Newsletter competition 5/18

TRANSPARENT ONLINE PLATFORMS FOR BUSINESSES

The European Commission is striving to protect the rights of businesses and consumers on online platforms. Cases like Google Shopping, ebooks on Amazon or Uber have been widely debated. It is precisely those cases that inspired the Commission to initiate works on new regulations intending to reinforce the protection of small and micro businesses in the Internet.

WHAT DOES THE DRAFT ENVISAGE?

The new regulations are to ensure that the terms of use of online platforms (e.g. search engines, sale platforms and booking platforms) are clear, unambiguous and easily accessible to users. Platform administrators will be required to specify in advance the reasons for which the platform could be suspended or closed down. They will also have to inform users in advance (a minimum of 15 days) of intended changes to the terms.
Platform administrators will not be allowed to terminate a contract – the termination or suspension of services will have to be justified by specific events of which a customer (business) will be informed.
An important amendment will be an obligation for administrators of online platforms and search engines to set out the criteria determining the priority in which the goods and services are displayed. In particular, where the administrator wishes to allow impacting the display order through payment of a fee, then terms and conditions of the platform will have to clearly specify such possibility and its impact.
Other changes involve inter alia imposing an obligation on online platform administrators to draw up internal procedures for dispute resolution and to provide in their terms and conditions details of independent mediators with whom the platform will cooperate in dispute resolution.

WHAT DOES IT ALL MEAN?

The regulation supplements the actions already taken the European Commission aiming at increasing security in the Internet. Businesses already have to comply with the GDPR or the Regulation on geoblocking. If the next proposal of the Commission is approved and enters into force, online platform administrators will have to adjust their terms and conditions accordingly and implement further procedures. On the other hand, doing business online will as a result become clearer, safer and simpler.
Expectedly, the Commission, which has recently been particularly active in regulating online trade and services, will soon introduce further changes affecting the way business is done online.

 

Case Law: 

IS THE OBLIGATION TO SIGN AN AGREEMENT IN THE PRESENCE OF A COURIER AN AGGRESSIVE MARKET PRACTICE?

The Court of Justice of the EU will soon respond to the question referred by the Polish Supreme Court concerning entering into distance contracts with consumers. It involves interpretation of the directive on unfair trade practices employed by businesses against consumers (case C-628/17).

In 2010, President of UOKiK found that Orange (formerly: Polska Telefonia Cyfrowa) employed an aggressive market practice. Where a distance contract was to be concluded, the consumer was required to sign a relevant contract in the presence of the courier who delivered the contract. Thus, the consumer was not in a position to carefully read the contract before signing it. According to the antimonopoly authority this constituted undue pressure on the consumer. And exerting such pressure is an aggressive market practice.
Neither the Court for Competition and Consumer Protection nor the Appeals Court agreed with President of UOKiK. The courts indicated that by the moment of signing the contract, the consumer has already made a choice. He could have read a contract template, e.g. on the seller’s website. However, the Supreme Court had some doubts. Therefore, it asked the CJEU whether the consumer having to make a final decision in the presence of a courier constitutes an aggressive market practice consisting in exerting undue pressure on the consumer. The Supreme Court considered three scenarios and asked whether such conduct will constitute an aggressive market practice a) always, b) only where the consumer has not been provided in advance with an individualised agreement template, or c) only where additional circumstances imply that the business has employed unfair practices which were to restrict the consumer’s freedom to make a decision.
The case involves the telecommunications market, but the answer of the Court may have impact on distance contracts in other industries as well. Many businesses will then have to amend their procedures for concluding contracts with consumers so as to allow them to freely read the contract and make a decision.

NEWS
The General Data Protection Regulation (GDPR) has been in force for several weeks now. This is high time to implement necessary changes. Therefore, we would like to invite all those engaged in marketing to the Conference “Smart Lead Generation” which will be held between 13 and 14 June 2018 . During the event Legal Advisor Marta Miszczuk will be talking about what the GDPR will change with respect to lead acquisition. Sign up on the Organiser’s website.

 

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