Contractual Liability of Online Platform Operators: European Proposals and Established Principles

Abstract

The contractual responsibility of online platform operators has been subject to an intensive debate in the recent past. While the platform operators usually seek the role of mere intermediaries without considerable liability for the proper performance of the main contracts, there is increasing support for a tightened responsibility of the operators. The ‘Discussion Draft of a Directive on Online Intermediary Platforms’ which was published by a group of European scholars in 2016 can be seen as an important landmark in this debate. The following article will analyse the provisions of this draft on the platform operators’ liability towards the users of the platform. It shall be argued that strict transparency requirements on the role of the platform operators are to be welcomed but that other proposals for a tightened liability based on the idea of economic influence do not accord with established contractual principles which should hold true for the platform economy as well.

Keywords: Online Platforms, Operators, Liability, Contracts, Intermediaries, Transparency, Predominant Influence, Consumer Protection, Joint Liability, Uber, Airbnb