116 NEWSLETTER 2021 Again, referring toArticle 9/4 and considering Facebook’s market power in consumer communications services, social network services, and online advertisement services, the Board concluded that it was is likely that serious and irreparable injury would arise prior to the Board’s final decision. It decided that if the users were obliged to consent to their data being shared, Facebook and its group of companies would possess and use WhatsApp users’ data. Accordingly, if at the end of the investigation Facebook were to be found in breach, it would be difficult to retrieve such data and eliminate the advantages which arose due to their usage. In order to avoid such a situation, the Board concluded that Facebook had to terminate terms of use in relation to use of WhatsApp users’ data for other services and to announce such termination to all users pursuant to Article 9/4. The Trendyol Decision3 In its most recent interim injunction decision, the Board evaluated DSM Grup Danışmanlık İletişim ve Satış Ticaret A.Ş.’s (“Trendyol”) practices in online market places. During the on-site inspections which were carried out in relation to Trendyol’s software and algorithms, it was observed that Trendyol: (i) was interfering with algorithms to advantage its own products as a retailer over sellers using the platform which were also its competitors, (ii) was offering next day delivery for its own products only, (iii) was using sellers’ data to advantage its retailer practices, (iv) was discriminating against sellers through interference with the algorithms and due to lack of transparency regarding sponsored products. In the documents obtained during on-site inspections, it was observed that number of followers for Trendyol branded products were increased and actual numbers were manipulated through interfering with the algorithm. Similarly, it was alleged that low seller scores for Trendyol branded products were erased; Trendyolmilla, which is Trendyol’s own brand, was listed at the top in brand filters as a result of intervening with the algorithm, and competitor sellers’ sales data was used for making analysis and forecasting for Trendyol branded products. 3 The Board’s Decision dated 30.09.2021 and No. 21-46/669-334.
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