Antitrust Risks Associated with Ephemeral Messaging

This technical report discusses the implications of ephemeral messaging on antitrust investigations, particularly in relation to recent regulatory changes in the UK and the US. It outlines the European Commission's actions, including a significant fine for the deletion of WhatsApp messages during an antitrust inspection. The report details the new powers granted to the UK Competition and Markets Authority (CMA) under the Digital Markets, Competition and Consumers Act (DMCCA), which enhance the agency's ability to target ephemeral messaging in investigations. The CMA can now access digital data from personal devices and requires businesses to preserve relevant evidence, including ephemeral messages. Additionally, the report compares the CMA's approach with that of the US Department of Justice (DoJ) and the Federal Trade Commission (FTC), which have issued guidance on document preservation practices related to ephemeral messaging. The report concludes with recommendations for businesses to implement effective document preservation policies and training for employees to comply with legal obligations during investigations.