The last user agreement update of WhatsApp, which is the world's most used communication application with more than 2 billion active users, which Facebook acquired for 19 billion dollars in 2014, caused a splash in our country. Within the scope of the agreement update, users are required to consent to sharing their processed data with Facebook and it is regulated that the application cannot be used as of 08.02.2021 if the users do not agree to these terms.
There was a reaction from the Competition Board on 11.01.2021 against this update, which is very closely related to the Right to Protection of Personal Data, and the obligation to share data was suspended with the decision numbered 21-02/25-M and also an investigation was initiated against Facebook and WhatsApp ex officio. In the declaration made by the Board, it is stated that an investigation was initiated ex-officio to determine whether the "Facebook" company violated Article 6 of the Law on the Protection of Competition numbered 4054.
Abuse of Dominant Position:
Article 6 - It is contrary to the law and prohibited for one or more enterprises to abuse their dominant position in a good or service market in the whole or a part of the country, either alone or through agreements or collective transactions with others.
The abuses are as follows especially:
a) Actions aimed at directly or indirectly preventing another enterprise from entering the commercial activity field or making the activities of competitors difficult in the market,
b) Direct or indirect discrimination by putting forward different conditions for equal rights, obligations and actions to the purchasers who are in the same position,
c) Imposing restrictions on trading conditions such as binding purchasing a good or service to condition of purchasing another good or service, or binding a good or service requested by the purchasers that are intermediary enterprises to exposure of another good or service by the purchaser or in the case of resale, requesting a good purchased not being re-sold under a certain price,
d) Actions aimed at disrupting the conditions of competition in another market of goods or services by taking advantage of the financial, technological and commercial advantages created by the dominance in a particular market,
e) Restriction of production, marketing or technical development which is in disfavor of the consumer.
In addition, in the declaration made by the Competition Board, a period of time is given to Facebook by stating the following; “The terms brought along about using the WhatsApp users’ data for other services as of 08 February 2021 should be suspended and all the users who have accepted these terms and the users who have received the notification and have not accepted should be informed about new terms including data sharing with Facebook is suspended.” It is requested from Facebook to take necessary measures in accordance with the Article 9 of the Law No. 4504 since it has the possibility of causing serious and irreparable damages until the final decision.
Ending The Violation:
Article 9 – (Amendment on paragraph 1: 16/6/2020-7246/3 Article) If the Board determines the violation of the Articles 4, 6 or 7 of this Law upon a notice, complaint or request of the Ministry or ex officio, the acts that should be performed or should be avoided to establish the competition by the relevant enterprises or associations of enterprises, the structural measures such as enterprises transferring their certain activities or shares or assets in the final decision. Behavioral and structural measures should be proportionate to the violation and necessary for effective termination of the violation. Structural measures shall be applied only in cases where the behavioral measures previously introduced do not concluded results. In case it is determined by the final decision that the behavioral measures have not concluded results, at least 6 months shall be given to the enterprises or associations of enterprises to comply with the structural measure.
Real and legal persons who have a legitimate interest may file a complaint.
Before making a decision in accordance with the first paragraph, the Board notifies the relevant enterprises or associations of enterprises in written about how they will end the violation.
In cases where serious and irreparable damages are likely to occur until the final decision, the Board may take temporary measures to protect the situation before the violation as not to exceed the scope of the final decision.
Finally, it is stated in the decision of the Competition Board that an investigation was initiated ex officio and an investigation of violations would be conducted. The decision made for temporary measures before the final decision is made is extremely important in order not to cause loss of rights that are difficult or impossible to compensate.