07/07/2026
The Brazilian Antitrust Authority (CADE) ruled that recent changes implemented by Meta in WhatsApp Business may hinder the activities of companies that use the platform to communicate with customers.
The discussion originated from Administrative Inquiry No. 08700.012397/2025-63, initiated by CADE to investigate whether changes introduced by WhatsApp to the WhatsApp Business Solution Terms of Service could adversely affect competition in the artificial intelligence chatbot market.
Chatbots are tools capable of automatically interacting with users, answering questions and conducting conversations through WhatsApp. During the proceedings, CADE imposed a preventive measure aimed at temporarily suspending certain changes implemented by the company in the application until the conclusion of the case analysis (“Preventive Measure”).
The Preventive Measure required WhatsApp to suspend changes that restricted the activities of artificial intelligence companies in the platform and to refrain from implementing similar restrictions while the case remained under review. The authority sought to preserve existing market conditions until a final decision could be reached, thereby allowing any providers to continue offering their services through WhatsApp and preventing WhatsApp’s own AI solution from gaining an undue competitive advantage over rival providers.
The authority’s concern was that imposing costs on the use of WhatsApp by other AI providers could, in practice, operate as a barrier to entry or expansion for competitors, recognizing that these companies depend on the platform to reach their users.
WhatsApp amended its terms of use by classifying chatbots as “marketing tools,” a category subject to charges for the sending of automated messages dynamically generated from interactions with users.
CADE considered this change a possible violation of the Preventive Measure, which became the subject of a new Administrative Proceeding No. 08700.002556/2026-01.
During the judgment of this new proceeding, at CADE’s 264th. Judgment Session, the Reporting Commissioner introduced into the analysis the concept of Refusal to Deal, which occurs when a company refuses to do business with another company holding a dominant position in the market.
However, the Reporting Commissioner considered that classifying the conduct adopted by WhatsApp under the concept of Refusal to Deal could be excessive, since, although there was no direct and unjustified exclusion of AI chatbots from the WhatsApp ecosystem, the requirement to pay for access could, in practice, work as a barrier to entry that would be difficult to overcome, particularly for new market players. In other words, he concluded that there was no outright prohibition, but rather a model capable of making competitors’ activities economically burdensome.
Following the position adopted by the General Superintendence (“SG”), the Reporting Commissioner concluded that the strategy resembles what antitrust literature refers to as Constructive Refusal to Deal, which is a more sophisticated form of refusal to deal. Unlike a direct refusal, this concept encompasses situations in which access is not formally denied but becomes practically unfeasible.
Accordingly, the concept encompasses certain specific features, such as a company controlling an essential resource or technology in a primary market and using its position to harm rivals in a related market in which it also competes. In this regard, the Tribunal emphasized that, although freedom of contract is the general rule, it is not an absolute right under the Competition Law, as detailed in the Reporting Commissioner’s opinion:
“It follows, therefore, that recognizing a refusal to deal as anticompetitive conduct depends on a series of factors that are difficult for competition authorities to measure. It is within this context that the theory of constructive refusal to deal emerges as an analytical lens applicable to the present case. In summary, the possibility of contracting only upon the imposition of unreasonable terms and conditions amounts to a factual refusal to deal.
This situation appears to resemble what Erik Hovenkamp defines as ‘secondary refusals’ (secondary refusals). The author explains that, in such situations, the holder of a monopoly over an input (or technology) in a primary market uses its position to exclude or disadvantage rivals in an adjacent (secondary) market in which it also competes. In such cases, the company is generally vertically integrated, marketing both the primary product and a secondary product that depends on the former for distribution, monetization, or interoperability.”
In the present case, the application of the concept of Constructive Refusal to Deal was crucial to the analysis of WhatsApp’s behavior, since the measure adopted had the potential to economically hinder the activities of third parties. CADE interpreted that, by treating AI chatbots as a costly category, WhatsApp could be creating an indirect mechanism for limiting access, thereby characterizing the conduct as a practice of Constructive Refusal to Deal.
Based on these concepts, CADE’s Tribunal concluded that the fees imposed on AI providers could, in practice, operate as an indirect means of restricting competitors’ access to WhatsApp. For this reason, it decided to uphold the Infraction Notice previously imposed by the General Superintendence and maintained the imposition of a daily fine of BRL 250,000 for non-compliance with the Preventive Measure, until WhatsApp demonstrated the restoration of the access conditions that existed before the challenged changes.
The case reflects a broader movement toward adapting the law to the dynamics of digital markets, in which technological innovation advances at a pace faster than the traditional regulatory frameworks. In this context, classical legal concepts are being reviewed, reinterpreted, and expanded to encompass new forms of economic interaction, marked by the centrality of digital platforms and the growing interdependence between platform markets and emerging technologies. Consequently, competition analysis increasingly requires a more functional understanding of market relationships, especially when they involve emerging technologies such as artificial intelligence.
Authored by: Patricia Agra Araujo, João Pedro Marques de Gracia Borges e Larissa Cristina Ferreira Melo
