For some years now, the legislative power of the European Union has focused, among other areas, on developing and updating the regulatory framework for consumer protection, particularly in the digital environment. In this context, we find platforms such as Marketplaces, whose main characteristic is to unify products or services from different sellers or providers on their platforms and act as intermediaries between them and the users, although sometimes they may also offer their own goods or services.
These platforms have been affected by numerous regulations over the past years, some of which are mentioned below:
Law on Information Society Services (LSSI): The LSSI establishes the obligations of information society service providers and imposes a series of transparency obligations, as well as generally regulating liability for content.
Law 7/1998, April 13, on General Contracting Conditions: Although it is somewhat dated, this regulation is important as it governs the obligations for pre-formulated clauses (such as general contracting conditions) to be clear, accessible, and not include abusive provisions. This regulation applies to relationships between professionals and between professionals and consumers.
General Data Protection Regulation (GDPR): The GDPR regulates the collection and processing of personal data, imposing obligations regarding transparency, lawfulness in the collection and processing of personal data, and information security, among others.
DSA and DMA: On one hand, we have the Digital Services Act (DSA), applicable since February 17, 2024, and the Digital Markets Act (DMA), applicable since March 6, 2024, which impose new obligations on digital services and platforms explained in detail in this post.
If, through the Marketplace, we offer products or services to consumers, in addition to the previous regulations, the following legal texts would also apply:
Consumer Rights Law: On January 1, 2022, Spain implemented the transposition of several directives on consumer matters in the new wording of the General Law for the Defense of Consumers and Users and other complementary laws (“Consumer Law”) which introduced several important changes, among which, for example, the scope of application of the Consumer Law was extended to contracts for the supply of digital services where the consideration, instead of being monetary, is the provision of the consumer’s personal data. It also regulated the conditions for the delivery of digital content or services and modified the regulation on guarantees, among other changes, extending the guarantee for tangible goods to three years and for digital services and content to two years and increasing the period for the availability of repair parts from five to ten years.
Product Safety Regulation (GPSR): On December 13, 2024, the Regulation (EU) 2023/988 on General Product Safety (GPSR) came into effect, which establishes obligations related to the safety of products marketed in the EU, online or otherwise, and affects new, used, repaired, or refurbished products. Among the obligations affecting Marketplaces is the structuring of the interface so that traders can provide all necessary information about product safety, as well as providing consumers and authorities with safety warnings regarding product recalls or inability to access products due to safety reasons.
Besides the above, other regulations must be taken into account, such as fiscal regulations, as we saw in this post, or those affecting intellectual and industrial property, which also impact the operation of these platforms.
How should the drafting of Marketplace terms and conditions be?
The above regulations have a direct impact on the drafting of terms and conditions, and therefore, when drafting, it is important first to differentiate what type of goods or services are being sold through our website or platform and, secondly, who the target audience is (B2C – consumers, or B2B – other professionals).
Nonetheless, in B2C Marketplaces, it must be considered that the relationship with consumers must be regulated, but also with sellers offering their products and/or services through the Marketplace. Therefore, if both contracting processes take place online, there must be:
- General contracting conditions with consumers/users.
- General conditions for sellers.
Additionally, it should be established to which products and services the sellers’ terms and conditions will apply and to which the Marketplace’s (for example, when the Marketplace sells or distributes some products/services itself).
Below are some sections that generally should be included in terms and conditions for consumers. This list is not meant to be exhaustive, as the final content will always depend on the specific characteristics of each platform:
1. Information about the platform’s identity and contact details: The identity of the Marketplace owner and contact details must be clearly stated. Moreover, to comply with the DSA and GPSR, it is mandatory to have a single, accessible, and updated point of contact, both for consumers and authorities.
2. Consumer rights: Depending on the type of products or services offered through the Marketplace, the rights available to the consumer must be established. The obligation to inform about these rights will generally fall on the seller:
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- Right of withdrawal: It must be stated when the consumer can cancel the purchase within 14 calendar days after delivery. This post explains in more detail the conditions for exercising this right and its exceptions.
- Legal warranty right: Information about the existence of a legal warranty, the duration of such warranty, the procedure to exercise this right, and options in case of non-compliance with the product or service must be provided. Additionally, the Marketplace may offer an additional commercial warranty, independent of the one offered by the seller.
3. Economic conditions: The consumer must have all information about the economic conditions of what they are going to acquire before purchase. Typically, this section will indicate the different accepted payment methods and whether prices include taxes and other additional costs.
4. Contract duration and/or delivery or execution deadlines: Depending on the nature of the Marketplace, information about the duration and termination of the contract, delivery procedures and deadlines, and who is obligated to fulfill these obligations (Marketplace or seller) must be provided.
5. Intellectual and industrial property: Although it may be regulated elsewhere, it is important to establish ownership of elements belonging to the Marketplace, such as trademarks, designs, software, and any other content accessible to the consumer, as well as conditions of use. Also, licensing related to user-uploaded content (when applicable) should be regulated.
6. Personal data protection: If data protection information is included in a Privacy Policy, it must be referenced, considering that it must inform, among other things, about the transfer of personal data to different actors (sellers, transport companies, etc.).
7. Responsibilities: In many cases, the Marketplace acts merely as an intermediary and therefore will not be responsible for the quality of the products or services purchased through the Marketplace. Nevertheless, regardless of being regulated in contracts with sellers, consumers must be informed about how responsibilities are shared between sellers and the Marketplace. Also, responsibilities of the Marketplace derived from the DSA and the General Product Safety Regulation (GPSR) regarding content moderation, removal or warnings about dangerous products must be taken into account, as applicable.
8. Transparency: Other transparency obligations imposed on online marketplaces must be fulfilled, such as detailing how offers presented to the consumer are ordered, the importance of each parameter, and other information from article 97 bis of the Consumer Law, as applicable. For example, if access to product or service reviews or opinions is given, it is essential to inform whether the published reviews come from people who have actually used or purchased the good or service in question and about the process of managing and verifying reviews.
Furthermore, according to the DSA, information must be provided about the average monthly number of active recipients of the platform’s service within the European Union; or the publication, at least once a year, of a transparency report about content moderation activities during the relevant period. These obligations, however, are excepted for micro or small enterprises.
9. Applicable law and jurisdiction: In contracts with consumers, the law and jurisdiction will mandatorily be that of the consumer’s country of residence. Also, information must be provided about the existence of the European Commission’s Online Dispute Resolution (ODR) platform, which consumers can use in case of disputes with the seller. If the Marketplace offers or is subject to alternative dispute resolution mechanisms, this must be clearly stated along with instructions on how to access them and their role in dispute resolution.
Besides the content, it is important to remember that the drafting of clauses must be clear, understandable, truthful, and in an accessible format to ensure the consumer has understood the contracting or purchase conditions before proceeding.
Article written by:
Lawyer specializing in privacy, intellectual property, and technology contracting
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