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Fine a warning on ‘dawn raid’ data deletions

Lawyers at A&L Goodbody (ALG) have highlighted a fine of €15.9 million imposed on International Flavors & Fragrances (IFF).

The company, along with others in the fragrances sector, was the subject of ‘dawn raids’ (inspections linked to competition investigations) by the European Commission in March 2023, during which the EU body asked for the electronic devices of some key employees.

The fine was imposed after a senior IFF employee intentionally deleted business-related WhatsApp messages from a mobile phone.

These messages had been exchanged with a competitor of IFF, and the deletions had occurred after the employee had been told about the inspection.

Fine was halved

The commission opened proceedings against IFF for obstruction in March this year, and imposed the fine in June. IFF accepted the fine.

In a note on the firm’s website, the ALG lawyers point out that the fine, while high, was halved by the commission, due to the company’s co-operation on the issue.

The lawyers add that the commission had been able to recover the deleted data with IFF’s assistance, noting that, had this not been the case, the fine could have been higher “because of the suspicion of what might have been destroyed”.

ALG says that, while the commission has fined other businesses for obstructing an investigation, this is the first time that it has fined a company where an employee has deleted WhatsApp messages on a mobile device.

“It demonstrates the seriousness of deleting apparently casual social media chit-chat. Social-media communications can be far more revealing about breaches of competition law than bound contracts under seal,” the ALG lawyers state.

Automatic deletions

They add, however, that the case leaves undecided the legal position of self-deleting messages that cannot be recovered, but are used routinely in business.

“If there was a deletion during, or after, an inspection of data, then that is clearly a problem. If the self-deletion could be stopped and a request from the commission to stop deletions was ignored or not complied with in full, then there could well be a penalty.

“What is not clear is whether there could be a fine if a business or association had adopted an automatic-deletion policy as a matter of routine,” the ALG lawyers say.

“The message for businesses is simple: if a business is inspected (and sometimes businesses are inspected with no adverse finding against them, so it is not a sign of guilt as such) then the business should warn everyone not to delete anything, but to preserve all data,” ALG concludes.