30 Amendments of Othmar KARAS related to 2018/0112(COD)
Amendment 125 #
Proposal for a regulation
Recital 12
Recital 12
(12) In order to effectively protect business users where needed, this Regulation should 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. Whether or not tto the contractual relationship between business userms and conditions were individually negotiated should be determined on the basis of an overall assessment, whereby the fact that certain provisions thereof may have been individually negotiated is, in itself, not decisiveproviders of online intermediation services.
Amendment 136 #
Proposal for a regulation
Recital 14
Recital 14
(14) Ensuring transparency in the general terms and conditions can be essential to promoting sustainable business relationships and to preventing unfair behaviour to the detriment of business users. Providers of online intermediation services should therefore also ensure that the terms and conditions are easily available at all stages of the contractual relationship, including to prospective business users at the pre-contractual phase, and that any modifications to those terms are notified to business users within a set notice period which is reasonable and proportionate in light of the specific circumstances and which is at least 15 days. That notice period should not apply where, and to the extent that, it is waived in an unambiguous manner by the business user concerned or where, and to the extent that, the need to implement the modification without respecting the notice period stems from a legal obligation incumbent on the service provider under Union or national law. Business users should be entitled to terminate their agreement without payment of any fee within 30 days from the receipt of a notice of a modification which they consider being detrimental to them.
Amendment 149 #
Proposal for a regulation
Recital 16
Recital 16
(16) A provider of online intermediation services or online search engines can have legitimate reasons to apply restrictions or sanctions to business users, and 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. _________________ 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 153 #
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, or apply other restrictions or penalties, 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. _________________ 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 167 #
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 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 172 #
Proposal for a regulation
Recital 18 a (new)
Recital 18 a (new)
Amendment 183 #
Proposal for a regulation
Recital 19 a (new)
Recital 19 a (new)
Amendment 188 #
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. It should be ensured that providers of online intermediation services provide business users of online intermediation services with users’ data immediately after conclusion of the contracts concerned, provided that users give their consent. Processing of personal data should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council24. _________________ 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).
Amendment 193 #
Proposal for a regulation
Recital 21
Recital 21
(21) Providers of online intermediation services might in certain cases restrict in the terms and conditions the ability of business users to offer goods or services to consumers under more favourable conditions through other means than through those online intermediation services. In those cases, the providers concerned should set out the grounds for doing so, in particular with reference to the main economic, commercial or legal considerations for the restrictions. This transparency obligation should however not be understood as affecting the assessment of the legality of such restrictionSuch restrictions should not be admissible, as they deprive business users from exercising their entrepreneurial freedom to set the conditions and means of sale of their own products uander other acts of Union law or the law of Member States in accordance with Union law, includ services, and may also harm consumers by preventing in them areas of competition and unfair commercial practices, and the application of such lawsccess to a wider choice.
Amendment 197 #
Proposal for a regulation
Recital 21 a (new)
Recital 21 a (new)
(21a) In some cases, providers of online intermediation services work with additional portals and platforms and other distribution channels. In order to maintain transparency and retain decision-taking power in connection with their own content, business users should have the right to be able to determine via what additional portals and platforms and other distribution channels their content, goods and services are offered.
Amendment 200 #
Proposal for a regulation
Recital 21 b (new)
Recital 21 b (new)
(21b) Business users should retain full rights over their own intellectual property. Providers of online intermediation services should be allowed to use the intellectual property of their business users, such as in the form of logos, for instance, only with the express permission of those users. Providers of online intermediation services should not be allowed to oblige business users to permit the use of their intellectual property rights.
Amendment 234 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Regulation shall apply to online intermediation services and online search enginsearch engines and online intermediation services provided, or offered to be provided, to business users and corporate website users, respectively, that have their place of establishment, or aresidence operating, in the Union and that, through online intermediation services or online search engines, offer goods or services to consumers located in the Union, irrespective of the place of establishment or residence of the providers of those services.
Amendment 245 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – introductory part
Article 2 – paragraph 1 – point 2 – introductory part
(2) ‘online intermediation services’ means services, even partially off-line, which meet all of the following requirements:
Amendment 253 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point b
Article 2 – paragraph 1 – point 2 – point b
(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 concludedon the online intermediation service’s website or by direct link to the website of the business user;
Amendment 268 #
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 principle, all websites or websites in a particular language on the basis of a query on any subject in the form of a keyword, vocal request, phrase or other input, and returns linksresults in any format in which information related to the requested content can be found;
Amendment 350 #
Proposal for a regulation
Article 3 – paragraph 5 – subparagraph 1 (new)
Article 3 – paragraph 5 – subparagraph 1 (new)
5a. Without prejudice to EU and national rules concerning illegal content, if the terms and conditions have been modified in order to protect the legitimate interest of the consumers or of the provider of online intermediation services, in response to practices that can cause immediate harm to consumers, intermediary service providers or providers of operating systems shall apply a 15 days’ notice period for application of the new terms and conditions.
Amendment 379 #
Proposal for a regulation
Article 4 a (new)
Article 4 a (new)
Article 4a Article 4.1 shall not apply where a provider of online intermediation services is subject to a legal obligation to sanction, suspend, or terminate, in whole or in part, the provision of its online intermediation services to a given business, or does so in order to fight against illicit content. In such cases, the business user shall be notified without undue delay.
Amendment 441 #
Proposal for a regulation
Article 5 a (new)
Article 5 a (new)
Article 5a Providers of online search engines shall apply fair treatment and ranking criteria on a non-discriminatory basis to all corporate website users, including to corporate website users that a provider controls directly or indirectly. In particular, the same underlying processes and methods for the positioning and display in the general search results pages shall be applied. Those include all elements that have an impact on the visibility, triggering, ranking or graphical format of a search result in the providers’ general search results pages.
Amendment 445 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Providers of online intermediation services and providers of operating systems shall include in their terms and conditions a description of any 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 or operating systems by either that provider itself or any business users which that provider controls and, on the other hand, other business users.
Amendment 481 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Providers of online intermediation services and providers of online search engines shall include in their terms and conditions a description of the technical and contractual access, or absence thereof, of business users or corporate website users to any personal data or other data, or both, which business users or corporate website users or consumers provide for the use of the online intermediation services or online search engines concerned or which are generated through the provision of those services.
Amendment 488 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Providers of online intermediation services shall include in their terms and conditions a description of the technical and contractual access, or absence thereof, of business users to any personal data or other data, or both, which business users or consumers provide for the use of the online intermediation services concerned or which are generated through the provision of those services.
Amendment 506 #
Proposal for a regulation
Article 7 – paragraph 2 – point b
Article 7 – paragraph 2 – point b
(b) whetherunder what conditions a business user has access to personal data or other data, or both, provided by that business user in connection to his or her use of the online intermediation services concerned or generated through the provision of those services to that business user and the consumers of his or her goods or services, and if so, to which categories of such data and under what conditions;
Amendment 513 #
Proposal for a regulation
Article 7 – paragraph 2 – point c
Article 7 – paragraph 2 – point c
(c) whetherunder what conditions, in addition to point (b), a business user has access to personal data or other data, or both, including in aggregated form, provided by or generated through the provision of the online intermediation services to all of the business users and consumers thereof, and if so, to which categories of such data and under what conditions.
Amendment 525 #
Proposal for a regulation
Article 7 – paragraph 2 a (new)
Article 7 – paragraph 2 a (new)
2a. Notwithstanding the provisions of Article 2, providers of online intermediation services shall provide business users with user data only with users’ consent.
Amendment 530 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Where, in the provision of their services, pProviders of online intermediation services shall not restrict the ability of business users to offer the same goods and services to consumers under different conditions through other means than through those services, they shall include grounds for that restriction different conditions to consumers for obtaining their terms and conditions and make those grounds easily available to the public. Those grounds shall include the main economic, commercial or legal considerations for those restriction goods and services at issue through other means than those services.
Amendment 546 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The obligation set out in paragraph 1 shall not affect any prohibitions or limitations in respect of the imposition of such restrictions that result from the apperms and conditions, or specific provisions therein, imposing oblicgation of other Union rules or from national rules that are in accordance with Union law and to whichs on business users to act in violation of the providersions of the online intermediation services are subjectparagraph (1) shall be null and void.
Amendment 547 #
Proposal for a regulation
Article 8 – paragraph 2 a (new)
Article 8 – paragraph 2 a (new)
2a. Providers of online intermediation services shall not oblige business users to surrender their intellectual property rights in part or in full.
Amendment 599 #
Proposal for a regulation
Article 10 – paragraph 1 – subparagraph 1
Article 10 – paragraph 1 – subparagraph 1
Providers of online intermediation services shall identifystate in their terms and conditions one or more mediators with which they are willing to engagewhether they are willing to make use of mediation in order 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. Providers of online intermediation services that are willing to make use of mediation shall identify in their terms and conditions one or more mediators with which they are willing to engage.
Amendment 649 #
Proposal for a regulation
Article 10 – paragraph 5 a (new)
Article 10 – paragraph 5 a (new)
5a. The provisions of this Article shall not apply to providers of online intermediation services that are small enterprises within the meaning of Article 2(2) of the Annex to Recommendation 2003/361/EC.
Amendment 700 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The Commission shall encourage the drawing up of codes of conduct by providers of online intermediation services and by organisations and associations representing them, as well as by business users and by organisations and associations representing them, intended to contribute to the proper application of this Regulation, taking account of the specific features of the various sectors in which online intermediation services are provided, as well as of the specific characteristics of micro, small and medium-sized enterprises.