Ercüment Erdem Att. Merve Bakirci

Obtaining and Examining WhatsApp Correspondences as Evidence within the Scope of Competition Law

October 2019

Introduction

Pursuant to Law No. 4054 on the Protection of Competition (“Law No. 4054”), the Competition Authority (“Authority”) and the Competition Board (“Board”), which is the decision-making body of the Authority, is granted with broad powers (i) to ensure the formation and development of goods and services in a free and sound competitive environment, (ii) to observe the implementation of Law No. 4054, and (iii) to fulfill the duties assigned to it by Law No. 4054.

Among these powers, carrying out on-site inspections when deemed necessary by the Board is of fundamental importance. Within this scope, and pursuant to Article 15 of Law No. 4054, the Board may perform examinations at the premises of undertakings and associations of undertakings. To this end, the Board is entitled to:

  • Examine the books, any paperwork and documents of undertakings and associations of undertakings, and take copies thereof if needed;
  • Request written or oral statement on particular issues; and
  • Perform on-site examination of any assets of undertakings.

As observed, examining personal telephones or text messages of employees of such undertakings is not listed explicitly under Article 15 of Law No. 4054. Having said that, considering the broad range of discretionary powers accorded to the Board, it can be argued that the above-mentioned powers are not subject to numerous clauses principles, and are listed by analogy, only.

Also, in practice, it is also observed that the Authority experts do not choose to adopt a literal reading of Law No. 4054. Especially in light of the technological developments that guide today’s world, they examine employees’ telephones and WhatsApp messages during on-site inspections. In addition to obtaining employees’ WhatsApp correspondences during on-site inspections, it is also seen that such is considered as evidence and examined thoroughly by the Board in case files.

Obtaining WhatsApp Correspondences during On-site Inspections

Until recently, the Board generally used to examine employees’ notebooks and e-mail messages during on-site inspections, which seemed sufficient to determine anti-competitive conduct of an undertaking. However, in line with rapid technological innovations, many correspondences are now realized through instant messaging platforms, such as WhatsApp, Skype, and MSN messenger. Naturally, these types of correspondence may also include anti-competitive conduct, such as exchanging competitively sensitive information with competitors and, therefore, these platforms may be used in a way to pursue such acts that are contrary to Law No. 4054. Accordingly, it can be argued that during on-site investigations, the examination of “books, any paperwork and documents of undertakings,” as per Article 15 is, therefore, no longer sufficient and, in order to detect anti-competitive conduct of an undertaking, the Board may examine WhatsApp correspondence of such undertakings’ employees.

In fact, in the Ortodonti Decision[1], the Authority experts collected WhatsApp messages of employees, and the Board evaluated the collected documents to examine if they evidenced any infringement of Law No. 4054. In the decision, the Board examined allegations that nine undertakings, who were engaged in the sale of orthodontic materials, were fixing prices. During the on-site inspections carried out by the Board as part of the pre-investigation, 10 documents consisting of WhatsApp messages were obtained by the Authority experts from the undertakings.

The Board, after careful examination of the documents that were obtained, decided not to initiate an investigation, since there was no information, documents, or other evidence that indicated the alleged price fixing between the investigated undertakings. Having said that, the decision is important in the sense that it clearly shows that the Board did not refrain from evaluating or using WhatsApp correspondence obtained from the investigated undertakings by the Competition Authority experts, without deeming them to be illegal or unlawful. It is also important to note that in the reasoned decision, while evaluating each of the documents, it is explicitly stated that some of the WhatsApp messages were linked to GSM lines belonging to the undertakings (i.e. Documents 1 and 2), and some of them were obtained from the computers of the relevant employees (Documents 6-10). However, for Documents 3-5, there is only a reference to the existence of WhatsApp correspondence, while there is no mention of the source or means to obtain such correspondence. Therefore, the scope and conditions of obtaining these WhatsApp correspondences from the employees of an undertaking remain unclear.

Nature of WhatsApp Correspondences as Evidence

In the Mey İçki decision[2], the Board examined the acquisition of Mey Alkollü İçkiler San. ve Tic. A.Ş.’s (“Mey İçki”) “Tekel Beer” brand by Anadolu Efes Biracılık ve Malt Sanayi A.Ş. (“Anadolu Efes”). In relation to the merger control filing to be notified to the Board as per the transaction, the response letters to request information sent to the undertakings included statements which suggested that the information submitted therein could be evidenced through WhatsApp messages. During the course of its examination of the transaction, the Board, once again, did not deem such inadmissible, and moved on to evaluating the information provided in the response letters.

Pursuant to the Frito Lay decision,[3] a former sales chief of Frito Lay Gıda San. ve Tic. A.Ş. (“Frito Lay”) submitted screenshots of WhatsApp correspondences in relation to his allegations that Frito Lay was in violation of Law No. 4054. He further claimed that (i) the sales manager was engaged in activities that violated Law No. 4054, (ii) upon notifying this to the upper management, his own employment was terminated, (iii) during his term of employment, he was pressured by the sales manager to prevent competing products in stores, (iv) there were invoices which evidenced activities were conducted to prevent competitors from entering certain spots, (v) there was extreme pressure on the employees to push the competitors out of the market.

The Board, once again, carefully examined the WhatsApp correspondences submitted to the complaint file, and stated that these files merely indicated that the activities therein were directed at competing with competitors, instead of excluding them. The Board also rejected the complaint and decided not to initiate a full-fledged investigation, since the documents obtained during the on-site investigation did not indicate or show that Frito Lay was in breach of Law No. 4054. In this decision, there is no information regarding the type of GSM line to which the WhatsApp messages were linked.

Conclusion

In light of these recent decisions, it should be taken into account that (i) the Authority experts can and have reviewed instant messaging applications used by employees, such as WhatsApp, during on-site inspections as observed in the Ortodonti Decision, and (ii) the Board has evaluated and relied upon such correspondences as evidence during its decision-making process in its case files, such as Mey İçki and Frito Lay. Having said that, the scope and terms of obtaining these WhatsApp correspondences still remains unclear in light of these decisions. For instance, these decisions do not specify if the Authority experts may only obtain WhatsApp messages linked to the GSM lines of the undertaking or may only obtain the ones connected to the computers of the employees. Having said that, the Authority experts may obtain the WhatsApp messages of an employee if they deem necessary and the Board is likely to examine and evaluate such as legitimate evidence.

Therefore, considering the rapid and growing trends and innovation in technology, the Board is inclined to examine and evaluate digital platforms used by employees of investigated undertakings if it deems it necessary in order to determine and prevent any conduct that is in violation of Law No. 4054, in practice.

[1] The Board’s decision, No. 18-09/157-77,  29.03.2018.

[2] The Board’s decision, No. 19-06/54-20, 07.02.2019.

[3] The Board’s decision, No. 18-19/329-163,  12.06.2018.