The European Commission (EC) considers deleting messages exchanged via social media apps during a dawn raid to be obstruction and a serious breach of EU competition law, McGuireWoods London partner Matthew Hall wrote in a July 29, 2024, Law360 article.
On June 24, 2024, the EC announced a fine of €15.9 million against International Flavors & Fragrances (IFF) when an employee was found to have intentionally deleted WhatsApp messages after he had been informed of the raid. This is the first time the EC has imposed a fine for the deletion of messages exchanged via social media apps on a mobile phone during a dawn raid.
“The commission has consistently taken a hard line against obstruction issues generally, imposing fines for breaching seals, accessing a blocked email account and diverting incoming emails during a raid,” Hall wrote. “The commission viewed the IFF case as an example of tampering with electronic records and was particularly concerned because ‘the special nature of electronic records makes the risk of manipulation particularly high.’”
However, IFF obtained a 50% fine reduction due to its broad and proactive cooperation, which helped the commission complete its investigation and reach a decision quickly.
“The commission is particularly focused on electronic material generally and considers the use of WhatsApp and similar platforms specifically to be a problem for its enforcement of competition law. This is particularly so given the high risk of deletion, which can be done instantaneously and from anywhere,” wrote Hall, an antitrust lawyer and member of McGuireWoods’ Government Investigations & White Collar Litigation Department.