This study analyses the contractual terms and conditions (T&Cs) governing the relationship between online platforms and their professional users, reviews the legal framework regarding such T&Cs in 33 countries and suggests fairness benchmarks for this contractual relationship. Finally, the study reviews the economic relevance of the reviewed practices, as well as the business impact that the application of the suggested benchmarks would have.
More specifically, the first part of the study attempts to gain an understanding of the extent of the use of potentially unfair clauses in the platform operators’ terms and conditions. The second part provides a comprehensive mapping of the legal framework in the 28 Member States as well as in Australia, China, Mexico, Switzerland and the USA with regards to their approach in regulating fairness in the contractual and pre-contractual sphere. In the third part the study develops an evidence-based and objective notion of what constitutes 'fairness' or 'good commercial practice' in relation to online platforms' T&Cs. On that basis it suggest benchmarks for various contractual practices taking into consideration the frequency of the respective practice, i.e. how common it is, its impact on the business user, the interests of the platform operator, and practical aspects of the implementation of the benchmark. The fourth part then provides an economic analysis of the influence of the potentially unfair practices on the parties and the business impact the implementation of the suggested benchmarks would have.
The study results have helped inform the preparatory work on the proposed regulation on promoting fairness and transparency for business users of online intermediation services.