In a previous report we briefly described the main provisions of Regulation 2019/1150 on promoting fairness and transparency for business users of online intermediation services, such as e- Commerce platforms, marketplaces and app stores (Platform to Business – P2B – “Regulation”), entered into force in July 2020.
Article 5 of the Regulation introduces a transparency obligation of online platforms and search engines in relation to the main parameters determining ranking and the reasons for their relative importance, as opposed to other parameters.
On December 8, 2020, the European Commission (“EC”) has adopted Guidelines, pursuant to par. Article 5 par. 7 of the P2B Regulation, aiming to facilitate the compliance of providers of the above services with the ranking transparency obligation.
Plain and intelligible language
Providers of online intermediation services or and online search engines, are required to adopt user-oriented approach, by drafting the descriptions of the main ranking parameters in detailed, yet plain and intelligible language. Whist providers may decide on their own how best to tailor said description, the EC recommends including supplementary actions such as presentational tools.
Ranking parameters
The guidelines provide examples of possible ranking parameters (Annex I), such as quality of sitemap, page- loading speed, security (e.g. HTTPS), images (e.g. type, number, quality), consumer reviews (e.g. number, rating,
recent), trader-consumer Interaction (e.g. answered queries, responsiveness), Internet traffic, (multi-)device adaptability performance in search, and more.
Direct or indirect remuneration.
Where direct or indirect remuneration constitutes a “main parameter”, the Regulation specifically requires providers to describe the possibility for users to influence such paid ranking as well as its influence on the ranking. Examples of direct and indirect remuneration include (Annex II), inter alia, direct payment for endorsement or preferred placement by the relevant provider, direct payment for ‘boosting’ visibility of business pages on social media, (one off) direct payment for increased visibility during particular periods, and more.
Keeping the descriptions up to date
Providers must keep the required descriptions up to date and to that aim, they may need to regularly consider whether they still meet this legal requirement, or whether the descriptions need to be updated. Where an update is needed, providers of online intermediation services must notify business users of those changes in advance while providers of online search engines, merely need to ensure the – up-to-date – public availability of their descriptions.
Prevention of manipulation of ranking
Furthermore, the Guidelines expand on certain requirements aimed to prevent manipulation of the ranking mechanism (fraud fight mechanisms). The EC acknowledges that those mechanisms cannot be revealed in detail without potentially undermining their purpose and effectiveness. Therefore, a balance needs to be struck between, also in line with EU Trade Secrets Directive, countering manipulative and harmful behaviour on the one hand and the transparency required.
The Guidelines are a part of the EC’s ambitious set of draft legislation that will have a major impact on providers of digital services in the EU, namely the Digital Services Act (DSA) and the Digital Markets Act (DMA).
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