As per the Law No. 4054 on the Protection of Competition ("Competition Law"), the Turkish Competition Authority ("TCA") has the right to realize on-the-spot inspections (i.e. raids) in exercising its duties including, among others, carrying out preliminary inquiries and investigations to reveal competition violations. In this regard, Article 15 of Competition Law draws the borders of this right and states that the TCA is entitled to

  • "examine the books, any paperwork and documents of undertakings and associations of undertakings, and take their copies if needed",
  • "request written or oral statement on particular issues",
  • "perform on-site examination of any assets of undertakings."

As broad as the scope of the right may seem, the TCA has until very recently been hesitant to inspect Whatsapp conversations.

In this very recent preliminary inquiry1 ("Orthodontic Products Decision"), the TCA examined whether undertakings located in Ankara dealing with the sales of orthodontic products were violating Competition Law by way of price fixing.

The TCA, within the scope of the preliminary inquiry, has conducted raids on the premises of nine undertakings allegedly involved in these price fixing practices. The findings of the raids revealed that the TCA has inspected the employees' Whatsapp conversations in the company computers linked to the company GSM lines probably thanks to the Whatsapp's features that enable the user to use the application over a browser-based platform or over a computer software. Another possibility is that the Whatsapp conversation logs were stored in the company computers. As far as understood from the decision, the TCA did not inspect the Whatsapp conversations over the employees' mobile phones.

Although it is known that the TCA has been inspecting the computers of the employees as an established practice, the inspection of Whatsapp conversations is a first-time (known) practice by the TCA.

Conclusion

The TCA has found that the companies concerned did not carry out price fixing practices and thus did not violate the Competition Law. Regardless of the result, the Orthodontic Products Decision is an important case for the TCA's upcoming raids and their compatibility with the law.

Considering the recent decisive and determined practices of the TCA regarding imposing fines on the undertakings due to hindering the inspection2, the Orthodontic Products Decision suggests that the undertakings may be fined if their employees refuse to let the TCA to inspect their Whatsapp conversations so long as the Whatsapp conversations are realized through company GSM line and the inspection is carried out in the company computer.

There is no doubt that there is a clash of rights between the TCA's right to inspect the employees' Whatsapp conversations and the employees' right to privacy. In this regard, it is considered that the TCA is to act in a very careful manner in inspecting the Whatsapp conversations, which may be directly related with the employees' right to privacy protected under the Turkish Constitution.

Footnotes

1. The TCA's 29.03.2018 dated and 18-09/157-77 numbered Decision.

2. Within the last years, the TCA imposed fines on four undertakings for not submitting to the inspection amounting to a record of more than TRY 3 million in total (18.01.2018 – 18-03/34-21; 21.12.2017 – 17-42/669-297; 03.07.2017 – 17-20/318-140).

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