Sahibinden.com, established as an online marketplace where users can buy, sell, and rent new or second-hand products, offers products and services in various categories. Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret AŞ ("Sahibinden") is among the top thirty companies in terms of revenue according to Turkey's 100 Largest Internet Companies survey conducted by Fast Company.
The Competition Board ("Board") initiated an investigation on September 30, 2021, to determine whether its dominant position was being abused by Sahibinden. The announcement regarding the decision reached at the conclusion of the investigation was published on August 23, 2023. According to the decision, Sahibinden
- Holds a dominant position in the online platform services markets relevant to the activities under investigation,
- Has contractually/effectively enforced exclusivity among its corporate members by incorporating non-compete clauses into their contracts and by obstructing the transfer of their data to other platforms,
- Also hinders the operations of competing platforms in the online advertising and sales sector.
It has also been concluded that Sahibinden had abused its dominant position.
The Competition Board imposed an administrative fine of TRY 40,150,533.15 on Sahibinden for the violation.
The Decision also imposed certain obligations on Sahibinden in order to end the violation and to establish effective competition in the market. Accordingly, Sahibinden is required to
- Revise the contracts signed with corporate members within a 3-month period to exclude the clauses related to the violation,
- Establish the necessary infrastructure free of charge to enable corporate members to effectively transfer real estate and vehicle advertisement data to rival platforms and vice versa, as well as to keep such data up to date,
- Provide the Competition Authority with documentation certifying the fulfillment of the decision's requirements at the beginning and end of the process,
- Submit annual reports to the Competition Authority for 3 years commencing from the implementation of the initial compliance measure.
This decision is significant due to the intersection of personal data protection law and competition law. While data portability by data controllers is a matter of Personal Data Protection Law, the restriction of this portability by data controllers in a way that causes unfair competition is within the scope of competition law. The administrative fine imposed by the Board in this regard points out that the General Data Protection Regulation (“GDPR”) and Turkish Law on Protection of Personal Data (“KVKK”) compliance processes should be carried out carefully for undertakings holding a dominant position. The right to data portability is not specifically regulated under Turkish law. However, as thoroughly deliberated in both the recent Sahibinden.com decision and the Nadir Kitap decision dated April 2022, it is imperative to assess compliance practices through a holistic perspective, scrutinizing the rights and obligations associated with these practices across all relevant domains.
In conclusion, it is vital to consider compliance areas such as data protection and competition law together, given the complexity of the modern business world and the challenges of rapidly changing regulations. The interplay of these two areas is particularly evident when combined with the data-driven business models and market dynamics of the digital age. Achieving sustainable success and compliance for businesses necessitates addressing both personal data protection and competition laws in an integrated manner, as underscored by the Sahibinden decision.
Effectively managing these complex requirements will require the guidance of compliance professionals. These experts assist businesses in crafting and implementing integrated data protection and competition law compliance procedures. They further help in mitigating legal risks and upholding ethical standards. Thus, the guidance and proficiency of a compliance professional are pivotal for ensuring the sustained success of businesses.
You can access the details of the Competition Board's decision regarding Sahibinden here (Available in Turkish only).
You can access the details of the Competition Board's April 2022 decision regarding Nadir Kitap here (Available in Turkish only).
With thanks to Ömer Emin Yılmaz for his support in the preparation of this article.
Zeynep İnceer Üçgül
Head of Business Development