The European Commission has fined Facebook 110 million euros for providing inaccurate or misleading information in relation to the takeover of WhatsApp. This hefty fine illustrates the importance of providing accurate and complete information in the context of notifying the Commission of a merger or acquisition.
When giving notice of the acquisition of WhatsApp, Facebook said it could not automatically link the user data of the two services, which meant the exchange of data was not possible. This proved incorrect when WhatsApp announced two years later that WhatsApp user phone numbers could be linked to Facebook profiles.
According to the Commission, Facebook committed two separate infringements. Facebook provided inaccurate and misleading information both when reporting the takeover of WhatsApp in 2014 and in answering the request for information. These are serious infringements because this meant the Commission did not have all the relevant information to review the permissibility of the takeover. Added to this is the fact that Facebook was aware of the possibility of linking the different account data. Facebook also reportedly knew that this information was relevant for reviewing the takeover. Based on these factors, the Commission set the fine at 110 million euros. The Commission took into account Facebook’s cooperation with the investigation. Because of this, the Commission did not impose the maximum fine of 1% of the company’s aggregate turnover.
The fine does not have any impact on the Commission’s October 2014 decision to approve the takeover of WhatsApp. The takeover would have been approved even if Facebook had indicated it would indeed be able to link its user data with that of WhatsApp.
If you are seeking advice or assistance when notifying the Commission or ACM (Netherlands Authority for Consumers & Markets) about a merger or acquisition, you can contact Natascha Linssen, Selma van Ramele or Sjaak van der Heul.