Tag: Digital Markets

Does Africa Need Its Own Digital Markets Act? Key Takeaways from the Centre for Competition Law and Economics’ Webinar on Digital Competition Policy Developments in Africa

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By Michael-James Currie and Matthew Freer

On 9 June 2026, the Centre for Competition Law and Economics (“CCLE”) at Stellenbosch University convened a practice webinar that captured, in real time, the tensions, ambitions, and practical fault lines shaping digital competition policy across the African continent. The timing was deliberate. Across Africa, competition authorities have moved past the abstract question of whether digital markets require special attention. Instead, they are now wrestling with a harder set of questions: how to regulate, who should regulate, and, most exactly, what exactly the objectives of that regulation ought to be.

The webinar brought together three voices, each occupying a distinct vantage point. Professor Willem Boshoff, Co-Director of the CCLE, Department of Economics, Stellenbosch University. He opened with a survey of national and regional developments, sketching a landscape marked by innovation but also fragmentation. Malick Diallo, Head of Competition at the African Continental Free Trade Area (“AfCFTA”) Secretariat, then offered a rare first-hand account of how the continental body is positioning itself within that landscape. And finally, Michael-James Currie, Director at Primerio, brought the practitioner’s lens: what do these proliferating rules mean for clients trying to comply, invest, and compete in an environment where regulatory priorities remain dangerously unclear?

The South African Starting Point

Boshoff began by anchoring the discussion in the South African experience, not because it is representative of the continent, he was careful to say it is not, but because it offers a useful baseline for comparison. What is striking about the South African approach, he observed, is how the competition authorities have relied on existing tools rather than demanding a separate, bespoke digital regulatory regime. They have repurposed market inquiry tools, adapted merger control frameworks to capture killer acquisitions, and sought to develop broader skills across the authority rather than building a dedicated digital unit.

That last point is revealing. Boshoff noted, that running a competition authority in Africa comes with limited resources and scarce specialised skills. Building a standalone digital unit is expensive. Instead, the South African authorities have attempted to mainstream digital expertise across the organisation, relying on the two major market inquiries, the Online Intermediation Platforms Market Inquiry and the Digital Media Platforms Market Inquiry, to build institutional understanding from the ground up.

What is equally notable, Boshoff argued, is the preference for time-bound remedies and the distinctly developmental focus that runs through South African competition enforcement. Supporting smaller players, protecting local businesses, and ensuring that digital markets serve broader industrial policy goals have become central features of the approach. “In a sense,” he said, “this is quite different from the approach taken in the European Union, even though it might mean we do a bit more ex ante work within the competition law framework.” The EU has gone for strong, explicit ex ante regulation. South Africa has not, at least not yet.

But Boshoff was careful to emphasise that South Africa is not the continent. When you move beyond its borders, the picture changes dramatically.

Kenya, COMESA, and the March Toward Ex Ante Rules

Kenya represents a different trajectory. Boshoff described a jurisdiction that has historically taken a lighter-touch approach, not unlike South Africa’s. But recent developments, specifically the country’s e-commerce policy and the accompanying amendments to its competition legislation, signal a deliberate shift toward ex ante measures. The competition amendment bill includes alternative thresholds for digital mergers and rethinks how dominance should be assessed in a digital setting. Whether that will translate into dramatically different enforcement outcomes remains to be seen, Boshoff cautioned, but the fact that these provisions are being baked into the legislation itself is significant.

Move up one layer further, to the regional level, and the picture shifts again. COMESA, Boshoff noted, has been remarkably active. Its 2025 regulations align closely with the European DMA-style approach, complete with specific prohibitions, digital merger thresholds, and a posture toward prohibited practices that is far more prescriptive than South Africa’s case-by-case method. That comes with its own set of challenges, Boshoff acknowledged, both for enforcers and for the parties subject to those rules.

Across all these jurisdictions, however, Boshoff identified two common threads. The first is a merger of competition policy and consumer policy, not new, but particularly pronounced in the digital context, where exploitative conduct targeting specific groups of customers has become a focus of attention. The second is an emphasis on protecting small local players, whether through merger remedies or abuse of dominance enforcement. That emphasis on contestability, Boshoff suggested, raises a deeper question: is the goal to have two or three players competing head-to-head, or is it to build ecosystems where one or two large players create opportunities for many smaller ones in adjacent markets? Those are, in effect, industrial policy decisions baked into competition law. And they have not yet been fully debated.

The AfCFTA’s Role

If the national and regional picture is one of fragmentation and divergence, Malick Diallo’s contribution was an attempt to map how the AfCFTA intends to impose order without overriding legitimate local and regional autonomy. Diallo was clear from the outset: the AfCFTA protocol on competition policy was never designed to replace or supersede national or regional frameworks. The preamble explicitly recognises the central role that national and regional authorities will continue to play in promoting fair competition and inclusive growth in intra-African trade.

In describing what the continental body is for, Diallo explained the three-layer architecture. National authorities handle matters of a domestic nature, classic enforcement, abuse of dominance, local measures. Regional bodies like COMESA, ECOWAS, WAIMU, and SAMRC address cross-border conduct within their respective markets. And the AfCFTA Competition Authority steps in only where there is a “continental dimension”, defined in Article 1 of the protocol as conduct, practices, mergers, or agreements that have a significant effect on the markets of at least two state parties that do not share the same regional economic community jurisdiction.

Digital markets are the clearest illustration of why this matters. Diallo pointed to a study by the African Competition Forum showing that Google holds an estimated 90% market share in search across the continent. That dominance is felt in every African country simultaneously. A national authority can deal with purely domestic conduct, and a regional body can handle matters limited to its region, but when conduct cuts across different regions, or when no regional body has jurisdiction, the AfCFTA fills the gap. “We are filling the enforcement gap that arises in cross-regional and truly continental transactions,” Diallo said.

He identified five concrete ways the AfCFTA complements existing work:  

  1. It fills the jurisdictional gap.
  2. It promotes harmonisation of laws and standards. Diallo noted that COMESA has already adopted new provisions on abuse of economic dependence, aligning with the AfCFTA protocol, and the secretariat is supporting other state parties to do the same.
  3. It has established the AfCFTA Competition Network (AFCNet), a platform for regular dialogue, case referrals, joint investigations, and the development of common approaches to market definition, data access, and remedies.
  4. It facilitates capacity building, allowing more advanced jurisdictions like South Africa to share expertise with younger ones.
  5. It provides a structured channel for information sharing, including confidential information, to avoid the inconsistencies and duplicative interventions that currently plague the system.

“What we are trying to build is not a parallel enforcement regime,” Diallo emphasised, “but a continent-wide ecosystem, one where national authorities handle domestic cases, regional bodies handle cross-border intra-regional cases, and the AfCFTA handles truly continental conducts.” Digital markets, given their cross-border nature, network effects, and tendency toward gatekeeper dominance, are the clearest illustration of what the continental authority is meant to tackle.

The Practitioner’s Warning

Speaking from the perspective of a competition lawyer advising clients who must navigate this proliferating regulatory landscape, Michael-James Currie raised a series of pointed questions about whether the current wave of rulemaking is outpacing the capacity of authorities to enforce those rules wisely.

He began with killer acquisitions. Many jurisdictions have lowered their merger thresholds to capture these transactions. But Currie asked a deceptively simple question: what happens after the transaction is captured? Are agencies actually able to make informed, forward-looking assessments in dynamic markets? He noted that while the theories of harm in killer acquisitions are well established, it would be illuminating to conduct an ex post assessment of all the digital mergers captured by lower thresholds over the past ten years. How many of them, with the benefit of hindsight, ought to have been prohibited? The Facebook-Instagram decision is often cited as a cautionary tale, Currie acknowledged, but even there, one must ask: would Instagram be where it is today without Facebook’s investment and synergies?

That question is not merely academic. It goes to the heart of whether new rules are solving a real problem or simply increasing regulatory friction. It leads directly to the issue of capacity. Even the most resourced jurisdictions struggle to make accurate forward-looking assessments in digital markets, Currie observed. For African authorities, many of which lack dedicated digital units, the challenge is magnified. “It’s very difficult,” he said, “not even for a jurisdiction that lacks the resources, even for the most resourced jurisdictions and agencies who have been looking at digital markets for many years, it’s tough for them too.”

Currie then turned to the issue of gatekeepers, which he described as “just one element of digital markets.” He noted that COMESA is currently drafting regulations to define what a gatekeeper is, a process that will not be uncontentious. He pointed to a recent decision where Meta successfully overturned a European Commission designation of Facebook Marketplace as a gatekeeper under the Digital Markets Act, with the General Court of the European Union ruling in Meta’s favour. That decision, Currie argued, shows that there will be a great deal of litigation over who qualifies as a gatekeeper, and that authorities will have a very tough time defining the relevant product markets in which a respondent is said to be a gatekeeper.

Perhaps most provocatively, Currie suggested that the policy conversation is disproportionately focused on platforms and gatekeepers while neglecting digital infrastructure. Currie suggests that if one wants to grow local industries, digital infrastructure is critical. The attention given to platforms, he argued, comes at the expense of the underlying infrastructure that would enable local players to compete in the first place.

It was in the context of competing policy objectives, however, that Currie delivered his most pointed remarks. He observed that South Africa has always mixed industrial policy into its competition regime, protecting employees, supporting SMEs, promoting historically disadvantaged persons. “It all sounds very good on paper,” he said. “But it is very difficult for an agency or regulator, or even government, to say, if there’s a tension between what’s good for consumers and what’s good for a certain class of competitors, who will we prioritise?”

That question is not abstract. It arises in real cases, and it requires an answer. Currie’s concern was that regulators have not provided one. Instead, they have effectively said: trust us. We will arrive at the right conclusion. We don’t want to harm innovation or investment. Just trust us.

“That is a very difficult message to sell to industries and stakeholders,” Currie said. “Policymakers and regulators need to set out, very clearly and deliberately, what they prioritise over what under instances of tension.”

The Unresolved Question

Boshoff, returning to the discussion, noted that Currie’s concerns connected directly to a deeper issue that the webinar had only begun to explore. The implicit industrial policy focus of digital market regulations across the continent has not yet grappled with how best to support African platforms and ecosystems. The EU policy debate, Boshoff observed, is currently centred on digital mergers, scaling, and how merger policy might support European-based platforms in response to the Draghi report. That debate is largely absent in Africa.

Conclusion

The webinar left little doubt that Africa is moving rapidly toward a multi-layered digital competition regime, with the AfCFTA positioning itself as the essential capstone. Malik Diallo’s contribution was valuable precisely because it came from inside the process, he was able to articulate not only the legal architecture but the practical mechanisms, AFCNet, harmonisation efforts, capacity building, through which the AfCFTA intends to make that architecture work.

Currie’s warnings were however valuable. Regulation without clarity of objective is not sound policy. Asking stakeholders to trust that regulators will balance consumer welfare, SME protection, industrial development, and innovation in every case is not a sustainable basis for compliance or investment. As African authorities continue to build out their digital competition frameworks, whether at the national, regional, or continental level, they would do well to answer the question Currie posed. When tension arises between competing objectives, what comes first?

Until that question is answered clearly and deliberately, the risk is not that African competition policy will be too strong or too weak. It is that it will be unpredictable. And for businesses trying to invest and compete across the continent, unpredictability is its own kind of harm. However, the message is equally not one of despair but of opportunity: African competition authorities are building something unprecedented, a truly continental enforcement dialogue, and if they can answer the hard questions about what they value most, they may yet produce a model for digital regulation that is as dynamic as the markets it seeks to govern.

Nigeria Flexes Regulatory Muscle: Tribunal Upholds $220 million fine against WhatsApp and Meta over data discrimination practices  

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By Nicole Araujo

On 25 April 2025, almost a year after the Federal Competition and Consumer Protection Commission (“FCCPC”) imposed a hefty $220 million fine on WhatsApp and its parent company, Meta, the Competition and Consumer Protection Tribunal (“Tribunal”) delivered its landmark decision, upholding the fine and ordering a further – almost negligible, when compared to the substantive fine – $35,000 administrative penalty against the social media giants for fact-finding costs incurred during the 38-month long investigation. This regulatory win for Nigeria’s digital rights landscape has contributed to reinforcing Nigeria’s growing resolve to regulate big tech.

The decision stemmed from findings that the companies engaged in discriminatory data practices and violated Nigerian data protection laws, affecting more than 51 million users.  As Andreas Stargard, a competition-law practitioner with Primerio, notes, “not only did the FCCPC’s investigation uncover WhatsApp’s unauthorised sharing of user data and a lack of meaningful consent mechanisms, but it also revealed discriminatory practices compared to other regions – I believe this is where the differentiation in the FCCPC’s consumer-protection jurisdiction (as opposed to that of the domestic data protection authority) comes in meaningfully.  It remains to be seen what an independent, judicial review of the Tribunal decision will yield in this regard, but the FCCPC has had a comparatively strong track record so far in terms of having its novel, forceful, and ‘creative’ enforcement strategies upheld, with the B.A.T. matter perhaps being the most powerful example.  The recent Dangote matter, involving the shocking fact pattern of a lack of refining capabilities in oil-rich Nigeria, is an interesting counter-point, though, as the FCCPC lost an attempt to intervene in that matter in Abuja’s Federal High Court.”

So far, the appellate-level Tribunal has sided with the Commission, dismissing an appellate request for review by WhatsApp and Meta, which challenged the fine on 22 grounds, ranging from procedural errors to allegations of vagueness and technical impossibility in respect of the timeframe given by the FCCPC. Meta’s legal team relied on the grounds that the FCCPC’s orders were unclear, unsupported by Nigerian law, and financially impractical to comply with. However, the FCCPC argued that the penalties were not financially punitive but rather corrective and aimed at rectifying the tech giant’s alleged discriminatory practices.

In its decision, the Tribunal emphasised that the FCCPC acted within its lawful mandate and that WhatsApp and Meta were afforded a fair hearing. It further upheld that the reliance on foreign legal standards, while not binding, was appropriately persuasive in determining issues of data protection and consumer rights.

The Tribunal ordered WhatsApp and Meta to inter alia, reinstate Nigerian users’ rights to control their personal data, revert to their 2016 data-sharing policy, and immediately cease unauthorised data sharing with Facebook and other third parties without obtaining the necessary consent from users. In this regard, compliance letters must be submitted by July 1, 2025, and a revised data policy must be proposed and published. 

This case marks a significant moment in the Nigerian Authority’s forceful use of the regulatory tools available to it — as well as overall for Africa’s evolving digital economy, highlighting the demand for global corporations to acknowledge local presence and effects and adapt to robust local compliance expectations. While Big Tech companies such as Amazon, Google and Meta have been subject to significant penalties under the European Union’s General Data Protection Regulation, as one of Africa’s digital technology pioneers, Nigeria’s move could inspire similar enforcement actions across the African continent. This decision can be seen as a “gentle” reminder for multinational digital and tech firms that compliance with local data protection laws is no longer optional, it is imperative.

Babatunde Irukera, Florence Abebe, Andreas Stargard at the African Antitrust Salon hosted by Primerio

While more African countries are pushing back against big tech companies and are focusing on unchecked data exploitation within their borders, there is a need, however, for the continent to build towards a larger, sustainable strategy to manage the presence and power of big tech.  Says Andreas Stargard, “the quarter-billion dollar Meta fine, if upheld, would firmly cement Nigeria’s antitrust global relevance in the minds of international lawyers and businesses.  This comes as a surprise in some ways, as the FCCPC was first put on the map only fairly recently, by its inaugural Chief enforcer, Tunde Irukera: his vision for creative enforcement tools and encouragement of the agency’s staff to employ heretofore unused investigatory mechanisms and strategies – often seen only in U.S.-style civil litigation, and certainly not in many government agencies worldwide, much less among other African jurisdictions – show that the Commission potentially has the necessary intellectual capacity and investigatory stamina to pursue cases of equal or greater dimensions in the future.  It will depend on its leadership where the FCCPC’s path is charted next…”

Of course, there needs to be a balance struck between the value of personal data and that of innovation and tech adoption, which calls for a coordinated regulation policy that will strive to balance economic and non-economic features of the continent. 

As observed by Leonard Ugbajah, a competition law consultant, a balanced and pragmatic approach is essential when opting to address the regulatory landscape around big tech: 

“A common approach would harness the capabilities of countries, moderate opportunism by state and non-state actors in pursuing enforcement, recognise the economic importance of big tech, properly calibrate the various pain points (economic and non-economic) and safeguard the interests of the not-so-capable African countries.” 

The social media giants have 60 days, starting from 30 April 2025, to comply with the $220 million fine ordered by the Tribunal. Notably, following the decision, WhatsApp has indicated that it intends to seek a stay of the Tribunal’s decision and pursue an appeal. 

Sweeping Inquiry Sheds Light on Online Intermediation Platforms: Competition, Opportunity, and the Road Ahead

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By Tyla Lee Coertzen and Nicola Taljaard

On 31 July 2023, the South African Competition Commission (“SACC”) released its Final Report and Decision on the Online Intermediation Platforms Market Inquiry (“OIPMI”). The OIPMI was initially launched on 19 May 2021 and after a number of requests for information, public hearings, expert reports as well as comments and engagements with stakeholders, the SACC’s findings and recommendations have finally been concluded.

The SACC is empowered to conduct market inquiries according to section 43B(1)(a) of the Competition Act 89 of 1998 (as amended) where it has reason to believe that there are market features that may impede, distort or restrict competition in a particular market; or to achieve the objects and purposes of the Act (including participation of small and medium enterprises (“SMEs”) and historically disadvantaged persons (“HDPs”).

The Inquiry: A Timeline of Discovery and Discernment

  • May 2021: The kick-off. Release of the Statement of Issues (SOI), first round of Requests for Information (RFIs), and business user survey.
  • August 2021: Heating up with the release of the Further Statement of Issues (FSOI), second round of RFIs, and a refined business user survey.
  • November 2021: The public had their say with hearings and follow-up RFIs.
  • February 2022: Expert reports and in-camera hearings added a new dimension.
  • July 2022: Provisional Inquiry Report was published, provisional findings, and recommendations were made public.
  • August to December 2022: A flurry of submissions, stakeholder engagements, and follow-up RFIs.
  • January to July 2023: Engaging stakeholders on final findings and remedial actions, sealing the deal.

What Does It All Mean?

These findings focus on the various platform categories, including the mammoth influence of Google Search. The full extent of these actions requires deep exploration, but one thing is clear: the landscape of online intermediation platforms is about to shift.

During the launch of the OIPMI, the Minister Patel of the Department of Trade, Industry and Competition (“DTIC”) commended the SACC for its great effort and the high-quality product produced in the form of the OIPMI. He further noted that the government should consider taking an inclusive response to the findings and recommendations in the OIPMI.

The findings concluded, inter alia, that Google Search is vital as a means for consumers to access all platforms, and that its paid search alongside free results business model is disproportionately advantageous to larger and more established platforms. It also found that Booking.com’s practice of restricting hotel prices on certain online networks results in a restriction of competition and allows it to make more commission by making users reliant on it. eCommerce giant, Takealot, was found to have a conflict of interest due to its retail department competing with its marketplace sellers and causing detriment to the latter. Google Play and the Apple App stores were found to charge exorbitant fees to developers and on a global level, the platforms hampered the visibility of SA-paid apps. Food delivery platforms Uber Eats and Mr D Food were found to cause difficulty to their competitors because of the lack of openness regarding the surcharges charged on menus across their platforms, as well as the limitations put on national chain franchisees. Property advertisement platforms Property 24 and Private Property were further found to have hindered their competitors by providing low interoperability to competitors in respect of listings. Property 24, together with AutoTrader and Cars.co.za were also found to have hampered small estate agents and car dealers due to the discriminatory pricing implemented by these platforms.

To combat the effects of the findings, the SACC recommended the imposition of a number of remedial actions including consumer-aiding search filters, marketing incentives to purchase local goods, the removal of restrictive pricing clauses, the segregation of internal (competing) divisions, the removal of automatically directing mechanisms to larger players, disclosure clauses to consumers and other benefits to SMEs, HDPs and consumers.

All platforms will be provided a period within which to affect the remedial actions.

A New Chapter: Where Do We Go From Here?

This OIPMI hasn’t just been about pointing fingers and exposing flaws. It’s about shaping the future of a wide range of the economy. The implications are broad, affecting everyone from big tech to the small business owner striving to make a mark in a competitive world.

Michael-James Currie, Partner at Primerio, noted “The recommendations of the OIPMI are far reaching for online platforms. Regulators need to ensure that we do not undermine those who are growing and providing significant investment the digital market in a highly competitive market where firms are competing not only with established traditional retailers but also large international players. Likewise, South Africa cannot afford to signal to international players that their business models will be substantively undermined once they establish themselves in South Africa. This is particularly so if the Commission’s remedies are not informed by objective competition concerns.”

Competition Commission Releases Online Intermediation Platform Market Inquiry Provisional Summary Report

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By Nicola Taljaard

On 13 July 2022, the South African Competition Commission (“Commission”) released a Provisional Summary Report (“Report”) on the Online Intermediation Platforms Market Inquiry (“OIPMI” or “Inquiry”) which was initiated on 19 May 2021. The Commission initiated the Inquiry following reason to believe that certain features of the online intermediation platforms market could be impeding, distorting or restricting competition.

The Commission placed specific emphasis on getting small and medium enterprises (“SMEs”) and historically disadvantaged persons (“HDPs”) to participate in the relevant markets, and premised the Inquiry on the following competition and public interest considerations in relation to market features:

  • Hampering competition between the actual platforms;
  • Hindering competition between business users or undermining consumer choice;
  • Giving rise to abusive treatment of business users; and
  • Which may have disadvantageous impacts on the ability of SMEs and/or HDPs to participate in the market.

The Commission further noted a lack of participation by HDPs as a common thread which prevails in the online intermediation platforms market, which seems to languish in an untransformed state relative to the broader South African economy.

The remedial action proposed in the Inquiry ranges in severity based on the impacts which the market features have on competition, particularly in relation to SMEs or HDPs. The leading platforms on which the remedial actions are proposed are the Apple App and Google Play stores, Takealot, Property 24 and Private Property, Autotrader and Cars.co.za, Booking.com and Airbnb, Mr. Delivery and UberEats, and Google. Although the Commission did not consider it necessary to enter a dominance inquiry, it did remark that these platforms show features of dominance when considering their positions in the respective markets.

In addition to the more general constructive proposals, the Commission also suggests provisional remedies which are more robust, including against Google, stating that it plays an integral role in how consumers interact with relevant platforms. In this regard the Commission intends to further its inquiry into the viability of keeping Google Search as the default search on mobile devices in South Africa.

The OIPMI came to the provisional conclusion that the digital economy is deficient in relation the country’s transformation goals and deviates significantly from the transformation trends of other traditional industries. The lack of transformation in most of the industries investigated as part of the intermediation platforms continues to display major barriers to entry for HDP entrepreneurs. This conclusion is particularly pertinent in light of the ever-widening digital divide.  

The Commission has made all of the documents and public submissions in relation to the Inquiry, as well as the Summary Report (which can be accessed here) available on its website. The public has six weeks within which to submit comments to the Summary Report, after which the Inquiry body has committed to consider the views and incorporate changes, where appropriate, to the final report and findings which will be released in November 2022.

South African Competition Commission Prosecutes Facebook for Abuse of Dominance

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By: Gina Lodolo

On 14 March 2022, the South African Competition Commission (“Commission”) referred a complaint against Meta Platforms Inc is the parent company of WhatsApp Inc (“WhatsApp”) and Facebook South Africa (hereafter jointly “Meta”), to the Competition Tribunal (“Tribunal”) for allegedly engaging in abuse of dominance.

The referral follows WhatsApp (as part of the  Meta group) attempting to off-board GovChat from the WhatsApp platform. GovChat is a chatbot service connecting government to millions of citizens on issues of public concern (e.g. information on COVID-19 vaccinations and social grants). GovChat is reliant on the WhatsApp platform to function and connect users, without which its entire existence will be prejudiced.

GovChat utilizes WhatsApp for their services due to WhatsApp’s scale and consumer reach, however, Meta has attempted to off-board GovChat by placing reliance on WhatsApp’s terms and conditions to enforce a restriction against monetisation of confidential information through the use of consumer data obtained on the platform.

In this regard, the Commissions media release notes that “Facebook has imposed and/or selectively enforced exclusionary terms and conditions regulating access to the WhatsApp Business API, mainly restrictions on the use of data”.

The selective enforcement by Meta and attempts to off-board GovChat from the WhatsApp platform, according to the Commission, potentially violates Section 8(d)(ii) of the Competition Act 89 of 1998 (as amended) (“Act”) which prohibits a dominant firm from abusing its dominance by “refusing to supply scarce goods or services to a competitor or customer when supplying those goods or services is economically feasible”. In the alternative, the Commission alleges that Meta has engaged in an exclusionary act or refused to give a competitor access to an essential facility when it is economically feasible to do so (under section 8(1)(b) or 8(1)(c) of the Act).

The Commission has requested the Tribunal to:

  1. Impose the maximum penalty permitted under the Act, being 10% of Meta’s turnover;
  2. Interdict Meta from off-boarding GovChat; and
  3. Declare void exclusionary terms and conditions that are selectively applied in a manner that prevents potential competition by restricting access to the WhatsApp platform for potential competitors.

In its media release, the Commission stated that “access to digital markets is dependent on access to digital platforms including as in this case, access to an important digital communication platform”.

Primerio Director, Michael-James Currie notes that this complaint referral follows an interim relief application whcih GovChat successfully obtained against Facebook and WhatsApp in the beginning of 2021 in terms of which WhatsApp was prohibited from off-boarding GovChat.

This case, says Currie also coincides with a very proactive drive by the Competition Commission to consider competitive effects in digital markets in South Africa.

The case also suggests that the Competition Commission considers the existing rules regarding abuse of dominance as being adequate to address competition concerns in the market.

For more background information click here

To access the Competition Commission media release, click here