The Competition Authority (“Board”) was established under article 20 of Act no. 4054 on the Protection of Competition (“Act”) and article 167 of the Constitution with the duty of fostering and protecting competition and overseeing the Act’s implementation. The Competition Board has extensive regulatory and oversight authority to fulfill its duty to ensure and protect competition, including the power to impose interim measures.
Competition authorities can impose interim measures on companies during a competition investigation to maintain the situation before an infringement so as to keep the market from suffering irreparable damage while the investigation is ongoing.
In fact, article 9/4 of the Act entitles the Board to take interim measures “where the occurrence of serious and irreparable damages is likely until the final decision is taken, in order to maintain the situation before the infringement, without exceeding the scope of the final decision.”
The Board’s previous decisions make it apparent when and how it will use its authority to impose interim measures, and we believe that reviewing one of those decisions can be helpful for grasping the topic.
The Competition Board’s Interim Measure Decision no. 21-02/25-10
The Competition Board published its justified decision no. 21-02/25-10 of 11.01.2021 as a result of its investigation on Facebook Inc, Facebook Ireland Ltd, WhatsApp Inc, WhatsApp LLC (collectively “Facebook”).
Following the notification of WhatsApp users about an update to the privacy policy in the app’s terms of use, the Board reviewed the information provided by the company and concluded that the update could lead to exploitation and exclusion under competition law, which prompted it to launch an investigation.
While assessing the nature and importance of WhatsApp data, the Board discovered that the app could access not only the users’ messages, locations, profile photos, and group information but also other information available on their devices, including but not limited to their contacts and photos. It was also alarming that the data used by other apps installed on the users’ devices were partially accessible, and that the users’ obligations were not clear.
The Board expressed that due to the higher level of confidentiality of WhatsApp data compared to other social media content, which users may be unwilling to share with a wider circle of people, the mandatory use of such data in Facebook’s other markets could raise concerns under Act no. 4054. These concerns included that:
– WhatsApp data would be linked to Facebook’s other products and data,
– Facebook could utilize its dominance in the consumer communication services market to impede the operations of its rivals in the internet advertising industry,
– Excessive data collection and use of data for other services could lead to consumer exploitation.
Pursuant to paragraph 4 of article 9 in Act no. 4054 on the Protection of Competition, “where the occurrence of serious and irreparable damages is likely until the final decision is taken, the Board may take interim measures in order to maintain the situation before the infringement, without exceeding the scope of the final decision.”
In accordance with this article, the decision arising from the investigation requires that:
- Facebook will revoke its request that users disclose their data for use in other services as of 08.02.2021, and
- Facebook will abide by the Board’s interim measure to inform all users, including those who have already agreed to the amended data sharing conditions, that the conditions will be revoked up to that time.
The Board is allowed to take an interim measure following an investigation if there is either an actual infringement or a suspicion of one, accompanied by the possibility of significant and irreparable harm until a final decision is reached. Therefore, the Board’s interim measures aim to mitigate the potential harm to individuals during an uncertain and lengthy investigation period. As a result, the Board may impose, upon request or ex officio, interim measures on companies suspected of violating Act no. 4054.
