The European Commission fined International Flavors & Fragrances Inc and International Flavors & Fragrances France SAS (IFF) in June this year after it discovered that a senior employee at the company intentionally deleted WhatsApp messages during an antitrust investigation.
These messages were part of a conversation with a competitor and contained business-related information, the commission found.
They were also deleted after the employee learnt of the inspection at the company’s offices, which took place in March 2023.
This was the first time the commission had fined a business for the deletion of messages on an app such as WhatsApp.
EU regulation states that the commission can impose fines of up to 1pc of the total turnover of a firm that“intentionally or negligently obstruct an antitrust investigation”.
In this case, it opted for a fine of 0.3pc of IFF’s total turnover.
The separate antitrust investigation into the fragrance industry is still ongoing, the commission confirmed.
As a growing number of businesses opt to use social media apps as part of their daily work, the commission called on companies to preserve all existing data related to business operations.
“Compliance with antitrust investigations is of paramount importance,” European competition commissioner Margrethe Vestager said at the time.
“Companies that undergo an inspection must ensure that employees do not delete or manipulate business records. This includes communications on mobile phones.”
She added that the decision to impose a fine on the firm illustrates that the EU will “pursue and sanction” any obstructions to its investigations.
A&L Goodbody partner Dr Vincent Power also called on Irish companies to alert their employees about this recent case, adding that they should never delete any business records as they could help to demonstrate innocence in some cases.
Businesses should also warn staff not to delete anything when they are notified about an investigation as competition agencies will also check for deleted data through a request for recent data backups, according to Dr Power.
He also called on businesses to be aware of “social media or informal back channels” used by colleagues where business information is exchanged.
As seen in the IFF investigation, these methods of communication will also be inspected and cannot hide any anticompetitive behaviour, Dr Power reported.
