Digitalization and internet of things has been creating new challenges for competition authorities in various areas. The methods of collecting digital evidence during a dawn raid is only one of them, particularly, when the issue comes into the seizure and evaluation of WhatsApp correspondence between inspected competitors. In recent years, WhatsApp messaging system has not only become a usual way of communication in our daily lives but it has also become an effective tool in business communication. Given the significance of the communication evidence in antitrust law enforcement to reveal secret cartels, there is a compelling necessity to address the evidentiary issues pertaining to the seizure and assessment of WhatsApp conversations.
Under Turkish competition law, Article 15 of the Law No. 4054 on the Protection of Competition (“The Article”) establishes the rules of search, seizure and dawn raid procedure respectively. The Article stipulates that the inspectors are entitled to examine any paperwork and documents of undertakings and associations of undertakings, and take their copies if needed. In addition, the Article explicitly empowers inspectors to perform on-site examination of any assets of undertakings, and it obligates the companies to provide the copies of information, documents and other instruments requested.
Turkish Competition Board’s ("TCB") evolving case law, in conjunction with the increasing digitalization, indicates that the TCB has adopted a legal standard to examine and evaluate the WhatsApp correspondence. Under the current regulation of the Turkish Competition Authority (“TCA”), the TCA’s inspectors essentially may seize and examine WhatsApp conversations retrieved from an employee’s business mobile devices during a dawn raid. Ultimately, the TCB may consider those conversations as admissible communication evidence provided that certain requirements are met. The requirements may be summarized as follows:
- The communication evidence must be found at the business premises during a dawn raid or handed to the authority by a complainant
- The evidence must be retrieved from the employees’ business mobile devices registered in a company name
- The said correspondence must be a business related in nature
Presumably, those requirements are not exhaustive, yet still evolving. Accordingly, the first case the TCB dealt with WhatsApp conversation is the TCB’s orthodontics products decision concluded in 2018[i]. The preliminary investigation was launched upon a price fixing claim against companies selling orthodontic products in Ankara. As far as we understand from the reasoned decision, WhatsApp correspondence retrieved from an employees’ computer is considered as appropriate communication evidence by the TCB. Although the preliminary investigation did not turn into a full-fledged investigation, the case was striking because the first time, the TCB set the relevant legal prerequisite of the admissibility of the WhatsApp correspondence. Specifically, the TCB pointed out that the correspondence evidence must be retrieved from the employees’ mobile devices registered in the company name and it must be related to operation of the business rather than private and personal communication in nature. Indeed, it was interesting to note that WhatsApp correspondence was actually retrieved from the employee’s computer in which the employee probably forwarded the said correspondence from her/his mobile phones registered in the company name or the computer is connected to the company GSM lines.
Following orthodontics products decision, another WhatsApp communication evidence was brought before the TCB in Frito Lay investigation[ii]. Here, unlike orthodontic products case, the complainant, who was a former employee of the company, submitted all WhatsApp correspondence to the TCA as an attachment of his/her complaint. In other words, the complaint was based on various documents including several screen prints of WhatsApp correspondence that allegedly contain anti-competitive communication. Particularly, the complainant argued that Frito Lay violated competition rules by engaging in various exclusionary behaviours and exclusive agreements in wrapped potatoes chips market. Although the TCB rejected those claims and decided not to initiate an in-depth investigation, the case is considerable since under the free evaluation of evidence rules, the TCB adhered to its approach and assessed WhatsApp correspondence as all the other evidence obtained in the scope of the investigation. Ultimately, considering all the evidence and the claims, the TCB concluded that Frito Lay did not breach any competition rules in the present case.
In the EU, the EC Commission regulation on powers of investigation provides a comprehensive guideline on the issue. ‘Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003’ (the “Note”) authorizes inspectors to search mobile devices[iii]. Similar to the TCA regulation, the Note empowers inspectors to examine any books and records related to the business, irrespective of the medium on which they are stored, and to receive in any form copies of or extracts from the records. This authorization covers the examination of electronic information and the taking of electronic or paper copies of such information. In contrast to the TCA regulation, the Note explicitly empowers inspectors to search the IT-environment including tablets and other mobile devices of the company, and it further stipulates that inspectors are entitled to examine private devices that are used for professional reasons when they are found at the premises.
On the other hand, it is controversial that the TCA inspectors examine private devices and media used for business purposes even if they are found at the business premises. It might create some privacy rights and data protection issues unless the TCB publish a clear guideline on procedure and legal prerequisites for the search on private devices. However, we are convinced that the inspectors may well examine mobile devices registered in a company name at the business premises provided that non-business communication is distinguished from the data set. Indeed, the similar approach was adopted by Spain’s National Commission on Markets and Competition (“CNMC”) in the case of Fabricantes De Turron (2016) where six companies operating in the market for Spanish nougat products (turrón) were penalized for exchanging competitively sensitive information in several ways including WhatsApp conversations[iv].
In addition, the Netherlands Authority for Consumers and Markets (“ACM”) published “Procedure for the Inspection of Digital Data” in 2014[v]. Establishing safeguards of the investigation data set, Article 2.3 of the Procedure provides that the enforcement official gives the individual involved the opportunity to identify what data in the within-scope data set can be designated as non-business in nature. Accordingly, Annual Report on Competition Policy Developments in the Netherlands (2018) published by the Organisation for Economic Co-operation and Development (the “OECD”) states that in two rulings of the District Court of the Hague (the “Court”), the Court examined digital data inspection procedure of the ACM, particularly on the question of the scope of the data and, ultimately the Court upheld the ACM’s actions and the procedure for the inspection of digital data by rejecting a complaint on inappropriate access to a company’s senior staff’s mobile phone data[vi].
In line with the progress of digital evidence inspection procedure, the TCB case law has developed substantially to facilitate the search and assessment of digital data of the companies. Indeed, very recently, Gaziantep raw meatball decision of the TCB has strikingly indicated the significance of the issue[vii]. The investigation revealed that the incumbent firms has established a WhatsApp group to detect cheaters from the anti-competitive price fixing agreement. Also, TCB decision imposing administrative monetary fines on a company operating in fertilizing business is particularly significant on the matter[viii]. In the present case, the TCB rejected the argument on employee’s business email account that actually contained personal data forwarded from the employee’s personal email account. After a cursory look at the content of the said email, the investigation team concluded that the correspondence was not actually personal, rather it contained information on pricing strategy and competitively sensitive information related to the concerned business. Therefore, the team subsequently performed on-site inspection with the decision of a court and brought the case before the TCB. Refusing privacy breach claims, the TCB imposed on monetary fines on the company on the ground that the dawn raid is prevented by the company.
To sum up, rigorous search and evidence collection methods are key to success of effective anti-cartel enforcement. Rapidly evolving digitisation require antitrust authorities to review their traditional methods on evidence collection and underlying regulations as well. Based on our experience, the TCA inspectors give companies an opportunity to reclaim private data content during a dawn raid, and they respectively exclude private data from the examination after a cursory look. In this regard, we believe that WhatsApp conversations like any the other digital evidence must be considered as conclusive evidence provided that above requirements are met. While we consider that the TCB’s legal standard is coherent and highly appropriate on this matter, we suggest that it would be enlightening if the TCB sets out an explanatory guideline to clarify the issues regarding digital data inspection procedure and assessment of digital evidence. It will also raise business community’s awareness on compliance with competition rules as well as providing companies with adequate safeguards in case inappropriate access to personal data.