Activities of Kateřina KONEČNÁ related to 2020/0361(COD)
Shadow opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council Single Market for Digital Services (Digital Services Act) and amending Directive 2000/31/EC
Amendments (58)
Amendment 22 #
Proposal for a regulation
Recital 17
Recital 17
Amendment 36 #
Proposal for a regulation
Recital 49
Recital 49
(49) In order to contribute to a safe, trustworthy and transparent online environment for consumers, as well as for other interested parties such as competing traders and holders of intellectual property rights, and to deter traders from selling products or services in violation of the applicable rules, online platforms allowing consumers to conclude distance contracts with traders should ensure that such traders, products and services they offer are traceable. The trader should therefore be required to provide certain essential information to the online platform, including for purposes of promoting messages on or offering products or services. That requirement should also be applicable to traders that promote messages on products or services on behalf of brands, based on underlying agreements. Those online platforms should store allverify such information and store it in a secure manner for a reasonable period of time that does not exceed what is necessary, so that it can be accessed, in accordance with the applicable law, including on the protection of personal data, by public authorities and private parties with a legitimate interest, including through the orders to provide information referred to in this Regulation.
Amendment 39 #
Proposal for a regulation
Recital 50
Recital 50
(50) To ensure an efficient and adequate application of that obligation, without imposing any disproportionate burdens, the online platforms covered should make reasonable efforts to verify the reliability, validity and completeness of the information provided by the traders concerned, in particular by using freely available official online databases and online interfaces, such as national trade registers and the VAT Information Exchange System45 , or by checking the data the online platforms covered hold about traders and their offers or transactions, or by requesting the traders concerned to provide trustworthy supporting documents, such as copies of identity documents, certified bank statements, company certificates and trade register certificates. They may also use other sources, available for use at a distance, which offer a similar degree of reliability for the purpose of complying with this obligation. However, the online platforms covered should not be required to engage in excessive or costly online fact-finding exercises or to carry out verifications on the spot. Nor should such online platforms, which have made the reasonable efforts required by this Regulation, be understood as guaranteeing the reliability of the information towards consumer or other interested partiedemonstrate they have made the reasonable efforts required by this Regulation to only allow legitimate traders on their online interfaces. Providers of online marketplaces should conduct periodic random checks on the products or services offered by traders, such as mystery shopping exercises and visual inspections considering previous reports, online databases and risks and harms towards consumers. Such online platforms should also design and organise their online interface and parts thereof in a way that enables traders to comply with their obligations under Union law, in particular thecluding but not limited to requirements set out in Articles 6 and 8 of Directive 2011/83/EU of the European Parliament and of the Council46 , Article 7 of Directive 2005/29/EC of the European Parliament and of the Council47 and Article 3 of Directive 98/6/EC of the European Parliament and of the Council48 . _________________ 45 https://ec.europa.eu/taxation_customs/vies/ vieshome.do?selectedLanguage=en 46Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council 47Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to- consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) 48Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers
Amendment 53 #
Proposal for a regulation
Recital 63
Recital 63
(63) Advertising systems used by very large online platforms pose particular risks and require further public and regulatory supervision and enforcement on account of their scale and ability to target and reach recipients of the service based on their behaviour within and outside that platform’s online interface. Very large online platforms should ensure public access to repositories of advertisements displayed on their online interfaces to facilitate supervision and research into emerging risks brought about by the distribution of advertising online, for example in relation to illegal advertisements or, illegal activities, manipulative techniques and disinformation with a real and foreseeable negative impact on public health, public security, civil discourse, political participation, fundamental rights and equality. Repositories should include the content of advertisements and related data on the advertiser and the delivery of the advertisement, in particular where targeted advertising is concerned.
Amendment 57 #
Proposal for a regulation
Recital 71
Recital 71
(71) In case of extraordinary circumstances affecting public security or public health, the Commission may initiate the drawing up of crisis protocols to coordinate a rapid, collective and cross- border response in the online environment. Extraordinary circumstances may entail any unforeseeable event, such as earthquakes, hurricanes, pandemics and other serious cross-border threats to public health, war and acts of terrorism, where, for example, online platforms may be misused for the rapid spread of illegal content or disinformation or where the need arises for rapid dissemination of reliable information. In light of the important role of very large online platforms in disseminating information in our societies and across borders, such platforms should be encouraged in drawing up and applying specific crisis protocols. Such crises protocols should be developed transperantly with due regard to users and their rights. . Such crisis protocols should be activated only for a limited period of time and the measures adopted should also be limited to what is strictly necessary to address the extraordinary circumstance. Those measures should be consistent with this Regulation, and should not amount to a general obligation for the participating very large online platforms to monitor the information which they transmit or store, nor actively to seek facts or circumstances indicating illegal content.
Amendment 81 #
Proposal for a regulation
Article 2 – paragraph 1 – point n
Article 2 – paragraph 1 – point n
(n) ‘advertisement’ means information designed to promote the messagedirectly or indirectly promote or rank information, products or services of a legal or natural person, irrespective of whether to achieve commercial or non- commercial purposes, and displayed by an online platform on its online interface againsor parts thereof against direct or indirect remuneration specifically for promoting that information, product or service;
Amendment 85 #
(o) ‘recommender system’ means a fully or partially automated system used by an online platform to suggest, rank or prioritise in its online interface or parts thereof specific information, products or services to recipients of the service, including as a result of a search initiated by the recipient or otherwise determining the relative order or prominence of information displayed;
Amendment 88 #
Proposal for a regulation
Article 2 – paragraph 1 – point q a (new)
Article 2 – paragraph 1 – point q a (new)
(q a) ‘online martketplace’ means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader which allows consumers to conclude distance contracts with other traders or consumers.
Amendment 93 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Paragraph 1 shall not apply where the recipient of the service is acting under the authority, predominant influence or the control of the provider.
Amendment 96 #
Proposal for a regulation
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Paragraph 1 shall not apply with respect to liability under consumer protection law of online platforms allowing consumers to conclude distance contracts with tradersroviders of online marketplace services shall not be able to benefit from the liability exemption under Article 5(1), where such an online platform presents the specific item of information, product or service or otherwise enables the specific transaction at issue in a way that would lead an average and reasonably well-informed consumer to believe that the information, or the product or service that is the object of the transaction, is provided either by the online platform itself or by a recipient of the service who is acting under its authority, predominant influence or control.
Amendment 99 #
Proposal for a regulation
Article 5 a (new)
Article 5 a (new)
Amendment 127 #
Proposal for a regulation
Article 10 a (new)
Article 10 a (new)
Amendment 159 #
Proposal for a regulation
Article 22 – title
Article 22 – title
Traceability of traders, products and services
Amendment 161 #
Proposal for a regulation
Article 22 – paragraph 1 – introductory part
Article 22 – paragraph 1 – introductory part
1. Where an online platform allows consumers to conclude distance contracts with traders, it shall ensure that traders can only use its services to promote messages on or to offer products or services to consumers located in the Union if, prior to the use of its services, the online platform has obtained, and has made reasonable efforts to verify the completeness and reliability of, the following information:
Amendment 164 #
Proposal for a regulation
Article 22 – paragraph 1 – point a
Article 22 – paragraph 1 – point a
(a) the name, address, telephone number and electronic mail address of the trader and, as required under Union or Member State law, of the authorised representative of the trader;
Amendment 166 #
Proposal for a regulation
Article 22 – paragraph 1 – point e a (new)
Article 22 – paragraph 1 – point e a (new)
(e a) information and documentation about products and services required by Union, Member State law or relevant technical standards and specifications, including product safety requirements.
Amendment 167 #
Proposal for a regulation
Article 22 – paragraph 1 a (new)
Article 22 – paragraph 1 a (new)
1 a. The online marketplace provider shall also self-certify to commit to devote its best efforts to only allow the offer of products or services by traders that comply with the applicable rules of Union and national law.
Amendment 168 #
Proposal for a regulation
Article 22 – paragraph 2
Article 22 – paragraph 2
2. The online platform shall, upon receiving that information, and prior to allowing traders to use its services, make reasonable efforts to assessverify whether the information referred to in points (a), (d) and (e) of paragraph 1 is reliablaragraph 1 is reliable, complete and up-to-date through the use of any freely accessible official online database or online interface made available by a Member States or the Union, by data processed by the online platform, or through requests to the trader to provide supporting documents from reliable sources. Online platforms covered under this Article shall verify the information listed in paragraph 1 from traders that already use their services prior to the entry into force and application of this Regulation.
Amendment 172 #
Proposal for a regulation
Article 22 – paragraph 3 – introductory part
Article 22 – paragraph 3 – introductory part
3. Where the online platform obtains indications that any item of information referred to in paragraph 1 obtained from the trader concerned is suspicious, inaccurate or incomplete, that platform shall request the trader to correct the information in so far as necessarya swift manner to ensure that all information is accurreliable, accurate, up-to-date and complete, without delay or within the time period set by Union and national law.
Amendment 174 #
Proposal for a regulation
Article 22 – paragraph 3 – subparagraph 1
Article 22 – paragraph 3 – subparagraph 1
Where the trader fails to correct or complete that information swiftly, the online platform shall suspend the provision of its service to the trader until the request is complied with.
Amendment 175 #
In addition, the platforms covered under this obligation shall conduct random checks on the products and services traders offer on their online interfaces or parts thereof. These shall include but should not be limited to regular and meaningful mystery shopping exercises and visual inspections.
Amendment 176 #
Proposal for a regulation
Article 22 – paragraph 4
Article 22 – paragraph 4
4. The online platform shall store the information obtained pursuant to paragraph 1 and 2 in a secure manner for the duration of their contractual relationship with the trader concerned. They shall subsequently delete the information within a reasonable time.
Amendment 177 #
Proposal for a regulation
Article 22 – paragraph 5
Article 22 – paragraph 5
5. Without prejudice to paragraph 2, the platform shall only disclose the information to third parties where so required in accordance with the applicable law, including the orders referred to in Articles 8 and 9 and any orders issued by Member States’ competent authorities or the Commission for the performance of their tasks under this Regulation.
Amendment 178 #
Proposal for a regulation
Article 22 – paragraph 6
Article 22 – paragraph 6
6. The online platform shall make the information referred to in points (a), (d), (e), (ea) and (f) of paragraph 1 public and available to the recipients of the service, in a clear, meaningful, easily accessible and comprehensible manner.
Amendment 179 #
Proposal for a regulation
Article 22 – paragraph 7
Article 22 – paragraph 7
7. The online platform shall design and organise its online interface in a way that enables themselves and traders to comply with their obligations regarding pre-contractual information and product safety information under applicable Union lawunder applicable Union and Member State law on consumer protection, including on product safety. Traders that do not fulfil their obligations under consumer and product safety legislation should be suspended and, as a last resort, not allowed on the platform.
Amendment 180 #
Proposal for a regulation
Article 22 – paragraph 7 a (new)
Article 22 – paragraph 7 a (new)
7 a. The online platform shall not subvert or impair consumers’ autonomy, decision-making, or choice via the structure, function or manner of operation of their online interface or apart thereof.
Amendment 182 #
Proposal for a regulation
Article 24 – title
Article 24 – title
Online advertising transparencyrules
Amendment 184 #
Proposal for a regulation
Article 24 – paragraph 1 – introductory part
Article 24 – paragraph 1 – introductory part
Online platforms that directly or indirectly display advertising on their online interfaces or parts thereof shall ensure that the recipients of the service can identify, for each specific advertisement displayed to each individual recipientconsumer, in a clear, concise but meaningful, uniform and unambiguous manner and in real time:
Amendment 186 #
Proposal for a regulation
Article 24 – paragraph 1 – point a
Article 24 – paragraph 1 – point a
(a) that the information displayed is an advertisement and whether the advertisement is a result of an automated mechanism, such as an ad exchange mechanism;
Amendment 188 #
(b) the natural or legal person on whose behalf the advertisement is displayed and who directly or indirectly finances the advertisement;
Amendment 190 #
Proposal for a regulation
Article 24 – paragraph 1 – point c
Article 24 – paragraph 1 – point c
(c) meaningful, granular and specific information about the main parameters used to determine the recipient to whom the advertisement is displayed. target and display the advertisement that would allow the consumer to determine why and how the advertisement in question was shown to him or her. This information shall include categories of data that targeted forms of advertising would use to address and categorise consumers and the data platforms share with advertisers for ad targeting purposes.
Amendment 193 #
Proposal for a regulation
Article 24 – paragraph 1 a (new)
Article 24 – paragraph 1 a (new)
Online platforms shall build special protections for consumers below the age of 18 to limit their exposure to advertising. Advertisements that are targeted or microtargeted toward individuals or segments of consumers who are below the age of 18 on the basis of their behaviour, the tracking of their activities or profiling within the meaning of Article 4(4) of Regulation (EU) 2016/679shall not be permitted.
Amendment 194 #
Proposal for a regulation
Article 24 – paragraph 1 b (new)
Article 24 – paragraph 1 b (new)
Online platforms shall not be allowed to resort to cross-device and cross-site combination of data processed inside or outside the platform.
Amendment 197 #
Proposal for a regulation
Article 25 – paragraph 1
Article 25 – paragraph 1
1. This Section shall apply to online platforms which provide their services to a number of average monthly active recipients of the service in the Union equal to or higher than 45 mill5% of the Union population, calculated in accordance with the methodology set out in the delegated acts referred to in paragraph 3. This Section shall also apply to companies that, because of their fast scalability and reach to recipients of the service, are not yet very large online platforms but have an exponential increase and can therefore pose systemic risks to consumers.
Amendment 198 #
Proposal for a regulation
Article 25 – paragraph 3
Article 25 – paragraph 3
3. The Commission shall adopt delegated acts in accordance with Article 69, after consulting the Board, to lay down a specific methodology for calculating the number of average monthly active recipients of the service in the Union and emerging very large online platforms, for the purposes of and in line with paragraph 1. The methodology shall specify, in particular, how to determine the Union’s population and criteria to determine the average monthly active recipients of the service in the Union, taking into account different accessibility features.
Amendment 199 #
Proposal for a regulation
Article 25 – paragraph 4 – introductory part
Article 25 – paragraph 4 – introductory part
4. The Digital Services Coordinator of establishment shall regularly verify, at least every sixthree months, whether the number of average monthly active recipients of the service in the Union of online platforms under their jurisdiction is equal to or higher than the number referred to inan online platform would qualify as a very large online platform in line with paragraph 1. On the basis of that verification, it shall adopt a decision designating the online platform as a very large online platform for the purposes of this Regulation, or terminating that designation, and communicate that decision, without undue delay, to the online platform concerned and to the Commission at the same time.
Amendment 200 #
The Commission shall ensure that the list of designated very large online platforms is published in the Official Journal of the European Union swiftly and keep that list updated. Tregularly updated. However, the obligations of this Section shall apply, or cease to apply, to the very large online platforms concerned from four months after that public at the same time as the rest of the Regulation.
Amendment 201 #
Proposal for a regulation
Article 25 – paragraph 4 – subparagraph 1 a (new)
Article 25 – paragraph 4 – subparagraph 1 a (new)
If an online platform can be considered a very large online platform in their country because it provides their services to a number of average monthly recipients of the service in their Member State equal to or higher than 50% of the Member State population, calculated in accordance with the methodology set out in the delegated acts referred to in paragraph 3, the Digital Service Coordinator of that Member State should be able to establish additional obligations to those established under Section 4 of chapter III of this Regulation.
Amendment 223 #
Proposal for a regulation
Article 37 – paragraph 1
Article 37 – paragraph 1
1. The Board may recommend the Commission to initiate the drawing up, in accordance with paragraphs 2, 3 and 4, of crisis protocols for addressing crisis situations strictly limited to extraordinary circumstances affecting public security or public health. The Commission is encouraged to develop, in cooperation with online platforms, national and European consumer organisations and civil society organisations, contingency plans for the tourism sector for future crises, including standards for force majeure-based cancellations, travel warnings and information flows.
Amendment 235 #
Proposal for a regulation
Article 40 – paragraph 1
Article 40 – paragraph 1
1. TWith the exception of complaints and court cases involving consumers or brought by consumers or by independent organisations representing them, the Member State in which the main establishment of the provider of intermediary services is located shall have jurisdiction for the purposes of Chapters III and IV of this Regulation. Authorities in the Member State(s) where consumers are affected shall be competent for enforcing this Regulation.
Amendment 236 #
Proposal for a regulation
Article 40 – paragraph 2
Article 40 – paragraph 2
2. A provider of intermediary services which does not have an establishment in the Union but which offers services in the Union shall, for the purposes of Chapters III and IV, be deemed to be under the jurisdiction of theall Member States where its legal representative resides or is established.
Amendment 237 #
Proposal for a regulation
Article 40 – paragraph 3
Article 40 – paragraph 3
3. Where a provider of intermediary services fails to appoint a legal representative in accordance with Article 11, all Member States shall have jurisdiction for the purposes of Chapters III and IV. Where a Member State decides to exercise jurisdiction under this paragraph, it shall inform all other Member States via the board and ensure that the principle of ne bis in idem is respected.
Amendment 247 #
Proposal for a regulation
Article 50 – paragraph 1 – introductory part
Article 50 – paragraph 1 – introductory part
1. Where the competent Digital Services Coordinator of establishment adopts a decision finding that a very large online platform has infringed any of the provisions of Section 4 of Chapter IIIthis Regulation, it shall make use of the enhanced supervision system laid down in this Article. It shall take utmost account of any opinion and recommendation of the Commission and the Board pursuant to this Article.
Amendment 248 #
Proposal for a regulation
Article 50 – paragraph 1 – subparagraph 1
Article 50 – paragraph 1 – subparagraph 1
The Commission acting on its own initiative, or the Board acting on its own initiative may, or upon request of at least three Digital Services Coordinators of destination, mayshall, where it has reasons to suspect that a very large online platform infringed any of those provisions, recommend the Digital Services Coordinator of establishment to of this Regulation, investigate the suspected infringement with a view to thae competent Digital Services Coordinator adopting such a decision to sanction, end and remedy such infringements swiftly within athe reasonable time period defined by the Board’s rules of procedure. Such decision shall be publicly available.
Amendment 249 #
Proposal for a regulation
Article 50 – paragraph 2
Article 50 – paragraph 2
2. When communicating the decision referred to in the first subparagraph of paragraph 1 to the very large online platform concerned, the competent Digital Services Coordinator of establishment shallshall in addition request it to draw up and communicate to the Digital Services Coordinator of establishment, the Commission and the Board, within one month from that decision, an action plan,the specific measures specifying how that platform intends to terminate and/or remedy the infringement. The measures set out in the action plan may include, where appropriate, participation in a code of conduct as provided for in Article 35s.
Amendment 250 #
Proposal for a regulation
Article 50 – paragraph 3 – introductory part
Article 50 – paragraph 3 – introductory part
3. Within one month following receipt of the action plan, the Board shall communicate its opinion on the action plan to the Digital Services Coordinator of establishment. Within one month following receipt of that opinion, that Digital Services Coordinator shall decide whether the action plan is appropriate to terminate or remedy the infringementspecific measures proposed by the very large online platform to comply with the decision referred to in paragraph 1, the Board shall communicate its decision to the very large online platform concerned and shall make it public.
Amendment 251 #
Proposal for a regulation
Article 50 – paragraph 3 – subparagraph 1
Article 50 – paragraph 3 – subparagraph 1
Where the Digital Services Coordinator of establishmentBoard has concerns on the ability of the measures to terminate or remedy the infringement, it may request the very large online platform concerned to subject itself to an additional, independent audit to assess the effectiveness of those measures in terminating or remedying the infringement. In that case, that platform shall send the audit report to that Digital Services Coordinator, the Commission and the Board within four months from the decision referred to in the first subparagraph. When requesting such an additional audit, the competent Digital Services Coordinator may specify a particular audit organisation that is to carry out the audit, at the expense of the platform concerned, selected on the basis of criteria set out in Article 28(2). If other Digital Services Coordinators raise concerns about the designation of the auditor, the competent Digital Services Coordinator shall take utmost account of the recommendation of the Board.
Amendment 252 #
Proposal for a regulation
Article 50 – paragraph 4 – introductory part
Article 50 – paragraph 4 – introductory part
4. The competent Digital Services Coordinator of establishment shall communicate to the Commission, the Board and the very large online platform concerned its views as to whether the very large online platform has terminated or remedied the infringement and the reasons thereof. It shall do so within the following time periods, as applicable:
Amendment 253 #
Proposal for a regulation
Article 50 – paragraph 4 – subparagraph 1
Article 50 – paragraph 4 – subparagraph 1
Amendment 254 #
Proposal for a regulation
Article 50 a (new)
Article 50 a (new)
Article 50 a Consumer rights and remedies Consumers and organisations representing them shall be able to seek remedies, including repair, replacement, price reduction, contract termination or reimbursement of the price paid, compensation for material and immaterial damages for breaches of the obligations under this Regulation.
Amendment 255 #
Proposal for a regulation
Article 51 – paragraph 1 – introductory part
Article 51 – paragraph 1 – introductory part
1. The Commission, acting either upon the Board’s recommendation or on its own initiative after consulting the Board, mayshall initiate proceedings in view of the possible adoption of decisions pursuant to Articles 58 and 59 in respect of the relevant conduct by the very large online platform that:
Amendment 256 #
Proposal for a regulation
Article 51 – paragraph 1 – point a
Article 51 – paragraph 1 – point a
(a) is suspected of having infringed any of the provisions of this Regulation and the competent Digital Services Coordinator of establishment did not take any investigatory or enforcement measures, pursuant to the request of the Commission referred to in Article 45(7), upon the expiry of the time period set in that request;
Amendment 257 #
Proposal for a regulation
Article 51 – paragraph 1 – point b
Article 51 – paragraph 1 – point b
(b) is suspected of having infringed any of the provisions of this Regulation and thea competent Digital Services Coordinator of establishment requested the Commission to intervene in accordance with Article 46(2), upon the reception of that request;
Amendment 258 #
Proposal for a regulation
Article 51 – paragraph 1 – point c
Article 51 – paragraph 1 – point c
(c) has been found to have infringed any of the provisions of Section 4 of Chapter IIIthis Regulation, upon the expiry of the relevant time period for the communication referred to in Article 50(4).
Amendment 259 #
Proposal for a regulation
Article 51 – paragraph 2 – introductory part
Article 51 – paragraph 2 – introductory part
2. Where the Commission decides to initiates proceedings pursuant to paragraph 1, it shall notify all Digital Services Coordinators, the Board and the very large online platform concerned.
Amendment 260 #
Proposal for a regulation
Article 51 – paragraph 2 – subparagraph 1
Article 51 – paragraph 2 – subparagraph 1
As regards points (a) and (b) of paragraph 1, pursuant to that notification, the competent Digital Services Coordinator of establishment concerned shall no longer be entitled to take anysimilar investigatory or enforcement measures in respect of the relevant conduct by the very large online platform concerned, without prejudice to Article 66 or any other measures that it may take in line with this Regulation or at the request of the Commission.
Amendment 261 #
Proposal for a regulation
Article 51 – paragraph 4
Article 51 – paragraph 4
4. The Board, and the Digital Services Coordinators making the request referred to in Article 45(1), shall, without undue delay upon being informed, transmit to the Commission any objection or any information in their possession that may be relevant to the proceedings initiated by the Commission.
Amendment 262 #
Proposal for a regulation
Article 51 – paragraph 4 a (new)
Article 51 – paragraph 4 a (new)
4 a. The Commission shall carry out the tasks described under this Section in full independence from undue political or corporate interference.