Platform-to-Business Regulation: New Requirements for Online Platform Operators

Rating and comparison portals and search engines have become a matter of course in the (online) world. With effect from July 12, 2020, the "Regulation on promoting  fairness  and  transparency  for  business  users  of  online  intermediation  services " (P2B-Regulation 2019/1150/EU) applies, which places new requirements on providers of intermediation  services.

Background

Simple company websites alone are usually no longer sufficient to attract customers. Portals that allow different offers to be combined and in which end consumers can, for example, directly call up evaluations of certain goods and services, are becoming increasingly important for the economic success of a company. The advantage of the improved reach resulting from the use of such platforms entails a certain dependency of commercial platform users, which the European legislator wants to curb with the P2B-Rregulation, also to protect end consumers from the increasing market power of platform operators.

Main changes

The addressees of the P2B-Regulation are the providers of online brokerage services, such as trading platforms, hotel and travel booking portals, price comparison platforms and social networks, as well as online search engine providers.

1.

The content of the general terms and conditions of platform providers is a key element of the P2B-Regulation. While some of the provisions of the regulation do not go beyond the law on general terms and conditions already in force in Germany, the following new obligations in particular must be pointed out:

• Providers may not terminate or restrict their services to commercial users in a completely random manner. The general terms and conditions must state "legitimate reasons" (EC 22) for which a termination or restriction may be considered.
• The general terms and conditions must contain information about additional distribution channels or partner programs through which the platform provider could market the goods and services offered by the commercial user, e.g. other websites used to market the goods and services offered by the commercial user.
• The general terms and conditions must contain overall information on their effects on the ownership and control of intellectual property rights of commercial users. This concerns, for example, licenses for product images or trademarks which are automatically granted when a product is placed on the platform in question.
• The general terms and conditions must contain information on the provider's access to personal or other data or information provided or generated by the user. This is particularly important for commercial users, as they are obliged under the General Data Protection Regulation to inform consumers about the processing of personal data.
• The regulation also provides for special rules for amendments to general terms and conditions.

2.

Platform providers are obliged to maintain an easily accessible, free of charge complaint management system that enables complaints to be processed within a reasonable period of time.  Its effectiveness (number and types of complaints, average handling time, etc.) is to be evaluated, made publicly available in aggregated form and information on the functioning of the system is to be provided in the general terms and conditions. Furthermore, providers must participate in mediation attempts by users.

3.

If platform providers create rankings of offers, they must make the essential evaluation parameters transparent. In particular, it must be shown whether and, if so, how the ranking can be influenced by the payment of direct or indirect fees.

Notes

The P2B-Regulation itself provides for the possibility that certain associations and organizations can punish violations of the new requirements. It can also be assumed that the provisions of the P2B-Regulation can also be enforced by competitors using the means of unfair competition law, in particular cease and desist letters and interim injunctions. These threaten in particular those companies which do not even classify themselves as providers of online brokerage services within the meaning of the regulation, but which now fall within the scope of the regulation due to a change and adaptation of their business model.

In order to avoid such consequences, platform providers must above all adapt their general terms and conditions. In addition, it must be ensured that the new provisions, e.g. on complaint management, are implemented internally.

It remains to be seen whether the P2B-Regulation is actually suitable to curb the market power of platform operators. The P2B-Regulation does not regulate the dispute about liability for content on platforms, which often arises in practice. In this respect, the P2B-Regulation therefore does not offer the possibility of recourse to the platform operators in the event of legal infringements, but instead the often more tedious approach via the individual provider is still to be chosen.