GovChat–Meta discovery battle stalls as Tribunal postpones matter indefinitely

Banele Ginindza

The Competition Tribunal has indefinitely postponed GovChat’s discovery application against Meta, signalling further delays in the high-profile data access dispute that forms part of the Commission’s ongoing prosecution of Meta for alleged abuse of market dominance.

The case stems from GovChat’s 2020 complaint, upheld by the Competition Commission in 2022, that Meta subsidiaries Facebook and WhatsApp threatened to remove GovChat and its partner platform #LetsTalk - a technology start-up that connects government and citizens - from the WhatsApp Business  Application Programming Interface.

GovChat, launched in 2018, enables citizens to report service delivery issues such as potholes and engage with all spheres of government, national, provincial, and local.   

GovChat alleges that Meta selectively enforced exclusionary terms and conditions governing access to the API, particularly around data usage and integration, conduct the Commission determined may constitute exclusionary practices under competition law.

At Monday’s resumption of interlocutory proceedings, GovChat’s Senior Counsel Paul Farlam SC argued that Meta’s discovery affidavits remained incomplete and evasive.

Farlam said Meta had failed to address specific document requests raised earlier in the year, instead providing broad thematic responses that lacked clarity and did not correspond to GovChat’s detailed discovery demands.

"They focus mainly on responding to the Competition Commission and not for the intervenors. It does not help the Commission or the Tribunal as well. Whatsapp will endeavour to identify the items in request to which documents in discovery are most responsive and anticipate that will take time to be finalised," Farlam said.

He said what the GovChat legal team could gather from the cross-referencing is that Meta had processed requests for infomation superficially.

"Our concern is we've got some documents, a fair number related to these requests. Some requests have no documents at all but they have never gone on oath. Nobody with knowledge has gone on oath to say we don't have anything more in relation to that request and we point out its implausible in many instances," Farlam said.

"We've got some documents but they have not squarely confronted the requests and said we don't have anymore related to that. We have considered the request. We have done a search with reference to that request of the discovery. We've asked different people and we don't have anything. The question is, what is not being provided? We don't know. That is what is unsatisfactory. It is unsatisfactory for the Tribunal and it is unsatisfactory for us."

Representing Meta, Senior Advocate Jerome Wilson argued that the volume and complexity of electronically stored information (ESI) made the process inherently difficult.

Meta, he said, is a vast multinational organisation with extensive data archives across servers, systems, and backup environments.

Wilson said the approach taken by respondents is the absolute standard approach in the UK, also consistent with the US approach in relation to electronically stored information given just the enormous breath of documents stored electrocnivally and the difficulty in producing information for dicovery.

He pointed out the difficulties associated with the traditional model of discovery in relation to who is involved in that particular process.

"The Parties don't know how much ESI they have and where it is. They don't have an idea which server it is on or which computers or back up tapes it is on,".

"Without a great deal more information, it is difficult for them to know how much documentation will be revealed by searches in the media, how much ESI is stored and how much it is going to cost to search it and what the end result is going to be."

Tribunal chairperson Geoff Budlender ruled to postpone the matter sine die, urging both sides to propose practical ways to manage the discovery process.

He noted that Meta’s current disclosure “does not meet the requirements” established in precedent.

"It's clear that the disclosure which has been made does not meet the requirements set out in the Irish Bank case. I am sure that it's in everyone interest to avoid the time and the exertion involved  in another comprehensive search of everything," Budlender said.

"But I think in order to do that, to be blunt, that  Meta needs to be accommodative to satisfy GovChat that it would not be useful to go through the whole process starting again from scratch because otherwise, we have to acknowledge there is a material risk of that given that." 

The Tribunal is expected next to hear Meta’s own interlocutory application against GovChat, extending what has already become a protracted legal and regulatory battle.

BUSINESS REPORT