search, during handling their cases. Otherwise the authorities will be on the verge of losing their operability in detecting and proving infringements. A fresh amendment on Turkish Competition Act clarifies Turkish Competition Authority’s (TCA) powers associated with down-raid regarding digital documents. In this brief article, we authored TCA’s recent Burdur LPG Case, TCA imposed fine on LPG retailers of the city of Burdur, based on the evidence extracted from WhatsApp communication between executives of the undertakings.
The investigation was initiated on the claims that the undertakings has been increasing LPG and fuel oil prices jointly. The relevant product market was defined as “retail sale of Autogas LPG” and “retail sale of white fuel products used in the automotive industry” and the relevant geographical market as “center of Burdur province”. During dawn raids, a WhatsApp group named “Püis Burdur”, formed by the executives of undertakings under investigation, was detected. It is understood from some statements in the conversations that group members are aware that the communication between them is against the competition law and EMRA regulations. In the reasoned decision, TCA highlighted the principle of circumstantial evidence and its use in competition law violations, in particular for “hardcore violations” that are confidentially engaged in.
Regarding the legality of mobile phone search and WhatsApp evidence, the reasoned decision provided following assessments:
- According to Article 15 of the Act no 4054, the inspectors have the power of examining the books, any paperwork and documents of undertakings and associations of undertakings. Under this rule, TCA assumed that the inspectors have the power to examine the mobile phones and computers belonging to the company.
- European Commission regulations clearly give the power of examining the mobile devices, cloud storages and also personal mobile devices if the undertaking applies “Bring Your Own Device-BYOD Policy”.
Accordingly, TCA assumed to have investigative powers on WhatsApp correspondence on company mobile phones and any such finding was assumed to have evidential value. In assessing WhatsApp correspondence, the Authority determined that the existence of any employee of an undertaking in a WhatsApp group of undertakings under investigation, demonstrate the involvement of that particular undertaking in the violation. Moreover, any WhatsApp group member is deemed to be a part of violation even though that particular member has been silent in the group. The Authority is of the view that any such member may not determine its prices independently after reading WhatsApp messages regarding prices.
Based on WhatsApp conversations that demonstrates price coordination and price analysis, TCA finally determined that 10 undertakings in the city of Burdur violated the Article 4 of the Act no 4054 by increasing the Autogas LPG and fuel oil prices as a cartel and imposed an administrative fine.
Burdur LPG case is the first case so far, resulting in cartel decision based on WhatsApp findings. However, TCA has been taken WhatsApp correspondence into account officially in several cases since 2017 as follows:
- The first case in which TCA was confronted with WhatsApp communication is the Orthodontics decision, where TCA conducted a cartel investigation against suppliers of orthodontics materials and equipment for price-fixing. The Authority did not find any violation of antitrust rules, but officially referred to WhatsApp conversations in the reasoned decision. As per the decision, the WhatsApp accounts in question was belonging to corporate lines, not private line of the individuals and the inspectors reached out these communications via web-based application.
- In the Frito Lay decision, where TCA conducted a preliminary investigation for abuse of market dominance claims, the Authority took into consideration the WhatsApp conversations provided by the complainant. The Authority did not find any violation but the presence of WhatsApp content in the reasoned decision indicated the Authority legally valued this content as evidence.
- In the MOSAS decision, the WhatsApp dialogues of employees about the undergoing dawn raid with the content such as; “disconnecting the internet”, “disrupting the modem”, “deleting the emails”, was accepted as evidence of hindering or complicating the down raid. Thereupon, screenshots of the correspondences were taken by the inspectors.
- In the Cig Kofte decision, TCA took into account the document provided by the complainant, which disclosed the existence of a WhatsApp group through which competitors get into contact and exchange information regarding the market.
- Another decision where TCA valued WhatsApp content, is the Mey-Efes merger decision, which is an interesting hostile takeover attempt occurred between two giant producers of alcoholic beverages in Turkey. "Tekel Birası" is the brand under the possession of Mey and was being subject to be taken over by Efes. As understood from the decision, Mey did not show consent for this acquisition and declared that Efes submitted a merger file based on misleading information regarding their consent. On the other hand, Efes tried to demonstrate Mey's consent by handing over WhatsApp conversations between the executives of two companies. In the end, TCA found that the merger is not subject to notification but acknowledged WhatsApp correspondence as evidence demonstrating Mey's consent and accordingly did not fined Efes for misleading information.
As part of similar approach, the Dutch antitrust watchdog ACM, imposed a fine of 1.84 million Euros in a recent case, to a company under antitrust investigation in 2019, for obstructing a dawn raid by deleting WhatsApp conversations. The ACM’s dawn raid rules are similar to that of TCA where ACM is authorized to perform unannounced dawn raids during investigations and all companies under investigations are required to cooperate. If any employee destroys or damages any evidence, the company will be faced with administrative fines. In this particular case, the inspectors explained the dawn raid procedure and started to inspect all physical and electronic documents including corporate phones. During the dawn raid, one of the two employees of the company who was requested to hand over the corporate phone, left several WhatsApp groups before handing it over to the ACM inspector. Afterwards ACM inspector informed the company manager to cooperate with the ACM investigations and not to destroy mobile content. Despite this warning some more employees left the internal WhatsApp groups during the dawn raid and also deleted conversations that could contain evidence related to the alleged violations. After this last act of the employees, the company instructed the employees not to touch the app messages, delete conversations or leave the WhatsApp groups. The Dutch Authority has imposed a fine for breaching of the duty of cooperation under the article 5:20, first paragraph of the Dutch General Administrative Law Act. certain facts such as warning of company manager and providing an overview of the deleted/abandoned WhatsApp groups/chats considered for fine reduction. Eventually, the ACM imposed a significant fine as 1.84 million Euros for deleting WhatsApp conversations even though implemented a fine reduction.
Several other cases where WhatsApp messages are taken into consideration in antitrust cases are such:
- The Spanish Competition Authority (the Spanish Markets and Competition Commission / "CNMC") acknowledged WhatsApp correspondence as evidence for the violation market partitioning in the 2013 Almendra y Miel case. The Spanish Supreme Court (Audiencia Nacional) also approved the decision.
- The Spanish Competition Authority took into consideration the WhatsApp conversations in the 2016 Cementos case.
- The Chinese Competition Authority (China's National Development and Reform Commission /"NDRC") based its violation claims on Wechat conversations, at the vehicle inspection cartel case.
- In the 2017 wristband cartel case against Zaappaaz, Promotions, Wrist-Band, Customlanyard, the Antitrust Division of US Department of Justice (“DOJ”) based its violation claims on the conversations found on social media platforms and encrypted messaging applications, such as Facebook, Skype and WhatsApp and determined that the companies reached and implemented their illegal agreements through these communication channels.
All these cases demonstrate that WhatsApp findings have been legally considered as evidence, very similar to traditional email findings. In the Spanish case in particular, the Supreme Court approval has reinforced this situation. Reviewing these decisions is significant for holding a view on antitrust authorities’ approaches around the world regarding evidences obtained from digital communication evidences such as WhatsApp conversations, and is enlightening in understanding how digital transformation affects the competition law enforcement.
By Metin Pektas, Antitrust and Compliance Partner, and Deniz Kivanc, Associate, Nazali Tax & Legal