Hold The Phone: Antitrust Authorities Looking Closely at Instant Messages in Dawn Raids

By: Bernd Meyring, Thomas Elkins & Liliane Gam (Linklaters)

On June 24, the European Commission fined International Flavors & Fragrances (IFF) €15.9 million for deleting WhatsApp messages during a dawn raid. This marks the first instance where the deletion of phone messages has led the EC to impose an obstruction fine.

This blog post examines the focus on digital devices during dawn raids, the implications for cooperation obligations, and steps businesses can take to avoid receiving an obstruction fine.

Antitrust Authorities Focus on Electronic Documents and Devices

As communication increasingly shifts to digital formats, electronic documents and digital devices have become central to antitrust investigations. During a dawn raid, one of the first actions taken by antitrust authorities is to gain access for forensic staff to the business’s entire IT environment. However, the IT environment now encompasses much more than office desktops and servers, including:

• Instant messages, such as WhatsApp and other text messages, including ‘ephemeral’ messages.
• Digital devices, including smartphones, tablets, and laptops, even personal devices if they are used for business purposes.
• Data stored in the cloud.

From the onset of an investigation (whether a dawn raid, request for information, or decision to open an investigation), businesses under scrutiny are subject to a general obligation not to conceal, modify, or destroy documents. This obligation extends to leniency seekers outside of the dawn raid context. Violating this obligation constitutes obstruction and can result in significant fines (and in some jurisdictions, criminal charges).

The Takeaway: Expect antitrust authorities to focus primarily on digital evidence, including personal devices used for business purposes.

Authorities worldwide are adapting to digital advancements and possess the technology and determination to detect attempts to obstruct investigations by destroying digital messages or tampering with devices. This is evidenced by the recent fine imposed on IFF by the EC, the Ofcom decision to fine Sepura, and recent guidance issued in the US.

The IFF Obstruction Fine

The EC fined IFF for obstruction when a senior employee deleted WhatsApp messages exchanged with a competitor. The messages were deleted after the employee was informed about the EC’s inspection, which the EC considered a factor making the infringement “of a very serious nature.” The employee did not disclose the data deletion to the EC, which might have been considered a mitigating factor. The deletion was discovered when the employee’s mobile phone was reviewed by the EC’s Forensic IT team.

The Takeaway: Expect antitrust authorities to have the forensic tools necessary to detect the deletion or manipulation of electronic information, including instant messages.

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