Following the publication earlier this year of guidelines on the protection of online consumers ('the Guidelines'), the Netherlands Authority for Consumers and Markets (ACM) has now published an addendum, focusing on online platforms. This publication also follows earlier ACM action (in Dutch) in relation to online platform Bol.com, which committed to certain changes to its platform (ie to clearly identify the relevant seller).
The ACM’s concern is that, when consumers make purchases via online platforms, it is not always clear whether they are buying directly from the platform, from an authorised reseller or via a third-party website. In its view, this can, in turn, lead consumers to be unsure of their rights, in circumstances where online platforms play a crucial role in safeguarding consumer rights and compliance with regulations.
Defining 'online platform'
The ACM acknowledged that there is not yet one commonly accepted definition of an online platform, but notes that online platforms facilitate interactions and/or transactions between users of goods and services/information on the platform and at least three parties are involved (the provider of the platform services and at least two users). For platforms that focus on consumers, there are broadly two types:
- platform services that are specifically focused on transactions between users; and
- platform services that facilitate interaction between users.
In order to provide some clarity, the ACM has now published its addendum to the Guidelines that set out a number of 'rules of thumb' that (in its view) apply to online platforms.
Platforms' obligations
The ACM argues that online platforms must ensure consumers can freely exercise their rights and online platforms themselves are subject to a number of basic rules.
The ACM puts these rules into two main categories:
- information and transparency obligations; and
- organisational and verification obligations.
1. Information and transparency obligations
Online platforms must ensure they do the following:
- Clearly identify their role for each product or service offered, such as if the online platform offers its own products or services to consumers but also offers third-party products and services. Simply stating that the latter are offered by 'partners' is not permitted, according to the ACM.
- Ensure that consumers know which trader they are dealing with and how to get in touch, such as by clearly stating contact details and service possibilities.
- Inform consumers that, by contracting with non-professional third parties (eg consumers who sell products or services to other consumers) they are not protected by consumer law, and clarify what this entails. For instance, app-store operators should ensure that users are able to clearly distinguish between apps created by professional and non-professional parties.
- Inform consumers about the criteria that apply when selecting professional partners on the online platform.
2. Organisational and verification obligations
Online platforms must ensure they do the following:
- Allow only professional parties that respect and adhere to consumer protection laws to access the platform.
- Take action against professional parties that do not adhere to consumer protection laws and impose sanctions if they do not cease their illegal behaviour. As an example, the ACM notes that, if the online platform receives complaints about a certain professional user but does not take any action, it may itself be in breach of consumer law. The online platform would need to challenge the professional party about the complaint(s).
- Require users to clarify whether they act as professional parties or consumers.
- Set up platform infrastructure so that all users can comply with consumer protection laws, such as developing an interface where the user can easily inform consumers about the use of its products or services.
The EU context
In particular the duty to 'select at the gate' and to 'enforce' in respect of professional sellers are noteworthy (and potentially novel) interpretations by the ACM of the applicable EU consumer protection rules. There seem to us to be real tensions between the ACM’s guidance and the general principle embodied in Article 15 of the E-Commerce Directive (2000/31/EC) that providers of information society services do not have a duty to monitor what happens on their sites.
Nevertheless, as we have seen from the new platform to business regulation, both the EU and national regulators such as the ACM are taking an increasing interest in the operation of online platforms and their role in facilitating both B2B and B2C transactions. This is an area to watch in view of the European Commission’s recently announced New Consumer Agenda, which places issues around digital transition at its heart.
