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Google-Fitbit aquisition closes after in-depth European Commission investigation gives clearance

Linklaters | | Jan 28, 2021

google acquires fitbit 1 - Google-Fitbit aquisition closes after in-depth European Commission investigation gives clearance

Earlier this month Google closed its acquisition of Fitbit, following an in-depth investigation by the European Commission resulting in conditional clearance late in 2020.

The EC’s decision brings a new approach to merger review in data intensive industries. The EC accepted a “data silo” remedy and an access remedy of an unprecedented duration, both of which are innovative.

See:  House Lawmakers Condemn Big Tech’s ‘Monopoly Power’ and Urge Their Breakups

It also shows that the EC’s more interventionist approach to big tech is not limited to the DMA proposal and that there will remain a role for the more traditional competition law instruments to support the EC’s digital agenda.

We consider some interesting aspects of the case, while we await publication of the detailed decision.

Data, data, data… The EC’s concerns

The EC’s press release highlights the following concerns:

  • Google could use Fitbit’s health and fitness data and technology to further personalise Google Ads and foreclose competitors, in particular in online advertising.
  • Google could restrict access to Fitbit’s users’ health and fitness data to foreclose competing digital healthcare service providers.
  • Google could foreclose Fitbit’s competitors by degrading interoperability between Android smartphones and third-party wearables.

The EC also considered, but ultimately dismissed, concerns that the combination of the parties’ databases could give Google a competitive advantage enabling it to foreclose competing digital healthcare service providers.

Data protection, access, interoperability… The remedies

See: 

At their core, the commitments require the following:

  • Ads commitment. Google commits not to use certain health and fitness data that are generated from Fitbit devices in or for Google Ads. To comply, Google will maintain these data in a separate data silo. Google will also provide users with an “effective choice to grant or deny the use” of certain data by other Google services such as Google Search, Google Maps, Google Assistant, and YouTube. This commitment will last for 10 years, and the EC may extend it by up to an additional 10 years.
  • Web API access commitment. Google will provide third parties access to the data types made available in the Fitbit Web API, subject to certain privacy and security requirements. It will update the types of data available through the API during the lifetime of the commitment based on an update mechanism that reflects what data types other industry participants make available through their APIs. The commitment will last for 10 years.
  • Android interoperability commitment. Google will continue for 10 years to make available to wrist-worn wearable OEMs (i) a set of APIs that relate to “current core functionalities that wrist-worn devices need to interoperate with an Android smartphone” and (ii) all Android APIs that Google will make available to other Android smartphone app developers.

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