WhatsApp and its Parent company, Meta, have filed an appeal with the Nigerian Competition and Consumer Protection Tribunal, seeking to overturn a $220 million fine imposed by the Federal Competition and Consumer Protection Commission (FCCPC).
The company has laid out 22 reasons why the penalty, which followed a detailed investigation, should be overturned.
At the top of its argument, Meta says the FCCPC’s directives are not just vague but also technically unfeasible. The company argues that the requirements fail to consider the operational complexities of their services and are unsupported by Nigerian law.
Specifically, Meta and WhatsApp highlight that the FCCPC’s order to “immediately reinstate the rights of Nigerian users” is unclear and imposes an unrealistic burden.
Meta disputes the FCCPC mandate to halt data sharing with other Facebook entities and third parties, arguing it is inconsistent with legal standards and industry practices. It challenges the necessity and feasibility of the proposed “remedy package,” claiming the 15-day compliance period is insufficient.
In addition, Meta asserts that the FCCPC lacked the authority to enforce certain conditions, such as requiring prior approval of privacy policies, also pointing to procedural fairness, stating that they were not given adequate opportunity to contest the findings or calculations that led to the fine.
The reasons as listed for appealing the FCCPC’s $220 million penalty are:
- Vague Directives: The directive to “immediately reinstate the rights of Nigerian users” is considered excessively vague and creates uncertainty.
- Technical Impracticality: The FCCPC’s requirements do not account for the operational complexities of WhatsApp, making compliance burdensome and technically impossible within the timeframe.
- Ambiguous Privacy Policy Order: The order regarding the privacy policy is ambiguous, given that WhatsApp users can choose not to accept the Terms of Service.
- Unjustifiable Data-Sharing Order: The order to halt sharing user data with other Facebook companies and third parties is deemed unjustifiable and against industry standards.
- Lack of Legal Basis for Privacy Policy Approval: There is no legal requirement for privacy policies to be approved by the FCCPC or the Nigeria Data Protection Commission.
- 2016 Data Sharing Practices: The directive to revert to 2016 data-sharing practices lacks a legal basis.
- Unclear Data Transfer Blockage: Instructions to stop data transfer without explicit user consent are not clear.
- No Need for Written Assurance: The requirement for a written assurance to not infringe on consumer rights is unnecessary.
- Inadequate Remedy Package Timeframe: The 15-day period for implementing a proposed remedy package is inadequate.
- Investigation Cost Reimbursement: The order to reimburse the FCCPC $35,000 for investigation costs has no legal basis.
- Excessive Penalty: The penalty is hefty and was imposed without a fair hearing.
- Impossibility of Data Consent Mechanisms: Building a consent mechanism for each data point is deemed impossible and costly.
- Audit Without Personnel Presence: The FCCPC can conduct audits without Meta’s physical presence in Nigeria.
- No Need for Prior Approval: There is no power for the FCCPC to compel prior approval of privacy policy updates.
- Extended Implementation Time: Remedy packages require more time for implementation than provided.
- No Coercion of Consumers: There is no coercion or tying of products that forecloses competition.
- Meta Not Formally Investigated: Meta was not formally investigated by the FCCPC, which ordered Meta to produce information regarding WhatsApp.
- No Evidence Against Meta: There is no evidence to warrant treating Meta as a target of the FCCPC’s orders.
- Right to Fair Hearing: The appellants argue that their right to a fair hearing was violated.
- Lack of Opportunity to Query Penalty Calculation: Meta and WhatsApp were not allowed to challenge the penalty calculation.
- No Findings Against Meta: The Final Order lacks findings of fact or law against Meta.
- Unsigned Final Order: The penalty was imposed without signatures from the Executive Chairman or Vice Chairman of the FCCPC, questioning its legitimacy.
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