Activities of Daniel DALTON related to 2018/0112(COD)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services PDF (1 MB) DOC (295 KB)
Amendments (55)
Amendment 62 #
Proposal for a regulation
Recital 2
Recital 2
(2) Online intermediation services can be crucial for the commercial success of undertakings who use such services to reach consumers. The growing intermediation of transactions through online intermediation services, fuelled by strong data-driven indirect network effects, lead to an increased dependence of suchusage by business users, including micro, small and medium-sized enterprises, onf those services in order for them to reach consumers. Given that increasing dependeninteraction and the scalability of online services, the providers of those services often havecan have superior bargaining power, depending on the nature of their services, the sector to which they belong and the availability of alternatives. If this superior bargaining power, which is misused, it can enables them to effectively behave unilaterally in a way that can be unfair and that can be harmful to the legitimate interests of their businesses users and, indirectly, also of consumers in the Union.
Amendment 70 #
Proposal for a regulation
Recital 4
Recital 4
(4) The dependence ofrelationship between business users onand online intermediation services may also not leads to a situation in which business users often have limidequated possibilities to seek redress where unilateral actions of the providers of those services lead to a dispute. In many cases, those providers do not offer accessible and effective internal complaint-handling systems. Existing alternative out-of-court dispute settlement mechanisms can also be ineffective for a variety of reasons, including a lack of specialised mediators and business users’ fear of retaliation.
Amendment 87 #
Proposal for a regulation
Recital 6
Recital 6
(6) A uniform and targeted set of mandatory rules should therefore be established at Union level to ensure a fair, predictable, sustainable and trusted online business environment within the internal market by ensuring, in particular, that the business users of online intermediation services are afforded appropriate transparency as well as effective redress possibilities throughout the Union. Those rules should also provide for appropriate transparency as regards the ranking of corporate website users in the search results generated by online search engines. At the same, those rules should be such as to safeguardrecognise and support the important innovation potential of the wider online platform economy.
Amendment 99 #
Proposal for a regulation
Recital 8
Recital 8
(8) A wide variety of business-to- consumer commercial relations are intermediated online by providers operating multi-sided services that are essentially based on the same ecosystem- building business model. In order to capture the relevant services, online intermediation services should be defined in a precise and technologically-neutral manner. In particular, the services should consist of information society services, which are characterised by the fact that they aim to facilitate the initiating of direct transactions between business users and consumers, irrespective of whether the transactions are ultimately concluded either online, on the online portal of the provider of the online intermediation services in question or that of the business user, or offline. In addition, the services should be provided on the basis of contractual relationships both between the providers and business users and between the providers and the consumers. Such a contractual relationship should be deemed to exist where both parties concerned express their intention to be bound in an unequivocal and verifiable manner, without an express written agreement necessarily being required.
Amendment 112 #
Proposal for a regulation
Recital 9
Recital 9
(9) Examples of online intermediation services covered by this Regulation should consequently include online e-commerce market places, including collaborative ones on which business users are active, online software applications services and online social media services. However, this Regulation should not apply to online advertising serving tools or online advertising exchanges which are not provided with the aim of facilitating the initiation of direct transactions andor which do not involve a contractual relationship with consumers. This Regulation should also not apply to online payment services, since they do not themselves meet the applicable requirements but are rather inherently auxiliary to the transaction for the supply of goods and services to the consumers concerned.
Amendment 131 #
Proposal for a regulation
Recital 13
Recital 13
(13) To ensure that the general terms and conditions of a contractual relationship enable business users to determine the commercial conditions for the use, termination and suspension of online intermediation services, and to achieve predictability regarding their business relationship, those terms and conditions should be drafted in clear and unambiguous language which is easily understood by an average business user. Terms and conditions should not be considered to have been drafted in clear and unambiguous language where they are vague, unspecific or lack detail on important commercial issues and thus fail to give business users a reasonable degree of predictability on the most important aspects of the contractual relationship.
Amendment 141 #
Proposal for a regulation
Recital 14 a (new)
Recital 14 a (new)
(14a) Intermediary service providers may modify their terms and conditions in response to practices they become aware of that harm consumers in a variety of different manners. Given the huge diversity of content that business users distribute through intermediaries, such harmful practices may not always be foreseen in specific terms by the intermediary services provider. In such cases, intermediary service providers are exempted from the 15 days notice period for application of the new terms and conditions.
Amendment 146 #
Proposal for a regulation
Recital 15
Recital 15
(15) In order to protect business users it should be possible for a competent court to establish that non-compliant terms and conditions are not binding on the business user concerned, with effects ex nunc. Any such finding by a court should however only concern the specific provisions of the terms and conditions which are not compliant. The remaining provisions should remain valid and enforceable, in as far as they can be severed from the non- compliant provisions. Sudden modifications to existing terms and conditions may significantly disrupt business users’ operations. In order to limit such negative effects on business users, and to discourage such behaviour, modifications made in contravention of the obligation to provide a set notice period, should therefore be null and void, that is, deemed to have never existed with effects erga omnes and ex tunc for the duration of that notice period.
Amendment 156 #
Proposal for a regulation
Recital 16
Recital 16
(16) A provider of online intermediation services can have legitimate reasons to decide to suspend or terminate the provision of its services, in whole or in part, to a given business user, including by delisting individual goods or services of a given business user or effectively removing search results. However, given that such decisions can significantly affect the interests of the business user concerned, they should be properly informed of the reasons thereof. The statement of reasons should allow business users to ascertain whether there is scope to challenge the decision, thereby improving the possibilities for business users to seek effective redress where necessary. In addition, requiring a statement of reasons should help to prevent or remedy any unintended removal of online content provided by business users which the provider incorrectly considers to be illegal content, in line with Commission Recommendation (EU) No 2018/33422. The statement of reasons should identify the objective ground or grounds for the decision, based on the grounds that the provider had set out in advance in its terms and conditions, and refer in a proportionate manner to the relevant specific circumstances that led to that decision. However, such statement of reasons should not be provided if the information could help a business user suspected of performing practices that are harmful to the consumers or to the platform maintain or improve their harmful practices. _________________ 22 Commission Recommendation (EU) No 2018/334 of 1 March 2018 on measures to effectively tackle illegal content online (OJ L 63, 6.3.2018, p. 50).
Amendment 159 #
Proposal for a regulation
Recital 17
Recital 17
(17) The ranking of goods and services by the providers of online intermediation services has an important impacts on consumer choiceawareness of offers and, consequently, oncan influence the commercial success of the business users offering those goods and services to consumers. Providers of online intermediation services should therefore outline the main parameters determining ranking beforehand, in order to improve predictability for business users, to allow them to betto allow them to better understand the functioning of the ranking mechanism. This description should provide business users with an adequater understand the functioning of how the ranking mechanism and to enable them to compare the ranking practices of various providertakes account of the characteristics of the goods or services offered by the business user, and their relevance to the consumers of the specific online intermediation 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. 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 of the relative effects thereof. This description 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.
Amendment 164 #
Proposal for a regulation
Recital 18
Recital 18
(18) 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, including those of to 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.. 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. To ensure predictability for corporate website users, the description should also be kept up to date, including the possibility that any changes to the main parameters should be made easily identifiable. Whilst the providers are under no circumstances required to disclose any trade secrets as defined in Directive (EU) 2016/943 of the European Parliament and of the Council23 when complying with this requirement to disclose the main ranking parameters, the description given should at least be based on actual data on the relevance of the ranking parameters used. _________________ 23 Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ L 157, 15.6.2016, p. 1).
Amendment 189 #
Proposal for a regulation
Recital 20
Recital 20
(20) The ability to access and use data, including personal data, can enable important value creation in the online platform economy. 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, in order to enable business users to understand whether they can use the data to enhance value creation, including by possibly retaining third-party data services. Processing of personal data should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council.24 _________________ 24 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevant) (OJ L 119, 4.5.2016, p. 1) This Regulation should not require online intermediation services providers to share personal data with third parties beyond what is set out in their privacy policies.
Amendment 212 #
Proposal for a regulation
Recital 25
Recital 25
(25) Providers of online intermediation services should bear a reasonable proportion of the total costs of the mediation, taking into account all relevant elements of the case at hand. To that aim, the mediator should suggest which proportion is reasonable in the individual case. However, that proportion should never be less than half of those costs.
Amendment 218 #
Proposal for a regulation
Recital 27
Recital 27
(27) Various factors, such as limited financial means, a fear of retaliation and exclusive choice of law and forum provisions in terms and conditions, can limit the effectiveness of existing judicial redress possibilities, particularly those which require business users or corporate website users to act individually and identifiably. To ensure the effective application of this Regulation, organisations, associations representing business users or corporate website users, as well as certain public bodies set-up in Member States, should be granted the possibility to take action before national courts. Such action before national courts should aim to stop or prohibit infringements of the rules set out in this Regulation and to prevent future damage that could undermine sustainable business relationships in the online platform economy. In order to ensure that such organisations or associations exercise that right effectively and in an appropriate manner, they should meet certain criteria, in particular relating to transparency of funding. Considering the particular status of the relevant public bodies in Member States where such bodies have been set up, it should only be required that those have been specifically charged, in accordance with the relevant rules of national law, with bringing such actions either in the collective interest of the parties concerned or in the general interest, without there being a need to apply those criteria to such public bodies. Any such actions should in no way affect the rights of the business users and corporate website users to take judicial action on an individual basis.
Amendment 239 #
Proposal for a regulation
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Regulation shall apply where the terms and conditions of a contractual relationship, regardless of their name or form, are not individually negotiated by the parties to them.
Amendment 240 #
Proposal for a regulation
Article 1 – paragraph 2 b (new)
Article 1 – paragraph 2 b (new)
2b. This Regulation is without prejudice to Articles 101 and 102 of the Treaty on the Functioning of the European Union and Council Regulation (EC) No 1/2003.
Amendment 254 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point b
Article 2 – paragraph 1 – point 2 – point b
(b) they, as a primary function, 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 whethere those transactions are ultimately concluded on the online portal of the online intermediation service or business user;
Amendment 263 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘online search engine’ means a digital service that allows users to perform searches of, in princip, including a website or a part thereof and applications, including mobile, all websites or websites in a particular language on the basis of a querypplications or other online interface that allows users to perform searches on any subject in the form of a keyword, phrase or other input, and returns linkresults in which information related to the requested content can be found;
Amendment 276 #
Proposal for a regulation
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
(8) ‘ranking’ means the relative prominence in search results given to the goods or services offered to consumers by business users through online intermediation services, or to websites indexed for consumers by online search engines, as presented, organised or communicated to those consumers 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;
Amendment 279 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
(10) ‘terms and conditions’ means all terms, conditions, and clauses and other information, irrespective of their name or form, which govern the contractual relationship between the provider of online intermediation services and their business users and are unilaterally determined by the provider of online intermediation services.
Amendment 293 #
Proposal for a regulation
Article 3 – paragraph 1 – point a
Article 3 – paragraph 1 – point a
(a) are drafted in clear and unambiguous language;
Amendment 303 #
Proposal for a regulation
Article 3 – paragraph 1 – point c
Article 3 – paragraph 1 – point c
(c) set out the objective grounds for decisions to suspend or terminate, in whole or in part, the provision of their online intermediation services to business users.
Amendment 318 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 1
Article 3 – paragraph 3 – subparagraph 1
Providers of online intermediation services shall notify to the business users concerned of any envisaged modification of their terms and conditions, except where those modifications are of a purely administrative nature and have no negative effect on the business users concerned.
Amendment 328 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 2
Article 3 – paragraph 3 – subparagraph 2
The envisaged modifications shall not be implemented before the expiry of a notice period which is reasonable and proportionate to the nature and extent of the envisaged modifications and to their consequences for the business user concerned. That notice period shall be at least 15 days from the date on which the provider of online intermediation services notifies the business users concerned about the envisaged modifications.
Amendment 334 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 3 a (new)
Article 3 – paragraph 3 – subparagraph 3 a (new)
During the 15 days’ notice period, business users should not be able to submit new goods, content or services to the platform unless they accept the new terms and conditions.
Amendment 341 #
Proposal for a regulation
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Modifications to terms and conditions implemented by a provider of online intermediation services contrary to the provisions of paragraph 3 shall be null and void for the remainder of the notice period.
Amendment 347 #
Proposal for a regulation
Article 3 – paragraph 5
Article 3 – paragraph 5
5. Paragraph 3 shall not apply where a provider of online intermediation services is subject to a legal obligation which requires it to modify its terms and conditions in a manner which does not allow it to respect the notice period referred to in the second subparagraph of paragraph 3. Paragraph 3 shall also not apply if the terms and conditions have been modified in order to protect the legitimate interests of users or the operation of the online intermediation service.
Amendment 368 #
Proposal for a regulation
Article 4 – paragraph 2
Article 4 – paragraph 2
2. The statement of reasons referred to in paragraph 1 shall contain a reference to the specific facts or circumstances that led to the decision of the provider of online intermediation services, as well as a reference to the applicable objective ground or grounds for that decision referred to in Article 3(1)(c).
Amendment 372 #
Proposal for a regulation
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. Paragraph 1 shall not apply where the provision of a statement of reasons would place the provider of online intermediation services at risk of: (a) a breach of a legal obligation or direction of a relevant enforcement authority, including where a statement of reasons would prejudice an ongoing investigation, or would otherwise risk legal liability for the provider or its affiliates; or (b) compromise the operation of the online intermediation service, including the risk of harm to other business users of the online intermediation service or other third parties. Where a provider of online services considers that the business user concerned has repeatedly contravened the applicable terms and conditions resulting in their suspension or termination, they shall not be required to provide a statement of reasons and shall instead inform the given business user that this subparagraph applies.
Amendment 388 #
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 1
Article 5 – paragraph 1 – subparagraph 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.
Amendment 399 #
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 2
Article 5 – paragraph 1 – subparagraph 2
Where those main parameters include the possibility to influence ranking against any direct or indirect remuneration paid by business users to the provider of online intermediation services concerned, that provider of online intermediation services shall also include in its terms and conditions a description of those possibilities and of the effects of such remuneration on ranking.
Amendment 405 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Providers of online search engines shall set out for corporate website users the main parameters determining ranking, by providing an easily and publicly available description, drafted in clear and unambiguous language on the online search engines of those providers. They shall keep that description up to date.
Amendment 418 #
Proposal for a regulation
Article 5 – paragraph 3 – introductory part
Article 5 – paragraph 3 – introductory part
3. The descriptions referred to in paragraphs 1 and 2 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 followingthe ranking mechanism as regards:
Amendment 429 #
Proposal for a regulation
Article 5 – paragraph 4
Article 5 – paragraph 4
4. 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 any trade secrets as defined in Article 2(1) of Directive (EU) 2016/943, nor any business sensitive information which could undermine the provider’s competitive advantage or facilitate the manipulation of results or the deception of customers.
Amendment 434 #
Proposal for a regulation
Article 5 – paragraph 4 a (new)
Article 5 – paragraph 4 a (new)
4a. Providers of online intermediation services and providers of online search engines shall make sure that the information revealed under this Article does not result in a consumer harm following manipulation of ranking by business users and corporate business websites.
Amendment 450 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Providers of online intermediation services shall include in their terms and conditions a description of any material differentiated treatment which they give, or may give, in relation to, on the one hand, goods or services offered to consumers through those online intermediation services by either that provider itself or any business users which that provider controls and, on the other hand, other business users.
Amendment 516 #
Proposal for a regulation
Article 7 – paragraph 2 – subparagraph 1 (new)
Article 7 – paragraph 2 – subparagraph 1 (new)
3. Providers of online intermediation services shall, on request of the business user concerned, grant each business user access to anonymised consumer data which are generated through the facilitation of a transaction between consumers and the business user concerned. This obligation is without prejudice to the obligations with which online intermediation services must comply under the applicable data protection and privacy rules'.
Amendment 527 #
Proposal for a regulation
Article 8
Article 8
Amendment 553 #
Proposal for a regulation
Article 9 – paragraph 1 – subparagraph 1
Article 9 – paragraph 1 – subparagraph 1
Providers of online intermediation services shall provide for an internal system for handling the complaints of business users. The decision taken by the online intermediation services provider that is the subject of the complaint shall remain in force for the duration of the internal decision-making process.
Amendment 568 #
Proposal for a regulation
Article 9 – paragraph 2 – point c
Article 9 – paragraph 2 – point c
(c) communicate to the complainant the outcome of the internal complaint- handling process, in an individualised manner and drafted in clear and unambiguous in clear language.
Amendment 577 #
Proposal for a regulation
Article 9 – paragraph 4 – subparagraph 1
Article 9 – paragraph 4 – subparagraph 1
Amendment 580 #
Proposal for a regulation
Article 9 – paragraph 4 – subparagraph 1
Article 9 – paragraph 4 – subparagraph 1
Providers of online intermediation services shall annually establish and makeinclude in documentation easily available to the publicbusiness users information on the functioning and effectiveness of their internal complaint-handling system.
Amendment 584 #
Proposal for a regulation
Article 9 – paragraph 4 – subparagraph 2
Article 9 – paragraph 4 – subparagraph 2
Amendment 588 #
Proposal for a regulation
Article 9 – paragraph 4 – subparagraph 2
Article 9 – paragraph 4 – subparagraph 2
That information shall include the total number of complaints lodged, the subject- matter of themain types of complaints, the average time period needed to process the complaints and the decision taken on the complaints, whilst protecting the privacy of the business users involved.
Amendment 600 #
Providers of online intermediation services shallmay identify in their terms and conditions one or more mediators with which they are willing to engage to attempt to reach an agreement with business users on the settlement, out of court, of any disputes between the provider and the business user arising in relation to the provision of the online intermediation services concerned, including complaints that could not be resolved by means of the internal complaint-handling system referred to in Article 9.
Amendment 612 #
Proposal for a regulation
Article 10 – paragraph 1 – subparagraph 2 a (new)
Article 10 – paragraph 1 – subparagraph 2 a (new)
The decision taken by the online intermediation services provider at the source of the dispute between the latter and the business user shall remain in force for the duration of the mediation process.
Amendment 620 #
Proposal for a regulation
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Providers of online intermediation services and business users shall engage in good faith in any attempt to reach an agreement through the mediation of any of the mediators which they identified in accordance with paragraph 1, with a view to reaching an agreement on the settlement of the dispute.
Amendment 630 #
Proposal for a regulation
Article 10 – paragraph 4
Article 10 – paragraph 4
4. Providers of online intermediation services shall bear a reasonable proportion of the total costs of mediation in each individual case. A reasonable proportion of those total costs shall be determined, on the basis of a suggestion by the mediator, by taking into account all relevant elements of the case at hand, in particular the relative merits of the claims of the parties to the dispute, the conduct of the parties, as well as the size and financial strength of the parties relative to one another. However, providers of online intermediation services shall in any case bear at least half of the total cost.
Amendment 663 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 – introductory part
Article 12 – paragraph 2 – subparagraph 1 – introductory part
Organisations or associations shall have the right referred to in paragraph 1 only where, at the time of bringing the action, they meet all of the following requirements:
Amendment 675 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 – point b a (new)
Article 12 – paragraph 2 – subparagraph 1 – point b a (new)
(ba) they have no structural or financial interrelationship with a third person or organisation that financially benefits of the action by providing legal assistance or financial support;
Amendment 680 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 – point c a (new)
Article 12 – paragraph 2 – subparagraph 1 – point c a (new)
(ca) the entity has the know-how, human and financial resources and ability to conduct the litigation in question efficiently and in the interests of the group they represent;
Amendment 685 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 – point c b (new)
Article 12 – paragraph 2 – subparagraph 1 – point c b (new)
(cb) the entity has clearly communicated any costs and risks to those business users or corporate website users before acting on their behalf and has obtained the consent of a majority of those users following a clear request to bring an action on their behalf;
Amendment 686 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 – point c c (new)
Article 12 – paragraph 2 – subparagraph 1 – point c c (new)
(cc) the entity has existed for at least 4 years before initiating a declaratory action
Amendment 715 #
Proposal for a regulation
Article 14 – paragraph 1
Article 14 – paragraph 1
1. By [date: three years after the date of entry into forceapplication], and subsequently every three years, the Commission shall evaluate this Regulation and report to the European Parliament, the Council and the European Economic and Social Committee.
Amendment 723 #
Proposal for a regulation
Article 15 – paragraph 2
Article 15 – paragraph 2
2. It shall apply from [date: sixeighteen months following the day of its publication].