Consumers contracting with other consumers in the sharing economy: fill in the gaps in the legal framework or switch to the blockchain model?
| Autor | Hervé Jacquemin |
| Cargo | University of Namur (Belgium) |
| Páginas | 44-55 |
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Submission date: October 2018
Accepted date: January 2019
Published in: February 2019
ARTICLE
Consumers contracting with
other consumers in the sharing
economy: fill in the gaps in
the legal framework or switch
to the blockchain model?
Hervé Jacquemin
University of Namur (Belgium)
Abstract
Numerous legal provisions were enacted at an EU level in order to protect consumers contracting with
professionals, especially in a digital environment (see, in particular, the protection measures provided by
directive 2011/83/EU on consumer rights; directive 2005/29/EC on unfair commercial practices; directive
2000/31/EC on electronic commerce, etc.). With the development of the web 2.0 and the so-called
“sharing economy”, consumers are now entitled to easily conclude agreements with other consumers
through intermediation platforms. EU Consumer Acquis shall normally be applicable to the relationship
between the platform and each of the peers (the seller or the provider on one hand, and the buyer or
the recipient on the other hand), with the exclusion of C2C relationships.
The objective of this paper is to highlight the potential issues and gaps in the context of consumer
protection (lack of information, warranty issues, no right of withdrawal, etc.), resulting from the fact
that C2C agreements are normally out of scope of the EU Consumer Acquis (and only governed by
the traditional contract law). Some propositions de lege ferenda will also be made, in order to ensure
a higher level of consumer protection (with additional legal duties prescribed for the intermediaries,
for instance). Blockchain technology and smart contracts shall also be taken into account, since they
should normally give rise to a “disintermediation” process. It should however be assessed whether or
not consumer protection will benefit from this disintermediation.
Keywords
Sharing economy, consumer protection, platforms, information duties, C2C agreements, Blockchain
Topic
Sharing economy
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Consumers contracting with other consumers in the sharing economy…
Consumidores que suscriben contratos con otros consumidores
en la economía colaborativa: ¿hay que cubrir los vacíos
del marco legal o pasarse al modelo de cadena de bloques?
Resumen
A escala europea se han promulgado numerosas disposiciones legales para proteger a los consumidores
que suscriben contratos con profesionales, especialmente en el entorno digital (véanse, en concreto,
las medidas de protección previstas en la Directiva 2011/83/UE sobre derechos de los consumidores; la
Directiva 2005/29/CE sobre prácticas comerciales desleales; la Directiva 2000/31/CE sobre comercio
electrónico, etc.). Con el desarrollo del web 2.0 y la denominada economía colaborativa, los consumidores
ahora están facultados para suscribir fácilmente acuerdos de igual a igual con otros consumidores a
través de unas plataformas de intermediación. En condiciones habituales, se aplica el acervo normativo
europeo en materia de consumo a la relación entre la plataforma y cada uno de los iguales de este tipo
de economía (el vendedor o proveedor, por un lado, y el comprador o destinatario, por el otro), con
exclusión de las relaciones de consumidor a consumidor (C2C).
El objetivo del documento es destacar los posibles problemas y vacíos legales dentro del contexto de la
protección del consumidor (falta de información, problemas con las garantías, ausencia del derecho de
retractación, etc.) debido al hecho de que los acuerdos C2C suelen situarse fuera del alcance del acervo
comunitario en materia de consumo (y solo se rigen por el derecho contractual tradicional). También se
expondrán algunas propuestas de cara a la redacción de una futura legislación para garantizar un mayor
nivel de protección en beneficio de los consumidores (con obligaciones legales adicionales exigidas a los
intermediarios, por ejemplo). La tecnología de cadena de bloques (blockchain) y los contratos inteligentes
(smart contracts) también deben tenerse en cuenta, puesto que en condiciones normales deberían
generar un proceso de «desintermediación». Sin embargo, debe evaluarse si, al final, la protección del
consumidor saldrá beneficiada o no de esa desintermediación.
Palabras clave
economía colaborativa, protección del consumidor, plataformas, deber de información, acuerdos C2C,
de consumidor a consumidor, cadena de bloques, blockchain
Tema
economía colaborativa
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Consumers contracting with other consumers in the sharing economy…
Introduction – context and purposes
of the paper
The phenomenon of the so-called “sharing economy”
or “collaborative economy”
1
is growing rapidly and in
various sectors (short-term accommodation, like Airbnb;
passenger transportation, like Uber; sale of goods, like eBay;
collaborative finance, in some crowdfunding platforms, like
Seedrs; etc.). Schematically speaking, three main actors
are usually involved in any sharing economy model: (i) the
providers of the services (or the seller of the goods), (ii) the
recipients of the services (or the buyers of the goods) and
(iii) the platform, connecting providers and recipients, so
that they can enter into contract.
Providers and recipients could be either professionals or
consumers, which means that the platforms can facilitate
the conclusion of B2B,
2
B2C,
3
C2B,
4
or C2C,
5
agreements.
Sharing Economy obviously has significant business potential
but it also raises various legal issues, especially in the field
of consumer protection. Consumers contracting with other
consumers could indeed suffer from a lack of information on
the product or on their rights (ignoring for instance that they
cannot benefit from a right of withdrawal); some issues could
also occur with regard to the conformity of the product,
or with its delivery or payment. The accommodation could
be materially different from the description given on the
platform or the reservation could be cancelled by the owner
1. The objective of this paper is not to discuss the concept, nor the features of “sharing economy”. Although it is too narrow to describe the
phenomenon, reference could be made to the definition proposed by the EU Commission: “business models where activities are facilitated by
collaborative platforms that create an open marketplace for the temporary usage of goods or services often provided by private individuals”
(Communication from the Commission to the European Parliament, the Council, the European and Social Committee and the Committee
of the Regions, “A European Agenda for the collaborative economy”, COM(2016) 356 final, p. 3). The definition of “online platform”, in the
proposal for a directive of 11 April 2018, issued in the context of the New Deal for consumers is also helpful (although limited to contracts
concluded with consumers): “‘online marketplace’ means a service provider which allows consumers to conclude online contracts with
traders and consumers on the online marketplace’s online interface” (Proposal for a Directive of the European Parliament and of the
Council amending Council Directive 93/13/EEC of 5 April 1993, Directive 98/6/EC of the European Parliament and of the Council, Directive
2005/29/EC of the European Parliament and of the Council and Directive 2011/83/EU of the European Parliament and of the Council as
regards better enforcement and modernisation of EU consumer protection rules, COM(2018) 185 final).
2. Business to Business.
3. Business to Consumer.
4. Consumer to Business.
5. Consumer to Consumer.
6. Please note that the scope of some directives or regulations is not necessarily limited to B2C relationships, so B2B relationships could
also fall within their scope.
a few days before the beginning of the rental period, without
due compensation. On crowdfunding platforms, consumers
could finally lose the invested sum, without being aware of
such risk.
After a short overview of the applicable legal framework
protecting consumers and its scope, in the context of the
sharing economy (see point 1 below), this paper will discuss
the potential issues for the consumers contracting through
the platforms and resulting, among other reasons, from
regulatory gaps (see point 2 below). The analysis will mainly
be carried out under the EU Law, with some occasional
references to the specific rules in some Member States.
Some propositions de lege ferenda will also be made, in
order to ensure a higher level of consumer protection, with
additional legal duties prescribed for the intermediaries,
for instance (see point 3.1. below). Blockchain technology
and smart contracts will also be considered, since they
should normally give rise to a “disintermediation” process.
It should however be assessed whether or not the consumer
will benefit from this disintermediation (see point 3.2.
below).
1. Overview and scope of the legal
framework protecting consumers
Several EU directives or regulations aim at ensuring a
high level of consumer protection.
6
They prescribe either
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substantial
7
or procedural
8
rules. Some of these are
horizontal regulations, whereas others are sector-specific
regulations.
9
Most of them are currently under review at an
UE Level, since the European Commission proposed a “New
Deal for Consumers” in 2018, with the revision of various
EU directives for consumers.
10
Depending on the features of the platform (and its activities),
some of these regulations shall be observed by the platform
(towards the participants) and its participants (towards each
other).
It must however be stressed that most of them are not
applicable to C2C relationships. In the context of this
short paper, the analysis is limited to the Consumer rights
Directive,
11
the Unfair Commercial Terms Directive,
12
the
Unfair Commercial Practices Directive
13
and Directive
2000/31/EC on electronic commerce.
14
7. Complementary to the regulations mentioned in footnotes 9-10 , see also Directive 1999/44/EC of the European Parliament and of the
Council of May 25, 1999 on certain aspects of the sale of consumer goods and associated guarantees, O.J., L 171 of July 7, 1999; Directive
2002/65/EC of the European Parliament and of the Council of September 23, 2002 concerning the distance marketing of consumer
financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC, O.J., L 271 of October 9, 2002, p.
16-24; Directive 2006/123/EC of the European Parliament and of the Council of December12, 2006 on services in the internal market, O.J.
L 376, 27.12.2006, p. 36–68.
8. See e.g. Directive 2009/22/EC of the European Parliament and of the Council of April 23, 2009 on injunctions for the protection of
consumers’ interests, O.J. L 110, 1.5.2009, p. 30–36; Directive 2013/11/EU of the European Parliament and of the Council of May 21, 2013 on
alternative dispute resolution for consumer disputes and amending Regulation (EC) No2006/2004 and Directive 2009/22/EC (Directive
on consumer ADR), O.J. L 165, 18.6.2013, p. 63–79.
9. See e.g. Directive 2008/48/EC of the European Parliament and of the Council ofApril 23, 2008 on credit agreements for consumers
and repealing Council Directive 87/102/EEC, O.J. L 133, 22.5.2008, p. 66–92; Directive (EU) 2015/2302 of the European Parliament and
of the Council of November 25, 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and
Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC, O.J. L 326, 11.12.2015,
p. 1–33.
10. See Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee, “A
New Deal for Consumers”, COM (2018) 183 final.
11. Directive 2011/83/EU of the European Parliament and of the Council of October 25, 2011 on consumer rights, amending Council Directive
93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and
Directive 97/7/EC of the European Parliament and of the Council, OJ L 304, 22.11.2011, p. 64–88.
12. Council Directive 93/13/EEC of April 5, 1993 on unfair terms in consumer contracts, O.J., L 95 of April 21, 1993, p. 29-34.
13. Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial
practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European
Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial
Practices Directive’), O.J., L 149 of June 11, 2005, p. 22-39.
14. Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society
services, in particular electronic commerce, in the Internal Market, O.J., L 178 of July 17, 2000, p. 1-16.
15. As defined in Article 2 (d) of the Directive.
16. As defined in Art. 2 (b) of the Directive.
17. As defined in Art. 2 (a) of the Directive.
18. As defined in Art. 2 (c) of the Directive.
19. As defined in Art. 2 (b) of the Directive.
20. Both concepts are defined in Art. 2 (1) and 2 (2) of the Directive.
Unfair Commercial Practices Directive is applicable to
“business-to-consumer commercial practices”,
15
carried out
by a “trader”
16
to a “consumer”.
17
The Unfair Commercial
Terms Directive is prohibiting unfair contractual terms of
“sellers” or “suppliers”
18
contracting with consumers.
19
Pursuant to Article 3 (1) of the Consumer Rights Directive,
it shall “apply […] to any contract concluded between a
trader and a consumer”.
20
These regulations shall therefore not be applicable in the
relationship between the participants when the provider
and the recipient are both consumers.
The qualification of a party, as “seller”/”trader”/”supplier”
or as “consumer” could give rise to debate. According to the
European Commission, “a supplier will qualify as a “trader”
under the UCPD if he is acting for purposes relating to his
trade, business, craft or profession (Article 2(b)). According
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to this definition, the mere fact that a person engages in
an activity in the collaborative economy will not mean that
that person automatically qualifies as a “trader”: under the
UCPD, the qualification of whether a person is a “trader” or
not is the outcome of a case-by-case assessment, which has
to take all factual aspects into account, such as whether an
essential part of that person’s income stems from a given
collaborative economy activity”.
21
A misleading qualification
(as consumer instead of trader) could give rise to penalties
under the applicable tax regulation, or under the Unfair
Commercial Practice Directive.
22
The Directive on electronic commerce has a broader scope.
It applies to B2B (when the service provider and the recipient
of the service are not acting for purposes which are outside
their trade, business or profession) and to B2C (when the
service provider is acting in the course of his trade, business
or profession and the recipient of the service is an individual
consumer) relationships. The definition of “service provider”
does not explicitly prohibit a consumer from providing an
information society service. However, with regard to the
concept of “service” (to be understood as a “service” as
defined in Art. 57 of the TFEU), it may be argued that the
European legislator has not considered that the service
provider could be a consumer. Hence, those articles of the
directive on electronic commerce only apply in B2C and
B2B relationships.
In the relationship between the consumer and the platform,
the aforementioned directives will normally be applicable.
A case-by-case assessment must however be made, as
illustrated by the Uber case before the ECJ: In its judgment
dated 20 December 2017, the ECJ considered that “an
intermediation service such as that at issue in the main
proceedings, the purpose of which is to connect, by means
of a smartphone application and for remuneration, non-
professional drivers using their own vehicle with persons
who wish to make urban journeys, must be regarded as being
inherently linked to a transport service and, accordingly,
21. Commission staff working document guidance on the implementation/application of Directive 2005/29/ec on unfair commercial practices
accompanying the document communication from the commission to the european parliament, the council, the european economic and
social committee and the committee of the regions. A comprehensive approach to stimulating cross-border e-Commerce for Europe’s
citizens and businesses, COM (2016) 320 final, point 5.2.5.
22. See point 22 of Annex I and Article 5 (5) of the Unfair Commercial Practices Directive. One could also wonder when a person selling several
goods on an online marketplace shall be considered as a trader (on the criterions to be taken into account, see ECJ, 4 October 2018, case
C-105/17, Komisia za zashtita na potrebitelite).
23. ECJ, 20 December 2017, case C-434/15, Asociación Profesional Elite Taxi. Please see also ECJ, April 10, 2018, case C-320/16, Uber France SAS.
must be classified as ‘a service in the field of transport’ as
defined in Article58(1) TFEU. Consequently, such a service
must be excluded from the scope of Article56 TFEU,
Directive 2006/123 and Directive 2000/31”.
23
In other words,
with services governed by distinct legal frameworks, some
of them could be excluded.
That said, it is not normally in this context that most issues
occur: the purpose of the services provided by the platform
is usually limited to connecting the parties and facilitating
the conclusion of the agreement between them. In addition,
the terms and conditions of the platform usually state that
it is not party to the agreement concluded between the
participants, with a denial of any liability, should there be any
dispute between them with regard to such an agreement,
or should any damages occur.
Issues will mainly arise with regard to the relationship
between the consumers. In this context, consumers cannot
benefit from the EU protection rules: right of withdrawal,
information duties, formal requirements, prohibition of
unfair contract terms or unfair commercial practices and
conformity requirements and guarantees, prohibition of
additional payments, passing of risks, etc.
This does not mean that there are no applicable protection
rules at all. The general contract law applicable in each
Member State remains applicable (information requirements,
good faith, consent, rules of proof, etc.). Nevertheless,
in most cases, these rules do not take into account the
specific difficulties encountered by the contracting parties
and their potential vulnerability. According to these rules,
the parties are indeed supposed to be on an equal playing
field, although it is far from being the case in practice (in
most cases, the rules are therefore not sufficient to protect
consumers).
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2. Gaps and main issues
to be addressed from
a consumer Law perspective
From a consumer Law perspective, the following issues need
to be addressed:
• Discrimination between consumers depending on the
(non-)professional purpose under which the other
contracting party is acting (see point 2.1. below);
• Low level of duties imposed on the platforms (see point
2.2. below).
2.1. Discrimination between consumers
depending on the (non-)professional
purpose under which the other contract
party is acting?
There is an obvious difference between, on one hand,
consumers contracting with professionals (including on a
sharing economy platform), who will benefit from the legal
framework granting them, at least from a theoretical point
of view, a high level of protection and, on the other hand,
the same consumers, contracting with other consumers
through the same platforms.
However, they are both at a disadvantage.
In the EU Consumer Acquis, the ratio legis for protection
measures lies specifically in the weak position of a consumer
entering into a relationship with a supplier, a seller or a
trader (acting in their commercial or professional capacity).24
European Legislator assumes that consumers mainly suffer
from a lack of knowledge as regards legal or factual data
related to the agreements and do not have the same
bargaining power as the other party to the contract. The
disadvantage for the consumer mainly arises from the object
24. On the weakness of a contractual party, see H. JACQUEMIN (2010). See also the Case Law of the European Court of Justice: “the system
of protection introduced by the Directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as
regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by
the seller or supplier without being able to influence the content of those terms” (E.C.J., October 26, 2006, C-168/05, Mostaza Claro,
ECLI:EU:C:2006:675, point 25; see also E.C.J., June 27, 2000, aff. C-240/98 à C-244-98, Oceano Grupo, point 25; E.C.J., June 4, 2009,
aff. C-243/08, Pannon GSM Zrt, point 22; E.C.J., October 6, 2009, aff. C-40/08, Asturcom Telecommunicaciones SL, points 29-31; E.C.J.,
November 9, 2010, aff. C-137/08, VB Pénzügyi Lizing Zrt., points 46-48; E.C.J., March 15, 2012, aff. C-453/10, Perenicˇová et Perenicˇ; E.C.J.,
October 3, 2013, aff. C-59/12, BKK Mobil, point 35 or E.C.J., September 3, 2015, aff. C-110/14, Horat
·iu Ovidiu Costea, point 18).
of the contract (which could be complex) or the fact that
it has been made by electronic means, with the potential
lack of knowledge (or certainty) on the identity of the other
party, on the main characteristics of the goods or services,
on the price, etc. The consumer could also suffer from a
lack of knowledge on his or her rights in relation to the
termination of the contract, the warranty or the absence of
any right of withdrawal. It is also usual that the terms and
conditions governing their provision can only be accepted
or refused (a so-called “adhesion contract” – “contrat
d’adhésion”). The disadvantage of consumers contracting
with other consumers not only results from the behavior of
the other contracting party, but also (and mainly) from the
object of the agreement and the means used to conclude
the contract (at a distance and by electronic means). The
average consumer is therefore the weaker contract party
(compared to a professional) because (s)he cannot negotiate
the contract nor impose his or her own terms. In these
circumstances, the professional party to the contract can
take advantage of the consumer’s weak position to impose
unfair contract terms (unbalanced liability exemptions, for
instance) or use unfair commercial practices (misleading
acts or omissions and/or aggressive commercial practices).
To address these issues, directives and regulations were
adopted to regulate and prohibit these practices, especially
in the digital environment
Despite both kinds of consumers being at the same
weakness, protection measures will only benefit those who
are entering into a relationship with a professional.
This difference in treatment could be justified by an
objective reason: the contracting party is a consumer and
not a professional and, therefore, it could be considered as
disproportionate to impose the correlative duties on the
other consumer. In my opinion, this argument is obviously
relevant. It does not mean, however, that consumers
contracting with other consumers could not be benefit from
some protection measures, it being agreed that the duties
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should fall to the platform, not the contracting party (see
points 2.2. and 3.1. below).
2.2. Low level of duties imposed
on the platforms
a) Low level of duties of platforms towards consumers
The duties prescribed for the platform by the applicable legal
framework, for the benefit of the consumers (either providers
or recipients of the services) are rather limited. Indeed, they
only relate to the intermediation services provided by the
platform to the consumers. In this context, they shall mainly
provide broad information duties prescribed by the Directive
on electronic commerce, if applicable–see e.g. the Uber
case–or by the Consumer Rights Directive. In most cases,
their intermediation activity is not regulated as such: under
Belgian Law for instance, the platform should normally be
considered as a broker and, except in some specific matters
(credit, insurance, travel, etc.), this activity is not regulated
as such and the general contract law (in the Civil Code) is
applicable.
This is also confirmed by the terms of the services.
In the case of Airbnb, for instance, it is clearly stated that:
“1.2. as the provider of the Airbnb Platform, Airbnb does
not own, create, sell, resell, provide, control, manage, offer,
deliver, or supply any Listings or Host Services. Hosts alone are
responsible for their Listings and Host Services. When Members
make or accept a booking, they are entering into a contract
directly with each other. Airbnb is not and does not become
a party to or other participant in any contractual relationship
between Members, nor is Airbnb a real estate broker or insurer.
Airbnb is not acting as an agent in any capacity for any Member,
except as specified in the Payments Terms.
1.3 While we may help facilitate the resolution of disputes, Airbnb
has no control over and does not guarantee (i) the existence,
quality, safety, suitability, or legality of any Listings or Host
Services, (ii) the truth or accuracy of any Listing descriptions,
Ratings, Reviews, or other Member Content (as defined below),
or (iii) the performance or conduct of any Member or third
25. Please refer to
be considered as unfair contracts terms, under directive 93/13/EEC.
26. See Art. 1121 of the Belgian Civil Code.
party. Airbnb does not endorse any Member, Listing or Host
Services”.
25
This means that Airbnb does not assume any liability
or warranty–and, therefore, does not assume any legal
or financial risk–with regard to the performance of the
agreement concluded between the Hosts and the Members.
By virtue of the general theory of contract law (under
Belgian civil law,26 for instance), this is absolutely consistent:
both contracts (concluded between the participants and the
platform, on the one hand, and between the participants,
on the other hand) are independent from each other. The
platform is a third party with regard to the agreement
concluded between the participants and no duties can be
imposed on it by virtue of this agreement.
Nevertheless, one can easily understand how unfair this
solution is: the platform provides an intermediation service,
earns (a lot of) money for it, is subject to only a few duties
and, should there be any issue or dispute between the
participants, does not assume any legal of financial risk.
The objective of legal regulation is to ensure a balanced and
fair allocation of risk. In my opinion, the platform should
not necessarily assume all and any risk in the case of breach
of its duties by a party to the contract concluded through
its intermediation. However, the current level of duties is
too low (at least at EU level) and additional duties should
be imposed on the platform.
b) Exceptionally, in some specific matters, additional regulatory
measures must be observed
In some specific matters, intermediaries’ activities are
however subject to a specific legal framework, prescribing,
for instance, additional duties in order to access to the
market (for instance, prior authorization) or to carry
out such activities (for instance, information duties to
consumers).
This is the case, for instance, in the credit market. One
could, however, wonder whether the peer-to-peer lending
platforms should be considered as credit intermediaries and
therefore be subject to the correlative duties. If it remains
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Consumers contracting with other consumers in the sharing economy…
a third party to the loan agreement (which is normally
the case), the peer-to-peer service provider cannot be
considered as a creditor, as defined in directive 2008/48/
EC on credit agreements for consumers (art. 3, b). Indeed,
it does not grant or promise to grant credit to the borrower.
It is only the lender who does so. In some specific cases,
the peer-to-peer service provider could be considered as
a “credit intermediary”. This is defined as “any natural or
legal person who is not acting as a creditor and who, in the
course of his trade, business or profession, for a fee, which
may take a pecuniary form or any other agreed form of
financial consideration:
(i) presents or offers credit agreements to consumers;
(ii) assists consumers by undertaking preparatory work in
respect of credit agreements other than as referred to in
(i); or
(iii) concludes credit agreements with consumers on behalf
of the creditor” (art. 3, f), of directive 2008/48/EC on credit
agreements for consumers).
According to this definition, a person could be considered
as a credit intermediary even if it is not a party to the credit
agreement (see point ii in particular). Regardless, a credit
agreement (as defined in art. 3, c), of directive 2008/48/
EC on credit agreements for consumers) must be granted
or promised to be granted. This is only the case when the
lender is a creditor (as defined in art. 3, b), of directive
2008/48/EC on credit agreements for consumers) and the
borrower a consumer (as defined in art. 3, a), of directive
2008/48/EC on credit agreements for consumers). If both
lender and borrower are consumers, no credit agreements
as defined in directive 2008/48/EC are granted and the
peer-to-peer service provider cannot be considered as a
credit intermediary.
This does not mean that the activity is not regulated as such:
for instance, peer-to-peer lending, between consumers,
remains prohibited under Belgian law.
27
27. Banking, Finance and Insurance Commission (2007); Managing Committee of the Banking, Finance and Insurance Commission (2007, p.
81-83); S. Decoster and C. Lewalle (2014, p. 462). The Belgian Banking Commission decided that, in the specific case submitted to it, the
monopoly on the collection of repayable funds from the public stipulated in the Belgian Banking Law prohibited the marketplace to operate
in Belgium.
28. Art. 15 of Directive 2000/31/EC.
c) Does the platform benefit from the liability exemption
prescribed by Article 14 of the directive on electronic commerce?
One could wonder whether, in addition to the low level of
duties prescribed for the platforms, they could also benefit
from the liability exemptions prescribed by Directive
2000/31/EC on electronic commerce.
Providers of information society services can benefit from
a (criminal and civil) exemption liability for three kinds of
activities: mere conduit (Art. 12), catching (Art. 13) and
hosting (Art. 14). Regarding the activities of the platforms
in the context of the sharing economy, only the last case
will be analyzed.
Pursuant to Article 14 (1) of Directive 2000/31/EC on electronic
commerce, “where an information society service is provided
that consists of the storage of information provided by a
recipient of the service, Member States shall ensure that
the service provider is not liable for the information stored
at the request of a recipient of the service, on condition
that: (a) the provider does not have actual knowledge of
illegal activity or information and, as regards claims for
damages, is not aware of facts or circumstances from which
the illegal activity or information is apparent; or (b) the
provider, upon obtaining such knowledge or awareness,
acts expeditiously to remove or to disable access to the
information”. In addition, there is no general monitoring
obligation.
28
It could be considered that the platform is storing information
provided by the recipient of the service (i.e. the platform
participants, mainly the provider/seller). In the context of
web 2.0, it is indeed obvious that the activities listed in
Article 14 (1) of the Directive also refer to this kind of storage:
in the L’Oréal case, the ECJ judged that “with regard to
the online marketplace at issue in the main proceedings,
it is not disputed that eBay stores, that is to say, holds in
its server’s memory, data supplied by its customers. That
storage operation is carried out by eBay each time that a
customer opens a selling account with it and provides it
with data concerning its offers for sale. Furthermore, eBay
normally receives remuneration inasmuch as it charges a
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Consumers contracting with other consumers in the sharing economy…
percentage on transactions completed on the basis of those
offers for sale”.
29
The platform will only benefit from the exemption of liability,
provided that it falls within the scope of this provision.
First of all, it must be considered as an “information
society service”, as defined in the Directive (as previously
mentioned, this will not necessarily be the case for any
intermediary of the sharing economy–see the Uber case,
as discussed before). If so, it must also be demonstrated
that the platform is an “intermediary provider”. The ECJ
stated that it “is not the case where the service provider,
instead of confining itself to providing that service neutrally
by a merely technical and automatic processing of the data
provided by its customers, plays an active role of such a kind
as to give it knowledge of, or control over, those data”.
30
For other activities it is carrying out, the platform cannot
be considered as a host service provider;
31
consequently,
the exemption of liability is excluded. It does not mean,
however, that the platform will necessarily be held liable: it
must indeed be proven that the requirements of the liability
regime are fulfilled in the case at hand. Should there be
any complaint brought by a third party against the platform
(e.g. grounded on libelous content in the listings or the
sale of counterfeiting goods, violating intellectual property
rights), the platform will claim for the liability exemption
under Article 14 of the Directive and, depending on the
application of the neutrality criterion, it may or may not
benefit from it.
The liability exemption is not applicable should the claim
be brought by the participants (either the provider or
the recipient of the service), when the claim is based on
the violation, by the platform, of its duties towards the
participants (by virtue of the applicable law or the contract
concluded between the platform and the participants).
Indeed, in that case, the platform is not acting as an
intermediary but as the provider of the service.
29. ECJ, 12 July 2011, case C-324/09, L’Oréal e.a., § 110.
30. ECJ, 12 July 2011, case C-324/09, L’Oréal e.a., § 110.
31. For example, this is the case for the assessment of the sellers or the help granted to create better listings.
3. Propositions to ensure a higher
level of consumer protection
3.1. Prescribe additional duties for
the platforms
Consumers contracting with other consumers on the
platform could suffer from a lack of information. Since
both parties are consumers, the EU Consumer Acquis is
not applicable. This is not disputable: it would obviously
be disproportionate to impose information duties on a
consumer, when (s)he is contracting with another consumer.
Additional duties, prescribed by law (ideally, at EU level),
could however rely on the platform. As explained below, in
most cases, they have relatively few duties. The platform
should have a duty to inform the consumers about how it
operates and the risks for the participants, the criteria taken
into account for the rating, and, if applicable, the additional
duties prescribed for them (from a tax point of view, for
instance). Platforms should also build the website in order
to ensure that the parties provide each other with the main
information. They should be much more involved in the case
of a dispute between participants, in order to provide them
with records or proof, and to help them to reach an amicable
settlement. Platforms should also take additional actions
against participants that do not comply with the rules and
breach their duties towards the other party. Some platforms
are already implementing these kinds of measures, while
others are still a long way off.
In this sense, it must be pointed out that the French Code
of Consumers Rights prescribes specific information duties
for platforms (especially when their purpose is to connect
parties in order to facilitate the conclusion of contracts) in
relation to: the terms and conditions of the service proposed
by the platform; the contract relationship, the capitalistic
link or the remuneration of the platform, as soon as it has
an impact on the referencing or the rating of the service;
the quality of the listing’s author, and the rights and duties
of the parties from a civil or a tax point of view, should
the platform facilitate a relationship with professionals or
non-professionals (Art. L-111-7, II). This information should be
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Consumers contracting with other consumers in the sharing economy…
fair, clear and transparent. Specific information should also
be given, when the consumers are entitled to provide their
opinion on the contracting party (Art. L-111-7-1). Additional
information duties are also prescribed in the context of the
New Deal for Consumers, in the proposal for a directive
dated 11 April 2018
32
(see prop. of new art. 6bis of Directive
2011/83/UE).
Following the consultation of the European Commission, “a
clear majority of consumer respondents felt that reputation
or rating systems were very important in facilitating
transactions on collaborative economy platforms. One
professional services association echoed this, saying that
consumer reviews might be a useful tool in maintaining
high standards in online service provision”.
33
These kinds
of tools must therefore be promoted, with clear information
on how they operate and on the rights and duties of the
parties using it.
3.2. What about Blockchain and smart contracts?
Could this be the solution?
With artificial intelligence and big data, Blockchain is one
of the most discussed topics in the IT community. People
indeed predict that it could give rise to a new digital
revolution, as the Internet did 25 years ago. It can be defined
as a “distributed, shared, encrypted-database that serves
as an irreversible and incorruptible public repository of
information”.
34
Bitcoin, as cryptocurrency, is probably the
most famous application relying on this technology, but it is
not the only one. The potential of Blockchain could indeed
be exploited in the context of financial services (including
banking and insurance services), e-government (including
e-voting), intellectual property rights management, supply
chain, etc.
The high level of security of the Blockchain, notably
against hacking, is achieved through the use of asymmetric
32. See add. references in footnote 2.
33. European Commission (2016, p. 27).
34. A. Wright and P. De Filippi (2015, p. 2). On the Blockchain in general, and its legal implications, please see also STOA (2017); Blockchain
France (2016).
35. See also A. Wright and P. de Filippi (2015, p. 6): “a Blockchain is simply a chronological database of transactions recorded by a network of
computers. Each Blockchain is encrypted and organized into smaller datasets referred to as “blocks”. Every block contains information about
a certain number of transactions, a reference to the preceding block in the Blockchain, as well as an answer to a complex mathematical
puzzle, which is used to validate the data associated with that block”.
36. STOA (2017, p. 5).
cryptography and mining. With mining, transactions (or,
more precisely, a selection of them) are recorded into
a block (which also includes a reference to the previous
block), which is then added to the other blocks to form a
long chain. All blocks are validated by a Proof-of-Work–a
complex mathematical problem that must indeed be
solved by the miners–or any other mining process (like
a Proof-of-Stake, for instance).
35
Trust is also ensured
thanks to decentralization: contrary to the traditional
model, where information is recorded in a unique ledger,
fully controlled by an intermediary, with the Blockchain,
ledgers are decentralized in all the nodes of the network.
More precisely, the Blockchain is replicated in real time on
all the computers in the network with the same database.
Blockchain is also fully transparent as data are fully visible
to all users (and potentially controlled by them). Data are
however anonymized and, at least with regard to Bitcoin,
it is nearly impossible to identify the natural person behind
the Bitcoin address.
Blockchain could be public and open, like Bitcoin or Ethereum,
or permissioned and private. In the latter case, “a limited
group of actors retain the power to access, check and add
transactions to the ledger. This enables ‘mainstream’ actors
such as banks and governments to maintain substantial
control over the blockchains. Permissioned blockchains are
less transparent and decentralized than their permissionless
counterparts and, as such, they embody a somewhat
different social and political value”.
36
Apart from cryptocurrencies, so-called “smart contracts”
are the other disruptive application of Blockchain. With
the “smart contract”, the purpose is not only to record
a transaction (e.g. a transfer of money from A to B, as is
the case with Bitcoin), but also to automatically execute
some transactions, when specific requirements are met.
The transaction is therefore self-executed, automatically
and without any human intervention (unlock the door of
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Consumers contracting with other consumers in the sharing economy…
an accommodation when the fees are paid; award the
consumer with compensation when the flight is delayed,
etc.).
With this technology, the intermediary providers of the
sharing economy become useless: business models that
rely on Blockchain are implemented in order to avoid the
intermediaries (and their fees, which benefit them and
not the users of the system).
37
Slock.it is an example of
solution relying on Blockchain (Ethereum), without any
need for intermediation: according to its website, “the
sharing economy’s story doesn’t end with taxis and vacation
rentals. It’s expanding to touch consumers and companies,
employees and employers. We believe that Airbnb’s will
soon become fully automated, and small business owners
will prefer to rent work spaces on demand rather than
commit to complex leases”.
38
Other examples are also
developing in the field of ridesharing, such as Arcade City
39
and La`Zooz.
40
One could therefore consider that, with the Blockchain,
the intermediary providers of the sharing economy will be
“uberized”.
41
37. See on that topic, and the level of the fees, Blockchain France (2016, p. 9).
38. <https://slock.it/usn.html>.
39. Please see:
40. Please see
41. On this topic, please see Zolynski (2017, p. 385 and ff).
Does this mean that, with the Blockchain, the consumer
acting on the platforms will benefit from a higher level of
protection? From an economical point of view, this could be
the case, since no fees will be paid to the platform. They
could also be much more involved in the functioning of the
platform. However, the self-executing feature of the contract
is not necessarily consistent with the main principles
governing contract law in civil law countries, nor with the
EU Consumer Law Acquis. Indeed, since the conclusion of
the agreement is automated, there is normally no room to
contest unfair contract terms, unfair commercial practices,
violation of information duties, breach of the contract,
conformity issues, etc.
In some specific cases, Blockchain technology could be a
good solution for consumers (for instance, to automatically
grant compensation to the passengers of a delayed flight,
or in the context of automated processing with limited
potential uncertainty or risk, where there is no doubt about
the information and the consent of the consumer regarding
such automation and its consequences). In other cases,
additional legal measures should be implemented, in order
to counterbalance the potential negative effect of the self-
execution, and ensure a high level of consumer protection.
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EUROPEAN COMMISSION (2016). “Synopsis Report on the public consultation on the regulatory
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JACQUEMIN, H. (2010). Le formalisme contractuel. Mécanisme de protection de la partie faible. Brussels:
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Consumers contracting with other consumers in the sharing economy…
Hervé Jacquemin
Recommended citation
JACQUEMIN, Hervé (2019). “Consumers contracting with other consumers in the sharing economy: fill
in the gaps in the legal framework or switch to the blockchain model?”. IDP. Revista de Internet, Derecho
y Política. No. 28, pp. 44-55. UOC [Accessed: dd/mm/yy]
The texts published in this journal, unless otherwise indicated, are subject to a Creative Commons
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About the author
Hervé Jacquemin
herve.jacquemin@unamur.be
Faculty of Law
University of Namur (Belgium)
https://directory.unamur.be/staff/hjacquem?_LOCALE_=en
UNamur
Rue de Bruxelles 61,
B-5000 Namur, Belgique
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p. 2. < https://ssrn.com/abstract=2580664> dx.doi.org/10.2139/ssrn.2580664>
ZOLYNSKI, C. (2017). “La blockchain: la fin de l’ubérisation”, Dalloz IP/IT, July-August 2017, p. 385 and ff.
