Le piattaforme digitali e la sharing economy: profili di disciplina e responsabilità

Collaborative economy is a social and economic phenomenon developed in the past years which has had a great impact on the global economic growth. On the web, we can see a variety of platforms, distinguishing the ones that offer goods and/or services (such as Amazon, Uber, Airbnb, Bla bla car, Ebay, Delivery zero, Gnammo, Spotify) from other kind of platforms, such as social platform (i.e. Facebook, or dating platforms, such as Match.com) and search engines (i.e. Google, Ask). Digital platforms raise many juridical issues related to privacy and big data, cookies invasiveness, cloud computing, content and validity of standard terms and conditions clauses set by the platform operator unilaterally, conclusion of the online contract, liability of the platform, impact of rating and feedback systems, tax avoidance, violation of fundamental rights of workers. In particular, our research focuses on online intermediary transaction platforms (hereinafter, “online intermediary platforms”), which offer good, services or digital content to users, receiving in turn a remuneration. These platforms differ from search engines and rating platforms because the first under certain conditions are responsible for the main service plus the other ancillary services offered (as in Uber case). Online intermediary transaction platforms involve three different subjects: the platform operator, a supplier and a customer, being a consumer or not, who orders goods, services or digital content in exchange for a payment obligation, where the payment could be direct (such as for economic transactions) or not (in such cases, the personal data of the platform users are the consideration for the services/goods/digital content offered by/via the platform). In online intermediary platforms, we find three different relationships all connected together: (i) the first between the customer and the platform operator, (ii) the second between the supplier and the platform operator, (iii) the third between the customer and the supplier of services/goods/digital content via the platform. The focus of our study is on the following topics: what is the collaborative economy; which is the role of the platform operator; which are the duties, obligations and rights of the parties involved in the collaborative economy’s transactions (specifically: the platform operator, the supplier and the customer); which liability has the platform operator towards the platform users in relation to the underlying services offered by the supplier through the platform and/or in relation to the ancillary activities/services offered by the platform operator (such as reputational feedback systems). De iure condendo, if some authors assume the necessity of a new regulation (national or European) for collaborative platforms, in order to establish their role and liability towards the users of the platform; de iure condito, other authors assume the applicability and adequacy of the current European consumer law to online intermediary platforms. Our analysis takes into consideration Italian draft law about collaborative economy, Eli Model rules about a Discussion draft of a Directive on online intermediary platforms and European Commission communications about a digital single market. In our opinion, there is a need for a legislation of some specific aspects of the digital platforms (such as reputational systems and the liability of the platform operator towards users), which should be at a European level in order to ensure a safe development of the digital economy and to protect users against the platform operator.