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Sibel ÖZTÜRK

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LL.M., Partner

Interim Measure in Turkish Competition Law, Interim Measure Decisions Issued on "Facebook" and "Krea"

*Sibel ÖZTÜRK, LL.M. 

Introduction

According to Article 20 of the "Law on the Protection of Competition" No. 4054, the Turkish Competition Authority, It is responsible for ensuring the formation and development of goods and services markets in a free and healthy competitive environment. The Competition Authority is an independent administrative institution[1] with public legal personality and executive decision-making authority[2]. In terms of the constitutional system, the Competition Authority, which is structurally within the administration[3], is equipped with a wide range of regulations, supervision and, where necessary, sanctions in order to fulfill the task of ensuring and protecting the competition order.[4]

In accordance with the fourth paragraph of Article 9 titled "Termination of Infringement" of the Law No. 4054 on the Protection of Competition, the Competition Board may take interim measures in cases where there is a possibility of serious and irreparable damages until the final decision, in a way that protects the situation before the violation and does not exceed the scope of the final decision. The Board's decision on interim measures is an interim decision.

 Conditions Regarding the Interim Measure Decision Issued by the Competition Board 

In the course of a preliminary investigation or investigation, in order for the Competition Board to issue a interim injunction; 

1. there must be a suspicion of infringement/infringement and
2. There must be a serious and irreparable danger of harm until the final decision.  

According to the Competition Board, this suspicion of violation is possible in terms of both existing and future violations. The main criterion for taking a decision is "possible harm". The Board states that when the possibility of a violation arises, the preservation of the pre-infringement situation before it is disturbed will mean the preservation of the current situation.[5]

Along with this,

1. the injunction shall be protective of the situation before the breach, and
2.  The injunction must not exceed the scope of the final decision.  

On the other hand, a request to this effect is not required for the Competition Board to issue a interim measure decision, and within the framework of the situation and scope specified in the Law, the Board may decide on temporary measures ex officio.[6]

Turkish Competition Board's Interim Measure Decision on Facebook: Stopping the Obligation to Share Whatsapp Data

With the decision of the Competition Board dated 11.01.2021 and numbered 21-02/25-M, an investigation was initiated against Facebook. In the investigation initiated ex officio by the Board in order to determine whether Article 6 of the "Law on the Protection of Competition" numbered 4054 has been violated; The Board has taken a interim measure decision within the framework of Article 9 of Law No. 4054 on the grounds that the practices subject to the file are likely to cause serious and irreparable damages until the final decision to be taken as a result of the investigation.

As stated within the scope of the investigation file, the information sent to WhatsApp users will update the WhatsApp terms of use and privacy policy and that "users must consent to the sharing of WhatsApp data with Facebook companies in order to continue to use WhatsApp, otherwise they will not be able to use WhatsApp as of February 8, 2021", and the update as such will ensure that more data is collected by Facebook, processing and use.

In its decision dated 11.01.2021 and numbered 21-02/25-10, the Competition Board stated that the conditions imposed by Facebook in Turkey for the use of WhatsApp users' data for other services as of 08.02.2021 have led to the following concerns within the scope of Law No. 4054:

* Connecting WhatsApp data to other Facebook company products and data, 

* Facebook's use of its power in the consumer communication services market in a way that complicates the activity of its competitors in the field of internet advertising, 

* Excessive data collection and use of data for other services leads to the exploitation of the consumer.

Therefore, according to the Board, considering the issues of Facebook's market power in the following markets;

(i) consumer communication services, (ii) social networking services and (iii) online advertising services, Facebook applications are likely to cause serious and irreparable harm until a final decision is made as a result of the investigation.

Because if WhatsApp users accept the conditions offered by Facebook, other group companies will also have the relevant data and will start using this data. In this case, according to the Board, "if the investigation concludes that if it is decided to end Facebook's behavior, it is very difficult to eliminate the advantages arising from the retrieval and use of this data" and "it is obvious that the application under review will create an irreparable situation in this respect."

On the other hand, the Board stated that some of the WhatsApp users were informed by Facebook that "as of 08.02.2021, their data will be used for other services" and that it is likely that some of the users have given their consent to these conditions, and that the relevant interim measure decision should apply to all users in Turkey, including users who accept these new terms of use proposed by Facebook, expressed.

In the conclusion of this decision, the Board ruled that "Facebook should stop the conditions imposed by Facebook for the use of WhatsApp users' data for other services as of February 8, 2021 in Turkey and notify all users who accept these conditions or who do not accept them by receiving the notification that Facebook has stopped the new conditions involving data sharing by the said date."

Turkish Competition Board's Interim Measure Decision on Krea

Another interim measure decision issued by the Competition Board was dated 29.09.2022 and numbered 22-44/652-281 regarding Krea İçerik Hizmetleri ve Prodüksiyon A.Ş.

The Competition Board, at its meeting held on 29.09.2022 regarding the implementation of the temporary measure against Krea, discussed the following claim: Within the scope of the broadcasting rights of the Turkish Super League and Turkish First Division League football competitions, which are exclusively owned by Krea; the allegation that it discriminatoriously provided sub-publication rights, particularly "newsworthy images" and "extensive summary images", to other broadcasters. At this meeting, the Board decided on the interim measure against Krea as follows:

"In order to prevent competition violations that may occur in the Broadcasting Rights market of the Turkish Super League and Turkish First Division League Competitions and the irreparable damages that may be caused by them; With respect to Krea's current ongoing football season of 2022-2023, in the presence of broadcasters who have purchased or wish to acquire the broadcasting rights, in respect of each week and each match in which the footage is made available to the viewer, large summary images and editorial images shall not be permitted by any broadcaster to be published before the time set out in the specification for editorial images."[7]

Conclusion

Interim measures are measures taken by the competition authorities to protect the situation before the infringement and imposed on the undertakings during the investigation period in order to prevent irreparable damage to the market until the conclusion of a competition investigation. As a matter of fact, the fourth paragraph of Article 9 of the Law on the Protection of Competition No. 4054 contains the regulation that an interim measure decision can be taken "in cases where there is a possibility of serious and irreparable damages until the final decision, in a protective manner to the situation before the violation".

Accordingly, in the course of a preliminary investigation or investigation, in order for the Competition Board to issue an interim measure, there must first be a suspicion of infringement / violation and there must be a serious and irreparable danger of damage until the final decision.

According to the Competition Board, this suspicion of violation is possible in terms of both existing and future violations. The main criterion for taking a decision is "possible harm". However, the interim measure must be protective of the situation before the violation and must not exceed the scope of the final decision. Finally, in order for the Competition Board to issue an interim measure, such a request is not required; within the framework of the situation and scope specified in the Law, the Board may decide ex officio for interim measures.

Article Contact : Sibel Öztürk   

E-mail: [email protected]

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