Study On The Duty Of Care Of Online Trading Platforms

The Internet economy has developed into an era of digital economy where data is the production factor,and the platform is the main organizational form.As the organizer and manager of online transactions,the platform has gained powerful power by virtue of user general authorization,informational technology advantages and user reliance.It could not only change part of its rights and obligations unilaterally,but also shape the trading habits and lifestyle of consumers.However,it also introduces some risks while facilitating transactions.Under the dual influence of the expansion of platform power and the introduction of risks,infringements in the field of online transactions such as operators’ payment of damage and illegal personal information processing have been increasing,which has increased the probability of consumer rights damage.The tort law balances platform freedom and consumer safety by virtue of the duty of care,thereby delineating the criteria for the mutual treatment of platforms and consumers.In judicial practice,the judges hold a negative judicial position on the determination of the platforms’ duty of care,differ in their understandings of the care of duty of platforms under certain circumstances,and hold different standings in the determination of the standard of platform’s duty of care.The standing of judges leads to the absence of evaluation of some platforms’ behaviors of ignoring risks and abusing power in tort liability determination,resulting in the loss of reasonable restrictions on platform behavior and improper derogation of consumer rights protection.The reason is that the transformation of transaction methods,the development of information technology,the emergence of platform-based organizations,and the rise of newly-emerging rights and interests have brought challenges to the traditional identification of duty of care.This essay reflects on the judicial status of the platform’s duty of care and the cause of the dilemma,justifies the rationality of the platform’s duty of care towards its own behavior and the behavior of others based on the corrective justice theory and the power constraints and risk control theory,and clarifies the content and standard of the platforms’ duty of care through a typology analysis,so as to provide the right choice for the judicial determination of the platform’s duty of care.The above study strives to deepen the understanding of the rationality of the platform’s duty of care,cope with the challenges brought by technological development and platform-based organizations to the traditional way of determining the duty of care,and fulfill the function of the duty of care in balancing freedom and safety,and provide methodological guidance to the transition from judicial negativity to judicial activism in the determination the platform’s duty of care.The essence of the duty of care is the behavior limits set by the law for different types of subjects in social interactions.The duty of care is at the core in the constitution of tort liability.On the one hand,it distinguishes factual causality and normative causality;on the other hand,the breach of care of duty could culvert the behavioral wrongfulness and fault of the platform.The reason why the platform has the duty of care for its own behavior lies in the connection between the duty of care of the platform and the rights of consumers.Although the platform enjoys the ability to unilaterally change part of the legal relationship due to the general authorization of consumers and the advantages of informational technology,thus could disregard the oppositions of consumers to implement part of its own will,the boundary of its power should be not infringed on the inherent rights of consumers.The duty of care could delimit the power boundary of the platform and realize the restriction on power by the rights.When a third party commits a direct infringement,some judges tend to deny that the platform is obliged to take care of the infringement of others based on the moral intuition that the direct infringer should be the one who is responsible.However,within the perspective of corrective justice,the platform uses its positive behaviors to open,maintain,and even increase the risk of consumer rights damage.The third party’s direct infringement on the platform also takes advantage of the organizational and technical risks introduced by the platform.To deny that the platform has a reasonable duty of care to control related risks is to allow the platform to ignore the adverse effects of its actions on consumers.In addition,the utilitarianism theory could also justify the platform’s duty of care towards other’ behavior.The platform is more capable of detecting and preventing third-party infringements due to its information technology advantages and control over user behavior.The configuration of the duty of care could encourage the platform to take more effective measures to prevent third-party infringements.Corrective justice theory adopts a backward-looking perspective which takes tort liability as a corrective method,and pays attention to the correction of the damage caused by misconduct,so as to restore the original state between the infringer and the victim,while utilitarianism theory is a forward-looking theory that pays more attention to the consequences of law enforcement and the good it could brought to the whole society,it could complement the future-oriented observation perspective of the study on platform’s duty of care.After justifying the rationality of the platform’s duty of care towards its own behavior and others’ behavior,the content and standards of the platform’s duty of care should be firstly clarified before realizing the determination of the platform’s infringement liability with the duty of care as the core.In judicial practice,judges’ passive judicial standing on the determination of the platform’s duty of care is mostly due to the impact of traditional tort law rules and the way of determining the duty of care,they have not formed a clear understanding of the content and standards of the platform’s duty of care and mastered the feasible method to determine the care of duty of the platforms.Therefore,considering the diversity and heterogeneity of platform business models,business content,platform behaviors,and types of damaged consumer rights,it is necessary to distinguish between direct infringement and indirect infringement of the platform,and carry out typological analysis on the content of the platform’s duty of care based on distinguishing different platform types,different platform behaviors and different infringing objects.The statutory constituent elements are the facts of life being categorized,and the categorization is the intermediate point between the legal concept and the facts of life.As far as the platform’s duty of care towards its own behavior is concerned,it should prevent the exercise of the platform’s power from damaging the inherent rights and interests of consumers,such as respect the consumers’ personality rights and protect their information security in personal information processing behaviors,and forbid the price discrimination based on personalized pricing behaviors that harms consumer welfare.As far as the platform’duty of towards the behaviors of others is concerned,it is mostly the obligation to investigate and deal with the infringement of third parties under certain conditions and the obligation to ensure the safety of the trading venue.As for the determination of the standard of the platform’s duty of care,some judges determined the fault of the platform by considering the subjective standard based on the moral condemnation of the platform,which actually ignored the consumer rights affected by the platform’s obligation,and to determine the fault of platform based on its actual subjective status or individual ability is equivalent to delimiting the boundary between platform rights and consumer safety according to the unilateral moral status of the platform.In order to protect consumers’ safety and the freedom of platform on an equal footing,and to maintain the consumers’ trust in the platform,the unified external code of conduct of the group to which the platform belongs should still be used as an objective standard of the duty of care for measuring the fault of the platform.At the same time,since the premise of corrective justice is the equality of the subject’s free will,it does not require the actor to provide more protection to others than he could provide for himself.Therefore,the standard of the platform’s duty of care should be subject to the restrictions of foreseeable rules and damage avoidability.In judicial practice,judges could improve their understanding of the technical capabilities of similar platforms through reasonable algorithm disclosure and technical standards disclosure,and adopt a typological analysis methods to determine the content of the platform’s duty of care,and refer to the economic analysis method of cost measurement to determine the predictability and avoidability of certain risk or damage,in order to overcome the professionality of network technology as an additional obstacle for judges to determine the platform’s duty of care.At the same time,since the unified objective standard of duty of care might be too rigid in some cases,the standard of duty of care for specific platform should be dynamically adjusted by means of subdividing the categorization of online trading platforms and considering the neutrality of the platform for direct infringement,the probability of damage,and the severity of the damage caused by the risk.The above methods provide a feasible path for the transformation of judicial negativity to judicial activism in the determination of the platform’s duty of care,which enables to give play to the function of judicature to determine the correction conditions and balance platform freedom and consumer safety between the platform and consumers.The foreseeable innovation of this essay lies in the change of the perspective of study.The existing research on platform’s duty of care mainly focused on normative analysis,while this essay uses empirical research methods to examine the judicial status of platforms’ duty of care,and concludes the existing problems in the determination of the duty of care of platform and the negative judicial position,and makes theoretical reflection on this basis.The other innovation lies in the exploration of the theoretical basis of the platform’s duty of care.In the field of civil law,the study on platform’s duty of care is mostly based on a normative interpretation of the preset position,while the study in the field of jurisprudence on the essence of tort liability is rarely combined with the norms of tort law.This essay tries to connect the basic theory of tort liability with the specific norms of the platform’s duty of care with the theory of corrective justice,so as to provide a unified analysis paradigm for the theoretical study and judicial determination of platform’s duty of care.