On August 11th, 2023, Chamber II of the National Court of Appeals for Civil and Commercial Matters, with a unanimous decision, dismissed the legal challenges brought by WhatsApp LLC, WhatsApp Ireland Limited, Meta Platforms Inc., Meta Platforms Ireland Limited and Facebook Argentina SRL against Resolution No. 224/2022 issued by the Secretary of Domestic Commerce on March 13th, 2022.
The resolution was based on an opinion of the National Commission for the Defence of Competition (CNDC), issued in the framework of the ex officio investigation that was initiated in order to investigate the conditions imposed on users by WhatsApp Inc., which, together with other practices of the economic group’s companies, could constitute an anti-competitive conduct of abuse of dominant position under the terms of Sections 1 and 3 of Act No. 27.442 on the Defence of Competition.
The original injunction, whose temporary extension was confirmed until the end of the investigation, ordered WhatsApp instant messaging service in Argentina to: (i) refrain from implementing and/or suspending the update of the application's terms of service and privacy policy, announced to come into force on May 15th 2021; (ii) refrain from exchanging its users' data with other companies of the Facebook group (now Meta Platforms) and/or with third parties; and (iii) communicate to its users, through the WhatsApp application or through the company's official website, the full text of the decision adopted.
The purpose of the measure imposed, in order to comply with the provisions of Section 42 of the National Constitution, is to prevent the aggravation and continuation of an alleged abuse of WhatsApp's dominant position in the market in which the company operates, with potential harm to the conditions of competition. Likewise, the measure protects the principle of informational self-determination of the millions of users that the instant messaging system has in Argentina.
It is worth mentioning that the administrative proceedings corresponding to the case for alleged anti-competitive conduct are still pending before the CNDC.