News

27.03.2024

Meta Under the Spotlight: Turkish Competition Board's Decision on Data Privacy Concerns

The Turkish Competition Board ("Board") has issued an interim measure decision in the investigation initiated on META Platforms, Inc. ("META") on the allegation of abusing its dominant position by linking the Threads and Instagram applications. The Board evaluated that META's combining the data of users, by creating Threads profiles based on Instagram accounts, between these two applications without getting the users' consent would cause irreparable damages until the investigation is completed.

BACKGROUND

In 2021, the WhatsApp application sent a notification to its users, stating that in order to continue using the application, they had to consent to the sharing of their data with Facebook companies; otherwise, they would not be able to use the application. Following this notification, the Board concluded in its decision dated October 20, 2022 and numbered 22-48/706-299 that META was in a dominant position in the "social media market" and abused its dominant position within the scope of Article 6 of the Law No. 4054 on the Protection of Competition ("Law") by combining the data collected from other services of the undertaking. The Board stated that this combination made it difficult for its competitors operating in the social networking services and online advertising markets as well as creating a barrier to entry into the market.

Subsequently, allegations arose that META abused its dominant position by linking of the Threads application, launched in July 2023, with the Instagram application. This led to a pre-investigation by the Board against META.

META also made updates in November 2023 to allow the deletion of Threads profiles without deleting the Instagram account. 

EVALUATION OF THE TCA

The Board examined the Threads Additional Privacy Policy and determined that, similar to the notification sent by WhatsApp in 2021, the information collected through Threads would be used to provide, personalize and improve Threads and other META products and services, including advertisements.

During the pre-investigation, it was determined that META combined the data collected through Threads with Instagram. It was emphasized that the possible anti-competitive effects of this situation were stated in the above-mentioned decision of the Board, and that the decision imposed obligations on META to end the data combination.

It was pointed out that in digital markets, undertakings tend to create an ecosystem consisting of services in many different and/or related markets. In this context, the Board indicated that barriers to entry and growth should be minimized in markets that are so prone to monopolization.

The Board stated that due to META's long-standing existence in the market, it has a comprehensive and detailed data accumulation, and that the size and diversity of META's user base makes META's services attractive to advertisers. This situation makes it difficult for potential competitors in the market to attract advertisers to their own platforms, creating a barrier to entry. 

In the EU legislation, the Digital Markets Act (DMA) prohibits gatekeepers from combining data from their different services without the explicit consent of end users. 

DATA PROTECTION ASSESSMENT

The Board pointed out that explicit consent would only be valid if the individual is aware of their actions and makes their own decision. In cases where the parties are not in an equal position, actions such as taking advantage of information asymmetry to collect excessive data, not adequately informing users, and not obtaining consent for data collection may be considered unfair contract terms. Moreover, it is underlined that the explicit consent of the person cannot be determined as a precondition for the providing of a product or service.

CONCLUSION

In light of these evaluations, the Board has decided to apply an interim measure to prevent the combination of data collected through the Threads with data collected from the Instagram until a final decision is made. This decision aims to prevent potential competition violations and irreparable damages that may occur in the relevant product market.

There are significant decisions of the competition authorities regarding the protection of competition in data processing processes. In addition, the evaluation by the Court of Justice of the European Union (CJEU) regarding Facebook's data processing policies is still ongoing. At this point, the rules of both competition law and data protection law must be carefully considered.

Oğuzhan Başak