Policy papers into practice: Google / Fitbit is a test case for future data-heavy mergers

Another day, another development in antitrust enforcement against Big Tech, as Google's acquisition of fitness tracker Fitbit was referred for an in-depth review by the European Commission ("Commission") yesterday. 

The Commission’s press release cites concerns that the acquisition of “key insights about the life and health situation” of Fitbit users could give Google a (further) advantage in online advertising services, with a dataset that could not be matched by rivals. Google had offered a commitment not to use Fitbit’s data for advertising, saying the deal is about “devices not data”, but the behavioural remedy offer was insufficient to resolve the Commission's concerns. The Commission’s in-depth probe will also examine the merger’s impact on Google and Fitbit’s offerings in digital healthcare, and whether Google might have the incentive to degrade interoperability with rival wearables. The referral decision comes a month after the CMA found in its Digital Advertising Market Study that Google (along with Facebook) held significant market power in search advertising, estimating its market share at 90%.

It will be particularly interesting to watch how the Commission deals with the data issue. Concerns around data are not new in merger reviews: the data held by merging parties has come under close scrutiny in Big Tech mergers (including Microsoft / LinkedIn and Facebook / WhatsApp at the EU level, as well as the recent CMA review of Google’s acquisition of Looker Data). So far however, stand-alone data concerns are yet to be the reason for remedies or prohibition of a merger. The sheer volume of data available, from multiple sources, means competition authorities have been reluctant to conclude that any target’s data assets are unique and cannot be replicated. In cases involving multi-sided platforms like Google, authorities have also struggled to prove there would be a profit incentive to degrade interoperability or block access to datasets.

How Big Tech uses data has been the subject of substantial academic and policy debate, not least in the European Commission’s own 2019 report on Competition policy for the digital era, which emphasised the importance of factoring data assets into assessment of market power. Many commentators have argued that even if data is ubiquitous, the combination of particularly rich sets of consumer data and the ability to extract value from them through sophisticated algorithms, is only available to a small pool of companies. The in-depth review of Google / Fitbit will require that the Commission puts the policy work into practice. How it does this will have significant implications for future data-heavy mergers, making this a key case to watch.