04 January 2021
The EU Platform to Business Regulation (P2BR or P2B Regulation) is a crucially important law covering B2C (business to consumer) platforms and search engines.
The P2BR requires platforms to overhaul their Terms and Conditions, provide a statement of reasons whenever they restrict, suspend, or terminate a business user's account, and set up internal complaint-handling and mediation processes.
Search engines must provide transparent information about how they rank corporate website users in search results.
This comprehensive guide to the P2BR will help you understand whether the law applies to you, whether you can take advantage of the small business exemptions, and what you need to do to comply with the law.
The P2BR applies to online intermediation service providers (OIS providers) and search engines from July 2020.
The P2BR provides some examples of OIS providers at Section 11:
Examples of the sorts of businesses that can be OIS providers under the P2BR include:
Still not sure if you qualify as an OIS provider? Here's the full definition at Section 2 (2) of the P2BR:
Your business is an OIS provider if all of the following apply:
Let's look at some of the above terms in a little more detail.
An OIS provider must be an "information society service." Most online services are information society services under EU law, as long as they operate:
Apps, programs, and many websites can be types of information society services.
An OIS provider facilitates direct transactions between business users and consumers. According to Article 2 (4) of the P2BR, a "consumer" is "any natural person who is acting for purposes which are outside this person's trade, business, craft, or profession."
Therefore, if your platform allows business users to offer goods or services exclusively to other businesses (a B2B platform), the P2BR probably doesn't apply to you.
An OIS provider facilitates direct transactions between business users and consumers, "irrespective of where those transactions are concluded." This means that the transaction between a business user and a consumer might take place:
In other words, your platform doesn't have to provide the ability to process an actual transaction between business users and consumers to be covered by the P2BR. The consumer might make a payment to the business elsewhere.
An OIS provider must have a contractual relationship with business users (rather than only with consumers).
For two parties to be in a contractual relationship, there must be some verifiable agreement between them, such as a set of Terms and Conditions. Note that the P2BR doesn't necessarily require there to be a written agreement.
Section 11 of the P2BR includes many examples of businesses that don't fall under the definition of "OIS providers" and, therefore, are not covered by the P2BR:
Businesses not covered by the P2BR include:
Here's the definition of an "online search engine" at Article 2 (5) of the P2BR:
A service is a "search engine" if all of the following apply:
Search engines include DuckDuckGo, Startpage, Ecosia, Seznam, Bing, and (of course) Google.
Search engines facilitate transactions between consumers and "corporate website users," i.e. businesses whose websites are indexed, crawled, or tagged by search engines.
Yes, much like other EU laws, such as the General Data Protection Regulation (GDPR), the P2BR applies to non-EU companies in certain circumstances.
The P2BR applies to any OIS provider or search engine if both of the following apply:
The location of the OIS provider or search engine is not relevant, so long as its business users and its business users' consumers are located in the EU.
Yes, the P2BR applies to small businesses. However, your company may be exempt from some provisions of the P2BR if it meets both of the following conditions:
If you are a small business according to the definition above, you are exempt from two P2BR requirements:
You can still do these things voluntarily if you wish.
First, we'll look at OIS providers, who have the most extensive requirements under the P2BR.
One of the core OIS provider requirements under the P2BR is having a clear and fair Terms and Conditions agreement.
Our Terms and Conditions Generator makes it easy to create a Terms and Conditions agreement for your business. Just follow these steps:
Enter your email address where you'd like your agreement sent and click "Generate."
You'll be able to instantly access and download your new agreement.
Under the P2BR, you must maintain Terms and Conditions that:
The P2BR also requires your Terms and Conditions to include information about the following concepts (we've provided more information about each of these things below):
Your Terms and Conditions must contain information about ranking: "the relative prominence given to the goods or services" on your platform. For example, if a consumer searches for a type of product, ranking affects which business user's products appear at the top of the list.
You must include the following information about ranking in your Terms and Conditions:
Your Terms and Conditions must contain infmroation about "ancillary goods or services."
Ancillary goods or services are products that depend on the business user's main product in order to function, for example:
Your Terms and Conditions must explain:
If you provide your own goods or services (or the goods or services of companies you control) on your platform, your Terms and Conditions must explain whether you treat or rank these products differently from business users' goods or services.
This section of the P2BR is intended to reduce any unfair advantage you might gain over your businesses users through the provision of your platform.
Your Terms and Conditions must include the following information about differentiated treatment:
Your Terms and Conditions must explain how you access personal data or other data that business users or consumers provide for, or generate through, the use of your platform.
If you do have access to business users' or consumers' data, your Terms and Conditions must explain:
If you make changes to your Terms and Conditions, you must:
You won't be able to enforce any changes to your Terms and Conditions that do not comply with the P2BR's notice requirements.
A business user can waive their right to the 15-day notice period, for example by submitting new goods or services that attempt to comply with the changes before the end of the notice period.
If a business user doesn't wish to accept the changes to your Terms and Conditions, it may terminate its contract with you. This termination will normally take place within 15 days of the business user giving notice.
You must not make any changes to your Terms and Conditions that take retroactive effect unless:
Unless you are a small business, you must set up an internal complaint-handling system and appoint at least two mediators. These mechanisms are designed to help you resolve disputes with business users.
Your complaint-handling system must be:
Your complaint-handling system must allow you to:
Businesses can complaint about a range of matters, including:
So that business users can make informed choices about which platforms they want to work with, you must provide the following information to the public about your complaint-handling system, updated at least annually:
Your Terms and Conditions must explain your complaint-handling system.
You must choose at least two mediators to help settle disputes with business users. This is to prevent complaints from going to court.
Your mediators must be:
Your mediators can be based outside of the EU, but only if you can guarantee that business users are afforded EU-equivalent rights and protections.
Your Terms and Conditions must name your chosen mediators.
The P2BR imposes rules that help ensure you treat business users fairly when restricting, suspending, or terminating their accounts.
Restricting or suspending an account can include delisting items, removing items from search results, or "dimming" a business user, for example, by lowering their ranking.
You must provide a business user with a "statement of reasons" explaining your decision, either before or at the same time as restricting or suspending its account. You must also allow the business user to respond, for example, via your complaint-handling system.
Before you terminate a business user's account, you must provide 30 days' notice via a durable medium (e.g., email). You must also allow the business user to respond, for example, via your complaint-handling system.
You don't have to give 30 days notice if:
You should always provide a statement of reasons explaining your decision at the start of the 30-day notice period, unless you are legally required not to do so, or you can demonstrate that the business user has repeatedly violated your Terms and Conditions.
Your statement of reasons must contain the following information:
You or the business user may wish to resolve the matter via your complaint-handling system or your mediators. Both parties must share the cost of mediation. Your mediators can determine who pays what proportion of the costs.
The P2BR's requirements for search engines are less extensive than those for OIS providers.
Rather than providing corporate website users with a Terms and Conditions agreement, search engines must provide a publicly-available document that:
If your search engine promotes its own corporate websites (or corporate websites owned by companies in its control), you must include information about differentiated treatment in your publicly-available document.
If you receive a notice from a third party that affects a corporate website user's ranking, you must allow the corporate website user to inspect the notice.
Any OIS provider covered by the P2BR must:
Unless it is a small business, an OIS provider must also:
Any search engine covered by the P2BR must provide a publicly-available document explaining its policies on ranking corporate website users.