Competition Board made an announcement dated 11.01.2021 on its website that an investigation had been launched into Facebook and Whatsapp and under the Act No. 4054 Article 9 the requirement of sharing of Whatsapp data are stopped. Thus, a process has begun in Turkey similarly of Germany had experienced before. The Facebook decision of the Federal Competition Authority -Bundeskartellamt- dated 06.02.2019 is a precedent for Turkish law regarding the subject of the investigation.
The instant messaging app Whatsapp announced that with its latest update to the WhatsApp privacy policy, it will require users to combine their WhatsApp data with Facebook as a condition that they can continue to use Whatsapp. Users will not be able to use the app from February 8, 2021 unless they agree to the last update offered by Whatsapp. Will Facebook, one of the digital market tyrants, be able to do in Turkey what it can’t do in the EU and Germany? If Facebook will follow the procedure as it said about Whatsapp, Turkish Competition Board should impose an administrative fine on Facebook at the highest level -10%- due to the abuse of dominant position, moreover, according to the Act No. 4054 article 9 the Board should even take temporary and structural measures on its agenda, from the day of February 8, 2021.
Before the verdict, it would be favorable for the Turkish Competition Authority to briefly look at the Facebook decision of the German Competition Authority (Bundeskartellamt), which is the first and only decision on this issue. Because, the subject matter is exactly the same. It should also be pointed out that how the implementation of this Privacy Policy provided for by this update in the EU is prevented by the EU Digital Markets Act, the final draft of which was published in December 2020.
Global undertakings operating on digital platforms providing social networking services, processes personal data which is obtained directly or indirectly in exchange for the service they provide to users, and it bonds it to money in different forms and conditions. Rather than how this system works, the Facebook decision of the German Competition Authority is the first and only precedent decision on the approach of competition law to this issue.
The first decision in this matter is the Facebook decision of German Federal Competition Authority -Bundeskartellamt- dated 06.02.2019. The limitations brought by German competition authority to data processing policy of Facebook have forced Facebook to change its terms of service in Germany. The German competition authority’s decision includes Facebook Inc., Menlo Park, U.S.A., Facebook Ireland Ltd., Dublin, Ireland and Facebook Germany GmbH, Hamburg, Germany which are the companies within the structure of Facebook. With this decision, the competition authority prohibits the processing of the data of users who are based in Germany and also benefit from Facebook’s other corporate services, such as WhatsApp, Oculus, Masquerade and Instagram, with the data in Facebook.com user accounts without the “freely given consent” of the users. Apart from these platforms within Facebook, user data on third-party websites which use Facebook’s interfaces such as “Like” and “Share” will not be processed without the freely given consent of the users. Before this limitation, according to the terms of service offered to users by Facebook, not only Facebook’s website and smartphone applications, but also third-party websites and applications where Facebook’s programming interfaces were used, were able to access and process data even if the relevant interfaces were not used by the user. In addition, even if the interface symbols were not included on the website, Facebook was accessing and processing all data regarding the user if the site administrator used “Facebook Analytics” in the background to analyse users. Although the consent of the user is required for these accesses, users could not use the Facebook social network service unless they accepted these terms. With the decision of the German Competition Authority, it is stipulated that the processing of user data collected from different sources in this way is only possible with the presence of their “freely given consent”. In other words, if people want to use the platform without giving their consent, their data will not be processed, but at the same time, these people will be able to continue using the platform.
In this decision which have both protection of personal data and competition law aspects, it was determined that an undertaking was acting in violation of the data protection rules and the market tendency of this undertaking to be a monopoly in the relevant market was also noted. Although the injunction demanded by Facebook in the annulment case filed against the decision of the German competition authority was accepted by the Düsseldorf Court of Appeal, the German BGH -federal equivalent of the Court of Cassation- overturned the appeal decision by its decision dated 23.06.2020 and adopted the same views as the competition authority with a detailed reasoned decision.
Other than the competition law and Competition Authority, Personal Data Protection Authority has to review the situation and take necessary actions. For the purposes of this paper, we will address this matter not for now.
On the other hand, WhatsApp’s new terms of service and privacy policy is also the subject of the Article 5/1-a EU Digital Markets Act, the final draft of which has been published on December 2020. In the Digital Markets Act, some conditions have been set out for undertakings to be qualifies as gatekeeper. These criteria will be met if an undertaking:
- has a strong economic position, significant impact on the internal market and is active in multiple EU countries,
- has a strong intermediation position, meaning that it links a large user base to a large number of businesses and
- has -or is about to have- an entrenched and durable position in the market, meaning that it is stable over time.
The undertakings meeting these conditions are qualified as gatekeepers and specific obligations have been imposed for them. One of these obligations is the obligation of undertakings qualified as gatekeepers to refrain from combining personal data obtained from main platform services with personal data obtained from other services, without prejudice to the consent given under the GDPR.
If Facebook is accepted as a gatekeeper as a result of an first-glance evaluation, it can be interpreted that Facebook is obliged not to combine the user’s data who also benefit from other corporate services of Facebook, including WhatsApp, Oculus, Masquerade and Instagram, with the data in Facebook.com user accounts without the user consent.
Therefore, considering both the decision of the German Competition Authority in 2019 and the Digital Markets Acts, whose final draft was published, Facebook’s implementation of its new privacy policy on WhatsApp would constitute an abuse of its dominant position within the scope of competition law. For this reason, Turkish Competition Board should impose an administrative fine on Facebook at the highest level -10%- due to the abuse of dominant position, moreover, according to the Act No. 4054 article 9 the Board should even take temporary and structural measures on its agenda, from the day of February 8, 2021.
As a temporary measure, the Competition Board has stopped the requirement of sharing of Whatsapp data.
Dr. Hamdi PINAR, LL. M.
