De digitale formidlingsplatforme - blot en formidler?

Abstract

The broad adoption of online intermediary platforms has resulted in easy access to act like an entrepreneur, by allowing nonprofessional individuals to share existing assets amongst other individuals through a digital platform. By significantly reducing transaction costs it influences the balance between customers and suppliers. This new digital sharing phenomenon is used by more than 20% of the Danish population and has been predicted to cause large future impacts on society as we know it. In the absence of legal framework regulators, judges and lawyers struggle defining the legal role of online intermediary platforms in a two-sided market.
This thesis aims to analyse the regulatory framework of online capital intermediary platforms with the outset in a case study of the Danish car sharing/car renting platform, GoMore. Furthermore, this dissertation seeks to clarify the parties’ risk profiles and assess on what grounds GoMore holds an advantage to recompense the parties compared to an insurance company.
The legal analysis divides the triangular relationship between the platform, consumer and performance debtor to separately derive applicable law, through case law and existing legislation. The legal obligations between the consumer and the performance debtor are influenced by the Danish intermediary rule, where the private performance debtor is obliged to the consumer protection regulation. The intermediary platforms tend to disclaim all liability in their terms and conditions. However, case-law has shown that there are three conditions which a platform must attain to legally preserve their role as merely an intermediator in the contractual relationship. Lastly, a recent EU Regulation with legal effectuation as of July 2020, entails several legal uncertainties towards the obligations it will impose on online intermediaries.
The economic principal-agent theory is applied to determine each party’s risk profile in the triangular relationship. These conclusions are further applied to determine, that the online intermediary is the suitable party in the relationship to take on risk and liability. This is mainly due to their risk neutrality and ability to collect data. GoMore holds advantages to take on risk and liability compared to an insurance company through already established mechanisms, such as reputational ratings, data collection and sanction systems. Moral hazard and adverse selection are derived due to asymmetric information in their current business model. These obstacles can attempt to be resolved through an alternative business model based on alternative insurance packages, combined with proposed solutions such as GoMore taking on the role as a dispute resolver.
Finally, the economic conclusion that GoMore should obtain extended liability in the triangular relationship, will be further analysed by assessing legal consequences due to the increased involvement. Several propositions will be included, such as GoMore as a private governance system versus public regulation, the possibility of GoMore undertaking solidary liability with performance debtor, and lastly, how loyal obligations that imposes commercial agents can apply to online intermediary platforms.