"Intermediary Design Duties" Free Download
50 Connecticut Law Review __ (Forthcoming)

OLIVIER SYLVAIN, Fordham University School of Law

Online social networking applications and marketplaces enable users to discover ideas, people, places, and products. The companies behind these services purport to be little more than the “passive conduits� through which users socialize and transact business. It is on this premise that, pursuant to the Communications Decency Act (CDA), courts are reluctant to impose liability on intermediaries for their users’ illegal online conduct. In spite of language in the statute that would limit the safe harbor to intermediaries that voluntarily moderate users’ content and behavior, courts today refrain from granting immunity only in cases in which intermediaries “materially contribute� to illegal online conduct. This has proven to be a very high juridical bar for plaintiffs to clear and a very generous protection for defendant providers.

This doctrine rests on an outdated view of how most online intermediaries do business. Today, the most successful online companies do not passively relay messages, unconcerned about what users say or do. They use the data to engineer online experiences in ways that are unrelated to the charming interest in connecting end users. Some of the most successful companies collect, analyze, and sort user content for publication in ancillary and secondary markets. This is how the CDA immunity doctrine, first developed by the courts two decades ago, is ill-suited to the world today. Online intermediaries are now assertively exploiting user content in ways that the doctrine does not fully acknowledge, leaving public law priorities and consumer protections underenforced. Historically subordinated groups have the most to lose under this approach.

This Article proposes a reform that is adapted to online intermediaries’ outsized influence today. It proposes that, in each case in which defendant providers invoke the immunity, courts scrutinize the manner in which the provider elicits user content, as well as the extent to which those providers exploit the information in secondary or ancillary markets. Following this more searching approach, courts will return the doctrine to its roots in the language and purpose of the CDA: to shield providers from liability for third-party user online conduct only to the extent such providers operate as true passive conduits.

"Facebook's Forum Selection Clause Not 'Liked' by Supreme Court of Canada" Free Download
Journal of Intellectual Property Law & Practice, Forthcoming

EMIR CROWNE, University of the West Indies (Mona)

In Douez v. Facebook, Inc., 2017 SCC 33, a majority of the Supreme Court of Canada held Facebook’s forum selection clause, which required that all disputes be litigated in Santa Clara County (California), unenforceable.

"Small Amount Credit Contract Reforms: Will the Affordability Cap Achieve its Intended Objectives Without Unintended Adverse Consequences?" Free Download
Gill North, 'Small Amount Credit Contract Reforms: Will the Affordability Cap Achieve Its Intended Objectives Without Unintended Adverse Consequences?' (2017) 32 Australian Journal of Corporate Law 1

GILL NORTH, Deakin University, Geelong, Australia - Deakin Law School

The law applying to small amount credit contracts was reviewed in late 2015 and the final report was released in March 2016. The stated objectives of the review were to allow consumers to access credit fairly and without excessively large debt burdens, and to establish regulatory settings that allow the industry to remain commercially viable. In November 2016, the Coalition Government accepted most of the review recommendations, including recommendation one that establishes a new affordability cap for all consumers seeking small amount credit contract loans. Recommendation one is the central reform to enhance consumer protection, but is highly contentious. Consumer groups support it, but the industry body argues that consumers will be disadvantaged due to more limited access to credit and higher fees than at present. The article explores these arguments and highlights possible outcomes that may arise from the introduction of a broad affordability cap. It ultimately concludes that available information is inadequate to properly assess the risks and likely impacts of enacting recommendation one. Consequently, it calls for an independent review of the business model and practices of small amount lending to confirm that the affordability cap reform will achieve its stated objectives and will lead to better long-term consumer outcomes without unintended adverse consequences.

"The Collapse of Unlisted Mortgage Companies: A Regulatory Dilemma" Free Download
Monica Keneley, Graeme Wines, Ameeta Jain, (2017) "The Collapse of Unlisted Mortgage Companies: A Regulatory Dilemma", Accounting Research Journal, Vol. 30 Issue: 1, doi: 10.1108/ARJ-12-2014-0108

MONICA KENELEY, Deakin University
GRAEME WINES, Deakin University
AMEETA JAIN, Deakin University - Faculty of Business and Law

Policy issues associated with the regulation of the unlisted debenture market have been highlighted in recent times with the collapse of a number of regionally based mortgage companies. The purpose of this paper is to analyse the decline and demise of the unlisted debenture market between 2007-2013 with particular reference to the effectiveness of the regulatory regime in stabilising the industry and protecting investors’ interests.

A database was constructed which reflected the total population of unlisted mortgage companies in the financial sector. A snapshot approach was used to assess the extent to which these companies complied with regulatory provisions.

Findings suggest the regulatory process allowed these companies to continue operating despite not complying with the relevant Australian Securities and Investment Commission (ASIC) benchmarks. In the light of the current inquiry into the financial system, the research suggests that a re-evaluation of the regulatory approach is timely.

Research limitations/implications (if applicable)
This research is restricted to study of one category of debenture issuers (issuers of mortgage finance). It is based on reports required by regulatory authorities. It does not provide an analysis of the motivations of investors in these companies. This maybe a direction for future research. This may provide clearer picture of the impact of the demise of these companies particularly in regional areas.

Practical implications (if applicable)
This research has implications for the implementation of regulatory change in respect to oversight of shadow banking activities. It suggested that a passive approach to regulation is not sufficient to ensure that the interests of investors are fully protected.

"What Swiss Law Can Teach and Learn About the Sharing Economy: The Case of Uber" Free Download

FEDERICO LUBIAN, University of Fribourg (Switzerland), Faculty of Law

The paper focuses on the legal definition of Uber business model, which became a real legal dilemma for the interpretation and application of the actual legal frameworks, also in a comparative perspective. The main reason is its plastic nature, perceived as something between an online platform and an effective provider of transportation services.

We first examine the main operational characteristics of Uber, for then approaching the definitory issue from the perspective of the average user of the application, keeping in mind the impact that a correct definition has on consumers’ rights to a transparent and correct communication as well as to the ability of the law to assure an organic development, especially in terms of protection of weaker parties, of the sharing or collaborative economy, of which Uber represents a leading case. Recent technological developments have dramatically accelerated the transition from a society based on consumption of goods to another based on the use of services traded by online platforms. These fast-responding actors have opened various markets, typically populated by a limited number of organised actors, to a huge number of free-lancers.

In the second part the paper takes the perspective of the Uber drivers and examine the relevant aspects emerging from their contractual relationship with Uber, for then concluding with the analysis of those definitions that were already given to Uber by the regulators in the United States and the interesting law proposal pending before the Canton of Geneva.

The exam of the cases based on Swiss Law, in comparison with the ones of the United States and the European Union, allows to shed light on the apparent paradox that providing a service on-line is treated differently than off-line and to determine how a legal system can offer protection to weaker parties "regardless of the channel, device or medium used to implement a certain commercial pratice" either via a technologically neutral interpretation of the existing laws or with the introduction of new tailor-made regulations.


About this eJournal

This eJournal distributes working and accepted paper abstracts of articles, recently published articles, books, legislative reports, conferences, and other publications that address issues of interest to consumer law scholars and practitioners. Coverage includes legal issues pertaining to advertising, consumer reporting (including credit repair organizations), discrimination (including redlining), consumer disclosure (such as the Truth in Lending Act, the Real Estate Settlement Procedures Act, and consumer leasing), consumer fraud (including issues arising under the Federal Trade Commission Act, state UDAP statutes, odometer laws, referral sales, and bait and switch statutes), unconscionability, standard form contracts, consumer privacy (including telemarketing, spam, spyware, phishing, direct mail, financial privacy, common law privacy torts in consumer transactions, and online privacy), identity theft, data protection, cooling off rules (including door to door sales regulation), payment systems (such as credit and debit cards, internet payment issues, stored value cards (including gift cards and phone cards), and electronic transfers), warranties (including UCC warranties, lemon laws, and the Magnuson-Moss Warranty Act), consumer product safety, commercial speech doctrine, debt collection, repossession, predatory lending (including asset-based lending, equity stripping, flipping, balloon payments, negative amortization, loan packing, rate-risk disparities and yield-spread premiums), payday lending, usury, credit insurance, electronic shopping (including electronic signatures and records, formation of contracts, and payments), the holder in due course regulation, mortgages, student loans, repossession, foreclosure, regulation that pertains to consumer markets and enforcement of consumer laws (including class actions, preemption, arbitration, administrative enforcement, small claims courts and attorney's fees). The eJournal does not cover landlord-tenant issues or criminal law. The eJournal welcomes a broad range of methodological approaches, including conventional doctrinal analyses, law and economics approaches, historical discussions, socio-legal analyses, law and society approaches, discussions of consumer psychology that bear on legal issues, international law analyses and comparative law approaches.

Editor: Jeff Sovern, St. John's University


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Advisory Board

Consumer Law eJournal

Associate Dean, Director - Consumer Law Center, Dwight Olds Chair in Law, University of Houston Law Center

Roger Henderson Professor of Law, deceased, University of Arizona - James E. Rogers College of Law (Deceased)

Professor of Law, Georgia State University College of Law

George Alexander Madill Professor of Contracts and Commercial Law, Washington University in St. Louis - School of Law

Professor of Law, Oklahoma City University - School of Law

Professor of Law, Ohio State University - Michael E. Moritz College of Law

Associate Dean and Professor of Law, University of Wyoming College of Law

Professor of Law, University of Kent, Canterbury - Kent Law School

Professor of Law, Catholic University of America - Columbus School of Law

Associate Dean for Intellectual Life and Professor of Law, Hofstra University School of Law, Yale University - Law School