Nigeria’s Competition and Consumer Protection Tribunal on Tuesday reserved a ruling and judgment on the case involving WhatsApp and Meta Platforms Incorporated over the $220 million penalty imposed by the Federal Competition and Consumer Protection Commission (FCCPC) for alleged discriminatory practices in Nigeria.
The tribunal’s three-member panel, led by Thomas Okosun, adjourned the verdict after taking oral arguments from WhatsApp and Meta’s legal team, led by Professor Gbolahan Elias (SAN), and the FCCPC’s legal team, represented by Babatunde Irukera (SAN), a former Executive Vice Chairman of the Commission.
Nairametrics previously reported that WhatsApp and Meta Platforms Incorporated had appealed to the tribunal, arguing that the FCCPC’s $220 million penalty should be overturned, citing 22 reasons, including alleged vague directives, unjustifiable data-sharing orders, and procedural errors.
The appellants claimed that the FCCPC’s demands were vague, technically impossible to implement within the stipulated timeframe, and unsupported by Nigerian law.
The fine imposed by the FCCPC followed an investigation into alleged violations of data protection and consumer rights by Meta and WhatsApp.
The Commission expressed concerns about Meta’s allegedly abusive and invasive practices affecting data subjects and consumers in Nigeria.
What WhatsApp and FCCPC Legal Documents Say
- In their appeal, the appellants argued that the FCCPC denied them a fair hearing by imposing a hefty penalty without giving them an opportunity to understand how the penalty would be calculated or to respond to the calculation of the proposed amount.
- The appellants contended that contrary to the FCCPC’s compliance order, identifying and building a consent mechanism for each data point processed by Nigerian users would be impossible and extremely expensive.
- However, the FCCPC maintained in its argument that the $220 million penalty was based on its resolve to remedy the company’s alleged discriminatory practices rather than impose a financial punishment.
- The Commission also highlighted its findings, which revealed that Meta engaged in exploitative practices that violated constitutional guarantees by allowing unauthorized access to and misuse of private information.
What Transpired at Today’s Tribunal Proceedings
- At the resumed proceedings, the FCCPC sought the tribunal’s leave to transfer the Commission’s “entire record within its custody” to the panel to support a fair and transparent adjudication of the dispute.
“A record is a record. It is the only thing that this tribunal needs to work on. The full record does not intend to support any party,” FCCPC’s counsel stated, adding that the record does not present any new evidence but recounts events that had happened in the past.
Elias objected, filing a counter-affidavit dated November 8, 2024, opposing the FCCPC’s application for compiling an alternative record of appeal.
He argued that the so-called alternative record of appeal from the FCCPC merely introduces documents that WhatsApp and Meta’s team “had never seen prior to the filing of the appeal.”
Elias alleged that the new record was an attempt to alter the nature of the appeal after it had been filed, stressing that such development would undermine transparency.
Oral Arguments on the Appeal
- Elias contended that the FCCPC had overstepped its authority by attempting to enforce data protection laws, which, according to him, fall under the jurisdiction of the Nigeria Data Protection Commission (NDPC).
- He argued that the appellants were not given sufficient opportunity to be heard, particularly on how much time would be appropriate to comply with the FCCPC’s orders and penalties.
“The orders themselves do not disclose findings of fact; they are just conclusions,” Elias stated, accusing the Commission of misunderstanding how WhatsApp operates.
“There is no advertising displayed on WhatsApp services. WhatsApp does not compile or use user profiles for advertising purposes.
“The fines are higher than the budgets and revenue of some Nigerian state governments combined,” he added, urging the tribunal not to rely on foreign laws that are not applicable in Nigeria.
- Elias further argued that Nigeria’s market is competitive and there is no abuse of dominance since users can choose from other providers such as TikTok and Google Meet.
- In response, Irukera urged the tribunal to uphold the Commission’s orders and dismiss the appeal in its entirety.
- He countered the appellants’ claims about foreign precedents, stating that while foreign law is not binding, it is persuasive in similar contexts.
“To say that foreign law has no place at all is absolutely untrue,” he asserted.
- Irukera also argued that the penalty imposed on Meta and WhatsApp was justified, emphasizing that the Commission’s findings included evidence of discriminatory practices and disparities in consumer protections between Nigeria and Europe.
- He added that Meta’s revenue for 2023 was $134.9 billion, highlighting the global scale of the company’s operations.
After hearing submissions from both parties, the tribunal adjourned the case for ruling and judgment, with a date to be communicated to all parties in due course.
What You Should Know
- Following the FCCPC’s orders, WhatsApp stated: “In 2021, we globally informed users about how talking to businesses would work. While there was initial confusion, it has proven quite popular.”
- Similar fines are not uncommon. The European Data Protection Board had fined Meta a record €1.2 billion for non-compliance with EU privacy regulations.
- Over the past five years, Big Tech companies such as Amazon, Meta, and Google have faced significant fines under the European Union’s General Data Protection Regulation (GDPR).
- The legality of the FCCPC’s penalties against Meta Platforms Incorporated is now a matter for the tribunal to decide.
