Online intermediary services and online search engines play a crucial role in enabling and promoting digital trade. In order to strengthen the trust of business users and consumers and encourage them to take part in the vast digital ecosystems created by online platforms, it is necessary to set minimum standards for their services.
The Regulation proposed by the Commission is a first attempt to chart a new territory. The Rapporteur proposes to strengthen the principle of fairness. Business users should have the right to access data originating in mutual transactions. At the same time, restrictions imposed on business users by some online intermediation services to offer different conditions through other means should not be allowed.
On the other hand, platforms should be allowed to act swiftly when facing abuse or fraud. Their ability to handle complaints should not be stifled by burdensome administrative requirements. Finally, mediation promoted by this legislative proposal can only work if its costs are divided fairly between both participating parties.
The Rapporteur also wishes to reinforce the principle of transparency in cases of differentiated treatment and by clarifying the requirements concerning main ranking parameters. An ambitious proposal should also consistently impose the same rules on online platforms and search engines whenever they behave in the same way.
EU legislation should be guided by the concept of “as little as possible and as much as necessary”, which means necessity of rules fitting for the digital age and open and technologically neutral enough to accommodate future developments.
The Commission’s initiative to analyse the role of platforms in the Digital Economy ensures a comprehensive and similar approach to framework across the digital market, while a “one size fits all” solution may have a chilling effect on innovation and put European companies at a competitive disadvantage in the global economy.
A uniform and targeted set of mandatory rules should therefore be established at Union level to ensure a fair, predictable, sustainable and trusted online business environment. They should promote fair and proportionate business behaviour by ensuring, in particular, that the business users of online intermediation services are afforded appropriate transparency as well as effective redress possibilities throughout the Union.
Those rules should also provide for transparency as regards the ranking of corporate website users, especially in the search results generated by online search engines, including voice assistants. At the same time, those rules should be such as to safeguard the important innovation potential of the wider online platform economy and allow for a healthy competition.
In line with the development of the sector, the European Commission should examine the reinforcement of the transparency and fairness provisions set in this Regulation either by sector specific legislation or a review of this Regulation.
Since online intermediation services and online search engines typically have a global dimension, this Regulation should apply to providers of those services regardless of whether they are established in a Member State or outside the Union, provided that two cumulative conditions are met. Firstly, the business users or corporate website users should be established in the Union.
Secondly, the business users or corporate website users should, through the provision of those services, offer their goods or services to consumers or businesses located in the Union at least for part of the transaction. In accordance with Union law1a, this would mean that the online intermediation services and online search engines have targeted or directed sales to consumers located in one or more Member States.
Such consumers should be located in the Union, but do not need to have their place of residence in the Union nor have the nationality of any Member State. Accordingly, this Regulation should not apply where the business users or corporate websites users are not established in the Union or where they are established in the Union but where they use online intermediation services or online search engines to offer goods or services exclusively to consumers located outside the Union or to persons who are not consumers.
This Regulation should not apply to electronic communications networks or services or audio-visual media services, which are subject to sector specific regulation in relation to transparency, redress and non-discrimination. The definition of an online search engine should be understood as technologically neutral and recognise the variety of search services and data inputs and outputs.
The general terms and conditions may in particular provide that practices or security threats which risk causing imminent harm to the provider, business users or consumers, whether due to breach of security, fraud, abuse of data or otherwise, constitute grounds for decisions to restrict, suspend or terminate the provision of online intermediation services.
A decision to restrict, suspend or terminate service on grounds of risk of imminent harm should be proportionate to the risk sought prevented by the measure, and service termination should only be implemented where a temporary restriction or suspension would not suffice to effectively address the risk.
Sudden modifications to existing terms and conditions may significantly disrupt business users’ operations. In order to limit such negative effects on business users, and to discourage such behaviour, modifications made in contravention of the obligation to provide a set notice period, should therefore be null and void, that is, deemed to have never existed with effects erga omnes and ex tunc.
A provider of online intermediation services can have legitimate reasons to decide to sanction a given business user, for example by suspending, delisting or terminating the provision of its services, in whole or in part, or effectively removing search results. However, given that such decisions can significantly affect the interests of the business user concerned, they should be properly informed of the reasons thereof.
The statement of reasons should allow business users to ascertain whether there is scope to challenge the decision, thereby improving the possibilities for business users to seek effective redress where necessary. In addition, requiring a statement of reasons should help to prevent or remedy any unintended removal of online content provided by business users which the provider incorrectly considers to be illegal content, in line with Commission Recommendation (EU) No 2018/334.
The statement of reasons should identify the objective ground or grounds for the decision, based on the grounds that the provider had set out in advance in its terms and conditions, and refer in a proportionate manner to the relevant specific circumstances that led to that decision.
In case of suspicion that a behaviour or practice of a business user may cause harm to consumers or the platform, a reference to relevant provisions in the terms and conditions should be provided. Wherever possible, a proportionate and gradual system should be put in place, including prior and timely notification before taking measures that will result in severing the access of the consumers to the business.
When offering goods and services as a result of ranking influenced against remuneration or due to control by the provider, the provider of online intermediation services should inform about this fact by including the word “SPONSORED” or “AD” in the offering.
Providers of online search engines should therefore provide a publicly accessible description of the parameters of material importance for an adequate understanding of how the ranking of all indexed websites is determined, including those of corporate website users as well as other websites.
Given the importance of comments and reviews for business users, their transparency and reliability needs to be reinforced. Online intermediation services or online search engines providers shall protect business users and themselves against ranking manipulation by fake reviews and comments.
They should deploy solutions for verification of comments and reviews as well as their portability from one intermediation service and search engine to another. Providers shall make publically available the information about the conditions under which a comment or review can be removed.
The data generated in the process of online interaction between online intermediation service or online search engine on the one hand, business user or corporate website on the other, and consumers should be accessible to business users, in aggregated form, in order to enable them to improve the quality of their services without prejudice to relevant Union law.
Certain practices can be conclusively treated as unfair in all circumstances. The Platform Observatory should compile a list of such practices and continuously review it, and recommend updates to the Commission.
Providers of online search engines shall provide on their websites a description of any differentiated treatment which they give, or may give, in relation to, on the one hand, goods or services offered to consumers through those online search engines, by either that provider itself or any business users which that provider controls and, on the other hand, other business users.
Preferential treatment in ranking of search results of goods and services offered by the provider of online search engine itself or any business user which that provider controls is prohibited, unless it is granted under conditions that apply to all business users.