Guidance on fairness and transparency for business users of online intermediation services and online search engines

Instead of finding the product that best matches their needs, consumers would first see those offers that managed to influence the ranking. This is not only to the detriment of consumers but ultimately also to the detriment of other businesses fairly competing.

Balancing the interests of business users and consumers

The key role for platforms is to provide a favourable environment for business users and consumers alike. Balancing the, at times conflicting, interests of all participants can pose challenges for platforms. For example, consumers may expect a platform to respond quickly to complaints regarding a business user, say the removal of an unsafe product or inappropriate, even if legal, piece of content. Equally, other business users will want an efficient reaction to business users who do not compete fairly. Finally, the platform itself has an interest in remedying any issues swiftly as its own reputation and user trust could be negatively impacted. Any requirements that would make it more cumbersome for platforms to take action (such as strict prior notification of any changes to terms and conditions, compulsory mediation procedures or extensive public reporting requirements) may ultimately be to the detriment of all platform users.

Naturally, it is in the platforms’ interest to give clear guidance to users in their terms and conditions asregards account suspension or termination. This promotes legal and business certainty for all parties.

However, DIGITALEUROPE is concerned that a strict requirement for “objective” criteria may disproportionately restrict platforms’ ability to take action against abuses. For example, “inappropriate content” is naturally a term that requires interpretation in the context of the case at hand. This is particularly true for pan-European or global platforms that face the challenge of accounting for cultural and legal differences in their decisions. Keeping platforms clean is best served by rules that are clear to all users as these prevent unintended infringements in the first place. Nevertheless, in cases of doubt platforms will need to reserve themselves a certain degree of discretion in order to fulfil their role efficiently and in the interest of consumers.

Complaint handling procedures

DIGITALEUROPE points out that platforms already provide effective internal complaints procedures, which lead to satisfactory results for all involved in the large majority of cases and which should therefore be exhausted in any case before turning to voluntary mediation or court procedures. While DIGITALEUROPE acknowledges that mediation can in some cases help to resolve conflicts, we would like to underline that the application should remain voluntary for both platforms and business users.

Disproportionate disclosure requirements regarding complaints not only reveal relevant operational information to competitors but also represent a significant administrative burden. Given the large variety of contacts that platforms have with business users, it should be clarified, which categories of material complaints need to be reported.

DIGITALEUROPE cautions against the introduction of collective redress mechanisms as they would significantly increase the risk of litigation and reputational damage – no matter whether the court action was finally dismissed or not. In any case, safeguards against abuse of such systems as well as against commercial motivations in the filing of complaints should be addressed.