King’s College London
Dickson Poon School of Law
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Module Title:
Transnational Business Law Instruments
Module Code:
(e.g. 7FFLP001)
7FFLP012
Assignment:
(e.g. 48-hour take-home
exam)
Deadline:
Date Submitted:
Summative Assessment: 2 weeks Essay
Friday, 23rd April 2021 BEFORE 12pm / 12:00 (noon) UK time
Friday 23 April 2021
Word Count:
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Answer the following question (Word limit: max. 3,000 words):
Imagine an online platform, such as Facebook, on which people interact for commercial
and non- commercial matters. Imagine further that 99.9% of the disputes likely to occur on
this online platform cannot be brought to any court because of the costs of litigation. The
owner of the platform asks you what would be needed to create a “fair system of justice”
(their words), specific to their platform, for these 99.9% of disputes, to compensate for
“the lack of access to normal justice” (their words again). What is your response?
1. ONLINE PLATFORM
The term “online platform” has been used to describe a range of services available on the
Internet including marketplaces, search engines, social media, creative content outlets, app
stores, communications services, payment systems, services comprising the so-called
“collaborative” or “gig” economy, and much more. An online platform is defined as a digital
service that facilitates interactions between two or more distinct but interdependent sets of
users (whether firms or individuals) who interact through the service via the Internet. 1
An online marketplace that places one party in touch with another, such as buyers and
sellers. Examples are eBay, Craigslist, Amazon Marketplace, Airbnb and Uber amongst
others.2
In order to consider what fair system of justice would look like on a theoretical platform
similar to that of facebook, it is important to consider the types of disputes that can arise on
such a platform.
2. TYPES OF DISPUTES
Disputes can arise between the users of the platform and the operators of the platform and
disputes between users and other users.
The types of disputes which can arise are as follows:
a) Commercial disputes which arise between buyers and sellers in respect of the wares
that are being sold on the platforms;
b) Damage to reputation caused by content on platforms;
c) Users lack of access to the platform;
d) Restricting/removing content of the platform posted by users;
1
OECD (2019), "What is an “online platform”?", in An Introduction to Online Platforms and Their Role in the
Digital Transformation, OECD Publishing, Paris, https://doi.org/10.1787/19e6a0f0-en accessed 21 April 2021
2
Merton ‘The World’s Top Online Marketplaces 2020 https://www.webretailer.com/b/online-marketplaces/
accessed on 23 April 2021
e) How data is used and sold by the operator of platforms; and
f) Anti-competition practices by operators of platforms (i.e. choosing to display certain
ads and not others).
3. SYSTEM OF JUSTICE
In order to create a system of justice (whether it be fair or not) a set of rules will need to be
applied to create a law of sorts. Law broadly defined is a set of rules if not obeyed will lead
to consequences. These rules or the law if you will, will need to be applied to regulate the
actions of the community of users of the platform and also the platform operators
themselves. The rules will be enforced by rewards or the imposition of penalties not only to
the users of the platform but also to the operators of the platforms themselves.
The rules on these market places will take the form of a ‘User Agreement’3 or ‘Terms of
Service’4 5 or ‘Conditions of Use’6. These are essentially labels for the ‘Terms’ upon which
the platform can be accessed by users and what conditions the platform operators are
offering and what they are also bound by.
In order to create a system of justice, terms would need to be drafted and mechanisms
would need to be created to address the types of disputes referred to above which will arise
on the platform across transnational law regimes.
4. OBJECTIVES OF A FAIR SYSTEM OF JUSTICE
In order to create a fair system of justice it must be affordable, accessible, intelligible,
speedy, consistent, trustworthy, impartial, robust.
In my view the key objectives will to create a fair system of justice which would be:
a) Affordable - for all citizens regardless of means;
b) Intelligible - to the non lawyer so that citizens can feel comfortable in representing
themselves,
c) Consistent - providing some degree of predictability in its decisions and
d) Fair - affording an opportunity for citizens to present their cases to an impartial
expert delivering outcomes that parties feel are just.7
3
https://www.ebay.co.uk/help/policies/member-behaviour-policies/user-agreement?id=4259 accessed 23
April 2021
4
https://www.facebook.com/legal/terms accessed 23 April 2021
5
https://twitter.com/en/tos accessed 23 April 2021
6
https://www.amazon.co.uk/gp/help/customer/display.html?nodeId=GLSBYFE9MGKKQXXM accessed 23 April
2021
7
Civil Justice Council February 2015, Online Dispute Resolution For Low Value Civil Claims
5. A FAIR SYSTEM OF JUSTICE
Online platforms such as ebay, Amazon, Twitter and Facebook have largely created a fair
system of justice. Online platforms resolve disputes through alternative dispute resolution
mechanisms via the Internet is an effective way of resolving disputes. Online reputation
records for the community using the platform to see coupled with dealing with disputes via
ODR services provided internally and also through independent organisations is generally a
fair system of justice and reduce opportunistic behaviour when it comes to sales on the
platforms. They have provided an effective legal system through formulation of the rules,
application of the rules and enforcement of those rules. It effectively creates a legal system
99.9% of those disputes which cannot be bought to court due to costs.
Facebook and other online platforms such as ebay have created a clear, intelligible cost
effective, impartial process to adjudicate on disputes which meets many of the objectives
set out above providing good indications of a fair legal process.
Facebook procedures (similar to that of ebay) as set out on it’s platform regarding disputes
and refunds set out a time frame for when claims can be filed.
Under section 3 of it’s policies it states:
‘3. Disputes & Refunds
Contacting the merchant
When using on-site checkout, you should first contact the seller to resolve your issue with a
purchase. The seller has two working days to respond to you and attempt to resolve your
issue.
When using commerce threads on Messenger (currently only available in Thailand), you can
contact a seller up to seven days after payment has been made. The seller has one day (24
hours) to respond to you and attempt to resolve your issue.
Filing a claim with Facebook or Instagram
When using on-site checkout, if a seller or individual seller has not responded or resolved
your issue after two working days, you can submit a claim for our review on the third
working day.
When using commerce threads on Messenger (currently only available in Thailand), if a seller
has not responded or resolved your issue after one day, you then have two days (48 hours)
to submit a claim for Facebook to review.
When you file a claim, answer the questions presented and include details regarding your
issue within the form. We'll review your claim, including any messages that you and the
seller sent to each other, along with supporting documentation from the buyer and the
seller. We'll typically respond within 48 hours.’8
The Ebay platform also has effective policies in place to address defamation claims in
relation to feedback on transactions. It sets out clearly what is considered defamation in
according to the English Law.
8
https://www.facebook.com/policies/purchase_protection accessed 23 April 2021
‘Check that you are sure the content you have identified is in fact defamatory
According to English law, defamation is broadly defined as a publication communicated to
someone, other than the subject, which tends to "lower him in the estimation of right
thinking members of society generally", or exposes him to public hatred, contempt or ridicule
or which causes him to be shunned or avoided. Defamatory publications will include
aspersions upon an individual's reputation for honour, honesty and integrity, as well as
disparagement of an individual's reputation in trade, business, profession or office. (Thus, for
example, stating that "User X did not deliver my Beanie Babies and he stole my money" is
likely to be defamatory, both as to competence and as to integrity.)
It is true that not all publications which satisfy this definition will be defamatory. For
example, a statement which is true usually will not be defamatory. However, the onus is on
the maker to prove the truth of his/her statements, not on anyone alleging defamation to
disprove them. (So in the above example the maker would have to be able to prove that X
did actually steal, i.e. did more than just be incompetent with the delivery.) There are also
numerous other defences to allegations that a statement is defamatory. Defamation is a
complex area of the law and you should carefully evaluate any claim before you make it as
making false claims could potentially expose you to liability. It may be wise to consult a
lawyer.’9
It sets out procedures to minimise the impact of the defamatory content:
‘Make your Feedback private
If the allegedly defamatory content appears in a comment in your Feedback ratings, you
have the ability to immediately make your Feedback private, meaning the comments portion
will not be publicly displayed. This enables you to minimise any damage that you perceive
may be done to you by the alleged defamatory material. Please be aware that we don't
allow sellers to list items if they have private Feedback.’10
It also provides procedures in which the dispute can be address through ebay’s online
dispute service.
‘Ask eBay to intervene
You can ask us to intervene, in which case we need you to follow our process. You must
submit a form to us detailing the exact material which you consider to be defamatory.
To submit a Notice of False and Defamatory Content to eBay:
1. Download the Notice , print and complete it.
2. Scan the completed form into your computer (.gif, .jpg, .png formats).
3. Upload your document(s)’11
9
https://www.ebay.co.uk/help/policies/member-behaviour-policies/defamation-claims?id=4706 accessed 23
April 2021
10
https://www.ebay.co.uk/help/policies/member-behaviour-policies/defamation-claims?id=4706 accessed 23
April 2021
11
https://www.ebay.co.uk/help/policies/member-behaviour-policies/defamation-claims?id=4706 accessed 23
April 2021
The above creates an effective private legal ordering which can be regarded as a fair system
of justice that deals with commercial disputes on online platforms for those matters which
cannot be bought to court due to costs of litigation.
In relation to non commercial disputes against social media platform operators such as
facebook, a fair system of justice still needs to be created.
The operators of online platforms such as facebook12 and twitter have failed to create a law
or private legal ordering for itself to comply with which if broken by operators of platforms
creates any real consequences which can be regarded as a fair system of justice.
The rules facebook and twitter in particular have created do not really impose penalties
upon themselves if and when they fail to comply with these rules when it comes to disputes
between users and platform operators.13 14
Justice must not only be done but must be seen to be done. It is not clear whether an
oversight board created by facebook which is not independently funded to deal with
freedom of expression online and what to take down and what to leave up creates a truly
fair system of justice to compensate for lack of access to normal justice.
If platform operators impose sanctions upon themselves and allow an independent third
party organisations not funded by those platforms to adjudicate on disputes against
platform operators such as facebook itself this will create a more fair system of justice on
these non commercial disputes.
A legal system paid by the users of the platform who incur points/financial compensation
when a third party advertisement is clicked and the money then goes towards providing
legal services such as independent adjudication (‘facebook tax’) this may meet the
requirement for a truly independent private legal ordering.
12
https://www.middleeasteye.net/news/facebook-palestine-censorship-anti-semitism-guidelines
14
Richardson v Facebook [2015] EWHC 3154