Citation and Commencement

1. These Regulations may be cited as the Online Intermediation Services for Business Users (Enforcement) Regulations 2020 and come into force on 12th July 2020.

Interpretation

2. In these Regulations—

“Regulation 2019/1150” means Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services( 3 );

“business user” and “provider of online intermediation services” each have the meaning given in Article 2 of Regulation 2019/1150;

“provider of an online search engine” has the meaning given to the term “provider of online search engine” in Article 2 of Regulation 2019/1150.

Actionable breach

3. —(1) A breach by a provider of online intermediation services of an obligation to comply with any of the following provisions of Regulation 2019/1150 in relation to a business user is to be treated as a breach of duty owed by the provider of online intermediation services to that business user—

(a) Article 3 (terms and conditions);

(b) Article 4 (restriction, suspension and termination);

(c) Article 8 (specific contractual terms).

(2) Where a business user suffers loss or damage due to a breach by a provider of online intermediation services of any of the provisions referred to in paragraph (1), that loss or damage is actionable by the business user against that provider of online intermediation services.

Injunctions to secure compliance with Regulation 2019/1150

4. —(1) This regulation applies where a qualifying organisation or association considers that there has been or is likely to be—

(a) a breach by a provider of online intermediation services of an obligation to comply with any of the following provisions of Regulation 2019/1150—

(i) any provision referred to in regulation 3(1);

(ii) Article 5 (ranking);

(iii) Article 6 (ancillary goods or services);

(iv) Article 7 (differentiated treatment);

(v) Article 9 (access to data);

(vi) Article 10 (restrictions to offer different conditions through other means);

(vii) Article 11 (internal complaint-handling system);

(viii) Article 12 (mediation);

(b) a breach by a provider of an online search engine of an obligation to comply with any of the following provisions of Regulation 2019/1150—

(i) Article 5 (ranking);

(ii) Article 7 (differentiated treatment).

(2) Where this regulation applies, a qualifying organisation or association may, if it thinks it is appropriate to do so, bring proceedings against the provider of online intermediation services or provider of an online search engine for an appropriate remedy.

(3) For the purposes of this regulation and regulation 5—

(a) “an appropriate remedy” means—

(i) an injunction (including an interim injunction);

(ii) in Scotland, an interdict or specific performance of a statutory duty under section 45 of the Court of Session Act 1988( 4 ); or

(iii) any other appropriate remedy or relief;

(b) a “qualifying organisation or association” is an organisation or association that has the right set out in Article 14(1) of Regulation 2019/1150 (judicial proceedings).

Powers of the court

5. —(1) The court, on an application by a qualifying organisation or association under regulation 4(2), may grant an appropriate remedy on such terms as it may think fit to secure compliance with the requirements of Regulation 2019/1150 to which the application relates.

(2) Before granting an appropriate remedy the court must have regard to all the interests involved and in particular the public interest.

(3) The court may also require any provider of online intermediation services or provider of an online search engine against which an appropriate remedy (other than an interim remedy) is granted to publish in such form and manner and to such extent as the court thinks appropriate for the purpose of eliminating any continuing effects of the non-compliance—

(a) a copy of any order granted by the court; and

(b) a corrective statement.

(4) The court may grant an appropriate remedy under paragraph (1) even where there is no evidence of proof of actual loss or damage or of intention or negligence on the part of the provider of online intermediation services or the provider of an online search engine.

(5) In this regulation, “court” means—

(a) in relation to England and Wales, the county court or the High Court;

(b) in relation to Northern Ireland, a county court or the High Court;

(c) in relation to Scotland, the sheriff court or the Court of Session.