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WhatsApp slams GovChat for ‘breaking’ terms of use

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Citizen engagement platform GovChat is “breaking all the rules” in how it uses WhatsApp’s business platform, Facebook’s legal team has told the Competition Tribunal.

Yesterday marked the second day of hearings in the dispute involving GovChat, Facebook and WhatsApp. The dispute comes as a result of the world’s largest social media platform, Facebook, wanting to off-board GovChat from its popular messaging service, WhatsApp.

Last week, the tribunal revealed GovChat had brought an urgent application before it, asking it to interdict and restrain Facebook from “off-boarding” GovChat from WhatsApp. Last Wednesday, GovChat delivered its arguments in the matter.

Facebook alleges the official citizen engagement platform for government is in violation of WhatsApp’s terms of use.

However, GovChat maintains it has not breached WhatsApp's policy, adding that if Facebook succeeds in off-boarding it from the WhatsApp business platform, its “entire existence will be materially prejudiced”.

GovChat argues that such a move is anti-competitive conduct and contrary to the prescripts of Competition Law in South Africa.

Legal counsel for Facebook and WhatsApp, advocate Jerome Wilson, told the tribunal the case is not about refusing GovChat or any other entity access to the WhatsApp business application programming interface (API).

“It is saying to this entity: you cannot have access in the manner that you are doing it,” he said. “You [GovChat] are breaking all of the rules – rules not there for any competitive purposes – rules that are there to protect the interests of everyone in this particular ecosystem."

He continued: “You are not only breaking rules but affectively getting an unfair advantage over all BSPs [business solutions providers] because you are able to achieve aggregation in a way that avoids all the checks and balances, allows you to do things with government that are not permitted by WhatsApp and therefore are not available to other BSPs.

“This is not a case about any refusal of access to the WhatsApp API; it is simply saying if you wish to have access to this, there are various ways in which you can do it and there are various rules and requirements associated with those. Insofar as you meet those rules and requirements, you can perform your services; insofar as you do not, you cannot.”

Founded in 2016 and launched in 2018, GovChat is the official communications platform for government. It is an open government partnership with the Department of Cooperative Governance and Traditional Affairs.

The service describes itself as South Africa’s largest civic engagement platform accessible online, on any mobile handset and feature phones.

On the anti-competitive stance, Wilson argued the applicant has provided almost no evidence of the so-called competitive relationship between WhatsApp and GovChat.

This lack of evidence, he stated, is because the two services do not compete. “WhatsApp does not provide data analytics…it does not provide data aggregation, which is another service that GovChat wishes to offer.

“When WhatsApp is seeking to enforce particular rules, it is not doing it because it wants to preserve or create any position for itself in those downstream markets; it is simply trying to regulate the playing field so that there is fair competition in those markets and everyone’s interests are protected.”

He added: “In situations where there is no competitive relationship and there is no evidence of any competitive relationship…then there is no competition case. It only becomes a competition case where there is a competitive interaction or anti-competitive affect for purposes of 8 (c) or 8 (d) of the Competition Act.

“There is no competition issue…When it comes to harm, one is concerned with competitive harm not commercial harm, and there is no harm whatsoever that would be occasioned to GovChat other than that it needs to reformulate its business model to provide its vast services in a compliant manner.”

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