EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

of online search engine and corporate website user, an unreasonable decrease in the ranking could be effectively explained or correct within internal mechanism. However, its introduction is voluntary and in the case of its absence, the corporate website users are left to deal with it in other ways. Thirdly, the P2B Regulation is based on the transparency and proclamations of the providers on how they work. Unilateral sharing of information by the platform on the one hand and the passive receiving of the information by the business users on the other hand in order to improve transparency on the platforms may not be sufficient. Much more practical could be introducing algorithmic disclosure co-regulation (a regulatory sandbox model) as Di Porto and Zuppetta suggest. In principle, this mechanism is based on the cooperation between stakeholders (platforms, the business users, the consumers, and the regulator) that train an algorithm on disclosures of platform’s operations to the business users. Before implementing it in the platform, the algorithmic disclosures are pre-tested in a co-regulatory process carried out by a small group of stakeholders based on the training and feedback, and also freed of biases or risks of manipulation. (Di Porto and Zuppetta, 2021, pp. 285, 288) Di Porto and Zuppetta took transparency of main ranking parameters as an example. In course of their suggested mechanism, the main aim would be to provide and obtain useful information with the dynamically adapting content and in the format (simple/detailed) according to the different informational needs and understanding capabilities of the various groups of business users. In order to reach such an aim, the algorithm would get to know the preferences of the various groups of recipients based on their behavioural data in the pre-testing phase. (Di Porto and Zuppetta, 2021, pp. 286–287) Finally, the P2BRegulation has almost no limitations and prohibitions to empower the business users. In this respect, the current Digital Markets Act proposal tries to balance the weaker bargaining position of the business users towards the selected platforms with the significant position (“gatekeeper platforms”). For instance, the Act proposal set a duty to the gatekeeper platforms to provide complimentary access to data relating to platform services used by the business users and the end users (Art. 6(1)(i) of the Digital Markets Act proposal). In addition, it also set a duty to enable to use other distribution canal for offering the goods and services by the business user under different prices and conditions (Art. 5(b) of the Digital Markets Act proposal). Regarding ranking, there is also an explicit prohibition of favouritism of services and goods of the gatekeeper, or a third party controlled by it and also a duty to apply fair and non-discriminatory conditions to such ranking (Art. 6(1)(d) Digital Markets Act proposal). Favouring any business user in ranking that would be unfair is therefore also prohibited regardless of the character of the business user.

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