Off-channel and ephemeral messaging in antitrust investigations: legal risks, regulatory focus, and eDiscovery challenges
The growing use of off-channel and ephemeral messaging applications in corporate environments has raised complex questions for regulators, legal practitioners, and compliance teams, particularly in the context of antitrust investigations.
Well-known platforms such as Signal, WhatsApp, Telegram, and Snapchat, as well as lesser-known applications such as Dust, Confide and Wickr (now owned by Amazon) are increasingly used by employees for both personal and, more concerningly, professional communications – often without business approval to do so. While these messaging tools can offer speed, convenience, and privacy, their design, in particular regarding limiting the lifespan of messages, poses significant risks when it comes to regulatory compliance, legal hold obligations, and the ability to preserve and produce discoverable communications.
Over the last few years, antitrust authorities across jurisdictions have sharpened their focus on the use of these tools, seeing them as potential avenues for concealing misconduct or as a method to hide evidence in sensitive matters such as price fixing, market allocation, or other anti-competitive practices. The resulting enforcement activity and guidance underscore a key theme: corporate policies that permit or fail to control ephemeral messaging may be viewed as a red flag, or even as obstruction.
Learn about the legal risks, regulatory focus, and eDiscovery challenges with this article by Daniel Rupprecht and Dr. Tristan Jenkinson of Sky Discovery UK.