Meta and WhatsApp Challenge $220 Million FCCPC Fine with 22 Arguments

By Emmanuel Ogbodo

WhatsApp and its parent company, Meta Platforms Inc., are appealing a $220 million fine imposed by Nigeria’s Federal Competition and Consumer Protection Commission (FCCPC). The appeal, submitted to the Competition and Consumer Protection Tribunal, outlines 22 reasons why the penalty should be overturned.

The FCCPC, part of Nigeria’s Federal Ministry of Industry, Trade, and Investment, fined Meta for alleged discriminatory practices against Nigerian consumers and issues with data handling.

Key points from Meta and WhatsApp’s appeal include:

1. Vague User Rights: Meta argues that the FCCPC’s directive on data rights is overly vague and burdensome due to WhatsApp’s complex operations.
2. Ambiguous Privacy Policy: Meta contends that users can opt out of the privacy policy by not using the service and that the FCCPC’s demands overlook updates made before the investigation.
3. Unjustifiable Data Sharing Order: Meta claims the order to stop data sharing without consent is discriminatory and ignores industry norms.
4. No Approval Needed: Meta asserts that Nigerian law does not require prior approval of privacy policies from the FCCPC or NDPC.
5. 2016 Data Practices: Meta argues there’s no legal basis to revert to data practices from 2016, which they assert comply with Nigerian law.
6. Unclear Data Transfer Instructions: Meta finds the directive to halt data transfers to Facebook unclear, as WhatsApp can operate independently.
7. No Written Assurance Needed: Meta argues there has been no violation of user rights, making the FCCPC’s demand for written assurance unnecessary.
8. Erroneous Remedy Package: Meta disputes the existence of a remedy package and claims the 15-day implementation period is unrealistic.
9. Investigation Costs: Meta challenges the order to pay $35,000 in investigation costs, claiming no legal obligation exists.
10. Unfair Penalty: Meta argues the penalty was imposed without a fair hearing or clarity on how it was calculated.
11. Consent Mechanisms: Meta finds it impractical and costly to build consent mechanisms for each data point.
12. Independent Audits: Meta suggests the FCCPC can audit data compliance without Meta’s physical presence in Nigeria.
13. Privacy Policy Approval: Meta insists the FCCPC lacks the authority to require prior approval of privacy policy updates.
14. Implementation Time: Meta argues that implementing remedies within 15 days is technically infeasible.
15. No Coercion: Meta denies claims of coercion in its service agreements.
16. No Formal Investigation: Meta asserts that WhatsApp and Meta are distinct entities and that Meta was not formally investigated.
17. No Need for Penalty: Meta argues there’s no evidence they acted on behalf of WhatsApp, making the penalty unjustified.
18. Right to Fair Hearing: Meta claims their right to a fair hearing was violated as their submissions were not considered.
19. Penalty Calculation: Meta states they were not permitted to question the penalty’s calculation or compliance timeframe.
20. Lack of Findings: Meta argues the final order lacked factual findings or reasons for the penalty.
21. Unsigned Order: Meta questions the validity of the FCCPC’s order, as it was signed when the Executive Vice-Chairman’s position was vacant.
22. Unreasonable Orders: Meta believes the FCCPC’s final order is unreasonable and unsupported by evidence, urging the tribunal to overturn it.