What you need to know about Terms and Conditions for online intermediation services?
Online intermediation platforms play an essential role in stimulating entrepreneurship, developing new business models, and facilitating trade between limited liability companies (SRL) or freelancers (PFA). Such platforms not only allow companies and businesses to access innovative markets and commercial opportunities but also contribute to consumer welfare by diversifying the range of goods and services and maintaining generally lower prices compared to traditional service delivery methods.
The growing popularity of online intermediation service platforms in both the public and private sectors has generated a series of legal challenges concerning fairness and legal security. It is essential for SRL companies, freelancers providing services through PFA, and individual consumers to trust the platforms they collaborate with, to fully exploit the benefits of the digital economy and avoid the damages that may arise from asymmetric business relationships. In this spirit, the regulations in this field aim to discourage online platform providers from acting unilaterally, often in an unfair manner towards consumers, and to provide adequate protection to users (see also the legal framework for class-actions in Romania).
Main legal requirements. Ask online lawyer.
As online intermediation service platforms have grown in influence, concerns have also arisen regarding the fairness and transparency of interactions between these platforms and their business users. In this context, the European Parliament and the Council of the European Union adopted Regulation (EU) 2019/1150, a legislative document aimed at promoting fairness and transparency in the relationships between businesses using online intermediary services and the platforms that offer them.
Regulation (EU) 2019/1150 was adopted amid commercial practices deemed unfair, which could have severely affected SRL companies and consumers using online intermediary services. These include unilateral changes to terms and conditions, lack of adequate transparency regarding the classification of offers on platforms, as well as deficient procedures for managing disputes between platforms and users.
In Romania, this regulation was implemented through the Emergency Ordinance no. 23 of March 31, 2021 (OUG 23/2021). OUG 23/2021 addresses rules regarding transparency and fair use, as well as dispute resolution mechanisms, with the ultimate goal of increasing trust in online intermediary platforms.
What do the regulations aim for? Ask an online lawyer.
The rules adopted through Regulation 2019/1150 and implemented by OUG 23/2021 aim to prevent/prohibit certain unfair practices, such as unjustified changes to online terms and conditions, impose transparent classification mechanisms and internal complaint handling, as well as authorize representative organizations and associations to judicially represent business owners/individual users against infringements committed by online platforms and search engine providers.
Which platforms/sites are covered by OUG 23/2021?
OUG 23/2021 applies to online intermediary platforms that facilitate commercial transactions between businesses and consumers, as well as search engines that can influence the commercial success of businesses by ranking search results.These include:
Online e-commerce platforms.
Software application stores.
Social media networks.
Search engines.
An online intermedation service provider is any natural or legal person (SRL company) that provides online intermediation services to business users of online intermediary services.
An online search engine is defined as that digital service that allows users to enter queries to search, in principle, all websites or websites in a certain language based on a query regarding any subject in the form of a word, voice request, phrase, or other input and returns results in any format in which information related to the searched content can be found.
What are the terms and conditions of an online platform/search engine? Ask an online lawyer.
The terms and conditions of an online platform (T&C e-commerce model) contain the rules or specifications, regardless of the name or form under which they are presented, that regulate the contractual relationship between the online intermediary service provider and SRL companies, entities, or individuals of its online intermediary services.
The terms and conditions of an online platform are unilaterally established by the online intermediary service provider.
What are the applicable requirements for the Terms and Conditions of an online platform? Commercial law lawyer.
Online intermediary service providers/e-commerce platforms are legally required to ensure that the Terms and Conditions applicable to the relationship with consumers meet the following requirements:
The language used in drafting the Terms and Conditions is simple and intelligible. We recommend using a model of Terms and Conditions drafted and verified by lawyers, instead of models obtained from non-professional sources. Your e-commerce platform's compliance can also be ensured by implementing a professional template privacy policy, along with the cookie use policy (model).
The Terms and Conditions are easily accessible to business users/consumers of online intermediary services throughout all stages of the commercial relationship with the online intermediary service provider, including the pre-contractual stage.
The Terms and Conditions must contain provisions regarding the cases in which the provision of online services can be suspended, terminated, restricted, partially or entirely.
The Terms and Conditions include information regarding all additional distribution channels and potential affiliate programs through which the online intermediary service provider could market the goods and services offered by business users of online intermediary services.
The Terms and Conditions must include general information on how the use of the online intermediary platform service affects the intellectual property rights of business users/SRL companies. Individuals using online intermediary services.
What protection do the regulations offer against unilateral decisions by online platforms to modify the Terms and Conditions? Commercial law lawyer.
The regulation prohibits abusive unilateral changes to the Terms and Conditions template and requires online service providers to follow certain steps when they wish to implement a change.Essentially, the Terms and Conditions of online intermediary platforms can only be modified after a prior notification is sent within a reasonable period to the users (SRL companies/consumers), on a durable medium.
Changes to the Terms and Conditions cannot be implemented before the expiration of a notice period that must be proportional to the nature and impact of the proposed changes on the business users/consumers. The minimum notice period is 15 days, but it can be extended if the changes require significant technical or commercial adjustments by the users/consumers. You can consult a commercial law lawyer to ensure that you legally implement the changes.
During this period, users (SRL companies - limited liability /individual consumers) have the right to terminate the contract without penalties. If users continue to provide new goods or services through the online platform, the behavior may be considered a waiver of the notice period, except in cases where the necessary adjustments are complex and require more time from the user.
When can the Terms and Conditions be modified without notice? Commercial lawyer.
There are exceptional situations in which online intermediary service providers can modify the terms and conditions without complying with the (at least) 15-day notice period. These situations occur when the modification is imposed by a legal or regulatory obligation that requires the immediate implementation of changes, without the online service provider being able to comply with the notice period.
Additionally, if an unforeseen and imminent danger arises, such as threats related to the security of the online platform, fraud, malware, spam, data security breaches, or other cyber risks, providers can modify the Terms and Conditions urgently to protect services, consumers, or other business users. In these cases, the priority is the safety and integrity of the online platform, justifying the derogation from the standard notice period.
What changes can the online service provider make to the accounts of SRL companies/individual consumers? Commercial law lawyer.
If an online intermediary service provider decides to restrict or suspend the provision of services to a certain business user, they must provide a justification for the decision on a durable medium, either before or at the time the restriction or suspension takes effect. In the event that the provider decides to completely terminate the provision of services, a prior notice of at least 30 days is mandatory, accompanied by a justification for the decision.
In the case of restriction, suspension, or termination of the user account, the affected business has the right to clarify the circumstances through the internal complaint resolution mechanism.
If the decision is revoked, the online intermediary service provider must restore the business user's access to the online intermediary services, including associated data.
Exceptions to the notice period apply when the provider is legally required to terminate services without notice, exercises a termination right for imperative reasons under national law, or when the business user has repeatedly violated the terms and conditions.
In such cases, the provider must provide immediate and adequate justification, but may be exempt from this obligation if a legal regulation requires the confidentiality of the reasons or if the business user has committed repeated violations that justify the termination of services.
What is the importance of product ranking on an online platform? Commercial law lawyer.
In the context of online intermediary services and search engines, the term "ranking" refers to the order or ranking in which products, services, or search results are displayed to users (SRL companies/individual consumers) on the platform or in search results. This ranking is determined by a set of parameters or factors, which may include content relevance, popularity, payments made for advertising, or other criteria set by the platform or search engine. Ask a commercial law attorney for more details.
For example, on an e-commerce platform, the ranking can influence which products are displayed first in a list of results when a user searches for a specific type of product. In the case of search engines, the ranking determines the order in which websites appear in search results. This ranking is essential for the visibility of products and services, influencing the commercial success of businesses operating online.
The purpose of this provision is to ensure that users (SRL companies/SMEs/Start-ups) who build their business through the intermediary platform understand how the classification on the platform works and can make informed decisions about their business strategies.
What type of information should be included in the ranking description? Template Terms and Conditions e-commerce platform.
Online intermediary service providers must include in the Terms and Conditions used in the relationship with users the main parameters that determine the ranking of products and services on their platform, explaining the relative importance of these parameters compared to other factors. Additionally, search engine providers are required to present these essential parameters that influence search result rankings, offering an accessible and clear description, written in simple and understandable language, and to update this information when necessary.
The ranking description should include information about the characteristics of the goods and services offered, their relevance to consumers, and, in the case of search engines, the design characteristics of the sites used by professionals.If the relevant parameters include the possibility of influencing the ranking position through direct or indirect payment by business users or site users, the provider must clearly describe how this payment affects the ranking. In situations where a search engine modifies the ranking or delists a site based on a notification from a third party, the provider must offer the affected user the opportunity to examine the respective notification.
The provided descriptions must be detailed enough for business users of online intermediary services or professional site users to understand whether and to what extent the ranking mechanism considers the characteristics of the goods and services offered, their relevance to consumers, and the design characteristics of the sites used by professionals.
Are platforms required to disclose the algorithms used for ranking? Commercial law lawyer.
No, online/e-commerce platforms are not required to disclose algorithms or information that, with a reasonable degree of certainty, could lead to the deception or harm of consumers by manipulating search results. Protecting the integrity of platform algorithms is allowed precisely to prevent potential abuses that service/product providers through the platform might commit.
Can businesses influence ranking through additional payments? Commercial lawyer.
Yes, in some cases, platforms allow businesses that offer services to consumers through them to improve their ranking position through direct or indirect payments. Platforms are required to clearly describe these possibilities and their impact on the ranking of products/services displayed in the Terms and Conditions model used by the online platform.
What happens if an online search engine modifies the ranking of a site or delists it from displayed results? Commercial law lawyer.
If an online search engine modifies the ranking of a site or removes it following a notification from a third party, the service provider making this decision must offer the user (site owner/SRL company that markets the products) the opportunity to examine the content of the notification.
What restrictions can be imposed on businesses offering goods and services through online intermediary services? Ask an online lawyer.
Online intermediary service providers can impose certain restrictions on businesses using the platform's services to provide products or services to consumers, such as preventing them from offering the same products or services to consumers under different conditions (e.g., at different prices) through other channels, such as their own sites or other platforms.
What obligations do online intermediation service providers have when imposing such restrictions? Template Terms and Conditions e-commerce platform.
Online intermediary platform providers are required to include the reasons for these restrictions in their Terms and Conditions and make them available to the public in an easily accessible manner. The reasons must include economic, commercial, or legal considerations that justify the application of these restrictions, explained through the model of Terms and Conditions used.
What dispute resolution mechanisms are provided by Regulation 1150/2019 and OUG 23/2021?
Platforms are required to make available to business users of online intermediation services internal complaint handling mechanisms and designate external mediators to resolve disputes that cannot be resolved internally. These mechanisms must be accessible, efficient, and free for users, and the response regarding the resolution of the complaint must be provided within a reasonable time.
What sanctions can be applied to intermediary service platforms that do not comply with applicable regulations? Ask a lawyer in litigation.
Non-compliance with the provisions of the regulation may result in administrative sanctions, including fines, imposed by the competent national authorities. The purpose of these sanctions is to ensure compliance and protect the rights of business users. Download template fines complaint or read more about minor offences court procedures.
How do Regulation 2019/1150 and OUG 23/2021 affect micro-enterprises and SMEs?
The regulation offers increased protection to micro-enterprises and SMEs, which are often more vulnerable to unfair commercial practices of online platforms through which their products or services reach consumers.
By imposing higher standards of clarity and accessibility of information, businesses have access to clearer and more comprehensive data, allowing them to make better-informed decisions and optimize their business strategies. This increased transparency also contributes to greater trust between the parties involved, which can lead to stronger partnerships and more efficient business collaboration in the long term.
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