§4 HOW TO SELECT THE MAIN PARAMETERS AND STILL PREVENT BAD FAITH MANIPULATION OF RANKING

76. Article 5(6) recognises that providers are ‘not required to disclose algorithms or any information that, with reasonable certainty, would result in the enabling of deception of consumers or consumer harm through the manipulation of search results’. 77. This provision should be read in conjunction with Recital 27, where it is recognised that, ‘[t]o ensure that the objective of the Regulation is achieved, consideration of the commercial interests of providers of online intermediation services or online search engines should, therefore, never lead to a refusal to disclose the main parameters determining ranking’ (14). 78. Accordingly, there are certain limits to the disclosure requirements in relation to ranking set out in Article 5. However, those limits relate not to providers’ commercial interests as such, but rather to potential negative effects on consumers. Nonetheless, providers have several safeguards for their ‘commercial interests’. 79. Firstly, the requirement under Article 5 is to provide a description of the main parameters only (as well as the reasons for their relative importance), without providers being required to disclose the detailed functioning of their ranking mechanisms (recital 27). 80. Secondly, as set out in Articles 1(5) and 5(6), the Regulation in general and Article 5 in particular is without prejudice to Directive (EU) 2016/943 of the European Parliament and of the Council (15) (the ‘Trade Secrets Directive’). 81. To explain this second point, it is important to note that Article 2(1) of the Trade Secrets Directive defines a ‘trade secret’ as information which meets all of the following requirements: (a) it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) it has commercial value because it is secret; (c) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. 82. Providers therefore cannot refuse to disclose, for example, the main parameters based on the sole argument that it has never revealed any of its parameters in the past or that the information in question is commercially sensitive. 83. Thirdly, providers can act to address bad faith manipulation of ranking by third parties, including the risk of deception of consumers (see recital 27). 84. In this respect, it should be noted that this possibility relates to bad faith manipulation, just as Article 5(6) refers to providers not being required to disclose any information that, 'with reasonable certainty', would result in such deception of consumers or consumer harm. Therefore, a balance needs to be struck between countering manipulative and harmful behaviour on the one hand and the transparency required under Article 5 on the other hand.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07