The Competition Tribunal has interdicted and restrained Facebook, WhatsApp and Facebook South Africa from removing GovChat’s WhatsApp-based citizen engagement platform from the WhatsApp platform for a period of six months.

This follows GovChat and its subsidiary #Let’sTalk’s application for interim relief in January after Facebook threatened to remove GovChat from WhatsApp owing to alleged noncompliance with WhatsApp’s terms of use.

The Tribunal heard arguments from January 13 to 18 from the applicants, GovChat and Hashtag Letstalk, for interim relief for six months, or until the resolution of a complaint they submitted to the Competition Commission relating to alleged prohibited practices by Facebook.

The Tribunal order provides that WhatsApp and Facebook may not remove GovChat from the WhatsApp platform or do anything to undermine GovChat’s relationship with its clients that would, in effect, off-board GovChat from the WhatsApp platform.

It also stipulates that GovChat may not add any new clients or users to the WhatsApp business account; and will not be able to expand their current service offering in relation to existing clients or users on the WhatsApp business account.

In its order and reasons, the Tribunal found that the applicants have established a prima facie case of prohibited conduct on the part of the respondents in that the respondents’ selective application of its rules against the applicants amounts to an effective refusal to deal.

“The applicants have (thus) also made out a prima facie case of exclusionary conduct and anti-competitive effects. The respondents on the other hand have not provided any evidence of pro-competitive gains to off-set the prima facie anti-competitive effects,” the Tribunal said in a statement.

While a WhatsApp spokesperson said that the firm was disappointed the Tribunal did not permit the off-boarding of GovChat at this stage, it was grateful that its findings, which include imposing restrictions on GovChat’s operations, will continue to defend WhatsApp from abuse and protect its users.

“We want our services to be used to help get essential information to people during Covid-19. That is why we have worked with business solution providers alongside more than 100 governments and nongovernmental organisations around the world, including the South African government, to launch official coronavirus chatbots. GovChat has repeatedly refused to comply with WhatsApp's terms of service and refused our offers of help to become compliant,” the spokesperson said.

The Tribunal pointed out that it had not concluded on whether or not WhatsApp and Facebook have contravened the Competition Act, but, rather, found that there is sufficient evidence before it that the applicants have a prima facie case that they should be granted interim relief while their complaint against Facebook is being investigated by the commission.

“If the Commission’s investigation ultimately finds that there is a case, it will then refer the matter to the Tribunal for adjudication. Only after a hearing into that referral will the Tribunal make a finding on whether or not there has been a contravention,” the Tribunal said.