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Draft Model Rules on Online Intermediary Platforms

On 7 September 2016 the ELI Council identified the proposal for a project on “Draft Model Rules on Contractual Aspects of Online Intermediary Platforms” as a project that has originated outside the ELI and should be adopted under Section 8 of the ELI Project Guidelines. It has been developed by Christoph Busch (Osnabrück), Gerhard Dannemann (Berlin), Hans Schulte-Nölke (Osnabrück/Nijmegen), Aneta Wiewiorowska-Domagalska (Osnabrück) and Fryderyk Zoll (Krakow/Osnabrück), who will also act as Reporters. Initial findings, including a draft legislative proposal, were presented at the 2016 Annual Conference.

Background information

The digital economy is increasingly shaped by online platforms serving as marketplaces where customers can buy goods or book services (e.g. Airbnb, Uber, Amazon). Their dynamics can be difficult to reconcile with the currently existing regulatory framework at EU level. The applicable law only regulates bilateral consumer-supplier relations. Platforms on the other hand are often triangular-based business models that require the customer and supplier not only to make an agreement between each other, but also that they each conclude an agreement with a platform operator. The result is that in many situations consumers that conclude contracts through online platforms are left without effective consumer protection. These platforms are vastly different and any regulation will have to provide for different measures depending on whether a platform is merely a ´facilitator´ or is actually the supplier, or presents itself as such.

Project's objectives

The aim of the project is to develop model rules on online intermediary platforms that set out a balance between conflicting policy options, and demonstrate what potential regulation at EU or national level could look like. They could define the criteria for distinguishing whether a platform operator is only a ‘facilitator’ or the actual supplier. In addition, they could specify the duties and obligations of the platform operator, making it clear under which conditions the operator may be liable for a non-performance by the supplier. Specific regard is given to the question of what are the basic requirements for transparency and fairness of online reputation systems (e.g. ratings and reviews), which are a key feature of many online platforms. The ELI Instrument on online intermediary platforms could become a European frame of reference for the law of internet platforms and thereby contribute to the formulation of a value-based European approach to platforms.