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WhatsApp off-boarding would curtail its existence, says GovChat

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GovChat founder and CEO Eldrid Jordaan.
GovChat founder and CEO Eldrid Jordaan.

If GovChat is off-boarded from WhatsApp’s business platform, the citizen engagement platform’s entire existence will be materially prejudiced, founder and CEO Eldrid Jordaan told ITWeb via e-mail.

This as Facebook argues its case today in the dispute with GovChat, as the former looks to terminate GovChat’s access to its popular messaging service, WhatsApp.

Last week, the Competition Tribunal revealed GovChat had brought an urgent application, asking it to interdict and restrain Facebook from “off-boarding” GovChat from WhatsApp. Last Wednesday, the tribunal heard GovChat’s arguments in the matter.

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

However, Jordaan maintains “GovChat's position is, and has always been, that it was not in breach of WhatsApp's policy”.

In the event Facebook terminates GovChat's access to the popular messaging app’s business platform, Jordaan says this would prejudice the platform’s entire existence.

“GovChat is reliant on the WhatsApp business platform, which GovChat argues is dominant in the market for over-the-top messaging apps through smartphones in South Africa and related markets, in order to effectively facilitate communication between citizens and government.

“If WhatsApp/Facebook off-boards GovChat, it will have successfully excluded GovChat from participating in the relevant market. This, GovChat argues, is anti-competitive conduct and contrary to the prescripts of Competition Law in South Africa.”

Anti-competitive behaviour?

According to the founder and CEO, GovChat launched its application to protect the platform’s business from the anti-competitive consequences that are likely to result from Facebook's attempt to off-board GovChat from the WhatsApp business platform.

In addition, it was launched to protect the rights and interests of the millions of South Africans who use GovChat services to access information relating to COVID-19, including screening information and test results, as well as accessing the COVID-19 social relief of distress grant.

The GovChat services, he states, are provided by GovChat on a pro-bono basis via the WhatsApp business platform.

“At its core, this case is about allegations of abuses of dominance by large technology companies,” he says. “GovChat's view is that Facebook/WhatsApp's conduct in attempting to off-board GovChat, and preventing GovChat from providing its services via the WhatsApp business platform, amounts to an abuse of dominance in terms of the Competition Act, which will have an anti-competitive effect in South Africa.”

Jordaan adds: “GovChat's case is that WhatsApp/Facebook's decision to off-board GovChat from WhatsApp would have the effect of excluding GovChat from operating in the relevant market, and this would amount to a prohibited practice in terms of sections 8(1)(b), 8(1)(c) and/or 8(1)(d)(ii) of the Competition Act – ie, exclusionary conduct, and/or refusing access to an essential facility or scarce services.

“GovChat is of the view that WhatsApp/Facebook self-evidently enjoys considerable market power, as they are technology giants based in the United States of America, and Facebook is the largest social media and messaging company in the world. WhatsApp is wholly-owned by Facebook.”

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

According to GovChat, its platform is accessed through WhatsApp, FaceBook Messenger, SMS and USSD channels.

While Facebook alleges GovChat is in breach of WhatsApp's terms of use, GovChat argues the issue is a competition law issue.

According to GovChat, the matter is not simply a contractual dispute, but rather a “competition law matter premised on allegations of abuses of dominance by Facebook and WhatsApp”.

“Facebook alleges GovChat is in breach of WhatsApp's terms of use. They argue this dispute is nothing more than a contractual dispute, which has nothing to do with the competition laws of South Africa,” states Jordaan.

“It is however, not clear to us what the contractual terms of use are that Facebook alleges GovChat has violated. This is due to the fact that Facebook has consistently changed its position in relation to the specific terms that it alleges we have breached.

“We are currently in talks with WhatsApp/Facebook's legal team to reach agreement on working terms and conditions.”

On whether he believes there is a winning chance against the technology giant, Jordaan says GovChat believes it has a strong case, especially in light of the US cases against Facebook and the actions of Facebook in pursuing market dominance globally.

According to Jordaan, at the end of last year, the US Department of Justice, under the jurisdiction of the Federal Trade Commission, filed an anti-trust suit against Facebook. This was followed by a separate suit by the attorneys-general of 46 states in the US alleging anti-competitive behaviour by Facebook.

“This case is all about Facebook wanting to preserve its dominant market position and retain control over social networking, user profiles, user data and consumer monetisation strategies in South Africa.

“We hope the tribunal will recognise the real competition law issues which arise in these matters and the potential for super-dominant companies to control a particular market by excluding participation by smaller companies like GovChat,” he concludes.

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