Radar - February 2021 – 1 / 2 观点
The EU's Regulation on Promoting Fairness and Transparency for Business Users of Online Intermediation Services (the Platform to Business Regulation or P2BR) has applied since 12 July 2020. It was retained in the UK as amended by the Online Intermediation Services for Business Users (Amendment) (EU Exit) Regulations 2020 under the EU Withdrawal Act 2018.
The P2BR is intended to redress a perceived imbalance in the relationship between online platforms and the businesses which provide goods and services on them, as well as between online search engines and the websites which appear on their listings, particularly in relation to ranking.
Online search engines (OSEs) and operators of online intermediation services (OISs), have to provide business users with information about the main parameters used to rank goods and services on their site or listings. This presents a potentially significant compliance burden on those caught by the legislation which does not go into great detail as to how to meet the new requirements.
At the end of 2020, the EC published Guidelines on ranking transparency under the P2BR which it hailed as "the first of their kind globally".
The guidelines are non-binding but are intended to flesh out the transparency requirements under the P2BR and provide advice on best practice.
The key message here is that there is no 'one size fits all' solution. Providers need to identify on a case by case and service by service basis, what ranking parameters they use, and then assess which are "main parameters" that need to be disclosed and provide context as to the degree of their importance.
The final step is to work out how to disclose the appropriate level of information, both in terms of the explanation provided (which must be in clear and intelligible language) and how to make it available in an accessible and technologically neutral manner in compliance with the legislation.
How much information to disclose
One of the challenges for providers is knowing how much information to disclose. It needs to be "meaningful" to users so should "take account of the nature, technical ability and needs of the 'average' users of a given service which may vary considerably between different types of services". Giving too little information will not be meaningful but providing too much may also result in a compliance failure.
Users must be able to glean an "adequate understanding" which enables them to take business decisions around ranking, so providers need to consider what information will be most useful to them. There is no requirement to disclose exactly how algorithms are used but merely stating that they are used will be insufficient.
For all parameters disclosed (and the Guidance goes into detail as to what these might be and how to assess their importance to users), the level of detail "should go beyond a simple enumeration of main parameters and provide at least a secondary layer of explanatory information".
How to present the information
It's clear that some providers will need to give an awful lot of information to their users so the challenge is to find a way to do this which isn't confusing.
The Guidelines suggest making use of technological tools like dynamic stimulators which can show the user anticipated effects of remuneration or other techniques on ranking by reference to a baseline. More basic methods might involve using navigation tools, clear structure, headings and links.
Where to present the information
OISs have to provide information in their terms and conditions which the Guidelines describe as "a broad notion". Services can choose how best to communicate the information to users provided it is not inconsistent or spread out over different tools and media to the point that it is no longer easily available or plain and intelligible. A single touchpoint (for example a dashboard) is one recommended solution.
OESs have to provide the information on their search engine somewhere where it is easily accessible on their webpage. This could be a link to more detailed information. Icons, tabs and banners might also be used.
The Guidelines are not legally binding on those caught by the P2BR. For those caught by the UK P2BR, they carry much less weight (although they could still be considered by UK courts). Given, however, that the UK government has said it does not intend to publish compliance guidelines, the EC ones are the next best thing for the purposes of the UK P2BR.
For OSEs and OISs caught by transparency provisions under either or both of the UK and EU versions of the Regulation, the Guidelines do offer some insight as to how to achieve compliance. They also help business users of these services understand what sort of information they can expect and where to access it.
The P2BR transparency requirements are business to business but requirements to provide ranking transparency for consumers are also a feature of the incoming EU Omnibus Directive which Member States need to transpose by 28 November 2021. These Guidelines may be helpful in assessing the direction of travel on the level of information which should be disclosed.
Long-awaited direct marketing Code of Practice published for consultation.