keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

• 4 Article 5 Ranking
• 2 Article 6 Ancillary goods and services
• 4 Article 7 Differentiated treatment
• 1 Article 8 Specific contractual terms
• 2 Article 9 Access to data

• services 41
• online 40
• business 26
• intermediation 26
• users 24
• provider 18
• which 18
• data 18
• shall 17
• search 15
• through 14
• conditions 13
• website 12
• description 11
• engines 11
• consumers 11
• corporate 10
• article 10
• user 10
• goods 9
• access 9
• ranking 8
• terms 8
• such 7
• providers 7
• provision 6
• parameters 6
• whether 6
• under 6
• generated 6
• offered 6
• main 6
•    providers 6
• both 5
• ancillary 5
• include 5
• they 5
• treatment 5
• contractual 5
• concerned 5
• differentiated 5
• personal 5
• information 4
• provided 4
• third 4
• requirements 4
• what 4
• hand 4
• give 4
• remuneration 4

Where ancillary_goods_and_services, including financial products, are offered to consumers through the online_intermediation_services, either by the provider of online_intermediation_services or by third parties, the provider of online_intermediation_services shall set out in its terms_and_conditions a description of the type of ancillary_goods_and_services offered and a description of whether and under which conditions the business_user is also allowed to offer its own ancillary_goods_and_services through the online_intermediation_services.

In order to ensure that contractual relations between providers of online_intermediation_services and business_users are conducted in good faith and based on fair dealing, providers of online_intermediation_services shall:

• (24) The ranking of goods and services by the providers of online_intermediation_services has an important impact on consumer choice and, consequently, on the commercial success of the business_users offering those goods and services to consumers.

    Ranking refers to the relative prominence of the offers of business_users or relevance given to search results as presented, organised or communicated by providers of online_intermediation_services or by providers of online_search_engines, resulting from the use of algorithmic sequencing, rating or review mechanisms, visual highlights, or other saliency tools, or combinations thereof.

    Predictability entails that providers of online_intermediation_services determine ranking in a non-arbitrary manner.

    Providers should therefore outline the main parameters determining ranking beforehand, 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.

    The specific design of this transparency obligation is important for business_users as it implies the identification of a limited set of parameters that are most relevant out of a possibly much larger number of parameters that have some impact on ranking.

    This reasoned description should help business_users to improve the presentation of their goods and services, or some inherent characteristics of those goods or services.

    The notion of main parameter should be understood to refer to any general criteria, processes, specific signals incorporated into algorithms or other adjustment or demotion mechanisms used in connection with the ranking.


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• (25) The description of the main parameters determining ranking should also 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, in this respect, 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.

    The content of the description, including the number and type of main parameters, can accordingly vary strongly depending on the specific online_intermediation_services, but should provide business_users with an adequate understanding of how the ranking mechanism takes account of the characteristics of the actual goods or services offered by the business_user, and their relevance to the consumers of the specific online_intermediation_services.

    The indicators used for measuring the quality of goods or services of business_users, the use of editors and their ability to influence the ranking of those goods or services, the amplitude of the impact of remuneration on ranking as well as elements that do not or only remotely relate to the good or service itself, such as presentational features of the online offer, could be examples of main parameters that, when included in a general description of the ranking mechanism in plain and intelligible language, should assist business_users in obtaining the required adequate understanding of its functioning.


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• (26) Similarly, the ranking of websites by the providers of online_search_engines, notably of those websites through which undertakings offer goods and services to consumers, has an important impact on consumer choice and the commercial success of corporate_website_users.

    Providers of online_search_engines should therefore provide a description of the main parameters determining the ranking of all indexed websites and the relative importance of those main parameters as opposed to other parameters, including those of corporate_website_users as well as other websites.

    In addition to the characteristics of the goods and services and their relevance for consumers, this description should in the case of online_search_engines also allow corporate_website_users to obtain an adequate understanding of whether, and if so how and to what extent, certain design characteristics of the website used, such as their optimisation for display on mobile telecommunications devices, is taken into account.

    It should also include an explanation of any possibility for corporate_website_users to actively influence ranking against remuneration, as well as an explanation of the relative effects thereof.

    In the absence of a contractual relationship between providers of online_search_engines and corporate_website_users, that description should be available to the public in an obvious and easily accessible location on the relevant online_search_engine.

    Areas of websites that require users to log in or register should not be understood as easily and publicly available in this sense.


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• (27) Providers of online_intermediation_services or of online_search_engines should not be required to disclose the detailed functioning of their ranking mechanisms, including algorithms, under this Regulation.

    Their ability to act against bad faith manipulation of ranking by third parties, including in the interest of consumers, should equally not be impaired.

    A general description of the main ranking parameters should safeguard those interests, while providing business_users and corporate_website_users with an adequate understanding of the functioning of ranking in the context of their use of specific online_intermediation_services or online_search_engines.

    To ensure that the objective of this Regulation is achieved, consideration of the commercial interests of providers of online_intermediation_services or online_search_engines should, therefore, never lead to a refusal to disclose the main parameters determining ranking.

    In this regard, whilst this Regulation is without prejudice to Directive (EU) 2016/943 of the European Parliament and of the Council (5), the description given should at least be based on actual data on the relevance of the ranking parameters used.


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• (29) Ancillary goods and services should be understood as goods and services offered to the consumer immediately prior to the completion of a transaction initiated on online_intermediation_services to complement the primary good or service being offered by the business_user.

    Ancillary goods and services refer to products that typically depend on, and are directly related to, the primary good or service in order to function.

    Therefore, the term should exclude goods and services that are merely being sold in addition to the primary good or service in question rather than being complementary in their nature.

    Examples of ancillary services include repair services for a specific good or financial products such as car rental insurance offered so as to complement the specific goods or services being offered by the business_user.

    Likewise, ancillary goods might include goods that complement the specific product being offered by the business_user by constituting an upgrade or a customisation tool linked to that specific product.

    Providers of online_intermediation_services 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.

    Such a description should be available in the terms_and_conditions regardless of whether the ancillary good or service is being provided by the provider of online_intermediation_services itself or by a third party.

    Such a description should be comprehensive enough to allow a business_user to understand whether any good or service is being sold as ancillary to the business_user’s good or service.

    The description should not necessarily include the specific good or service, but rather the type of product being offered as complementary to the primary product of the business_user.

    Furthermore, 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.


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• (30) Where a provider of online_intermediation_services itself offers certain goods or services to consumers through its own online_intermediation_services, or does so through a business_user which it controls, that provider might compete directly with other business_users of its online_intermediation_services which are not controlled by the provider, which might give the provider an economic incentive and the ability to use its control over the online_intermediation_services to provide technical or economic advantages to its own offering, or those offered through a business_user which it controls, which it could deny to competing business_users.

    Such behaviour could undermine fair competition and restrict consumer choice.

    In such situations, in particular, it is important that the provider of online_intermediation_services acts in a transparent manner and provides an appropriate description of, and sets out the considerations for any differentiated treatment, whether through legal, commercial or technical means, such as functionalities involving operating systems that it might give in respect of goods or services it offers itself compared to those offered by business_users.

    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.


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• (31) Where a provider of an online_search_engine itself offers certain goods or services to consumers through its own online_search_engine, or does so through a corporate_website_user which it controls, that provider might compete directly with other corporate_website_users of its online_search_engine which are not controlled by the provider.

    In such situations, in particular, it is important that the provider of the online_search_engine acts in a transparent manner and provides a description of any differentiated treatment, whether through legal, commercial or technical means, that it might give in respect of goods or services it offers itself or through a corporate_website_user which it controls, compared to those offered by competing corporate_website_users.

    To ensure proportionality, this obligation should apply at the level of the overall online_search_engine, rather than at the level of individual goods or services offered through those services.


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• (33) The ability to access and use data, including personal data, can enable important value creation in the online platform economy, both generally as well as for the business_users and online_intermediation_services involved.

    Accordingly, it is important that providers of online_intermediation_services 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.

    Such data could include ratings and reviews accumulated by business_users on the online_intermediation_services.

    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.


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