News
18.09.2023
TCA's Ruling on Data Portability and Abuse of Dominant Position
The Turkish Competition Authority ("TCA") has published an explanatory text on the newly adopted decision for the competition violations of Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret AŞ ("Sahibinden"), an advertisement and e-commerce platform, in their operations in vehicle, real estate sales and rental platform services market. The TCA, along with establishing additional obligations for Sahibinden to rectify the existing violation and prevent further violations, imposed an administrative fine in the amount of 40.150.533 Turkish liras. While the reasoned decision has yet to be published, the explanatory text for the decision is published on TCA's website: https://www.rekabet.gov.tr/Dosya/2-1-sahibinden-nihai-karar.pdf
BACKGROUND
The TCA decided to conduct an investigation on Sahibinden for the operations of the company in the vehicle and real estate sales and rental platform services market. The investigation aimed to determine whether Sahibinden was abusing its dominant position by preventing data portability and other means in the relevant market.
EVALUATION OF THE TCA
The TCA determined that Sahibinden holds a dominant position in the real estate/vehicle sales and rental online platform services market. As a result of the investigation, it was found that Sahibinden was restraining its corporate users from operating on other platforms in the market by means of preventing the transfer of their data. With the restriction of data portability and the practice of actual/contractual exclusivity through the non-compete obligation imposed on their contracts, the TCA found that Sahibinden was abusing its dominant position in the market. The restriction of data portability of Sahibinden was also regarded as an action to complicate the activities of the other competitors in the market.
The TCA, accordingly, found that Sahibinden violated the competition law by abusing its dominant position by restricting the corporate users' data portability. Due to the found violations, the TCA, along with the administrative fine in the amount of 40.150.533 Turkish liras, imposed several obligations on Sahibinden.
The obligations are listed as follows:
- To be implemented within a three-month period of the notification of the reasoned decision and to be submitted to the Authority: rearranging the contract signed between the corporate users and Sahibinden in such a way that does not include clauses that are subject to the violation,
- To be implemented within a two-month period of the notification of the reasoned decision and to be submitted to the Authority the compliance measures prepared no later than one month before the deadline assigned to it: Sahibinden should install the infrastructure that will allow corporate users to effectively transfer the real estate and vehicle advertisement data that they have entered into the platform from Sahibinden to competing platforms and keep the data contained in these advertisements up to date without charging any price,
- In case corporate members of competing platforms request to port their real estate and vehicle ad data on those platforms to the SAHİBİNDEN platform and keep the data included in the ads updated on the SAHİBİNDEN platform and the competing platforms accept this request; SAHİBİNDEN must set up the infrastructure free-of-charge, to allow those members to port and update their data within the shortest reasonable time without delay in order to meet the demands from the competing platforms in an uninterrupted and effective manner,
- Sahibinden must submit a report to the Authority periodically once a year and for a period of 3 (three) years from the start of the implementation of the first compliance measure.
CONCLUSION
Digital advancements and matter of data are creating shifts and effects in every aspect of life. The field of commerce and competition law is not immune to these influences. It is to be observed that data, while being a subject of digitalization regulations, can no longer be considered merely as an IT law subject. The TCA, with this decision, provides a clear perspective for their approach in the event of the effects of data in the markets. The TCA’s decision holds significant implications for data portability, following the Nadirkitap decision. This approach is an indication that the TCA will not be refraining from regulating the field and performing further investigations on the matters of data.
Aleyna Katırağ
Cenk Konukpay