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Facebook faces prosecution in SA over dominance abuse

Read time 4min 30sec
Sorry, but if you’re running global services adopted by half the world (and shaping the political and social landscapes), don’t be cutesy.
Sorry, but if you’re running global services adopted by half the world (and shaping the political and social landscapes), don’t be cutesy.

Social media giant Facebook’s parent company Meta is facing prosecution in South Africa for allegedly abusing its market dominance.

The Competition Commission, in a statement, says it has referred to the Competition Tribunal for prosecution of the social media giant, Meta Platforms (previously known as Facebook), and its subsidiaries, WhatsApp and Facebook South Africa (collectively referred to as Facebook) for abuse of dominance.

The commission alleges Facebook, in the first instance, decided in or about July 2020 and expressed an ongoing intention to offboard GovChat and #LetsTalk, a technology start-up that connects government and citizens, from the WhatsApp Business Application Programming Interface (WhatsApp Business API).

In the second instance, it adds, Facebook imposed and/or selectively enforced exclusionary terms and conditions regulating access to the WhatsApp Business API, mainly restrictions on the use of data.

According to the competition watchdog, this is in contravention of the Competition Act, sections 8(1)(d)(ii), alternatively 8(1)(c) and in the further alternative 8(1)(b).

It explains the Act prohibits a dominant firm from abusing its dominance by engaging in exclusionary conduct geared at preventing competitors or potential competitors from entering into, participating and expanding in a market.

Meta-owned WhatsApp had made allegations that GovChat, which conducts citizen engagement on the WhatsApp technology, violated its terms of use. As a result, it is looking to remove or off-board GovChat from its WhatsApp Business Account.

GovChat brought an urgent application before the Competition Tribunal, seeking interim relief against Facebook, WhatsApp and Facebook South Africa.

The WhatsApp Business API enables medium and large businesses (and government) to, among other things, message at scale, makes use of advanced automation, integrations with existing e-commerce, building chatbots and tracking metrics.

Public engagement

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

The commission notes GovChat also enables government to disseminate critical information to the public en masse, such as information related to COVID-19 system tracking, testing and vaccination.

It has also enabled the poor to apply online for social relief and distress grants.

The watchdog notes GovChat has provided government with unprecedented insight into service delivery issues in real-time and gives government the ability to provide targeted solutions more efficiently.

It adds GovChat is dependent on its continued access to the WhatsApp Business API.

“The intended off-boarding of GovChat from the WhatsApp Business API will harm consumer welfare by removing the efficiency of GovChat, which allows the public to communicate with multiple government bodies through a single platform and will also deprive government of the current services (and future services such as mobile payment solutions) offered by GovChat,” the commission says.

“To illustrate the point, the GovChat messaging traffic comprises of hundreds of thousands of messages daily, the vast majority of which relates 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 GovChat relate to COVID-19 information.”

The commission found that the harm to the competitive process is also clear because the decision to off-board GovChat from the WhatsApp Business API and the exclusionary terms for access to the WhatsApp Business API, including restrictions on the use of data, limits innovation and the development of new products and services.

“This is in a context in which WhatsApp Messenger enjoys significant economies of scale and network effects advantages,” it says.

Consequently, the commission also found the terms and conditions governing access to the WhatsApp Business API are designed to shield and insulate Facebook from potential competition, such as the potential competition presented by GovChat and the enormous data it has been able to harvest, which enables it to develop new services and products.

Maximum penalty

The commission has asked the tribunal to impose a maximum penalty against Meta Platforms, WhatsApp and Facebook South Africa, which is 10% of their collective turnover.

In addition, the commission has requested the tribunal to interdict Facebook from off-boarding GovChat from the WhatsApp Business API and declare void certain exclusionary terms and conditions for access to the WhatsApp Business API.

Competition commissioner Tembinkosi Bonakele says: “Access to digital markets has now become indispensable.

“In turn, access to digital markets is dependent on access to digital platforms including, as in this case, access to an important digital communication platform – the WhatsApp Business API.

"Over and above, data is everything in digital platform markets. In view of the important services provided by GovChat, which provides real-time interface between government and the public, and the benefits to competition presented by its business model, Facebook’s decision to off-board GovChat from the WhatsApp Business API and its exclusionary terms of data usage are untenable.”

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