Tribunal Reserves Judgment in Meta and WhatsApp’s Appeal Against Nigeria’s $220 Million Penalty

The Nigerian Competition and Consumer Protection Tribunal has reserved judgment on the appeal filed by Meta Platforms Incorporated and its subsidiary, WhatsApp, challenging the $220 million penalty imposed by the Federal Competition and Consumer Protection Commission (FCCPC).

The penalty, issued over alleged discriminatory practices, consumer rights violations, and data privacy breaches, has become a landmark case in Nigeria’s evolving regulatory landscape for global tech companies.

At the hearing on Tuesday, a three-member panel led by Justice Thomas Okosun took oral arguments from both parties before adjourning the case for ruling. Meta and WhatsApp’s legal team, represented by Professor Gbolahan Elias (SAN), presented 22 grounds for contesting the fine, arguing that the FCCPC’s directives were vague, technically unfeasible, and procedurally flawed. They also accused the Commission of overstepping its jurisdiction by attempting to enforce data protection laws, which, according to them, fall under the purview of the Nigeria Data Protection Commission (NDPC).

The FCCPC, represented by former Executive Chairman Babatunde Irukera (SAN), defended its decision, insisting that the penalty was not imposed as a financial punishment but rather as a corrective measure to address what it described as Meta’s exploitative and discriminatory practices in Nigeria.

Elias, arguing on behalf of Meta and WhatsApp, contended that the FCCPC denied them a fair hearing by imposing a hefty penalty without explaining how the fine was calculated or giving them a chance to challenge the basis of the amount.

“The orders themselves do not disclose findings of fact; they are just conclusions,” Elias stated, accusing the Commission of misunderstanding how WhatsApp operates.

He further explained that the FCCPC’s compliance order, which required WhatsApp to identify and build a consent mechanism for every single data point processed by Nigerian users, was both impossible to implement and prohibitively expensive.

“Identifying and building a consent mechanism for each data point processed by Nigerian users would be impossible and extremely expensive,” Elias argued.

Additionally, he emphasized that WhatsApp does not display advertising or compile user profiles for advertising purposes, contrary to the FCCPC’s claims.

“There is no advertising displayed on WhatsApp services. WhatsApp does not compile or use user profiles for advertising purposes,” he stated.

Elias also highlighted that Nigeria’s digital market remains competitive, offering consumers alternatives such as TikTok and Google Meet, negating any claim that Meta had abused its dominant position. He further described the $220 million fine as excessive, noting, “The fines are higher than the budgets and revenue of some Nigerian state governments combined.”

In response to the FCCPC’s reference to foreign data protection laws, Elias urged the tribunal not to rely on regulations that are not applicable in Nigeria.

However, Irukera insisted that the penalty was justified based on clear evidence that Meta engaged in discriminatory practices. He countered Elias’s argument regarding foreign legal precedents, stating that while foreign laws are not binding, they remain relevant in cases of global technology regulation.

“To say that foreign law has no place at all is absolutely untrue,” Irukera asserted.

He further emphasized that Nigerian consumers were subjected to lower data protection standards compared to their counterparts in the European Union, arguing that Meta’s practices in Nigeria were exploitative.

He stated, “The Commission’s findings revealed that Meta engaged in exploitative practices that violated constitutional guarantees by allowing unauthorized access to and misuse of private information.”

Addressing Elias’s concerns about the fine’s magnitude, Irukera pointed out that Meta’s global revenue for 2023 was $134.9 billion, making the penalty proportional to the company’s financial capacity.

Dispute Over Tribunal Records

During the proceedings, the FCCPC requested to submit an alternative record of appeal containing what it described as a comprehensive account of events surrounding the case. The Commission’s legal team argued that the record was crucial for ensuring a fair and transparent adjudication process.

“A record is a record. It is the only thing that this tribunal needs to work on. The full record does not intend to support any party,” the FCCPC’s counsel stated, clarifying that the record did not introduce new evidence but rather summarized past events.

However, Elias objected, filing a counter-affidavit dated November 8, 2024, to oppose the submission. He argued that the so-called alternative record introduced new documents that WhatsApp and Meta had never seen before the filing of the appeal. He described it as an attempt to alter the nature of the appeal post-filing, stressing that such a move would undermine transparency.

“The new record is an attempt to alter the nature of the appeal after it had been filed,” Elias asserted.

Implications of the Case

Following the FCCPC’s compliance order, WhatsApp previously responded to concerns about its data-sharing policies.

“In 2021, we globally informed users about how talking to businesses would work. While there was initial confusion, it has proven quite popular,” it stated.

The case against Meta and WhatsApp reflects a broader global trend where regulators are increasingly scrutinizing Big Tech companies over data privacy and consumer rights violations. In the European Union, the European Data Protection Board recently fined Meta a record €1.2 billion for non-compliance with privacy regulations. Over the past five years, major technology companies such as Amazon, Meta, and Google have faced significant fines under the European Union’s General Data Protection Regulation (GDPR).

With the tribunal now set to issue a ruling at a later date, the decision is expected to have major implications for Nigeria’s regulatory landscape. If the ruling favors Meta and WhatsApp, it could encourage other global tech firms to challenge regulatory actions in Nigeria. However, if the tribunal upholds the penalty, it would signal a stricter approach to enforcing consumer protection and data privacy laws, aligning Nigeria with international regulatory trends.