In recent years, attention has begun to be paid to the regulation of so-called intermediary platforms (online marketplaces), also with regard to the significant position that some of them enjoy within e-commerce. First, the Regulation on promoting fairness and transparency for business users of online intermediation services entered into force, which primarily addresses the content of contractual relationships between the platform operator and individual traders. Provisions were then included in the so-called Omnibus Directive which impose certain obligations on platform operators towards consumers. These obligations are to be reflected in the amendment to the Consumer Protection Act, about which APEK continuously and extensively informs. Further issues in this area will then be addressed within the recently adopted DSA Regulation (Digital Services Act), which enters into force on 17 February 2024.

In this legal circular we shall address the amendment to the Consumer Protection Act, as the new obligations of platform operators (online marketplaces) to a certain extent also affect the position of the traders themselves. The main change should consist in greater emphasis on the information obligations of the platform operator (online marketplace) towards consumers.

An online marketplace is to be newly defined as “a service enabling a consumer to conclude contracts at a distance with a seller or other person using software comprising a website, part of a website or an application, operated by or on behalf of a trader other than the seller…”. The information obligation pursuant to Section 11b(a) of the Consumer Protection Act is to relate to the ranking of the display of individual offers on the online marketplace. The platform operator shall be obliged to provide the consumer with the main parameters according to which offers are presented to the consumer when searching on the marketplace, “in a specific section of the online interface so as to be directly and easily accessible from the place where offers are made which are the result of a search based on the consumer’s query”. It thus appears that the platform operator will not be able to fulfil this obligation merely through references in terms and conditions or similar contractual documents, but rather that it will have to be displayed directly during searching. The absence of such information shall be classifiable as an unfair commercial practice, specifically a misleading omission pursuant to Section 5a(4) of the Consumer Protection Act.

A further regulatory requirement worth mentioning is to be contained in Section 11b(d) of the Consumer Protection Act. According to this provision, the online marketplace operator shall have an obligation to provide the consumer with advance information about how obligations towards the consumer are divided, if applicable, between this operator and the seller itself (the person offering products or services on the online marketplace). That is, which entity and how is responsible for fulfilling obligations towards the consumer, or in what manner they have arranged this responsibility between themselves. The concepts of intermediary platforms may differ, for example, also depending on the degree of protection from a legal perspective that the online marketplace operator ensures for consumers (by undertaking to fulfil certain obligations on behalf of the trader).

Further information that must be provided by the online marketplace operator is whether the person offering products or services there is or is not in the position of a trader. Related to this is also the point which requires express information to the consumer that if the seller on the platform is not in the position of a trader, then consumer law protection cannot be applied.

As already mentioned above, further regulation into this area will be brought by the Digital Services Act, which we shall examine more closely in one of the following legal circulars.

Aneta Kalivodová and Josef Aujezdský

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 10/2022 intended for members of this association.

This text was translated from Czech to English using an AI translator.