A New Approach to Deleted Data During the On-Site Inspection: Balsu Decision
Introduction
Under Article 15 of Law No. 4054 on the Protection of Competition (“Law No. 4054”), the Competition Board (“Board”) may conduct on-site inspections at the undertakings’ premises when it deems necessary in fulfilling the duties assigned to it. During the on-site inspection, the Board is authorized to examine all kinds of information and documents of the undertakings kept in physical and electronic media and information systems, and to take copies and physical samples thereof.
Moreover, the Guideline on the Examination of Digital Data During On-Site Inspections (“Guideline”) provides detailed explanations of the procedure to be applied in the examination of digital data. The Guideline underlines that during on-site inspections, the undertakings’ information systems such as servers, desktop/laptop computers, portable communication devices (mobile phones, tablets, etc.) and storage devices such as CDs, DVDs, USBs, external hard disks, backup records, cloud services may be examined. During this examination, experts in charge can benefit from forensic informatics software and hardware that allow searching digital data, copying data, and restoring deleted data.
In practice, it is observed that the Board’s examination of employees’ computers and phones within the scope of its authority to conduct on-site inspection causes severe anxiety in the undertaking and its employees. This anxiety causes employees to delete various documents and especially correspondence in panic during the on-site inspection. However, the deletion of data during an on-site inspection carries the risk of being considered as hindering or complicating the on-site examination, irrespective of the purpose of the deletion or the content of the deleted data.
This article aims to draw a framework on the Board’s approach to deletions during on-site inspections by analyzing the Board’s established case law on deletions, the recent Balsu decision[1] , which significantly diverges from this case law, and the different reasoning statement regarding the Balsu decision.
The Board’s Established Case Law on Deletion Procedures
An analysis of the Board’s decisions regarding the hindrance or complication of on-site inspection reveals that deletion is considered an act aimed at obscuring evidence. Moreover, in making this assessment, the Board tends not to attach importance to case-specific circumstances such as whether the deleted data can be retrieved or not, or its nature.
In the Board’s Medicana Samsun decision[2], the deletion of the Whatsapp chat contents during the on-site inspection is considered a hindrance and complication of the on-site inspection. In the decision, it is stated that it was not possible to access the deleted data and to determine whether the deletion took place on data belonging to the undertaking, as it was not possible to connect to the forensic computing device due to the lack of contact at the USB port. Furthermore, it is emphasized that even if the deleted data could have been accessed with the help of forensic computing devices, this would not have any effect on the evaluation of the act as a hindrance to on-site inspection. It is also stated that a contrary assessment may mean a reward for those undertakings who delete the data in question but forensic computing devices cannot detect their deletion.
In the Board’s Doğuş Planet decision[3] , deleting the messages sent by the employees of the undertaking to each other after the on-site inspection has begun is considered as a hindrance and complication of the on-site inspection. In the decision, it is stated that whether the deleted data can be retrieved or not, or whether its content directly indicates a competition violation, shall not be taken into account as factors affecting the outcome. Furthermore, it is emphasized that the purpose of the provisions regulated in Articles 15 and 16 of Law No. 4054 on the hindrance of on-site inspections is to protect the on-site examination activity.
Similarly, in the Board’s AbbVie decision[4] , the deletion of Whatsapp correspondence by an employee after the on-site has begun inspection is considered as a hindrance and complication of the on-site inspection. In the decision, it is reminded that the employees were warned not to delete any data at the beginning of the on-site inspection. It is also stated that the intention with which the WhatsApp messages were deleted is unimportant to the Board. Nevertheless, it is emphasized that the deletion would be considered as an act aimed at obscuring evidence and disrupting the data integrity of the undertaking.
In the Board’s Sırma Group decision[5] , it is emphasized that it is established by the relevant legislative provisions and the Board’s precedents that the act of deletion will be considered a hindrance/complication of on-site inspection, regardless of the act's purpose.
Finally, in the Board’s recent Kalekim decision[6] , it is stated that the fact that the documents deleted during the on-site inspection are not indicative of the violation and whether the documents in question have been restored or not does not have any significance in terms of the assessment of whether the on-site examination has been hindered or not.
When all these decisions are considered together, it becomes clear that the Board’s established case law regarding deletion of data during on-site inspections is to disregard (i) whether experts can retrieve the data, (ii) whether the deletion has an impact on the preliminary investigation/investigation, and (iii) the intention of the deletion.
Board’s Balsu Decision
The recent Balsu decision includes evaluations that differ significantly from the Board’s established case law cited above, and in this respect, it plays a critical role in determining the Board’s approach to deletions.
In the case subject to the decision; within the scope of the investigation conducted against Ferrero Fındık İthalat İhracat ve Ticaret A.Ş. (“Ferrero”), an on-site inspection was carried out on 27.04.2023 at Ferrero's supplier Balsu Gıda Sanayi ve Ticaret A.Ş. (“Balsu”) and the computers and mobile devices of the employees were examined. During the inspection, it was determined that Balsu’s sales manager deleted approximately 1500 e-mails from his computer after the inspection started and screen recordings of the deletion process were taken. However, the deleted e-mails were retrieved and examined using the “Recover Deleted Items” option in Microsoft Outlook, and no documents were taken as evidence from the retrieved e-mails.
In its assessment of the incident, the Board drew attention to two features of the on-site inspection in Balsu:
- All data deleted by the sales manager could be retrieved and examined, and as a result of the examination, it was determined that none of this data constituted a violation.
- Balsu is not a party to the investigation. It is not probable for an undertaking visited to obtain information regarding the sector to have an objective such as withholding information.
Considering and citing these features of the Balsu case, the Board, taking a stance quite different from its established case law, decided that the on-site inspection was not hindered or complicated by Balsu and therefore there was no ground for imposing an administrative fine on Balsu.
Different Reasoning on the Balsu Decision
In his different reasoning, Ünlü criticizes the Board’s departure from its established case law. First of all, Ünlü states that he agrees with the conclusion of the decision, but he does not agree with the use of the fact that the data can be retrieved and that there is no finding indicating a violation in the retrieved data as justification. In this context, Ünlü states that it is an established precedent that deletions that occur after the on-site inspection has begun, regardless of whether the deleted data can be retrieved and irrespective of its content, are considered as hindrance or complication of the on-site inspection in the light of both administrative judicial decisions and Board decisions.
Furthermore, Ünlü underlines that a contrary interpretation would encourage attempts to erase the evidence. If the undertakings have the information that they can avoid punishment by restoring the data in case the deletion is noticed, they will try to suppress evidence in any case, considering the possibility that the deletion will not be seen.
Finally, Ünlü once again underlines the contradictory nature of the Balsu decision with both the Board’s case law and the case law of the administrative courts by referring to the Board decisions and administrative court decisions, some of which are analyzed above. Indeed, in the decision of the 18th Administrative Court of Ankara[7] , it is stated that the content of the deleted correspondence (whether it is private or work-related) or whether it can be retrieved does not have any impact on the determination that the on-site inspection has been hindered or complicated. Furthermore, the decision emphasizes that the experts’ efforts to retrieve the deleted correspondence resulted in late access and complicates the on-site inspection. In this context, the Board’s established case law is also confirmed by court decisions.
Evaluating all these grounds together, Ünlü states that it is not appropriate to use the fact that the data can be retrieved and that the retrieved data does not contain an element of violation as a justification for the hindrance and complication of on-site examination.
Conclusion
It is common for employees to delete documents and data during on-site inspections due to various concerns. However, when the Board’s decisions are examined, it is seen that the Board tends to evaluate the act of deletion as a hindrance and complication of the on-site inspection, regardless of the intention with which the deletion was carried out, whether the deleted data can be retrieved, and the content of the data. On the other hand, the Board took a different approach in the Balsu decision and did not consider the deletion of a large number of e-mails during the on-site inspection as a hindrance or complication of the on-site inspection because the deleted data could be retrieved and examined, none of the deleted data constituted a violation, and Balsu was not a party to the investigation. In its different reasoning statement, Ünlü stated that he disagreed with the reasoning that the deleted data was retrievable and that there was no evidence of violation in the retrieved data. In any event, undertakings and employees should not shape their actions during the on-site inspection only within the scope of the Balsu decision and should act with the awareness of the Board’s established case law. The Board will likely act within the framework of its established case law in its subsequent assessments and the Balsu decision will remain as an isolated example. On the other hand, when the Balsu decision is evaluated with the dissenting opinion in the Koyuncu Elektronik decision[8] , it may also be considered as a signal of a change in case law. Indeed, in the Koyuncu Elektronik decision, Küle, Algan and Çolak emphasized that factors such as the scale and competition law history of the undertaking, the magnitude of the potential violation, the sequence of events, the status and content of the recovery of the deleted data, the cost of recovery, and the context of the examination should be taken into account when making assessments regarding the deleted data during the on-site inspection. Therefore, whether the Balsu decision is an exceptional example or the beginning of a new era can only be determined by the Board’s future decisions.
- Board decision dated 17.08.2023 and numbered 23-39/727-250.
- Board decision dated 17.06.2021 and numbered 21-31/400-202.
- Board decision dated 27.05.2021 and numbered 21-27/354-172.
- Board decision dated 05.10.2023 and numbered 23-47/898-318.
- Board decision dated 19.10.2023 and numbered 23-49/945-337.
- Board decision dated 18.04.2024 and numbered 24-19/416-169.
- Ankara 18th Administrative Court’s decision dated 07.12.2022 and numbered E. 2022/548 and K. 2022/2882.
- Board decision dated 21.09.2023 and numbered 23-45/839-295.
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