Facebook, WhatsApp and Facebook South Africa have been interdicted by the Competition Tribunal from removing GovChat from WhatsApp. Photographer: Chris Ratcliffe/Bloomberg
Facebook, WhatsApp and Facebook South Africa have been interdicted by the Competition Tribunal from removing GovChat from WhatsApp. Photographer: Chris Ratcliffe/Bloomberg

WhatsApp, Facebook temporarily interdicted by GovChat

By Edward West Time of article published Mar 26, 2021

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CAPE TOWN - FACEBOOK, WhatsApp and Facebook South Africa have been interdicted by the Competition Tribunal from removing GovChat from WhatsApp.

The interdict is in force until a hearing to consider if the online messaging platform has contravened the Competition Act is concluded, or until the end of six months, which ever is earliest, a statement from the Competition Commission said yesterday.

GovChat and its subsidiary, #Let’sTalk had sought the interim relief after Facebook threatened to remove GovChat from WhatsApp, due to alleged non-compliance with WhatsApp’s terms of use.

The Commission held the explicit WhatsApp terms of use involved, and the terms of use by governments that were allegedly flouted by GovChat, to be confidential, and these were not disclosed in the public documents.

GovChat assists the Department of Health with Covid-19 education, symptom tracking and testing. It also assists the Department of Social Development and South African Social Security Agency to enable citizens to apply for distress grants.

The Tribunal found in favour of interim relief to the applicants who provided “an invaluable service to government departments and citizens alike,” and after the Tribunal could not conceive of any “real prejudice which the respondents would suffer during the period of its interim relief order.”

GovChat said it would suffer irreparable harm if off-boarded, as the public interest would be negatively affected in a critical time of the Covid-19 pandemic.

Members of the public who relied on GovChat’s platform for assistance on distress grants and Covid-related information, would be deprived of access to these services during the pandemic if it was off-boarded from the WhatsApp platform.

The Tribunal further noted that a refusal to supply by off-boarding, would “certainly result in an anti-competitive outcome”.

WhatsApp had contended that the the matter concerned its right to enforce the contractual terms that governed the use of the WhatsApp business platform, and those terms relating to their use by government entities.

WhatsApp’s terms and conditions of use placed limitations on customers redistributing the WhatsApp services to third parties unknown to the respondents.

“In the respondents’ view, the applicants flouted all these requirements. In the first instance, while they are not authorised by any government department to render services to citizens, the name GovChat creates the impression that they are an official government site,” WhatsApp had contended.

“They gather sensitive personal information from citizens and there are no controls in place as to which third party they might share this information with. Furthermore, they flout the rule in relation to government departments by providing services to multiple government departments, so the respondents have no sight of who these departments are.”

The Tribunal said in its order that “it is not our function, in interim relief proceedings, to arrive at a definitive finding of a contravention. A successful applicant is only required to make out a prima facie case, not to establish its case on a balance of probabilities.”

The Tribunal found that GovChat had established a prima facie case of prohibited conduct on the part of the respondents in that the respondents’ selective application of its rules against the applicants amounted to “an effective refusal to deal.”

GovChat had also made “a prima facie case of exclusionary conduct and anti-competitive effects”, while the respondents had not provided evidence of “pro-competitive gains to off-set the prima facie anti-competitive effects,” the Tribunal said yesterday in a statement.

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