La responsabilidad de producto en la economía de plataforma: viejas reglas para nuevos mercados
| Autor | Tomás García-Micó |
| Cargo | Universidad Pompeu Fabra |
| Páginas | 1-24 |
https://idp.uoc.edu
ARTICLE
Platform Economy and Product
Liability: Old Rules for New Markets
Tomás Gabriel García-Micó1
Universitat Pompeu Fabra
Date of submission: January 2021
Accepted in: May 2021
Published in: March 2022
Abstract
According to statistics, Amazon is one of the most-used online marketplaces worldwide. The
COVID-19 pandemic and the ensuing lockdowns to reduce the spread of the virus have shown how
critical online marketplaces are to enable e-commerce and keep commercial transactions alive,
especially in such times when regular commerce is disrupted. However, when we buy online, we
have no chance of examining whether the product works or whether it is defective. If something
goes wrong when we buy a product from a third-party seller through Amazon, as consumers, we
then face the challenge of trying to file a claim for the damages that might have arisen due to
the defectiveness of the product. This article explores Amazon’s position in this scenario, with
reference to the case law from both US and EU courts and regulations, not solely from the point
of view of Product Liability Law, but also according to the E-Commerce Directive liability.
Keywords
platform economy, Amazon, product liability, defective product, tort law
1. The author is a member of a consolidated regional Research Group in Private Law (‘Grup de Recerca en Dret Patri-
monial’, 2017 SGR 1636) funded by the Agency for Management of University and Research Grants, dependent of the
Catalan Government (AGAUR - Agència de Gestió d’Ajuts Universitaris i de Recerca), and directed by Prof. Josep Ferrer
Riba (Pompeu Fabra University, Barcelona). PhD researcher and teaching assistant at the Pompeu Fabra University
(Barcelona). The author holds a grant for the recruitment of early-stage research staff (FI 2021) awarded by the
AGAUR under an open and competitive process and co-funded by the European Social Fund’s Operative Program of
Catalonia 2014-2020 CCI 2014ES05SFOP007.
IDP Iss. 35 (March, 2022) I ISSN 1699-8154 Journal promoted by the Department of Law and Political Science
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2022, Tomás Gabriel García-Micó
of this edition: 2022, Universitat Oberta de Catalunya
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Universitat Oberta de Catalunya
Platform Economy and Product Liability: Old Rules for New Markets
2022, Tomás Gabriel García-Micó
of this edition: 2022, Universitat Oberta de Catalunya
La responsabilidad de producto en la economía de plataforma:
viejas reglas para nuevos mercados
Resumen
Las estadísticas muestran que Amazon constituye uno de los mercados en línea más utilizados del
mundo. La pandemia de la COVID-19 y las medidas de confinamiento adoptadas posteriormente para
detener la propagación del virus, revelan la importancia de los mercados en línea como facilitadores del
comercio electrónico; asimismo, estos contribuyen a mantener la vitalidad en las operaciones comer-
ciales, especialmente en circunstancias en que el comercio regular queda interrumpido. Sin embargo,
los compradores en internet se ven privados de la posibilidad de comprobar si el producto funciona
correctamente o si es defectuoso. Si se observa un desperfecto al comprar un producto vendido por
terceros en Amazon, los consumidores enfrentan dificultades para presentar una reclamación por cual-
quier daño ocasionado por defectos en el producto. El presente artículo explora la posición de Amazon
en el caso mencionado, refiriéndose a la jurisprudencia establecida por los tribunales de los EE. UU.
y la Unión Europea, así como por sus normativas; no solo desde la perspectiva de la legislación en
materia de responsabilidad por el producto sino también conforme a la responsabilidad que emana de
la Directiva de Comercio Electrónico.
Palabras clave
economía de plataforma, Amazon, responsabilidad de producto, producto defectuoso, derecho de daños
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Platform Economy and Product Liability: Old Rules for New Markets
2022, Tomás Gabriel García-Micó
of this edition: 2022, Universitat Oberta de Catalunya
1. Introduction
Online marketplaces are online intermediation servi-
ces, acting as a go-between for the professional users
(businesses) and consumers who want to purchase a
good to be delivered to his or her home. As of 2019,
e-commerce sales accounted for 14.1 % of the overall
retail sales worldwide and will reach 22%, according to
projections.
2
One of the most used online marketplaces in Europe and
the United States is Amazon. According to the statistics, in
the US, Amazon holds 49.1% of the US e-commerce mar-
ket share, followed by eBay (6.6%), Apple (3.9%), Walmart
(3.7%), Home Depot (1.5%), Best Buy (1.3%) and Costco
(1.2%).
3
In 2019, Amazon accommodated up to 45% of
consumer spending in all e-commerce platforms in the US,
and this percentage is expected to rise to 47% in the year
2020 and 50% in 2021.
4
As of June 2020, the ten most-visited online retail websi-
tes, by unique visitors, have been Amazon (5,219; 44.83%),
eBay (1,522; 13.07%), Rakuten (886; 7.61%), Apple (718;
6.17%), Samsung (690; 5.93%), Walmart (622; 5.34%),
2. See the “E-Commerce share of total global retail sales from 2015 to 2023” statistics from Statista, published on November 26, 2020. The
statistics can be seen here: https://www.statista.com/statistics/534123/e-commerce-share-of-retail-sales-worldwide/ [Date of consultation:
9 December 2020].
3. See “74 Amazon Statistics You Must Know: 2020 Market Share Analytics & Data” from FinancesOnline. The statistics can be seen here:
https://financesonline.com/amazon-statistics/#link5 [Date of consultation: 10 December 2020].
4. See “Projected retail e-commerce GMV share of Amazon in the United States from 2016 to 2021” statistics from Statista, published on
December 1, 2020. The statistics can be seen here: https://www.statista.com/statistics/788109/amazon-retail-market-share-usa/ [Date of
consultation: 10 December 2020].
5. See the “Most popular online retail websites worldwide in June 2020, by unique visitors (in millions)” statistics from Statista, published
on November 3, 2020. The statistics can be seen here: https://www.statista.com/statistics/274708/online-retail-and-auction-ranked-by-
worldwide-audiences/ [Date of consultation: 9 December 2020].
6. See the “Leading online marketplace websites in the United States as of 4th quarter 2018, based on share of visits” statistics from Statista,
published on November 30, 2020. The statistics can be seen here: https://www.statista.com/statistics/270884/most-visited-websites-in-
the-retail-sector-in-the-us/ [Date of consultation: 9 December 2020].
7. Buss et alii (2020), p. 137.
8. Followed by TESCO, with US$ 4,001.9 million; Argos, with US$ 3,005.3 million; John Lewis, US$ 2,632.3 million; and Next, with US$ 2,010.4
million.
9. Followed by Otto, with US$ 3,555.4 million; Zalando, with US$1.646 million; MediaMarkt, with US$ 959.6 million and Notebooksbilliger.de,
with US$ 881.2 million.
10. Buss et alii (2020), p. 135.
11. Closely followed by Vente-Privee.com, with US$ 2,331.9 million; Cdiscount, with US$ 2,188.7 million; Auchan, with US$ 1,481.8 million; and
Apple, with US$ 921.7 million.
12. Semuels (2020): “Consumer spending on Amazon between May and July was up 60% from the same time frame last year”.
13. It should be stated that the first COVID-19 pandemic case reported in the United States was on January 20, 2020. See Holshue et alii
(2020), p. 929.
14. Facteus (2020). See the section “Consumer Spend on Amazon and Walmart”.
Etsy (578; 4.97%), Aliexpress (539; 4.63%), Ikea (450;
3.87%) and Home Depot (417; 3.58%).
5
According to the most recent data, Amazon was the most
visited website in the United States, accounting for 56.1%
of all online marketplace visits, followed by eBay (19.7%)
and Walmart (10.8%).
6
As regards its position in Europe, according to the 2019 re-
port by Statista,
7
Amazon is the most relevant e-commerce
platform in Europe. Its sales amount to US$ 6,555 million
in the UK.
8
In Germany, its sales reached US$ 11,077.8
million,
9
and in France
10
US$ 2,455.8 million.
11
The COVID-19 pandemic and the accompanying global lock-
down have increased consumer spending at Amazon by 60%
between May and July 2020 compared with the year 2019,
12
and this trend has increased exponentially during the most
severe measures to curb the pandemic,
13
moving from more
than 20%, at the end of March, to nearly 80% in mid-July.
14
Therefore, given the data discussed above, Amazon is the
biggest and the most important e-commerce platform in
Europe and the US.
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Amidst the increase in product sales through this online
marketplace – this online intermediation service
15
– a legal
question arises about what happens when a consumer
purchases a product through Amazon and suffers damages
due to the product’s defectiveness. The present article aims
to answer this question and analyze how liability can be im-
posed, if possible, on online marketplaces such as Amazon.
A preliminary conclusion is as follows: in Europe and the
United States, Amazon will rarely be liable for a defective
product sold by third-party sellers through its marketplace.
The article is structured as follows: Section 1 sets the scene
by describing the Amazon Marketplace and distinguishing
between products sold directly by Amazon and those sold
by third-party sellers through Amazon under the Business
Solutions Agreement (BSA), explaining also the Fulfilment
by Amazon (FBA) program. Section 2 outlines the US case
law, distinguishing between two different sets of cases:
cases where the courts found Amazon strictly liable due
to public policy considerations behind product liability law,
and cases (representing the majority) where courts found
Amazon not liable. The underlying reasons for this lack of
liability are analyzed, e.g. the passive intermediation by
Amazon in the transactions between third-party sellers
and consumers; the nature of Amazon as a service provi-
der and not a seller and the lack of evidence on Amazon’s
causal connection with the product defect. This section
concludes with the discussion on the first legislative at-
tempt to regulate the liability of online marketplaces. Sec-
tion 3 then focuses on the supranational (EU) and national
context (Spain), answering the question whether Amazon
can be considered a “producer” according to Article 3(1)
of the Council Directive 85/374/EEC,
16
of July 25, 1985,
(hereinafter referred to as the PLD) and if the apparent
manufacturer doctrine
17
is applicable. The section further
considers whether Amazon is liable in any way as a pro-
vider of a composite service and determines its position
under the current Directive 2000/31/EC.
18
15. As defined according to the Regulation (EU) 2019/1150 of the European Parliament and of the Council, of 20 June 2019.
16. Council Directive 85/374/EEC, of July 25 1985, on the approximation of the laws, regulations and administrative provisions of the Member
States concerning liability for defective products.
17. See Section 3.1.1 below.
18. Directive 2000/31/CE of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society
services, in particular electronic commerce, in the Internal Market (hereinafter referred to as the E-Commerce Directive).
19. See https://www.amazon.com/b/ref=s9_acss_bw_h1_OBHead_md1_w?node=17728530011&pf_rd_m=ATVPDKIKX0DER&pf_rd_
s=merchandised-search-top-1&pf_rd_r=2BQ90H6B5HHJ5669Y7G9&pf_rd_t=101&pf_rd_p=b2684a67-dfb4-4f04-b198-6bcc12422a86&pf_
rd_i=17602470011 [Date of consultation: 23 August 2020].
1. The functioning of Amazon’s
Online Marketplace
The previously detailed account of the functioning of
Amazon’s Online Marketplace (hereinafter referred as
to AOM) calls for a more thorough discussion of its legal
issues. Therefore, the present section is structured as
follows: subsection 1.1 shows the types of products a con-
sumer may buy on AOM while subsection 1.2 in turn discus-
ses the pre-condition for every third-party seller to fulfill
before being able to offer its products on AOM (e.g. the
Business Solutions Agreement (BSA) and the Fulfilment by
Amazon (FBA) program).
1.1. Types of products sold on AOM
There are two different groups of products for sale in
Amazon: the first group is formed by products branded
by Amazon or brands exclusively sold on Amazon, such
as Amazon Basics, Amazon Essentials, Amazon Fresh, also
including Ravenna Home and Pinzon,
19
and then the other
group of products sold by independent third-party sellers.
When we access the first group of products, we can see a
message that reads “shipped and sold by Amazon.com”
(see Diagram 1 below).
In this group of cases, according to US law and provided
that Amazon is the seller, if the product turns out to be
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defective and causes damages to a consumer, Amazon will
be liable for these damages.
20
The situation in the EU is
different, as the liability is imposed upon the “producer”
rather than the seller. Therefore, any consumer who is
affected by damages due to a defective product branded
under one of Amazon’s subsidiaries, will have to ascertain
who produced the product. If the producer is a subsidiary
without legal personhood, consumers need to refer to the
apparent manufacturer doctrine. Further debate on this
particular recourse is analyzed in Section 3.
The second category of products, those of third-party
sellers, usually pertain to companies (large or SMEs) who
enter into the BSA with Amazon and can sell their pro-
ducts through AOM. They can also enter into the FBA pro-
gram, under which “you store your products in Amazon’s
fulfillment centers, and we will pick, pack, ship, and provide
customer service for them.”
21
If the third-party seller be-
comes part of the FBA program, consumers will see that
the product is “sold by [name of the third-party seller] and
Fulfilled by Amazon” (see Diagram 2 below).
20. Janger and Twerski (2020), p. 268: “Only in the third category, sold and shipped by Amazon, would Amazon concede liability for the sale
of a defective product that causes personal injury or property damage”.
21. See https://www.amazon.com/fulfillment-by-amazon/b?ie=UTF8&node=13245485011#:~:text=Fulfillment%20by%20Amazon%20(FBA)%20
is,provide%20customer%20service%20for%20them. [Date of consultation: 23 August 2020].
22. See https://sellercentral.amazon.com/gp/help/external/G1791 [Date of consultation: 23 August 2020] and https://sellercentral.amazon.
co.uk/gp/help/external/201190440?language=en_GB&ref=efph_201190440_cont_G201190440 [Date of consultation: 23 August 2020].
23. Clause 6.1 of the US and the European versions of the BSA.
24. Clause 9 of the US version of the BSA, and clause 8 of the European version of the BSA.
25. Clause S-1.1 of the US and the European versions of the BSA.
26. Ibid., as Amazon does not conduct any control over the products. See, also, Berzon et alii (2020): This report raised the alert about the fact
that 4,152 items for sale on Amazon were not safe. Some were banned, or were recalled by Federal Authorities, or contained misleading
or false labeling.
27. Clause S-3.1 of the US and the European versions of the BSA.
28. Bolger, at 7-8: “Amazon owns and controls the relationship with the buyer […]. The supplier has no direct relationship with the buyer,
and indeed in most cases does not even have an indirect relationship with the buyer. That is, in most cases there are no communications
between FBA supplier and buyer; the FBA supplier simply discovers in a report or some other form of notification that a product has been
sold to the buyer”.
1.2. Selling on Amazon: the BSA and the
(possible) subscription to the FBA program
Under the BSA, third-party seller obligations are:
22
to
indemnify Amazon against any consumer claim arising
from personal injury and non-compliance,
23
to take out
general commercial liability insurance in case of exce-
eding a specific threshold of sales, naming Amazon and
its assignees as insured parties;
24
to provide accurate
information of products sold on Amazon,
25
to ensure that
products sold on Amazon comply with the laws applicable
to the place where they are intended to be sold,
26
to notify
public or private safety-related alerts or recalls,
27
and to
refrain from contacting the consumer by means other
than Amazon’s website.
28
Amazon will deal with consumer
post-sale services ,complaints about the product not being
fit for purpose or being defective, refunding money to the
consumer when appropriate.
“Amazon requires third-party sellers to use only the tools
and methods designated by Amazon to communicate with
Amazon customers. Amazon prohibits third-party sellers
from contacting customers to collect payments or influen-
ce their purchase decisions”.
All third-party sellers can be part of the FBA program in
exchange for paying a monthly fee and a fee per comple-
ted sale. To sell any product through the FBA program,
the third-party seller shall ship its products to one of
Amazon’s Fulfillment Centers. Once received, Amazon can
refuse to accept one or more product units, if there is an
FBA policy breach. Afterwards, all the logistics related to
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delivering the products to the consumer will be dealt with
by Amazon.
2. From the “Amazon exception to
tort law”29 to Bolger v Amazon
Several decisions have been issued by the US State and Fe-
deral Courts regarding the possibility of Amazon being held
liable for a defective product that has caused personal or
property damage to a consumer.
30
All these decisions have
involved products sold by third-party sellers. There is a mix
of cases involving products shipped by Amazon under the
FBA program and those shipped by the third-party seller
itself. The common core of these cases is the challenge to
establish whether Amazon could be deemed a seller or a
29. Janger and Twerski (2020), p. 262.
30. It has been the growing number of decisions by US courts that has provoked that this issue is becoming increasingly important among
the scholarship. See, Rickettson (2020), Sharkey (2020), Sprague (2020), Bullard (2019), Doyer (2019), and Shehan (2019).
31. Called: “entities “involved in the vertical distribution of consumer goods” (Bolger, at 18-19; Carpenter, at 6); “provider outside the distributive
chain” (Garber, at 18); and entities that “otherwise participate in the placing of a product in the stream of commerce” (Stiner, at 9; and
Allstate, at 12).
32. Legend: St.C. (State Court), F.C. (Federal Court), CA (applying California Law), IL (applying Illinois Law), MD (applying Maryland Law),
NJ (applying New Jersey Law), NY (applying New York Law), OH (applying Ohio Law), PA (applying Pennsylvania Law) and TN (applying
Tennessee Law).
manufacturer, or an entity involved in passing the product
through the vertical distribution chain from one of the ear-
lier mentioned manufacturers to the final consumer.
31
Today, 80% of these judicial decisions (8) have been in
Amazon’s favor, granting the motion for summary jud-
gment, and 20% (2) in favor of the consumer. Out of the
former, 62.5% (5) in cases regarding products shipped by
third-party sellers. The remaining 37.5% (3) involved pro-
ducts shipped by Amazon under the FBA program. Regar-
ding the judgments in favor of the plaintiff, one is related to
products shipped by Amazon under the FBA program, while
the other one refers to products shipped by the third-party
seller. Out of 10 cases analyzed, two have been issued by the
State Courts (20%), and eight (80%) by the Federal Courts.
The table below
32
further clarifies these numbers:
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Shipped by
Sold by
Amazon Third-party seller
Amazon In favor of the consumer In favor of Amazon In favor of the consumer In favor of Amazon
Third-party seller Bolger (St.C./CA)33
Erie (F.C./MD)34
Eberhart (F.C./NY)35
Allstate (F.C./NJ)36
Oberdorf (F.C./PA)37
Fox (F.C./TN)38
Garber (F.C./IL)39
Carpenter (F.C./CA)40
Stiner (St.C./OH)41
McDonald (F.C./MD)42
Table 1. Distribution of all judgments in all cases involving Amazon, depending on who sold and shipped the product
33. Bolger v. Amazon.com, LLC., Super. Ct. No. 37-2017-00003009-CU-PL-CTL (August 13, 2020). This case has been appealed by Amazon on
September 22, 2020 (see https://es.scribd.com/document/477198259/Bolger-v-Amazon-Amazon-Petition-for-Review-CA-Supreme-Court)
and will be heard by the Supreme Court of the State of California.
34. Erie Insurance Company v. Amazon.com, Inc., No. 18-1198 (May 22, 2019).
35. Jacob T. Eberhart v. Amazon.com, Inc., 16-CV-8546 (August 21, 2018).
36. Allstate New Jersey Insurance Company v. Amazon.com, Inc., Civil Action No. 17-2738 (FLW)(LHG) (July 24, 2018).
37 Heather R. Oberdorf and Michael A. Oberdorf v. Amazon.com, Inc., No. 18-1041 (July 3, 2019). This case once returned to the Pennsylvania
Supreme Court has been settled by the parties. See the Stipulation of Dismissal filed by both parties before the US Court of Appeals for the
Third Circuit on September 23, 2020 (see https://static.reuters.com/resources/media/editorial/20200924/oberdorfvamazon--settlement.
pdf).
38 Charles Brian Fox and Megan Fox v. Amazon.com, Inc., No. 18-5661 (July 5, 2019).
39 David Garber and Annette Garber v. Amazon.com, Inc. and Shenzhen Gangshen Technology Company Ltd., No. 17 C 673 (March 31, 2019).
40 David Carpenter, et al. v. Amazon.com, Inc., 17-cv-03221-JST (March 19, 2019).
41 Dennis Stiner v. Amazon.com, Inc., 120 N.E.3d 885 (February 19, 2019).
42 Ryan McDonald v. LG Electronics USA, Inc. and Amazon.com, Inc., No. RDB-16-1093 (October 10, 2016).
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Some authors have coined the term “Amazon exception to
tort” due to the situation that the different rulings from
US courts have created.
43
The following section analyses two different scenarios,
both of them involving third-party sellers selling their pro-
ducts on Amazon: here the distinction is made between the
cases where courts found Amazon strictly liable and the
cases where courts found Amazon not liable. The section
further offers an analysis of the first legislative attempt
to expressly regulate the liability of online marketplaces.
2.1. Analysis of cases where courts held Amazon
strictly liable for defective products sold
by third-party sellers due to public policy
considerations: Oberdorf and Bolger
a) Oberdorf
The conclusion of the Oberdorf case cannot be applied
to all cases by analogy, as it entails one specificity: there
was no representative of the third-party seller (The Furry
Gang) to be sued. Amazon was the only party that could
Table 1 above is further illustrated by the following diagram:
43. See supra fn. 29.
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be identified. No representative of The Furry Gang was
identified either by the plaintiff or by Amazon.
The facts of the case are: On December 2, 2014, Heather
Oberdorf bought a dog collar sold and shipped by The Fu-
rry Gang. On January 12, 2015, while Oberdorf was walking
her dog (Sadie), the D-ring on the collar broke, and the re-
tractable leash recoiled into Oberdorf’s spectacles injuring
her and permanently blinding her in her left eye.
From the procedural standpoint, it should be noted that
the District Court did grant Amazon’s motion for summary
judgment. However, the US Court of Appeals reversed that
judgment and denied Amazon’s motion for summary jud-
gment. Thus, it returned the case to the District Court to
rule the case according to the Court of Appeal’s ruling: the
US Court of Appeals considered Amazon the seller under
Restatement Second of Torts § 402A.
44
To reach this conclusion, the US Court of Appeals called
upon a referential case, Musser v. Vilsmeier Auction Co.,
Inc.,
45
where the Pennsylvania Supreme Court ruled that
an auctioneer is not a seller under the Restatement for
not fulfilling the four necessary cumulative conditions.
The Oberdorf court case applies the Musser test:
Firstly, Amazon is the only member of the marketing chain
available to the injured plaintiff for seeking redress. The
functioning of Amazon’s marketplace might result, in
some cases, in the plaintiff being unable to find who sold
the product.
46
Secondly, the imposition of strict liability upon Amazon
serves as an incentive to foster product safety. Amazon
has a robust (as qualified by an Amazon expert) system
of monitoring consumer complaints and acts accordingly:
withdrawing a specific product due to health or safety
concerns, retaining fees, or suspending (temporarily or
permanently) the account of the third-party seller.
47
Thirdly, Amazon is in a better position than the plaintiff to
prevent the circulation of defective products.
Lastly, Amazon can distribute the cost of compensating
for injuries resulting from defective products through
commission-based fees that it deducts from each sale.
In conclusion, the Oberdorf case vacates the District
Court’s judgment and requires it to rule the case as if Ama-
zon were a seller according to the Restatement Second of
Torts’ § 402A. Even though the Pennsylvania Supreme
Court was expected to decide on Oberdorf by petition of
the US Court of Appeals, the parties finally settled the
case, filing a stipulation of dismissal on September 23,
2020.
48
b) Bolger
The facts of this case are as follows. In August 2016, Bolger
was looking for a laptop battery replacement on the Inter-
net. She found a link to Amazon Marketplace, where she
purchased the battery for $12.30, and charged her purchase
to her credit card from Amazon. The battery has been stored
in Amazon’s fulfillment center in Oakland (California) and
44. “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business
of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in
which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and
sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller”.
45. 562 A.2d 297 (Pa. 1989).
46. Let us imagine the case of a customer who buys a product that is manufactured by a Chinese company. If it were not for the existence of
Amazon’s online marketplace the customer would not have acquired it there, but in a store or company nearby. Therefore, in the latter
case, a potential plaintiff is easily identifiable; while in the former, such identification might be harder, and if the potential defendant’s
identification provides results, the problem is to sue or notifyabout the claim, or to execute the judgment in the case it is in the plaintiff’s
favor (with all the troublesome issues arising from a Private International Law standpoint).
47. Even though third-party sellers should ensure that products sold on Amazon comply with the applicable laws of the place where they are
intended to be sold, Amazon’s Vice President of Marketing Business admitted that “Amazon generally takes no precautions to ensure
that third-party vendors are in good standing under the laws of the country in which their business is registered” (Oberdorf, at 14).
48. See the stipulation of dismissal filed by the parties before the US Court of Appeals for the Third District: https://static.reuters.com/
resources/media/editorial/20200924/oberdorfvamazon--settlement.pdf [Date of consultation: 11 December 2020].
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sent to her via free two-day shipping (as she was a member
of Amazon Prime). Bolger received “the battery a few days
later in Amazon packaging, including an Amazon-branded
box with Amazon-branded shipping tape” (Bolger, at 11). No
contract existed between Bolger and Lenoge (or E-Life, as
it appeared on Amazon marketplace), and the latter was
charged with a fee of 40% of the purchase price ($4.87).
In September 2016, Amazon suspended Lenoge’s account
due to several safety reports involving the same product
that Bolger bought. Bolger filed the first claim due to the
injuries resulting from the explosion of E-Life’s battery.
The Bolger court reverses the lower court’s judgment and
extends the strict product liability to Amazon. In reaching such
a conclusion, the Court focuses on the public policy conside-
rations underlying the imposition of strict liability in cases of
defective products. Such public policy concerns are enhancing
product safety, maximizing protection for the injured plaintiff,
and apportioning costs among the defendants.
49
Only when
all of these considerations concur in the case at hand, can
the Court in California extend strict liability beyond manu-
facturers,
50
retailers,
51
sellers of mass-produced homes,
52
and
entities involved in the vertical chain of distribution.
53
The Bolger court, like the Oberdorf court, considered all
public policy considerations underlying the imposition of
strict liability upon Amazon:
• Firstly, like the Oberdorf court, the Court considered
that Amazon is the only distributive chain member that
the plaintiff can sue. According to the BSA, the possi-
bility of Amazon being sued is not an obstacle for the
latter to seek indemnity from the third-party seller, who
entered into this obligation with Amazon.
• Secondly, the Court considered that Amazon is better
positioned than the plaintiff to exert pressure on third-
party sellers to guarantee that the products offered on
Amazon are safe.
• Finally, Amazon can adjust the cost of product liability
claims, as it can modify the fees it deducts from each
sale.
Unlike Oberdorf, the seller was known but practically un-
reachable to the plaintiff (as it was based in China). So, the
Court considers that Amazon should be liable as Amazon’s
position in the online marketplace is not one of a “mere
bystander” (Bolger, at 32), but one of controlling all the
operations in its marketplace (from the uploading of a pro-
duct, to its arrival at the consumer’s destination, as well as
all post-market issues that might occur).
Amazon filed a petition with the California Supreme Court
to review the Superior Court’s judgment, but this was
rejected, making the decision final and with the power of
creating precedence.
54
2.2. Analysis of cases where courts did not hold
Amazon strictly liable
2.2.1. Due to Amazon’s role in managing transactions:
Garber, Carpenter, Stiner, Fox, Erie, and Allstate
In all these cases, the majority of all cases analyzed, the
solution is clear: Amazon is not a seller and, thus, not
liable for the injuries sustained by the plaintiffs due to
the defectiveness of products sold by third-party sellers
through Amazon’s marketplace.
In three of the cases, Garber, Carpenter and Fox , the courts
dealt with a defect with the rechargeable lithium-ion bat-
teries on hoverboards bought through Amazon, which
caused property damages, as the homes of the plaintiffs
were ignited.
In Garber and Carpenter, the courts use similar tests, des-
pite being in different jurisdictions, the former in Illinois
and the latter in California. In Garber, the court considers
that the plaintiff is only capable of proving one of the
49. Bolger, at 20.
50. See Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57. This is, even, the first case establishing strict liability in product liability
law throughout the United States.
51. See Vandermark v. Ford Motor Co., 61 Cal.2d 256.
52. See Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121.
53. See Bay Summit Cmty. Ass’n v. Shell Oil Co., 51 Cal. App. 4th 762.
54. Curley (2020) [Date of consultation: 11 December 2020].
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three requirements to impose liability beyond the distribu-
tive chain: the fact that Amazon obtains a financial benefit
from each transaction. But the plaintiff is not capable of
providing substantial evidence of the first requirement,
participation in the manufacturing, marketing, and dis-
tribution processes, and third, being able to eliminate the
unsafe character, requirements, as Amazon “cannot be
expected to judge the quality of every product for sale
by third parties” (Garber, at 18). The Fox court concluded
likewise.
55
The Carpenter court uses a five-prong test to conclude
that Amazon’s role was merely a facilitating one, not a
predominant one. The plaintiffs did not produce sufficient
evidence to prove that had Amazon not placed the ho-
verboard on the online marketplace, the plaintiffs would
never have bought it.
In Stiner, a case involving a teenager death due to acute
caffeine intoxication by a product sold by a third-party
seller on Amazon, the court considered that the actions
of the seller, The Bulk Source, were predominant. Amazon
“had no role in procuring the caffeine powder from its ma-
nufacturer, storing, packaging, or distributing the product
[nor in] determin[ing] the sale price, provid[ing] all pro-
duct information for the listing, packag[ing] and fulfill[ing]
all orders” (Stiner, at 17).
Erie and Allstate are cases where an insurance company
sued Amazon for the compensations they paid to their
insured clients as a result of the fires that consumed their
homes as a consequence of a defect in a headlamp in the
home (Erie) and a laptop’s replacement battery (Allstate).
The Erie court decided based on the definitions of “seller”
and “sale”, which require the “transfer of the ownership of
and the title to property from one person to another for
a price” (Erie, at 11). The Court considered that, at most,
Amazon received the “possession” of the object that has
been sent to the consumer (Erie, at 12). Amazon, thus, is
not the seller, as it only facilitated the sale of the product.
The Allstate court took a similar approach to the case and
solved it similarly.
2.2.2. Due to Amazon’s position as a service provider:
Eberhart
In the Eberhart case, the claim is for the plaintiff’s injuries
due to the explosion of the glass in a French coffeemaker
pot.
The court analyzed New York product liability law to con-
clude that those that might be found liable for the injuries
caused by a defect in a product are the parties “within the
distribution chain” (Finerty, at 241-242): manufacturers,
56
the retailers, and distributors.
57
The court defined Amazon
not as one of such parties but rather as a service provider
(Eberhart, at 8) and, therefore, not subject to strict pro-
duct liability.
58
2.2.3. Due to the lack of evidence of Amazon’s invol-
vement in the causation of the defect on the
product: McDonald
In the McDonald case, the defect was present in an LG bat-
tery that exploded while in the plaintiff’s pocket, causing
severe burn injuries. The court granted Amazon’s motion
for summary judgment as the plaintiff had provided no
evidence regarding the possibility of attributing the defect
to Amazon’s actions or omissions.
55. “Given that the Defendant assumed a duty to act, there remain genuine issues of material fact regarding whether the Defendant breached
that duty […] regarding whether the Defendant’s failure to include certain information in the December 12, 2015 email amounted to
negligence. The email did not inform […] of the actions the Defendant had taken to evaluate dangers […,] that the reported safety issues
included a risk of fire or explosion […. And that] the Defendant had ceased all hoverboard sales worldwide. […] The Plaintiff also testified
she would not have let the hoverboard enter or remain in her home had she known, among other things, that there had been 17 complaints
about hoverboard fires or explosions in the United States that involved hoverboards purchased on the Defendant’s marketplace, that
the Defendant anticipated additional complaints, particularly during the holiday season in the late December, or that the Defendant had
ceased all hoverboard sales worldwide” (Fox , at 15-6).
56 See Finerty v. Abex Corp, 27 N.Y.3d 236, 241 (2016).
57 See Sukljian v. Charles Ross & Son Co., 69 N.Y.2d 89, 95 (1986).
58 See Milau Assocs. v. N. Ave. Dev. Corp., 42 N.Y.2d 482 (1977).
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2.3. The rst (and unique) legislative attempt of
holding online marketplaces strictly liable
for defective products sold through these
marketplaces: the AB-3262 initiative
In February 2020, California Assembly Member Mark
Stone filed a legislative initiative AB-3262 called “Product
liability: electronic retail marketplaces.”
59
This proposal
was aimed to add a new Section 1714.46 to the California
Civil Code, holding electronic retail marketplaces strictly
liable for “all damages caused by defective products pla-
ced into the stream of commerce to the same extent as a
retailer of that defective product would be liable and shall
be deemed to be a retailer for purposes of California strict
liability law” (proposed 1714.46.(a)).
However, there are several exceptions to the proposed
liability regime for electronic retail marketplaces: that the
product was (1) preowned or used, (2) handmade, and the
electronic retail marketplace does not receive “a direct
or indirect financial benefit from the sale” or if the sale
occurred by auction and, therefore, is exempt from strict
liability (proposed 1714.46.(b)). Subparagraph (c) allows
that, even when any of the exceptions concur, the Courts
could still hold the electronic retail marketplace liable if
“the application of strict liability to the electronic retail
marketplace is consistent with the policy considerations
underlying strict liability.”
Currently, the bill has been shelved. According to the
Assemblyman who promoted it, it “will not advance in its
present form by the legislative deadline.” He is commit-
ted nonetheless to “continuing the conversation with the
online industry, with my fellow [sic] members in the legis-
lature, and with California consumers, to create a strong
and effective measure in the future that ensures that if a
defective product is purchased online, the consumer has
a remedy”.
60
3. Et tu, Europa? Tu quoque?
This is the final question to be explored by the present
article. What would be the European position in cases like
those described in the paragraphs above? A caveat is in
order: as of today, there has not been any judgment on
Amazon’s position in the EU legal framework issued by
the Court of Justice of the European Union (hereinafter
referred to as the CJEU). Therefore, the answers provided
hereto take into consideration the status quo of scholars-
hip and CJEU case-law.
This last section of the article addresses two possible lia-
bility regimes for online marketplaces like Amazon: firstly,
under the provisions of product liability law contained
in the PLD and secondly, under the provisions of liabili-
ty of internet services providers or information society
services providers under the E-Commerce Directive. The
foundations of liability in the former and in the latter are
different: while in the PLD, it is for the damages to the
victim caused by a defective product; in the latter it is for
the content hosted on the subject’s servers.
3.1. First source of potential liability: The PLD
3.1.1. Analysis of the potentially liable subjects
As a general principle, Article 1 of the PLD sets that the
“producer shall be liable for damage caused by a defect
in his product.”
The “producer” is defined in Article 3(1) of the Directive as:
• The producer stricto sensu: The “manufacturer of a
finished product, the producer of any raw material or
the manufacturer of a component part.”
• The apparent manufacturer:
61
A party who is liable in
the same terms as the producer stricto sensu, who “by
59. The last updated version of the bill can be found at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB3262
[Date of consultation: 6 September 2020].
60. Abdollah, Uranga and Blake (2020).
61. Franklyn (1999), p. 692; and Henderson and Twerski (2011), p. 80. The Restatement Third of Torts: Products Liability devotes § 14 to this
specific doctrine, which can be read as: “One engaged in the business of selling or otherwise distributing products who sells or distributes
as its own a product manufactured by another is subject to the same liability as though the seller or distributor were the product’s
manufacturer”. See comment c of § 14 of the Restatement Third of Torts: Products Liability.
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putting his name, trade mark or other distinguishing
feature on the product
62
presents himself as its pro-
ducer.” This provision is usually applied to chain-store
retailers or mail-order operators who sell products
manufactured by unknown third companies and who do
it following the instructions of the apparent manufac-
turer.
63
In Spain, the latter doctrine has been applied to a few
cases,
64
and scholars have considered that those who
add their name or trademark to show their involvement
in the process of distributing the product, or just for
advertising reasons,
65
but do not identify themselves
as the producer,
66
do not qualify as apparent manufac-
turers.
Other potentially liable parties are the importer within
the European Union of a product manufactured in a third
State (Article 3(2) of the PLD),
67
as well as the supplier
if (i) it fails to inform the injured person of the identity
of the producer – or the importer – within a reasonable
time (Article 3(3) of the PLD) and (ii) if it has supplied the
product “knowing
68
the existence of the defect” (Article
146 of the TRLGDCU).
69
Thus far, one fundamental difference can be drawn bet-
ween the regime in the European Union and the United
States: in the former, the liability is imposed on the
producer, while in the latter, the seller is the subject of
liability.
3.1.2. The application of the apparent manufacturer
doctrine to Amazon
If one browses the Amazon marketplace searching for
rechargeable batteries, one may find several products
listed on AOM by way of example. Some of them are (i)
sold and shipped by third-party sellers, others (ii) sold by
third-party sellers but shipped by Amazon under its FBA
program, and others (iii) sold and shipped by Amazon. We
will use these three scenarios.
70
62. Article 5 of the Spanish Legislative Royal Decree 1/2007, of November 16, approving the consolidated text of the general consumer and user
Protection Act and other complementary laws, hereinafter referred as to the TRLGDCU) clarifies that a party will qualify as an apparent
manufacturer when the identifying elements mentioned in article 3(1) of the Directive appear “on the product, whether on the container,
wrapping or any other protective or presential component”.
63. Fairgrieve et alii (2016), pp. 63-64.
64 . Judgment of the Spanish Supreme Court, Civil Chamber, Plenary, number 448/2020 (ECLI:ES:TS:2020:2492): “Es presupuesto de la
responsabilidad del “productor aparente” no solo que el nombre, la marca o el signo distintivo de la empresa figure en el producto o en su
embalaje, sino que es preciso que lo identifique como productor”. See, also, the judgment of 5th Section of the Provincial Appellate Court
of Murcia, number 220/2017 (ECLI:ES:APMU:2017:2299), where Abbott Laboratories S.A. was found liable because: (i) Abbott’s website
was closed with the expression “Copyright © 2003 Abbott Laboratories S.A.”, and on such website eyecare appeared as one of the areas
of Abbott’s specialization; (ii) Abbott Laboratories and Abbott Medical Optics use the same registered office; and (iii) both companies use
the same trademark. The Court concludes that “Esos datos son suficientes para configurar a la demandada como productora aparente,
con una presentación en Internet que induce a concebirla como la productora, y por tanto para atribuirle legitimación pasiva frente a
la acción ejercitada” (hereinafter referred to as the Abbott case); and judgment of the 4th Section of the Provincial Appellate Court of
Barcelona, number 95/2018 (ECLI:ES:APB:2018:305).
65. Parra Lucán (2009), p. 1682.
66. Seuba Torreblanca et al. (2008), p. 233.
67. This excludes the liability of national importers in case the manufacturer is established in a Member State of the European Union. Also,
according to the case-law that Seuba Torreblanca et al. (2008), p. 235 analyzes, it can be concluded that the liability of the importer is
subsidiary to the liability of the manufacturer if the latter is identifiable as the function of finding importers within the EU liable is the
“protection of consumers that […] would be disincentivized to claim against the producer due to the rules on jurisdiction and enforcement
of the judgment”.
68. According to Seuba Torreblanca et al (2008), p. 245, the knowledge requirement encompasses only gross negligence and recklessness.
69. These two regimes, which are alternative (see Gili Saldaña (2008), p. 86) are not contained in the PLD, but are the result of the Spanish
product liability law tradition: see Sole i Feliu (1997), pp. 313-318.
70. See https://amazonseoconsultant.com/add-product-amazon/: “It’s also necessary that you fill in the brand name and manufacturer tab.
If you have built your own brand separate from the manufacturer, then you can just put the relevant information in this section” [Date
of consultation: 9 September 2020].
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a) Products sold by third-party sellers (scenarios (i) and (ii))
As we can see in Diagram 4 above, the third-party seller is
“Masvoltios Entrega 24-48h”, whose real name is “Equi-
pamiento y Energía Autónoma Arehas SL,” a company
located in Valencia.
Diagram 4 above also shows that the producer is a com-
pany called Yuasa. This company has its website, with
registered offices in Madrid. Therefore, Yuasa will be liable
if the defective product causes personal or property da-
mages, as it is the party who is liable according to the PLD.
In the US, on the other hand, the liable subject would be
the seller: Equipamiento y Energía Autónoma Arehas SL.
Despite the above, which are the consequences if the
product is shipped by Amazon pursuing the FBA program?
The answer is that if the producer is identified and can
be reached without resourcing to complex Private Interna-
tional Law mechanisms on serving court notifications for
non-EU countries (most commonly, China), the mere fact
that the product is shipped through the FBA program does
not change what it has been explained earlier regarding
Amazon’s liability.
If any of the scenarios displayed above takes place, we
need to see if the plaintiff can resort to the apparent ma-
nufacturer doctrine to hold Amazon liable, which, under
the author’s point of view, will be futile, as Amazon will
not, and should not, be liable for offering its FBA service.
Amazon never “sells or distributes as its own a product
manufactured by another”
71
or “presents itself to the
public as the manufacturer […], by affixing his name,
trademark, or other distinguishing mark”.
72
The product
inside the labeled package remains unaltered. Further-
more, Amazon never substitutes the boxing of products
to affix its trademark. Thus, the confusion of producers
that the apparent manufacturer doctrine requires will
not exist when orders are fulfilled under the FBA pro-
gram as, once the package is opened, the display of the
product will clearly show that Amazon is not involved in
its manufacture.
b) Products sold by Amazon (scenario (iii))
Having seen that under the PLD, Amazon will not be liable
for any damages caused by a defective product sold by
third-party sellers on AOM, it is left to ascertain whether
it could still be liable if these damages are caused by a de-
fective product sold by Amazon itself or one of its brands.
In Diagram 5, we can see a rechargeable battery manu-
factured by AmazonBasics. There are no details about the
location of the registered office of AmazonBasics or where
we can sue them.
Under this scenario, the plaintiff could resort to the
apparent manufacturer doctrine to sue Amazon. In the
Abbott case,
73
the Provincial Appellate Court considered
Abbott Laboratories liable under this doctrine by applying
a three-prong test. From the facts we have, it can be con-
cluded that all three requirements concur and, therefore,
Amazon could be held liable:
• If we enter the AmazonBasics website, we can only see
the Amazon brand at the screen’s top-black margin.
71. Henderson and Twerski (2011), p. 80.
72. Solé i Feliu (1997), p. 307 and, in similar terms, Seuba Torreblanca et al (2008), p. 233.
73. See supra fn 64.
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• At the end of the website, we can see the following
trademark: “1996-2020, Amazon.com, Inc. or its
affiliates”.
• If we click on the data to check the location of Ama-
zonBasics’ registered office, we are directly shown the
information about Amazon itself.
To the contrary, and as it has been said in the previous
subsection,
74
if the manufacturer is well-identified on the
website, under the PLD, the consumer would have the
identity of the suable party, and this party can be found
in a Member State, and, if it is not Amazon, this company
should be free from liability as it has not produced the
defective product.
3.2. Second source of liability: The E-Commerce
Directive
3.2.1. The E-Commerce Directive and the liability of
information service providers
a) The concept of internet services provider and its rela-
tion to the concept of online intermediation service
The relevant rule is the E-Commerce Directive, which co-
vers certain legal aspects of information society servi-
ces or internet services providers (hereinafter referred
to as ISPs), in particular electronic commerce, in the
Internal Market (the “E-Commerce Directive”). It intends
to “contribute to the proper functioning of the internal
market by ensuring the free movement of information
society services between the Member States” (article
1(1) of the E-Commerce Directive). Therefore, the liabili-
ty of ISPs will be applicable for the service provided by
Amazon.
The concept of information society services is defined
by the definition of “services” laid down in Article 1(2) of
Directive 98/34/EC, currently repealed by Directive (EU)
2015/1535 of the European Parliament and of the Council,
of September 9, 2015, laying down a procedure for the pro-
vision of information in the field of technical regulations
and rules on Information Society services (the “EU 2015
Directive”).
According to Article 1(1)(b) of the EU 2015 Directive, a
“service” is “any Information Society service, that is to
say, any service normally provided for remuneration, at a
distance, by electronic means and at the individual request
of a recipient of services.”
• “at a distance” means, under Article 1(1)(b)(i), “that the
service is provided without the parties being simulta-
neously present.”
• “by electronic means” means, under Article 1(1)(b)(ii),
“that the service is sent initially and received at its
destination by means of electronic equipment for the
processing (including digital compression) and storage
of data, and entirely transmitted, conveyed and re-
ceived by wire, by radio, by optical means or by other
electromagnetic means.”
• And “at the individual request of a recipient of servi-
ces” means, under Article 1(1)(b)(iii), “that the service is
provided through the transmission of data on individual
request.”
Amazon can be considered a hosting provider,
75
an ISP,
76
since the function of an online marketplace like Amazon
meets the conditions to be legally deemed as a service
under the E-Commerce Directive.
74. See subsection 3.1.2.a).
75. Busch (2021), p. 16.
76. Some scholarly doubts have arisen regarding the situation of the providers of composite services, and even the Advocate General at the
CJEU Campos Sánchez-Bordona questions its qualification as an information service provider. See fn 89.
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As of today, Airbnb-similar services,
77
and not Uber,
78
are considered ISPs under the E-Commerce Directive,
in connection with the EU 2015 Directive. In the case
of Uber France, the Court of Justice of the European
Union considered that when “the intermediation ser-
vice at issue […] had to be regarded as forming an
integral part of an overall service the main compo-
nent of which was a transport service”, the service
provider cannot be classified as an information socie-
ty service.
79
In the L’Oréal case, the Court considered that eBay was an
ISP as “the definition […] encompasses services provided
at a distance by electronic means […]. It is clear that the
operation of an online marketplace can bring all those
elements into play”.
80
b) Service providers and the PLD
Under the current state of the art at the EU level with
the PLD, Amazon would possibly not be liable, as service
providers are not among the potentially liable subjects
according to the PLD.
81
On the contrary, under the TRLGDCU, service providers
might be held liable if the recipient of the service is injured
as a result of not having “complied with the demands and
requirements established in regulations and with all other
care and diligence required by the nature of the service”
(Article 147).
82
Thus, Amazon’s liability under this article
will be related to whether the service provided was accor-
ding to the standard of diligence. However, if Amazon, as a
service provider, a supplier, delivered the product knowing
that it was defective, we shall bear in mind that, according
to Article 146 TRLGDCU, it will be liable, equating its liabili-
ty regime to the one applicable to producers.
c) Exceptions to the liability of information services
providers
The E-Commerce Directive regulates liability exemptions
of ISPs for the “information transmitted” (Article 12),
“for the automatic, intermediate and temporary storage
of [information provided by a recipient of a service]” (Ar-
ticle 13), and “for the information stored at the request
of a recipient of the service” (Article 14), provided that
the function of the ISP, as an intermediary, is “neutral,
in the sense that [it] is merely technical, automatic and
passive.”
83
In all cases, the liability has to do with handling infor-
mation, which, concerning Article 14, includes platform
77. See judgment of the Court of Justice of the European Union (Grand Chamber), of 19 December 2019, case C-390/18 (Airbnb Ireland,
ECLI:EU:C:2019:1112), para 69: “In the light of the foregoing, the answer to the first question is that Article 2(a) of Directive 2000/31,
which refers to Article 1(1)(b) of Directive 2015/1535, must be interpreted as meaning that an intermediation service which, by means of
an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering
short-term accommodation services, while also providing a certain number of services ancillary to that intermediation service, must be
classified as an ‘information society service’ under Directive 2000/31”.
78. See judgment of the Court of Justice of the European Union (Grand Chamber), of 20 December 2017, case C-434/15 (Asociación Profesional
Élite Taxi, ECLI:EU:C:2017:981), para 40: “That intermediation service must thus be regarded as forming an integral part of an overall
service whose main component is a transport service and, accordingly, must be classified not as ‘an information society service’ within
the meaning of Article 1(2) of Directive 98/34, to which Article 2(a) of Directive 2000/31 refers, but as ‘a service in the field of transport’
within the meaning of Article 2(2)(d) of Directive 2006/123”.
79. See judgment of the Court of Justice of the European Union (Grand Chamber), of 10 April 2018, case C-320/16 (Uber France, ECLI:EU:C:2018:221),
para 22.
80. L’Oréal, para 109.
81. Busch (2019), p. 174. Busch proposes Article 3(3) of the PLD to be revised to include service providers, which would include operators of
online marketplaces, among the liable subjects under the PLD.
82. The liability system that the TRLGDCU provides for service providers is not based on strict liability, but rather on fault liability. Santos
Moron (2017), p. 122.
83. See judgment of the Court of Justice of the European Union (Grand Chamber), of 23 March 2010, joined cases C-236/08 to C-238/08
(Google v. Louis Vuitton and others, ECLI:EU:C:2010:159), para 114. In this case, the Court considered that Google’s AdWords fell within
the definition of Article 14 of the E-Commerce Directive and, therefore, was not subject to liability. See also, Arroyo Amayuelas (2020a),
p. 814.
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transactions. If the provider has allowed
84
the storage of
unlawful data
85
(namely, the products uploaded by third-
party sellers on eBay infringing the intellectual property
rights of L’Oréal), then the conditions for holding the ISP
liable are met.
86
The French Cour de Cassation considered eBay to have an
active role in promoting transactions of third-party sellers
with costumers,
87
and, therefore, could not qualify as a
service with a neutral function, since it was required by the
CJEU in L’Oréal for an ISP to be protected by the exemp-
tion of liability pursuant to Article 14 of the E-Commerce
Directive. Therefore, eBay was found liable for the content
of the ads of pirated assets sold through its website.
88
Despite being a composite service,
89
Amazon would not
be exempt of liability under the E-Commerce Directive,
since its role in transactions, similar to that of eBay, is not
neutral, because it relies on diverse systems of optimizing
offers and promoting sales through the platform by using,
among others, the “Amazon’s choice” label.
90
In December 2020, the European Commission published
the proposals for a new set of rules governing digital
84. The operator shall have actual knowledge about the unlawfulness of the content stored (i.e., the person whose intellectual property rights
have been infringed addresses a letter to the operator). But, in some cases, this knowledge might be presumed, as in the judgment of the
Court of Justice of the European Union (Second Chamber), of 8 September 2016, case C-160/15 (GS Media, ECLI:EU:C:2016:644), para 51,
when the operator of the platform provides its service for profit, there is an expectation that it will “carr[y] out the necessary checks to
ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that
said posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the
internet by the copyright holder”. While, on the other hand, the judgment of the Court of Justice of the European Union (Third Chamber), of
15 September 2016, case C-484/14 (Mc Fadden, ECLI:EU:C:2016:689), para 87, considered that “monitoring all of the information transmitted,
such a measure must be excluded from the outset as contrary to Article 15(1) of Directive 2000/31, which excludes the imposition of a general
obligation on, inter alia, communication network access providers to monitor the information that they transmit”. In this regard, Rosati (2017),
p. 13 denounces a lack of clarity in this regard as to whether the operator of a platform who acts for profit is subject to a presumption of
monitoring the content uploaded, or if the confusion created by the duality of potential solutions in GS Media, on the one hand, and eBay
and Mc Fadden should be interpreted “as part of a broader obligation to conform to the behaviour of the ‘diligent economic operator’. In
this sense, operators of platforms with a profit-making intention would have an ex ante reasonable duty of care and be subject to an ex post
notice-and-takedown system, which would also include an obligation to prevent infringements of the same kind”. See, in this sense, Peguera
Poch (2016), pp. 77 y ss.; Leistner (2017), p. 331 and Arroyo Amayuelas (2020b), p. 353.
85. Lodder (2020), p. 33, puts examples of liability under Article 14(1)(a), such as when the “provider knows that the recipient stores child
porn or copyright infringing material […] (information). He is also liable if he knows that in a newsgroup information is exchanged about
where to obtain illegal material (activity)”.
86. In L’Óreal case, the Court considers this determination to be done by national courts under the premise of whether “the provider concerned
becomes aware, in one way or another, of such facts or circumstances” (para 121). And the situations covered by the scope of Article 14
include “that in which the operator of an online marketplace uncovers, as the result of an investigation undertaken on its own initiative,
an illegal activity or illegal information, as well as a situation in which the operator is notified of the existence of such an activity or such
information [… provided that…] the information so transmitted to the operator [allowed the latter to be] aware of facts or circumstances
on the basis of which a diligent economic operator should have identified the illegality” (para 122).
87. See arrêt of the Cour de cassation, civile, Chambre commerciale of 3 May 2012 (11-10.505): “leur rôle [of eBay] ne se limite donc pas à
classer et à faciliter la lisibilité des offres et des demandes mais consiste à les promouvoir activement et à les orienter pour optimizer
les chances qu’elles aboutissent à des transactions effectives sur le montant desquelles elles percevront une commission”.
88. See arrêt of the Cour de cassation, civile, Chambre commerciale of 3 May 2012 (11-10.505): “qu’en l’espèce, la prestation de courtage
fournie par les appelantes supposait qu’elles vérifient que les marchandises dont elles assuraient la promotion de la vente, étaient ou
non hors commerce en raison de leur caractère contrefaisant”.
89. Sousa Ferro (2019), p. 73. In the eBay case before the Cour de cassation of France, the Court considers that the nature of the eBay platform
is mixed, including hosting activities, as well as brokering activities. And this hybrid nature cannot be divided. See, also, Chapuis-Doppler
et al. (2020), p. 417: “although AG Campos Sánchez-Bordona had contended that Amazon did not operate like a neutral e-commerce
platform under its “Fulfillment by Amazon” scheme, given that Amazon takes care of all operations on behalf of retailers, the Court
carefully stuck to the facts presented by the referring court, leaving the question open for future proceedings” [see the judgment of the
Court of Justice of the European Union (Fifth Chamber), of 2 April 2020, case C-567/18 (Coty Germany GmbH v. Amazon Services Europe
Sàrl and others, ECLI:EU:C:2020:267)].
90. See Minero Alejandre (2021), p. 39.
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services within the EU. This Digital Services Act package
includes the Digital Services Act
91
and the Digital Markets
Act.
92
According to the explanatory memorandum, the first
rule mentioned (the Digital Services Act) is based upon
the principles outlined in the E-Commerce Directive,
93
and
it maintains the liability rules and exemptions contained
therein.
94
The future Digital Services Act is not intended to
be applied solely to information society services domiciled
within the Union,
95
as it will be applicable to to all those
who have a “substantial connection with the Union”, mea-
ning that they have a “significant number of users in one
or more Member States” or target “activities towards one
or more Member States.”
96
The Digital Services Act, at least in its current stage, mainta-
ins the authority exception contained in Article 14(2) of the
E-Commerce Directive by stating, in Article 5(3), that the
general exemption of liability of Article 5(1) will not apply
“with respect to the liability under consumer protection
law of online platforms, allowing consumers to conclude
distance contracts with traders, where such an online plat-
form presents the specific item of information […] in a way
that would lead an average and reasonably well-informed
consumer to believe that the information, or the product or
service that it is the object of the transaction, is provided
either by the online platform itself or by a recipient of the
service who is acting under its authority or control”.
3.2.2. The ELI Model Rules for Online Platforms:
from Oberdorf’s “substantial control” to the
“predominant inuence”
The European Law Institute (“ELI”) has been working on
the ELI Model Rules for Online Platforms.
97
In particular,
Article 20 of the project envisages imposing liability upon
platforms that can be considered “Operator[s] with Predo-
minant Influence” if some criteria laid down in the same
article concur.
On the basis of this provision, the author considers that
platform operators with similar characteristics to Amazon
could be considered “Platform Operator[s] with Predomi-
nant Influence” and, therefore, be subject to the specific
remedies contained in the same article. The reason for
this statement is that a business such as Amazon complies
with nearly every criterion laid down in Article 20:
• First, the “supplier [i.e., the third-party seller]-customer
contract is concluded exclusively through facilities pro-
vided on the platform.” The contract is concluded only
when the customer puts all the objects in the basket
and accepts the specific terms.
• Second, the “platform operator withholds the identity
of the supplier or contact details until after the conclu-
91. Proposal for a Regulation by the European Parliament and the Council on a Single Market For Digital Services (Digital Services Act) and
amending Directive 2000/31/EC.
92. Proposal for a Regulation of the European Parliament and the Council on contestable and fair markets in the digital sector (Digital Markets
Act).
93. “Building on the key principles set out in the E-Commerce Directive […] to contribute to online safety and the protection of fundamental
rights” (see p. 2).
94. “The proposal maintains the liability rules for providers of intermediary services set out in the E-Commerce Directive […]. With regard to
the horizontal framework of the liability exemption for providers of intermediary services, this Regulation deletes Articles 12-15 in the
E-Commerce Directive and reproduces them in the Regulation, maintaining the liability exemptions of such providers, as interpreted by
the Court of Justice of the European Union” (see p. 3).
95. See Article 1(3) of the Digital Services Act: “This Regulation shall apply to intermediary services provided to recipients of the service that
have their place of establishment or residence in the Union, irrespective of the place of establishment of the providers of those services”.
96. In determining the existence of a “substantial connection” required by Article 2(d), we should take into consideration the criteria set
forth in the eighth recital of the Digital Services Act: “the use of a language or a currency generally used in that Member State, or the
possibility of ordering products or services, or using a national top level domain. The targeting of activities towards a Member State could
also be derived from the availability of an application in the relevant national application store, from the provision of local advertising
or advertising in the language used in that Member State, or from the handling of customer relations such as by providing customer
service in the language generally used in that Member State. A substantial connection should also be assumed where a service provider
directs its activities to one or more Member States as set out in Article 17(1)(c) of Regulation (EU) 1215/2012 of the European Parliament
and Council. On the other hand, the mere technical accessibility of a website from the Union cannot, on that ground alone, be considered
as establishing a substantial connection to the Union”.
97. European Law Institute (2019).
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sion of the supplier-customer contract.” This require-
ment also applies because usually third-party sellers
conceal their real identity and contacts can only be
made through Amazon’s-enabled forum. Nonetheless,
the real identity of the third-party seller can be disco-
vered once the transaction has been finalized and, for
instance, the consumer wants the bill.
• Third, the “platform operator exclusively uses pay-
ment systems which enable the platform operator
to withhold payments made by the customer to the
supplier.” That is true, as the payment is made through
Amazon, and “Amazon” appears on the credit card
account, not the name of the third-party seller. Addi-
tionally, the payment is directed to Amazon, which
pays the third-party seller periodically once Amazon
deduces its fees.
• Fourth, the “terms of the supplier-customer contract
are essentially determined by the platform operator.”
That is true, provided that the service conditions to
be provided by the third-party seller are governed by
the BSA and the A-to-Z guarantee that Amazon has
published on its website. The third-party seller can only
decide the product’s price and the postage and packing
expenses (except if it is covered by the FBA program,
where Amazon retains control).
• The fifth criterion is that the platform operator setting the
“price to be paid by the customer,” does not apply, since
the price is set by the third-party supplier, not by Amazon.
• The sixth criterion is that “marketing is focused on the
platform operator and not on suppliers,” which is also
true. The suppliers’ identity is concealed, so all marke-
ting strategies (Amazon’s choice, among others) are
focused on Amazon and under Amazon’s conditions,
not the third-party sellers.
• Finally, the “platform operator promises to monitor the
conduct of suppliers and to enforce compliance with its
standards beyond what is required by law.” That is also
true, as Amazon has its A-to-Z guarantee.
In the case of Amazon, if Courts applied these rules as
enacted law, the platform operator (Amazon) would be lia-
ble for “non-performance” (Article 20(1) of the ELI Model
Rules) of the supplier-customer contract if “the customer
can reasonably rely on the platform operator having a
predominant influence over the supplier,” which is similar
wording to the “substantial control” stated by the Ober-
dorf case.
In that regard, the European Parliament resolution of Oc-
tober 20, 2020, with recommendations to the Commission
on the Digital Services Act: “Improving the functioning
of the Single Market”
98
considers that liability should be
imposed upon an online marketplace when it has “predo-
minant influence over the supplier and essential elements
of economic transactions, such as payment means, prices,
default terms conditions, or conduct aimed at facilitating
the sale of goods to a consumer in the Union market,”
provided that “there is no manufacturer, importer, or dis-
tributor established in the Union that can be held liable.”
From the wording of the resolution and the express refe-
rence to the potentially liable subjects contained on the
PLD, it can be inferred that the European Parliament is en-
visaging broadening the product liability regime to online
marketplaces, as an ultima ratio, to ensure that victims of
defective products always have an effective remedy within
the EU.
Conclusions
1. The following conclusions may be drawn from the pre-
sent Article: Amazon is an online intermediary for the
sale of products from third-party sellers and Amazon’s
affiliated brands. Third-party sellers who want to sell
through Amazon must enter into the BSA.
2. The orders placed through Amazon to third-party se-
llers can be fulfilled by the third-party seller or under
the FBA program offered by Amazon.
3. Under the current state of the case law in the US, it
is more probable (80%) that claims against Amazon
98. P9_TA(2020) 0272.
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for the injuries sustained by consumers of products
sold by third-party sellers through Amazon, will be
dismissed by courts: the US courts are more open to
grant Amazon’s motion for summary judgments, as the
latter is not the seller of the product. Only in two cases
(Oberdorf and most recently, Bolger) did the courts find
Amazon liable for having substantial control over the
supplier-customer contract. The Oberdorf case is not
precedential, as the parties settled it. Only Bolger set
a precedent in US law as the California Supreme Court
rejected Amazon’s petition to review the lower court’s
judgment entered in favor of the plaintiff.
4. In the European Union, the liability system for defecti-
ve products is based on whether the sued party is the
producer, or acts as such (apparent manufacturer doc-
trine), or has imported the product within the European
Union from the third country. When all the above are
not available or identified, the supplier is liable if it fails
to identify the manufacturer or the importer of the pro-
duct within the European Union, or when the supplier
knew about the defect and, nonetheless, furnished the
product to the customer. In Amazon,
99
the manufac-
turer of a product always has to be identified when a
third-party seller uploads a product on its marketplace.
For this reason, identification of the manufacturer will
always be possible and, thus, Amazon will not be liable
unless it has manufactured the product itself.
In the case of Amazon-branded products, the producer
is usually one of the affiliate brands that are not regis-
tered companies, and therefore Amazon might be held
liable if the requirements of the apparent manufacturer
doctrine are met.
5. Under the current state of the CJEU’s case law, Amazon
(as happened with eBay) will be considered an ISP. A
question mark still hangs over this statement, because
the CJEU has not yet ruled on whether a company that
provides a composite service, like Amazon through its
FBA program, fits the definition of an ISP, as the Attor-
ney General of the CJEU stated in his conclusions in
Co ty.
100
6. If Amazon meets the requirements of an ISP, it is
considered that it will be liable unless the exemption
from liability in Article 14 of the E-Commerce Directive
applies. The author considers that Amazon’s role in ma-
naging transactions is hardly applicable, since it cannot
be qualified as neutral or passive, like in eBay.
99 See fn. 70.
100 See fn. 89.
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Eloi Puig
IDP Iss. 35 (March, 2022) I ISSN 1699-8154 Journal promoted by the Department of Law and Political Science
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Universitat Oberta de Catalunya
Platform Economy and Product Liability: Old Rules for New Markets
2022, Tomás Gabriel García-Micó
of this edition: 2022, Universitat Oberta de Catalunya
Recommended citation
GARCÍA-MICÓ, Tomás Gabriel (2022). “Platform Economy and Product Liability: Old Rules for New
Markets”. IDP. Journal promoted by the Department of Law and Political Science, No. 35, pp. 1-24. UOC
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About the authors
Tomás Gabriel García-Micó
tomasgabriel.garcia@upf.edu
PhD Researcher (FI-AGAUR). Universitat Pompeu Fabra
ORCID: https://orcid.org/0000-0002-1047-1645
Tomás Gabriel García-Micó is currently a Ph.D. of Law candidate, with a dissertation on the intersections
between law and new surgical technologies (i.e., surgical robots) from a comparative law perspective.
In addition, he teaches several courses on Law, Economics and Labor Relations degrees (both tutorials
and lectures). As of today, he has been visiting researcher at the China-EU School of Law (Beijing,
September 2019) and at the Dickson Poon School of Law at King’s College London (London, January-
April 2020) under the supervision of Prof. Roger Brownsword, member of the TELOS research group.
