The Turkish Competition Authority is equipped with a broad range of powers to determine the material facts of a case and assess allegations concerning violations of Turkish competition law. Perhaps the most important of these powers is the ability to carry out on-site inspections at undertakings' premises. Accordingly, the investigators of the Authority can visit the undertaking under investigation and examine evidence in physical or electronic media. The undertakings are obliged to cooperate with the Authority and provide them with the documents and other materials that they need. The hindrance of an on-site inspection is sanctioned by Article 16 of Law No. 4054 on the Protection of Competition ("the Law"). Further, following the amendment to the Law in 2020 and the Guidelines for the Examination of Digital Data during On-site Inspections ("Digital Investigation Guidelines") issued subsequently, the debate as to whether the Authority can examine the content on mobile devices such as WhatsApp messages have come to an end.
The Competition Board's recent Çiçeksepeti,1 Unmaş2 and IGSAŞ3 decisions reveal how this power is used and what kind of behaviour undertakings should avoid. These three decisions confirm that the case handlers in charge of an on-site inspection are entitled to examine not only company-owned computers and phones, but also personal mobile phones that employees use for business purposes, including the messages in social messaging platforms such as WhatsApp. Moreover, messages that are deleted once an inspection has begun are automatically considered as obstructing the on-site inspection and cause an administrative fine of 0.5% of the annual turnover of the company, pursuant to Article 16 of the Law.
- In Çiçeksepeti, WhatsApp messages deleted while the officials of the Authority were carrying out their examination were considered as preventing the on-site inspection. In addition, the claim that the message was deleted because it was sent to the wrong person by mistake was not considered as a reasonable ground within this context. Furthermore, within the scope of the decision, it was observed that one of the WhatsApp correspondences included a screenshot of a past e-mail message that contained the phrase "(...) wrote (...) something, can you delete it", and which had been completely erased from the mobile device of one of the employees. Although most of the correspondence in the screenshot is redacted, we can still understand that the expression "will handle it" was sent as the reply. It was understood that the message content was also deleted while the on-site investigation was on-going.
- In Unmaş, certain WhatsApp chat contents could not be accessed during the "quick look" procedure, which was carried out in accordance with the principles specified in the Digital Investigation Guidelines.4 However, as the data in question could subsequently be accessed via forensic e-discovery tools, it was verified that this data was deleted during the on-site inspection process. Furthermore, it was determined by the affidavit for the on-site inspection that the undertaking acted in cooperation with the Authority during the on-site inspection, which lasted for approximately nine hours, and that all company employees (including those working remotely due to the Covid-19 pandemic) were warned not to delete any records. Nonetheless, an administrative fine was imposed pursuant to Article 16(d) of the Law. The fact that the deleted records could be recalled by means of forensic information devices did not have any effect on the Board's decision to impose a fine.
- In IGSAŞ, the phone of one of the sales and marketing specialists contained no WhatsApp messages at all. When inquired, he stated that he barely uses the WhatsApp application and that he usually communicates by phone. Thereupon, the investigators found, while examining the phone of another sales and marketing specialist, that there was a WhatsApp group where company issues were discussed and that the sales and marketing specialist in question had left the group while the on-site inspection was being carried out. In addition, an examination regarding some of the employees who were not present at the premises on the day of the on-site inspection was conducted remotely. It was understood that two individuals deleted 165 and 171 e-mails, respectively. IGSAŞ stated that the deleted records generally related to e-mail announcements covering subjects such as "deceased", "farewell", "About February 2021 meal and breakfast menu", "newcomers", "activation of tea stoves", and "conversations with Yıldız". In addition, the company stated that the necessary assistance and support was provided to the Competition Authority during the on-site inspection and that it did not have any involvement with the deletion of the files by the relevant employees and had provided no instruction in this regard. Similarly with Unmaş, the fact that all of the deleted records could be recalled did not prevent the imposition of administrative fines.
So, what options do undertakings have?
We observe that undertakings generally act in cooperation with the investigators and professional staff of the Authority when they arrive for an on-site inspection. Nevertheless, when reviewing the Board's decisions, we understand that undertakings are often fined for hindering or obstructing the on-site inspection. The main reason for this is that the employees delete various records on their own initiative. The fact that the deleted content can be accessed through forensic e-discovery tools does not prevent the imposition of administrative monetary fines on the undertaking concerned. In the Unmaş decision, the Board explained this point with the following statements: "... it is considered that the fact that the deleted data could be accessed by way of computer forensic tools does not have an impact on the nature of the act of hindering/obstructing the on-site investigation. It can be concluded that the acknowledgement of the contrary will be considered as rewarding the undertakings in cases where the undertakings delete the said data but the deletion cannot be detected by the forensic computing tools."
First and foremost, undertakings should ensure that all employees, including security staff as well as those responsible for information technologies and human resources, adopt competition law awareness. Undertakings can achieve this by way of effective competition law training. It would also be of great benefit to create guidelines to determine the duties of each employee during on-site inspections. If these are supported by a "mock" on-site inspection, employees can become sufficiently prepared for a potential real-world on-site inspection. Moreover, in case of a dawn raid, undertakings may also explain the importance of working in full cooperation with the investigators and professional staff of the Competition Authority by sending information messages from all platforms used by the company, warning that no records should be deleted (and that deleted records can be recovered), and that documents should also not be destroyed. In this context, employees should be reminded that the case handlers of the Competition Authority are authorised to examine all types of documents, and therefore, waiting for permission from the company headquarters or other authorities in this regard can result in an administrative monetary fine.
Prior examples demonstrate that undertakings may have to pay a high amount of penalties if the on-site inspection is hindered or made difficult, regardless of whether such preliminary investigations expanded into full-fledged investigations or a violation was found within the scope of the investigation. This, as we mentioned above, is due mostly to the conduct of individual employees, which may stem from the pressure of the situation rather than from the general policy of the company.
In addition to the above, undertakings can also opt for corporate messaging solutions instead of messaging platforms where personal communication and corporate communication are intertwined, in order to prevent the reflexes of employees to delete content on their phones with the motive of protecting their privacy.
1 The Competition Board's Çiçeksepeti decision, dated 27.05.2021 and numbered 21-27/354-173.
2 The Competition Board's Unmaş decision, dated 20.05.2021 and numbered 21-26/327-152.
3 The Competition Board's İstanbul Gübre Sanayi A.Ş. decision, dated 12.08.2021 and numbered 21-38/544-265.
4 For further information on Digital Investigation Guidelines, please refer our article here.
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