NEWSLETTER-2019-metin

94 NEWSLETTER 2019 Also, in practice, it is also observed that the Authority experts do not choose to adopt a literal reading of Law No. 4054. Especially in light of the technological developments that guide today’s world, they examine employees’ telephones and WhatsApp messages during on-site inspections. In addition to obtaining employees’ WhatsApp correspondences during on-site inspections, it is also seen that such is considered as evidence and examined thoroughly by the Board in case files. Obtaining WhatsApp Correspondences during On-site Inspections Until recently, the Board generally used to examine employees’ notebooks and e-mail messages during on-site inspections, which seemed sufficient to determine anti-competitive conduct of an under- taking. However, in line with rapid technological innovations, many correspondences are now realized through instant messaging platforms, such as WhatsApp, Skype, and MSN messenger. Naturally, these types of correspondence may also include anti-competitive conduct, such as exchanging competitively sensitive information with competitors and, therefore, these platforms may be used in a way to pursue such acts that are contrary to Law No. 4054. Accordingly, it can be argued that during on-site investigations, the examination of “ books, any paper- work and documents of undertakings, ” as per Article 15 is, therefore, no longer sufficient and, in order to detect anti-competitive conduct of an undertaking, the Board may examine WhatsApp correspondence of such undertakings’ employees. In fact, in the Ortodonti Decision 1 , the Authority experts collected WhatsApp messages of employees, and the Board evaluated the col- lected documents to examine if they evidenced any infringement of Law No. 4054. In the decision, the Board examined allegations that nine undertakings, who were engaged in the sale of orthodontic mate- rials, were fixing prices. During the on-site inspections carried out by the Board as part of the pre-investigation, 10 documents consisting of WhatsApp messages were obtained by the Authority experts from the undertakings. 1 The Board’s decision, No. 18-09/157-77, 29.03.2018.