Press Release: European Commission green lights Google and Fitbit merger in a game-changing and disappointing decision for the rights of millions of Europeans

Today, the European Commission has concluded its Phase II in-depth review of the proposed acquisition of the health and fitness tracker Fitbit by Google, deciding that the merger can go through. While we welcome the commitments put forward by Google to mitigate some risks of compromising individuals' rights and competition, PI considers the effects of this merger will further strengthen Google's capacity to exploit our data.
On 15 June 2020, Google formally notified the European Commission of its proposed acquisition of Fitbit, enabling them to capture a massive trove of sensitive health data that will expand and entrench its digital dominance. PI intervened before the European Commission, gaining interested third person status. We also launched a public petition to the European Commission, which received the support of more than 2,500 people, asking the Commission to block the merger.
PI argued that the proposed acquisition requires very close scrutiny by regulators as it is highly likely to significantly impede effective competition in several vitally important markets and result in the strengthening of Google's dominant positions, with ramifications for competition and in turn upon consumers and wider society.
While, as the Commission announcement states, Google has made several commitments in the context of the European Commission's review, such as not to use certain Fitbit data for advertising or maintain Web API and Android APIs access, these seem to remain inadequate to address the series of concerns the transaction raises. The commitments will likely fail to be implemented in a manner that will uphold consumers’ data privacy rights over corporate profit.
The European Commission's review did not identify any concerns with regard to the digital healthcare sector or health related markets, in general, "because the digital healthcare sector is still nascent in Europe with many players active in this space".
Health related markets ought to have also been part of the European Commission's review. They stand, at present, the chance of being the markets which miss out on regulatory scrutiny and which Google is allowed to dominate, with various disadvantageous consequences in years to come. This failure points to the urgent need to introduce effective new tools to ensure competition.
Ioannis Kouvakas, Legal Officer at Privacy International, said:
"While we welcome the Commission's in-depth review of the merger, which seems to also lay emphasis on data as a parameter for assessing big tech dominance, we believe that the transaction continues to pose significant risks for consumers. Nothing seems to prevent Google from further enriching their massive data troves with vast quantities of sensitive health data and potentially exploiting our data in ways that go beyond digital advertising markets.
Google's latest leap forward is going to be game-changing in all the wrong ways. Enabling any company, through acquisition and merger to embed itself so deeply into so many aspects of our lives, is deeply troubling.
Today, the European Commission missed a historic opportunity to protect people and markets by saying to Big Tech that data exploitation is not innovation.”
We note that the Australian regulator, the Australian Competition and Consumer Commission (ACCC), who is also reviewing the merger, will be reaching a decision soon following similar guarantees offered by Google in Australia. We have also made submissions before the ACCC.
Finally, we would like to thank Hausfeld & Co LLP for representing us pro bono before the Commission and for their constant and invaluable support.