Competition Commission wants Facebook and WhatsApp prosecuted for abusing dominance

The Competition Commission has referred social media giant Meta Platforms, previously known as Facebook, and its subsidiaries, WhatsApp and Facebook South Africa to the Competition Tribunal for abuse of dominance.

The commission alleges that Facebook, around July 2020, expressed an ongoing intention to offboard GovChat and #LetsTalk, a technology start-up that connects government and citizens, from the WhatsApp Business Application.

The commission also alleges that Facebook had imposed selectively enforced exclusionary terms and conditions regulating access to WhatsApp Business, mainly restrictions on the use of data.

The government launched a platform in 2018 called the GovChat, which enables the public to engage with all spheres of government – national, provincial, and local – to report a variety of issues such as pothole location and other service delivery requirements.

The Competition Commission said the GovChat is dependent on its continued access to WhatsApp Business and the intended offboarding of GovChat from the platform will harm consumer welfare by removing the efficiency of the GovChat which allows the public to communicate with multiple government bodies through a single platform.

It said the removal of the GovChat will also deprive government of the current services (and future services such as mobile payment solutions) offered by the platform.

The commission said the GovChat messaging traffic comprises hundreds of thousands of messages daily, the vast majority of which relate to queries from the public to the department of social development relating to social welfare grants provided for children, disabled and indigent members of society, and a significant portion of the traffic on the GovChat relates to Covid-19 information.

Competition Commission spokesperson Sipho Ngwema said Facebook’s actions are in contravention of the Competition Act, which prohibits a dominant firm from abusing its dominance by engaging in exclusionary conduct geared at preventing competitors from gaining market share.

“This in terms of the competition act is against the laws of competition and therefore the Competition Commission is charging Facebook and WhatsApp before the competition tribunal. The Competition Commission has asked for the tribunal to impose a penalty of 10% of the company’s turnover.”

Ngwema said the commission has also requested the Tribunal to interdict Facebook from offboarding GovChat from the WhatsApp Business API and to declare void certain exclusionary terms and conditions for access to the WhatsApp Business API.

Competition Commissioner Tembinkosi Bonakele said access to digital markets has now become indispensable and access to digital markets is dependent on access to digital platforms.

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