Brexit's impact on the new P2B (Platform to Business) Regulation

This month the UK Government published a Brexit SI amending the EU’s new Platform to Business Regulation to ensure the regulation works for a post Brexit (or more accurately, post transition period) UK.

What is the Platform to Business Regulation (“P2B Regulation”)?

The P2B Regulation came into force in the UK (and other member states) on 12 July 2020. It applies to online search engines and providers of “online intermediation services” (“Service Providers”) – a pretty wide term which includes social media platforms, software application services and e-marketplaces. The key benefits of the Regulation are for “business users” which (as it sounds) is anyone acting in a commercial or profession capacity using the services.

The P2B Regulation covers several key areas relating to how Service Providers and search engines interact with business users, including:

• requiring search engines and Services Providers to make available the parameters determining the ranking of search results and a description of any differential treatment which they might (or do) provide to their own goods or services;
• ensuring that the terms and conditions of Service Providers are “plain and intelligible”, “easily available” and set out certain information including: (i) grounds for suspending or terminating access to the services, and (ii) a description of any ancillary goods and services (such as financial products) offered through the service;
• introducing a notice period before Service Providers may change their terms and conditions and preventing retroactive changes to terms and conditions;
• introducing a complaints-handling system and ensuring that if a Service Provider decides to restrict, suspend or terminate the services to a particular user, that user is provided with reasons for this decision and has an opportunity to appeal to the complaints-handling system; and
• ensuring users are informed of access the Service Provider has to user and consumer data and any third party data sharing provisions they have in place.

What will change after the end of the transition period?

Much of the P2B Regulation will continue unchanged in the UK after IP Completion day, and its extra territorial reach means it will continue to apply as-is to UK-based service providers offering services into the EU. The amendments made by the new Brexit SI unsurprisingly focus on removing references to “Union law”, restricting the territorial effect to service providers and consumers within the UK, adapting the judicial proceedings for enforcing compliance and removing reference to Commission initiatives such as codes of conduct. Given there are few material changes, the goal of improving transparency and fairness in platform to business contracts remains unchanged.