REGIS - Reg. Intermediation Services 2019/1150 EN

(1)	‘business user’ means any private individual acting in a commercial or professional capacity who, or any legal person which, through online_intermediation_services offers goods or services to consumers for purposes relating to its trade, business, craft or profession;

(2)

‘online intermediation services’ means services which meet all of the following requirements:

(a)	they constitute information society services within the meaning of point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council (12);

(b)	they 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;

(c)	they 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;

(3)	‘provider of online_intermediation_services’ means any natural or legal person which provides, or which offers to provide, online_intermediation_services to business_users;

(4)	‘consumer’ means any natural person who is acting for purposes which are outside this person’s trade, business, craft or profession;

(5)

‘online search engine’ means 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;

(6)	‘provider of online_search_engine’ means any natural or legal person which provides, or which offers to provide, online_search_engines to consumers;

(7)

‘corporate website user’ means any natural or legal person which uses an online interface, meaning any software, including a website or a part thereof and applications, including mobile applications, to offer goods or services to consumers for purposes relating to its trade, business, craft or profession;

(8)

‘ranking’ means the relative prominence given to the goods or services offered through online_intermediation_services, or the relevance given to search results by online_search_engines, as presented, organised or communicated by the providers of online_intermediation_services or by providers of online_search_engines, respectively, irrespective of the technological means used for such presentation, organisation or communication;

(9)	‘control’ means ownership of, or the ability to exercise decisive influence over, an undertaking, within the meaning of Article 3(2) of Council Regulation (EC) No 139/2004 (13);

(10)

‘terms and conditions’ means all terms_and_conditions or specifications, irrespective of their name or form, which govern the contractual relationship between the provider of online_intermediation_services and its business_users and are unilaterally determined by the provider of online_intermediation_services, that unilateral determination being evaluated on the basis of an overall assessment, for which the relative size of the parties concerned, the fact that a negotiation took place, or that certain provisions thereof might have been subject to such a negotiation and determined together by the relevant provider and business_user is not, in itself, decisive;

(11)

‘ancillary goods and services’ means goods and services offered to the consumer prior to the completion of a transaction initiated on the online_intermediation_services in addition to and complementary to the primary good or service offered by the business_user through the online_intermediation_services;

(12)	‘mediation’ means any structured process as defined in point (a) of Article 3 of Directive 2008/52/EC;

(13)	‘durable medium’ means any instrument which enables business_users to store information addressed personally to them in a way accessible for future reference and for a period of time adequate for the purposes of the information and allows the unchanged reproduction of the information stored.

Article 5

ranking

1. Providers of online_intermediation_services shall set out in their terms_and_conditions the main parameters determining ranking and the reasons for the relative importance of those main parameters as opposed to other parameters.

2. Providers of online_search_engines shall set out the main parameters, which individually or collectively are most significant in determining ranking and the relative importance of those main parameters, by providing an easily and publicly available description, drafted in plain and intelligible language, on the online_search_engines of those providers. They shall keep that description up to date.

3. Where the main parameters include the possibility to influence ranking against any direct or indirect remuneration paid by business_users or corporate_website_users to the respective provider, that provider shall also set out a description of those possibilities and of the effects of such remuneration on ranking in accordance with the requirements set out in paragraphs 1 and 2.

4. Where a provider of an online_search_engine has altered the ranking order in a specific case or delisted a particular website following a third party notification, the provider shall offer the possibility for the corporate_website_user to inspect the contents of the notification.

5. The descriptions referred to in paragraphs 1, 2 and 3 shall be sufficient to enable the business_users or corporate_website_users to obtain an adequate understanding of whether, and if so how and to what extent, the ranking mechanism takes account of the following:

(a)	the characteristics of the goods and services offered to consumers through the online_intermediation_services or the online_search_engine;

(b)	the relevance of those characteristics for those consumers;

(c)	as regards online_search_engines, the design characteristics of the website used by corporate_website_users.

6. Providers of online_intermediation_services and providers of online_search_engines shall, when complying with the requirements of this Article, not be required to disclose algorithms or any information that, with reasonable certainty, would result in the enabling of deception of consumers or consumer harm through the manipulation of search results. This Article shall be without prejudice to Directive (EU) 2016/943.

7. To facilitate the compliance of providers of online_intermediation_services and providers of online_search_engines with and the enforcement of the requirements of this Article, the Commission shall accompany the transparency requirements set out in this Article with guidelines.

Article 7

Differentiated treatment

1. Providers of online_intermediation_services shall include in their terms_and_conditions a description of any differentiated treatment which they give, or might give, in relation to goods or services offered to consumers through those online_intermediation_services by, on the one hand, either that provider itself or any business_users which that provider controls and, on the other hand, other business_users. That description shall refer to the main economic, commercial or legal considerations for such differentiated treatment.

2. Providers of online_search_engines shall set out a description of any differentiated treatment which they give, or might give, in relation to goods or services offered to consumers through those online_search_engines by, on the one hand, either that provider itself or any corporate_website_users which that provider controls and, on the other hand, other corporate_website_users.

3. The descriptions referred to in paragraphs 1 and 2 shall cover in particular, where applicable, any differentiated treatment through specific measures taken by, or the behaviour of, the provider of online_intermediation_services or the provider of the online_search_engine relating to any of the following:

(a)

access that the provider, or that the business_users or corporate_website_users which that provider controls, may have to any personal data or other data, or both, which business_users, corporate_website_users or consumers provide for the use of the online_intermediation_services or the online_search_engines concerned or which are generated through the provision of those services;

(b)	ranking or other settings applied by the provider that influence consumer access to goods or services offered through those online_intermediation_services by other business_users or through those online_search_engines by other corporate_website_users;

(c)	any direct or indirect remuneration charged for the use of the online_intermediation_services or online_search_engines concerned;

(d)

access to, conditions for, or any direct or indirect remuneration charged for the use of services or functionalities, or technical interfaces, that are relevant to the business_user or the corporate_website_user and that are directly connected or ancillary to utilising the online_intermediation_services or online_search_engines concerned.

whereas

(4) Similarly, online_search_engines can be important sources of Internet traffic for undertakings which offer goods or services to consumers through websites and can therefore significantly affect the commercial success of such corporate_website_users offering their goods or services online in the internal market.
In this regard, the ranking of websites by providers of online_search_engines, including of those websites through which corporate_website_users offer their goods and services to consumers, has an important impact on consumer choice and the commercial success of those corporate_website_users.
Even in the absence of a contractual relationship with corporate_website_users, providers of online_search_engines can therefore, in effect, behave unilaterally in a way that can be unfair and that can be harmful to the legitimate interests of corporate_website_users and, indirectly, also of consumers in the Union.

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(8) Those rules should also provide for appropriate incentives to promote fairness and transparency, especially as regards the ranking of corporate_website_users in the search results generated by online_search_engines.
At the same time, those rules should recognise and safeguard the important innovation potential of the wider online platform economy and allow for healthy competition leading to increased consumer choice.
It is appropriate to clarify that this Regulation should not affect national civil law, in particular contract law, such as the rules on the validity, formation, effects or termination of a contract, in so far as the national civil law rules are in conformity with Union law and to the extent that the relevant aspects are not covered by this Regulation.
Member States should remain free to apply national laws which prohibit or sanction unilateral conduct or unfair commercial practices to the extent that the relevant aspects are not covered by this Regulation.

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(22) A provider of online_intermediation_services can have legitimate reasons to decide to restrict, suspend or terminate the provision of its services to a given business_user, including by delisting individual goods or services of a given business_user or effectively removing search results.
Short of being suspended, providers of online_intermediation_services can also restrict individual listings of business_users; for example, through their demotion or by negatively affecting a business_user’s appearance (‘dimming’) which can include lowering its ranking.
However, given that such decisions can significantly affect the interests of the business_user concerned, they should be provided, 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.
To minimise the negative impact of such decisions on business_users, providers of online_intermediation_services should also allow an opportunity 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 provider of online_intermediation_services 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 provider 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.

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(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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(28) The Commission should develop guidelines to assist providers of online_intermediation_services and providers of online_search_engines in applying the ranking transparency requirements laid down by this Regulation.
This effort should help to optimise the manner in which the main parameters determining ranking are identified and presented to business_users and corporate_website_users.

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keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

REGIS - Reg. Intermediation Services 2019/1150 EN