The EU Commission and Finnish Competition and Consumer Authority (“FCCA”) are showing their teeth on dawn raids. The European competition authorities have tools and increased vigilance for detecting companies’ intentional deletion of messages in social media applications, such as WhatsApp. During this year, both the EU Commission and the FCCA have issued (in case of the FCCA a proposal for the imposition of a fine) fines for the intentional deletion of messages during their (on-site) investigations into suspected competition law infringements.
The EU Commission’s case concerned the deletion of WhatsApp messages exchanged with a competitor that contained business-related information. In the FCCA’s case (in Finnish) an employee deleted work-related WhatsApp discussions and a phone log. In both cases, the respective authority has managed to retrieve the deleted messages. Upon realising that data had been deleted, the parties (-) proactively cooperated with the competition authorities to recover the deleted data. This swift cooperation resulted in more lenient fines for the individual companies (the maximum amount of a fine for a procedural infringement, such as the deletion of potentially incriminating data, amounts to 1 % of a company’s (group) worldwide turnover).
The cases underline two things: mobile devices and social media platforms are a hotbed of possibly competition law infringing messaging and the importance of compliance during antitrust investigations. With all this in mind, it is of the essence for companies to comply with the applicable rules during dawn raids, and most importantly, safeguard itself and its staff with necessary competition compliance frameworks. In case these developments – both as regards the use of social media platforms and the regulators’ rigor during antitrust investigations – are not reflected in compliance manuals, it may well be time to revisit and revise the manuals!
