Liability as Intermediaries

The liability of intermediaries is another permanent source of conflict. Real estate agents are “obliged to discover and disclose adverse factors reasonably apparent to someone with expertise.” While intermediaries are not liable for the underlying good and services they intermediate, they have an obligation to discover and disclose “adverse factors” that should have been identified by an agent with the expertise expected in such a professional, and they are liable if they do not disclose such “adverse factors” to clients.

Platform liability is one of the most debated issues in platform regulation. Both in the US and in the EU, existing legislation and case-law has granted a somewhat privileged status of liability exemption. In the framework of the definition of liabilities for internet players in the early days of the internet, platforms were exempted from the liability for identifying illegal content and goods that they intermediated. Google and Facebook, but also eBay benefited from such a privilege. They were subject to the same liability regime as internet access providers, providers of internet content hosting services, etc.

Intermediation, particularly the matching of supply and demand, requires the active participation of the intermediary in the evaluation of the characteristics of the intermediated good or service. While automation implies that the platform does not make as a detailed an analysis of the intermediated good as a real estate agent, the platform cannot intermediate without a minimum examination of the intermediated good or service.

Consequently, platforms must be considered liable for some of the “adverse factors” in the goods and services they intermediate. They should at least be liable for the “adverse factors” they identify and they should identify these adverse factors based on their expertise. The online provision of the intermediation service should not exempt platforms from this basic liability.

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