The P2B Regulations are the latest salvo in the battle against big tech

Among the less newsworthy items in July was the coming into force of a new set of EU regulations aimed at regulating the relationship between ‘Online Intermediation Services' (‘OISs') - that is ecommerce marketplace platforms and aggregators, search engines and social media sites - and the businesses which use those services to sell their products to consumers. Otherwise known as the Platform to Business, or P2B, Regulations.

You might be forgiven for not being aware of these regulations, nor more importantly why they have been introduced. The rationale is explained in the Recitals to the Regulation, which, as is not uncommon, occupy half of the total text! These explain that OISs are key enablers of entrepreneurship and new business models which are crucial to the commercial success of businesses which use them to reach their customers.

By definition OISs tend to be large and powerful undertakings and as a result (in the European Commission's view at least) their business customers do not enjoy equality of bargaining power and are subject to one-sided contractual provisions which lack certain equitable features.

Thus, the Regulations set down rules governing those relationships and the terms and conditions which regulate them. They apply to any OIS offering services to businesses based in the EU, which businesses in turn offer their products EU consumers. Hence, the Regulations catch operators based outside the EU, in the same way we have seen with the GDPR.

They are not lacking in mundanity: OIS's T&Cs must be drafted in plain and intelligible language and easily available to their business users at all stages. Of greater substance are the requirements for due process and transparency around variations, and suspension or termination of services.

The real meat lies in the requirement for transparency around the criteria determining ranking, both in a marketplace and search engine context

The real meat lies in the requirement for transparency around the criteria determining ranking, both in a marketplace and search engine context, especially where payment or other remuneration is a factor. But OISs are expressly not required to disclose algorithms.

Closely related to this is the issue of differentiation in treatment of business users' products compared with the OIS's own products - transparency around this is now mandatory. Even ancillary products are dealt with ie: "Customers who bought [that] also bought [this]". Business users must now be put on specific notice of this practice and be informed whether their products may also be offered for ancillary purchases.

Access to data is always a sensitive issue. OISs must now explain in their Ts&Cs whether or not, and if so how, access is granted to personal or other data provided or generated in the course of using the services.

Most ink is devoted to the area of dispute resolution between OISs and their business users. Provision for both internal complaints procedures and external mediation are now compulsory. And continuing that theme - in another throw back to the GDPR - allowance is made for judicial proceedings to be instituted against OISs on a representative basis, provided these representative organisations meet certain basic hygiene criteria.

The European Commission has clearly been exercised by the potentially unhealthy dependence business users have on intermediation services

The European Commission has clearly been exercised by the potentially unhealthy dependence business users have on intermediation services and the unfair commercial practices lurking within these. Or, depending on your viewpoint, it has been unable to resist the temptation to further flex its muscles in the direction of Big (US) Tech.

Either way they represent possibly the last vestiges of the UK's membership of the EU which of course terminated on 31 January 2020. The Transition Agreement has required a business as usual approach during 2020 with the result that these have scraped under the wire to become one of the last pieces of EU legislation to take effect here.

Paul Herbert is a partner at London law firm Goodman Derrick LLP