In a recent podcast, Simon Neill and Katrina Anderson discussed the Competition and Market Authority's (CMA) new powers to seek an "online interface order" to force websites, platforms and marketplaces to take down content that harms the collective interests of consumers and breaks EU consumer law.
These powers were created following the implementation of the Consumer Protection Regulations 2020, which was in response to the EU's new Consumer Protection Cooperation Regulation. They are designed to give regulators (the CMA in the case of the UK) the powers necessary to effectively enforce in the digital environment and mark a significant increase in the CMA's enforcement powers.
The Regulations give the CMA new powers to apply to the High Court for an online interface order to require any website, platform or app that is operated by or on behalf of a trader, to remove or amend content if the CMA thinks that the collective interests of consumers is likely to be harmed. The scope of "online interfaces" is wide-ranging and extends to online marketplaces, as well as social media platforms.
An online interface order could require the online interface owners to remove or modify content, disable or restrict access to content or display warnings to consumers access the online interface. The order may even require the deletion of a fully qualified domain name and facilitating the registration of the online interface's domain to the CMA.
The CMA does not need to consult with the online interface before seeking the order. It does, however, need to demonstrate to the court's satisfaction that there is a risk of serious harm to consumers' collective interests and that no other order would be "wholly effective". This means the CMA can't use online interface orders as a replacement for other enforcement mechanisms that it may currently have to avoid the mandatory consultation (such as an enforcement order under Part 8 of the Enterprise Act 2002).
Since the online interface orders have only been available to the CMA since 2 June 2020 we do not have any examples yet of how the CMA has used them. However it's interesting to consider how they could be used particularly in relation to the current concern with rogue traders exploiting coronavirus, especially given that the CMA have previously warned retailers and traders it would consider action against companies that charge excessive prices for goods or make misleading claims.
To listen to our full podcast on online interface orders please click here or search for Osborne Clarke on podcast platforms such as Spotify.
You can access all of our OC Consumer Briefings and other New Deal for Consumer content on our dedicated New Deal for Consumer page.