European
Union's ("EU") proposal for regulation on online intermediation services and
search engines ("Regulation") is expected to be published shortly on the
Official Journal of the European Union and become effective twelve months
following its date of publication.

The
purpose of the Regulation is set out as contributing to the proper functioning
of the internal market by laying down rules to ensure that business users of
online intermediation services and corporate website users in relation to
online search engines are granted appropriate transparency, fairness and
effective redress possibilities.

A. Definitions

The
Regulation defines online intermediation services as information society services which allow business users to offer goods
or services to consumers, with a view to facilitating the initiating of direct
transactions between those business users and consumers, irrespective of where
those transactions are ultimately concluded and which are provided to business
users on the basis of contractual relationships between the provider of those
services and business users which offer goods or services to consumers
(Article 2/2 of the Regulation).

Online
search engine is defined as a digital
service that allows users to input queries in order to perform searches of, in
principle, all websites, or all websites in a particular language, on the basis
of a query on any subject in the form of a keyword, voice request, phrase or
other input, and returns results in any format in which information related to
the requested content can be found (Article 2/5 of the Regulation).

B. Scope and Jurisdiction of the Regulation

Pursuant
to Article 1/1 of the Regulation, the Regulation applies to online
intermediation services and online search engines provided, or offered to be
provided, to business users and corporate website users (i) that have their
place of establishment or residence in the EU and (ii) that, through those
online intermediation services or online search engines, offer goods or
services to consumers located in the EU, irrespective of the place of
establishment or residence of the providers of those services and irrespective
of the law otherwise applicable.

In
order words, the Regulation would apply to providers of online intermediation
and online search engine services regardless of whether they are established in
a Member State or outside the EU, provided that these two cumulative conditions
are met: (i) the business users or corporate website users should be
established in the EU and (ii) the business users or corporate website users
should, through the provision of those services, offer their goods or services
to consumers located in the EU at least for part of the transaction. As per the
Recital, in order to determine whether business users or corporate website
users are offering goods or services to consumers located in the EU, it would
be necessary to confirm whether it is apparent that the business users or
corporate website users direct their activities to consumers located in EU.

The
Regulation shall not apply to online payment services or to online advertising
tools or online advertising exchanges, which are not provided with the aim of
the facilitating the initiation of direct transactions and which do not involve
a contractual relationship with consumers (Article 1/2 of the Regulation).

The
Regulation also does not apply to peer-to-peer online intermediation services
without the presence of business users, pure business-to-business online
intermediation services which are not offered to consumers (Paragraph 11 of the
Recital).

The
preamble of the Regulation indicates that it is without prejudice to EU law, in
particular EU law applicable in the areas of judicial cooperation in civil
matters, competition, data protection, trade secrets protection, consumer
protection, electronic commerce and financial service.

C. Obligations Set Out by the Regulation

The
Regulation imposes a number of obligations for online intermediation services
and online search engines. Below are the obligations set out by the Regulation
under two separate headings for (i) online intermediation services and (ii)
online search engines.

1.
Online Intermediation Services

Terms and Conditions

-
To ensure that the general terms and conditions enable business users to
determine the commercial conditions for the use, termination and suspension of
online intermediation services, and to achieve predictability regarding their
business relationship, providers of online intermediation services
("Intermediaries") should draft terms and conditions in plain and intelligible
language. Terms and conditions should not be considered to have been drafted in
plain and intelligible language where they are vague, unspecific or lack detail
on important commercial issues and thus fail to give business users a
reasonable degree of predictability on the most important aspects of the
contractual relationship (Article 3 of the Regulation).

-
Intermediaries should ensure, towards their business users, the transparency of
any additional distribution channels and potential affiliate programs that they
might use to market those goods or services (Article 3/1(d) of the Regulation).

-
Intermediaries should within their terms and conditions include general, or
more detailed, information if they so wish, regarding the overall effects, if
any, of those terms and conditions on the ownership and control of intellectual
property rights of the business user. Such information could, inter alia,
include information such as the general usage of logos, trademarks or brand
names (Article 3/1(e) of the Regulation).

-
Intermediaries should also ensure that the terms and conditions are easily
available at all stages of the commercial relationship, including to
prospective business users at the pre-contractual phase, and that any changes
to those terms are notified on a durable medium to business users concerned.
Notification shall be made within a set notice period which is reasonable and proportionate
in light of the specific circumstances and which is at least 15 days (Article
3/2 of the Regulation).

That
notice period should not apply where, and to the extent that, it is waived in
an unambiguous manner by the business user concerned or where, and to the
extent that, the need to implement the change without respecting the notice
period stems from a legal or regulatory obligation incumbent on the service
provider under EU or national law. However, proposed editorial changes should
not be covered by the term ‘change' in as far as they do not alter the content
or meaning of terms and conditions.

Identity of the Business Users

-
Intermediaries shall ensure that the identity of the business user providing
the goods or services on the online intermediation services is clearly visible
(Article 3/5 of the Regulation).

However,
this provision should not be understood as a right for business users to
unilaterally determine the presentation of their offering or presence on the
relevant online intermediation services (Paragraph 21 of the Recital).

Restriction, Suspension, Termination

-
Intermediaries should provide, prior to or at the time of the restriction or
suspension taking effect, with a statement of reasons for that decision on a
durable medium. Intermediaries should also allow an opportunity for business
users to clarify the facts that led to that decision in the framework of the
internal complaint-handling process, which will help the business user, where
this is possible, to re-establish compliance.

In
addition, where the Intermediary revokes the decision to restrict, suspend or
terminate, for example because the decision was made in error or the
infringement of terms and conditions that led to this decision was not
committed in bad faith and has been remedied in a satisfactory manner, the Intermediary
should reinstate the business user concerned without undue delay, including
providing the business user with any access to personal or other data, or both,
available prior to the decision (Article 4 of the Regulation).

-
The termination of the whole of the online intermediation services and the
related deletion of data provided for the use of, or generated through, the
provision of online intermediation services represent a loss of essential
information which could have a significant impact on business users and could
also impair their ability to properly exercise other rights granted to them by
this Regulation. Therefore, the Intermediary should provide the business user
concerned with a statement of reasons on a durable medium, at least 30 days
before the termination of the provision of the whole of its online
intermediation services enters into effect (Article 4/2 of the Regulation).

In
order to ensure proportionality, Intermediaries should, where reasonable and
technically feasible, delist only individual goods or services of a business
user. Termination of the whole of the online intermediation services
constitutes the most severe measure (Paragraph 23 of the Recital).

-
Business users should be offered clarity as to the conditions under which their
contractual relationship with Intermediaries can be terminated. Intermediaries
should ensure that the conditions for termination are always proportionate and
can be exercised without undue difficulty.

Business
users should be fully informed of any access that Intermediaries maintain,
after the expiry of the contract, to the information that business users
provide or generate in the context of their use of online intermediation
services (Paragraph 32 of the Recital).

 Rankings

-
Intermediaries should outline the main parameters determining ranking, in order
to improve predictability for business users, to allow them to better
understand the functioning of the ranking mechanism and to enable them to
compare the ranking practices of various providers (Article 5/1 of the
Regulation).

 -
The description of the main parameters determining ranking should include an
explanation of any possibility for business users to actively influence ranking
against remuneration, as well as an explanation of the relative effects
thereof. Remuneration could refer to payments made with the main or sole aim to
improve ranking, as well as indirect remuneration in the form of the acceptance
by a business user of additional obligations of any kind which may have this as
its practical effect, such as the use of services that are ancillary or of any
premium features (Article 5/2 of the Regulation).

 -
Intermediaries should not be required to disclose the detailed functioning of
their ranking mechanisms, including algorithms (Article 5/6 of the Regulation).
Consideration of the commercial interests of Intermediaries should never lead
to a refusal to disclose the main parameters determining ranking (Paragraph 27
of the Recital).

 Ancillary Goods and Services

-
Intermediaries offering goods or services to consumers that are ancillary to a
good or service sold by a business user, using their online intermediation
services, should set out in their terms and conditions a description of the
type of ancillary goods and services being offered (Article 6 of the
Regulation).

This
description should in all circumstances include whether and under what
conditions a business user is allowed to offer its own ancillary good or
service in addition to the primary good or service that it is offering through
the online intermediation services (Paragraph 29 of the Recital).

Differentiated Treatment

-
Where Intermediaries themselves offer certain goods or services to consumers
through their own online intermediation services, or do so through a business
user which they control, they should act in a transparent manner and provide an
appropriate description of, and set out the considerations for any
differentiated treatment, whether through legal, commercial or technical means,
such as functionalities involving operating systems that they might give in
respect of goods or services they offer themselves compared to those offered by
business users (Article 7 of the Regulation).

To
ensure proportionality, this obligation should apply at the level of the
overall online intermediation services, rather than at the level of individual
goods or services offered through those services (Paragraph 31 of the Recital).

Data Obligations

-
Intermediaries should provide business users with a clear description of the
scope, nature and conditions of their access to and use of certain categories
of data. The description should be proportionate and might refer to general
access conditions, rather than an exhaustive identification of actual data, or
categories of data. However, identification of and specific access conditions
to certain types of actual data that might be highly relevant to the business
users could also be included in the description. Altogether, the description
should enable business users to understand whether they can use the data to
enhance value creation, including by possibly retaining third-party data
services (Paragraph 33 of the Recital, Article 9 of the Regulation).

-
Business users should in particular be made aware of any sharing of data with
third parties that occurs for purposes which are not necessary for the proper
functioning of the online intermediation services; for example where
Intermediary monetizes data under commercial considerations. To allow business
users to fully exercise available rights to influence such data sharing,
Intermediaries should also be explicit about possibilities to opt out from the
data sharing where they exist under their contractual relationship with the
business user (Paragraph 34 of the Recital, Article 9 of the Regulation).

Competition and Unfair Commercial Practices

Without
prejudice to national and EU laws in the areas of competition and unfair
commercial practices, and the application of such laws, Intermediaries should
set out the grounds for restricting the ability of business users to offer
goods or services to consumers under more favorable conditions through other
means than through those online intermediation services, in particular with
reference to the main economic, commercial or legal considerations for the
restrictions (Article 10 of the Regulation).

Internal Complaint-Handling System

-
Intermediaries should provide an internal complaint-handling system which is
easily accessible and free of charge for business users. Internal
complaint-handling system should be based on principles of transparency and
equal treatment applied to equivalent situations (Article 11/1 of the
Regulation).

The
internal complaint-handling system should aim to ensure that a significant
proportion of complaints can be solved bilaterally by the Intermediary and the
relevant business user in a reasonable period of time. Any attempt to reach an
agreement through the internal complaint handling-process shall not affect the
rights of providers of online intermediation services or business users to
initiate judicial proceedings at any time during or after the internal
complaint-handling process (Paragraph 37 of the Recital).

-
Intermediaries should publish and, at least annually, verify information on the
functioning and effectiveness of their internal complaint-handling system to
help business users to understand the main types of issues that can arise in
the context of the provision of different online intermediation services and
the possibility of reaching a quick and effective bilateral resolution
and  where significant changes are needed, they shall update that information
(Article 11/4 of the Regulation).

Mediation

-
As per Article 12 of the Regulation, Intermediaries shall identify in their
terms and conditions two (2) or more mediators with which they are willing to
engage to attempt to reach an agreement with business users on the settlement,
out of court, of any disputes in relation to the provision of the online
intermediation services. Intermediaries shall bear a reasonable proportion of
the total costs of mediation in each individual case.

2.
Online Search Engines

Rankings

-
As per Article 5 of the Regulation, search engines should provide description
regarding the main parameters which individually or collectively determine the
ranking of all indexed websites, the relative importance of those main
parameters, and keep such description in plain language.

These
descriptions should take into account (i) characteristics of the goods and
services provided, (ii) relevance of those characteristics for the consumers
and (iii) design characteristics of the website used by corporate website
users. However, search engines are not obliged to disclose algorithms or any
information manipulating search results within this scope.

Differentiated Treatment

-
Search engines should set out a description of any differentiated treatment in
relation to goods or services offered to consumers through the relevant search
engines, or a corporate website user which they control. This description
should contain information regarding any differentiated treatment applied
whether through legal, commercial or technical means in respect of goods or
services offered (Article 7 of the Regulation).

In
conclusion, the Regulation imposes significant new obligations on
Intermediaries and search engine operators, particularly for their B2B
transactions.

(First published
by Mondaq on June 26, 2019)