WhatsApp blue ticked GovChat on procedure and fairness, Competition Tribunal hears

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  • The Competition Tribunal heard that WhatsApp's decision to remove GovChat from its WhatsApp business platform was inconsistent and unfair.
  • Advocate Paul Farlam told the tribunal that the decision was of great expense to GovChat and government.
  • Farlam said GovChat were told to find another business solution provider but were blocked from selecting those they found by WhatsApp.

The Competition Tribunal heard on Wednesday morning that WhatsApp’s decision to off-board GovChat from its WhatsApp business platform was not only inconsistent but unfair and at the grave expense of GovChat and the government itself.

The instant messaging application, which is owned by tech conglomerate Facebook, was taken to the Competition Tribunal after WhatsApp indicated its intention to remove GovChat from its business platform for allegedly breaching terms of agreement.

GovChat developed a mechanism for government through which it was able to communicate with ordinary South Africans on services they received through a chatbot that South Africans can access through WhatsApp.

This comes as Facebook - United States billionaire Mark Zuckerberg's social technology giant - indicated its intention to remove GovChat from Facebook's WhatsApp platform due to an alleged violation of the contractual terms of use.

Representing GovChat and Hastag LetsTalk, Advocate Paul Farlam SC said WhatsApp’s decision to off-board GovChat and the reasons it gave as justification for that decision were arbitrary and unfair. 

"[A] supplementary founding affidavit says that GovChat was started to help the response to the Covid-19 pandemic as a separate WhatsApp communication. GovChat is offered pro bono. It is offered free, yet WhatsApp wants to offboard it," Farlam said.

Farlam said GovChat's WhatsApp chatbot was instrumental as an engagement tool for government to track the delivery of services and interventions such as the South African Social Security Agency’s Covid-19 distress grant.

Farlam said WhatsApp has insisted that each government department must have its own WhatsApp business account, but that Facebook has never addressed contradictions in the application of this rule when it came to other businesses that used the WhatsApp business platform.

"It's not correct to say they were taken by surprise in the replying affidavit as it was in a separate section, but it refers to Telkom Pay as a digital wallet service. What they say in their heads is that it was raised for the first time in reply and they can’t be expected to deal with it," Farlam said.

Farlam added that the decision to off-board GovChat came at a significant cost, not only to GovChat, but to the government as a third party.

"GovChat invested millions in creating the chatbot to communicate with citizens. Alternatives are suggested but none of these have chatbots, so the costs are enormous. Government would have to find the expertise to develop that again, so there is clear prejudice on the applicant and the third party," he said.

Farlam said when GovChat took up the issue with WhatsApp, they were told to find another business solution provider (BSP). Tech company Synthesis applied to become a BSP and the very next day, Facebook rejected the application saying that it did not match the profile of a desired BSP, with no further explanation. 
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