The Swedish Competition Authority (SCA) has imposed fines on three digital healthcare providers for anti-competitive cooperation in relation to the advertising of their digital healthcare services. A fourth provider that also participated in the cooperation avoided fines after helping the SCA to uncover the illegal cooperation by applying for leniency. 

Digital keyword advertising allows companies to buy ad space on Google searches, which is vital for companies competing in an increasingly digital economy. In order for a company to have its ad appear when a competitor's brand name is searched on Google, companies bid on keywords that correspond to competitors' brand names. When a Google user searches for the competitor's brand name, the ad for the bidding company will also appear.

In 2020, three Swedish digital healthcare providers entered into bilateral agreements with a fourth digital healthcare provider, Kry, to limit their advertising of healthcare services on Google searches. These arrangements ensured that when users searched for Kry on Google, none of the first three healthcare providers would appear in the searches as alternative offerings/suggestions. It also applied vice versa in that when a user searched for either of the other healthcare providers, Kry would not appear in the respective searches.

The healthcare providers had thereby each agreed with Kry to manipulate their SEO strategies, affecting visibility and ranking in Google search results. Such coordination distorted the competitive landscape by artificially influencing consumer access to services.

As the healthcare providers refrained from competing fully for all customers in the digital space, their agreement was found to amount to a customer-sharing arrangement in violation of the Swedish and EU competition rules. 

The SCA fined the digital healthcare providers a total of SEK 26.6 million, which is approx. EUR 2.5 million: 

• Doktor.se was fined SEK 15 million.
• Min Doktor was fined SEK 6.5 million.
• Doktor24 was fined SEK 5 million. 

The fourth participant, Kry, had, on its own initiative, reported the illegal agreement to the SCA under the leniency programme and thereby avoided being fined. 

Main takeaways

Collusion and market sharing: The SCA found that the healthcare providers had engaged in collusive behaviour, which included market-sharing agreements. These agreements were designed to limit competition by allocating specific market segments among themselves, thereby reducing consumer choice and stifling innovation.

Whilst competitors are free to decide on their marketing strategy and are, as such, not obliged to advertise actively in Google searches for their competitors, agreeing to refrain from doing so can amount to illegal collusion. Companies should generally be careful when discussing and aligning their respective marketing efforts and strategies, as other types of agreements could also amount to illegal collusion, such as e.g. agreeing to refrain from advertising via specific channels, websites etc. Such agreements could amount to an illegal boycott – both if agreed between competitors and non-competitors. 

Leniency application: Kry's leniency application was instrumental in the investigation, providing the SCA with crucial insights into the collusive arrangements that would otherwise have been hard to uncover. Leniency programmes are essential in uncovering competition law infringements, offering reduced liability for companies that cooperate.

Leniency applications also give the competition authorities insights into the extent and nature of illegal collusion. This decision highlights the importance of considering leniency applications when potentially being involved in illegal collusion. However, this should be carefully considered together with external counsel, as such decisions are associated with significant risks and difficult balancing of different considerations.  

A link to the SCA’s press release with links to the decisions can be found here in Swedish.  

For more information, please contact Morten Nissen or Stefan Brkic.  

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