Private Law Theory

ABSTRACT
This paper focuses on one particular form of intermediary which has emerged as a core component of the digital economy: platforms. Platforms are the beating heart of the digital world, bringing together those who provide and those who acquire: on social media, people share their lives with their followers; content creators use photo or video-sharing platforms to distribute their output to viewers; service providers can offer their services as and when they wish to do so; and businesses can offer their goods to trade and consumer customers. This paper focuses on platforms facilitating contracts for the supply of goods, services, and digital products. Such platforms are referred to as online intermediary platforms (‘OIP’). OIPs are commonly described as marketplace platforms, or ‘market makers’, because they create a digital version of a marketplace which brings together suppliers of goods, services and digital products with prospective customers.

There are several aspects about the role of contracts and Contract Law in the context of online platforms which merit exploration. This chapter first considers the fact that online platforms are an instance of ‘governance by contract’, which leads to questions over the suitability of contracts and of English Contract Law for this purpose. Secondly, the OIP operator has a significant role in managing participation of, and in the resolution of disputes between, platform users, but does Contract Law ensure that the OIP operator cannot act in this role in an unfettered manner? Thirdly, the contracts comprising the platform architecture might not only serve to regulate platform users, but themselves become the target of regulation. Finally, with regulation of online platforms a priority for both national and supranational legislators, the contractual architecture of an online platform and the wider regulatory context have to interact. The overarching purpose is to question whether a predominantly contract-focused approach to platforms is sufficient and therefore whether any specific regulatory objectives can be pursued effectively through the regulation of the platform contracts.

Twigg-Flesner, Christian, Online Intermediary Platforms and English Contract Law (September 17, 2021) in Paul S Davies and Tan Cheng-Han, Intermediaries in Commercial Law (Hart, 2022).