CADE upholds daily fine against Meta and WhatsApp for failure to comply with interim measure

The Administrative Council for Economic Defense (CADE) upheld in full the notice of infringement issued against WhatsApp LLC and Facebook Serviços Online do Brasil Ltda. in proceedings investigating non-compliance with an interim measure related to WhatsApp Business and access to the platform by artificial intelligence chatbot providers.  

The opinion of Commissioner Carlos Jacques, the case’s rapporteur, concluded that the companies had not restored the situation previously determined by the Tribunal and, therefore, should remain subject to a daily fine of BRL 250,000 until full compliance with the order is demonstrated. 

According to Jacques, the General Superintendence initiated the proceedings after identifying that Meta had introduced new changes to the WhatsApp Business terms to allow charges for messages sent by AI chatbots to Brazilian users, during the period in which the interim measure imposed by CADE was in force. In the authority’s view, the measure could reproduce, even indirectly, exclusionary effects similar to those caused by the clauses that had already been suspended. 

Restoration of the competitive environment  

CADE’s Tribunal had already unanimously upheld the interim measure previously imposed by the General Superintendence, requiring that chatbots be granted access to WhatsApp. In the decision now under review, the rapporteur emphasised that compliance with the order was not limited to simply suspending the new terms of use, but required the adoption of concrete mechanisms to enable the excluded chatbots to resume their activities on WhatsApp in the same way as they operated prior to the change in the Terms of Use. 

In the understanding adopted unanimously by the Tribunal, this restoration of the previous competitive environment implied allowing AI chatbots to operate without any additional charges for access to WhatsApp, since this was the arrangement in force at the time the interim measure was imposed. According to the rapporteur, the attempt to classify these players as marketing messages, subject to per-message charges, materially altered the conditions of access and contravened the express terms of the interim measure. 

The General Superintendence argued that the charges could, in practice, function as a barrier to entry or expansion in the AI chatbot market, especially for new entrants. The rapporteur’s opinion elaborates on this point by linking the case to the competition law discussion on constructive refusal to deal, highlighting that, in digital markets, the imposition of economically onerous terms may produce effects equivalent to the formal exclusion of rivals. 

The companies subject to the fine argued that the interim measure never prohibited charging for the use of the WhatsApp Business API and that its sole purpose was to prevent the unilateral exclusion of AI chatbots. They also maintained that the fee applied would be commercially reasonable and consistent with practices observed on other platforms.