INFORMATION TECHNOLOGY
European Commissione: Guidelines on ranking transparency pursuant to Regulation (EU) 2019/1150 adopted.
These Guidelines aim to facilitate the compliance of providers of online intermediation services and providers of online search engines with, and the enforcement of, the requirements provided in Article 5 of Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (hereafter – the ‘Regulation’). In line with Article 5(7) and recital 28 of the Regulation, these Guidelines also aim to assist providers in applying the requirements and help optimise the manner in which the main parameters determining ranking are identified and presented to business users and corporate website users.
Article 5(1) and (2) require, in essence, providers to set out the main parameters that determine ranking and the reasons for the relative importance of those parameters as opposed to other parameters.
Article 2(8) defines ‘ranking’ as ‘the relative prominence given to the goods or services offered through online intermediation services, or the relevance given to search results by online search engines, as presented, organised or communicated 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.’
According to Article 5(5), each provider is to provide a description that gives users an adequate understanding of whether – and if so, how and to what extent – the ranking mechanism takes account of: (a) the characteristics of the goods or services offered through the provider’s service; (b) the relevance of those characteristics to the consumers using that service; and (c) solely as regards providers of online search engines, the design characteristics of the website used by the corporate website users.
As explained in Recitals 24 and 26, the description to be given by providers aims to improve predictability and help users improve the presentation of their goods and services, or a characteristic of those goods and services.
At the same time, the Regulation seeks to achieve this objective without requiring providers to disclose algorithms or any information that, with reasonable certainty, would result in the deception of consumers or consumer harm through the manipulation of search results (Article 5(6)). Thus, providers are not required to disclose the detailed functioning of their ranking mechanisms, including algorithms, and their ability to act against bad faith manipulation of ranking should not be impaired (Recital 27).
The guidance contained in these Guidelines should not be applied mechanically, but rather with due consideration to the relevant facts and circumstances at issue in each individual case. The examples given are for illustrative purposes to aid understanding. Where they describe specific situations, they should not be interpreted as limiting the scope of the obligation concerned to the particular situation described. In addition, examples may be given for a specific sector, but the concepts may be transferable and could be understood to apply to similar methods/situations used in other sectors.
These Guidelines are not legally binding. They are without prejudice to the providers’ own responsibilities to ensure compliance with the requirements of Article 5 and the powers and responsibilities of the competent authorities and courts of the Member States with respect to the enforcement of those requirements in accordance with the provisions of the Regulation and other provisions of EU law. It is ultimately solely for the Court of Justice of the EU to interpret the requirements.
The Commission will continue to monitor the manner in which the requirements of Article 5, as clarified by these Guidelines, are applied and may decide to revise these Guidelines where necessary in the light of future
Article 5(1) and (2) require, in essence, providers to set out the main parameters that determine ranking and the reasons for the relative importance of those parameters as opposed to other parameters.
Article 2(8) defines ‘ranking’ as ‘the relative prominence given to the goods or services offered through online intermediation services, or the relevance given to search results by online search engines, as presented, organised or communicated 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.’
According to Article 5(5), each provider is to provide a description that gives users an adequate understanding of whether – and if so, how and to what extent – the ranking mechanism takes account of: (a) the characteristics of the goods or services offered through the provider’s service; (b) the relevance of those characteristics to the consumers using that service; and (c) solely as regards providers of online search engines, the design characteristics of the website used by the corporate website users.
As explained in Recitals 24 and 26, the description to be given by providers aims to improve predictability and help users improve the presentation of their goods and services, or a characteristic of those goods and services.
At the same time, the Regulation seeks to achieve this objective without requiring providers to disclose algorithms or any information that, with reasonable certainty, would result in the deception of consumers or consumer harm through the manipulation of search results (Article 5(6)). Thus, providers are not required to disclose the detailed functioning of their ranking mechanisms, including algorithms, and their ability to act against bad faith manipulation of ranking should not be impaired (Recital 27).
The guidance contained in these Guidelines should not be applied mechanically, but rather with due consideration to the relevant facts and circumstances at issue in each individual case. The examples given are for illustrative purposes to aid understanding. Where they describe specific situations, they should not be interpreted as limiting the scope of the obligation concerned to the particular situation described. In addition, examples may be given for a specific sector, but the concepts may be transferable and could be understood to apply to similar methods/situations used in other sectors.
These Guidelines are not legally binding. They are without prejudice to the providers’ own responsibilities to ensure compliance with the requirements of Article 5 and the powers and responsibilities of the competent authorities and courts of the Member States with respect to the enforcement of those requirements in accordance with the provisions of the Regulation and other provisions of EU law. It is ultimately solely for the Court of Justice of the EU to interpret the requirements.
The Commission will continue to monitor the manner in which the requirements of Article 5, as clarified by these Guidelines, are applied and may decide to revise these Guidelines where necessary in the light of future
