The Competition Tribunal has continued to hear cases from both sides and has now granted GovChat and its #LetsTalk service interim relief. This means that Facebook, WhatsApp and Facebook South Africa has been interdicted and restrained from de-platforming GovChat.
“The applicants asked the Tribunal to prevent the respondents from removing or ‘off-boarding’ them from WhatsApp’s paid business messaging platform, pending the outcome of their complaint against Facebook to the Competition Commission (‘the Commission’), or for a six month period (whichever occurs first),” explains the Tribunal in a press statement.
The full ruling can be found here, but the Tribunal has summary of the interim relief conditions are as follows:
- “The respondents are interdicted and restrained from off-boarding the applicants from their WhatsApp Business Account (“WABA”) pending the conclusion of a hearing into the applicants’ complaint lodged with the Commission or 6 (six) months of date hereof, whichever is the earlier.
- The respondents shall not engage in any conduct that directly or indirectly undermines the applicants’ relationships with its clients for purposes of achieving the same outcome as off-boarding the applicants. The applicants shall not on-board any new clients or users to the WABA.
- In relation to existing clients or users on the WABA, the applicants shall not launch, expand or sell any new use-cases to these clients.”
The Tribunal was also careful to clarify that the granting of interim relief does not mean that it has reached a conclusion on whether Facebook and WhatsApp have contravened the Competition Act.
“The Tribunal has not concluded on whether or not WhatsApp/Facebook have contravened the Competition Act. Rather, the Tribunal has found that there is sufficient evidence before it that the applicants have a prima facie case (i.e., a case on the face of it) that they should be granted interim relief while their complaint against Facebook is being investigated by the Commission,” notes the Tribunal.
“If the Commission’s investigation ultimately finds that there is a case, it will then refer the matter to the Tribunal for adjudication (or “prosecution”). Only after a hearing into that referral will the Tribunal make a finding on whether or not there has been a contravention,” it adds.
The mention of prima facie above was framed in terms of WhatsApp’s market dominance in South Africa, as well as the potential damage removing GovChat could have.
“Members of the public who rely on GovChat’s platform for assistance pertaining to distress grants and Covid-related information will be deprived of access to these critical services during the Covid-19 pandemic if it was off-boarded from the WhatsApp platform, pending the outcome of the complaint lodged with the Commission,” it was argued by the GovChat applicants.
Added to this is the reported R50 million that has been poured into the GovChat and #LetsTalk initiatives, which if removed from WhatsApp, would leave many South Africans unable to access a service they rely upon to communicate with the government regarding distress grants and other important dependencies.
Either way this saga is from over, as government and Facebook come to blows once again. We will be tracking this story intently and provide any further updates.