An experimental model of regulating the sharing economy in China: The case of online car hailing

Online car hailing represents a disruptive innovation model in the sharing economy and requires a new regulatory response. China's attempts to regulate this emerging industry can be considered highly experimental model. To relieve the pressure from offline competitors and to clarify the ambiguous legal status of online car hailing, China currently enforces a strict regulatory scheme through what can be described as a central-local dual system. Questions, however, have arisen regarding the legality, proportionality and effectiveness of this approach. Moreover, the current system's choice for a segmented market strategy heavily impairs the sustainable development of the sharing economy. Therefore, the adoption of Internet-based regulations for online car hailing might create better prospects to establish a fairly competitive market as well as to further boost the ever dynamic Internet sharing economy in China.     

Smartphone platforms as privacy regulators

A series of recent developments highlight the increasingly important role of online platforms in impacting data privacy in today's digital economy. Revelations and parliamentary hearings about privacy violations in Facebook's app and service partner ecosystem, EU Court of Justice judgments on joint responsibility of platforms and platform users, and the rise of smartphone app ecosystems where app behaviour is governed by app distribution platforms and operating systems, all show that platform policies can make or break the enjoyment of privacy by users. In this article, we examine these developments and explore the question of what can and should be the role of platforms in protecting data privacy of their users.The article first distinguishes the different roles that platforms can have in ensuring respect for data privacy in relevant ecosystems. These roles include governing access to data, design of relevant interfaces and privacy mechanisms, setting of legal and technical standards, policing behaviour of the platform's (business) users, coordinating responsibility for privacy issues between platform users and the platform, and direct and indirect enforcement of a platform's data privacy standards on relevant players. At a higher level, platforms can also perform a role by translating different international regulatory requirements into platform policies, thereby facilitating compliance of apps in different regulatory environments. And in all of this, platforms are striking a balance between ensuring the respect for data privacy in data-driven environments on the one hand and optimization of the value and business opportunities connected to the platform and underlying data for users of the platform on the other hand.After this analysis of platforms’ roles in protecting privacy, the article turns to the question of what should this role be and how to better integrate platforms in the current legal frameworks for data privacy in Europe and the US. The article will argue for a compromise between direct regulation of platforms and mere self-regulation, in arguing that platforms should be required to make official disclosures about their privacy-related policies and practices for their respective ecosystems. These disclosures should include statements about relevant conditions for access to data and the platform, the platform's standards with respect to privacy and the way in which these standards ensure or facilitate compliance with existing legal frameworks by platform users, and statements with respect to the risks of abuse of different data sources and platform tools and actions taken to prevent or police such abuses. We argue that such integration of platforms in current regulatory frameworks is both feasible and desirable. It would make the role that platforms already have in practice more explicit. This would help to highlight best practices, create more accountability and could save significant regulatory and compliance resources in bringing relevant information together in one place. In addition, it could provide clarity for business users of platforms, who are now sometimes confronted with restrictive decisions by platforms in ways that lack transparency and oversight.     

The New City Regulators: Platform and Public Values in Smart and Sharing Cities

Cities are increasingly influenced by novel and cosmopolitan values advanced by transnational technology providers and digital platforms. These values which are often visible in the advancement of the sharing economy and smart cities, may differ from the traditional public values protected by national and local laws and policies. This article contrasts the public values created by digital platforms in cities with the democratic and social national values that the platform society is leaving behind. It innovates by showing how co-regulation can balance public values with platform values. In this article, we argue that despite the value-creation benefits produced by the digital platforms under analysis, public authorities should be aware of the risks of technocratic discourses and potential conflicts between platform and local values. In this context, we suggest a normative framework which enhances the need for a new kind of knowledge-service creation in the form of local public-interest technology. Moreover, our framework proposes a negotiated contractual system that seeks to balance platform values with public values in an attempt to address the digital enforcement problem driven by the functional sovereignty role of platforms.     

Funds sharing regulation in the context of the sharing economy: Understanding the logic of China's P2P lending regulation

“Sharing economy” is an umbrella term that encompasses a wide range of digital platform-based activities that includes P2P lending and other forms of internet-based lending. The core aim of the sharing economy is to leverage the utilization of idle capacity. P2P lending can not only be used to leverage small amounts of money on the lender's side, but also be used to promote financial democracy and inclusion both on the lender and borrower's sides. P2P lending regulation, therefore, should place an emphasis on the utilization of dead money and promotion of financial democracy. This article scrutinizes the regulation of P2P lending in China. The existing regulatory system for P2P lending in China is built upon rules and regulations that have been designed solely with traditional brokers in mind. The article contends that the rigid rules placed on lending platforms limited their ability to maintain their roles as brokers and, in turn, heavily endangered the commercial sustainability of P2P platforms, thereby harming the sharing economy's openness and inclusivity. Additionally, the article argues that the fact that there is no limit on the amount a lender can invest poses a threat to the notions of leveraging idle money and financial inclusivity. The closed-ended P2P lending regime in China would cause some chilling effects to financial innovation in the P2P lending industry, and in a wider sense, the rising FinTech sector. Regulators in China need to cope with these challenges in a flexible but pragmatic manner, and particularly make use of the benefits the sharing economy may bring to the Chinese economy more broadly.     

Tripartite perspective on the copyright-sharing economy in China

Internet and digital technologies have facilitated copyright sharing in an unprecedented way, creating significant tensions between the free flow of information and the exclusive nature of intellectual property. Copyright owners, users, and online platforms are the three major players in the copyright system. These stakeholders and their relations form the main structure of the copyright-sharing economy. Using China as an example, this paper provides a tripartite perspective on the copyright ecology based on three categories of sharing, namely unauthorized sharing, altruistic sharing, and freemium sharing. The line between copyright owners, users, and platforms has been blurred by rapidly changing technologies and market forces. By examining the strategies and practices of these parties, this paper illustrates the opportunities and challenges for China's copyright industry and digital economy. The paper concludes that under the shadow of the law, a sustainable copyright-sharing model must carefully align the interests of businesses and individual users.     

A legal approach to real estate crowdfunding platforms

In the context of a financial and housing crisis, accompanied by credit constraints, a new alternative has recently emerged for those wanting to invest in real estate markets: real estate crowdfunding. Crowdfunding, which was originally intended to fund social projects through donations or loans from a large pool of individuals via Internet platforms, has developed into a more sophisticated method of financing. This is the case of real estate crowdfunding, a type of equity crowdfunding that aims to make housing investment available to retail investors, although several hazards have been detected that make these investments less secure. This paper addresses these hazards, analyses the information provided by five Spanish crowdfunding platforms to retail investors and determines whether or not real estate crowdfunding platforms in Spain, as a sharing economy mechanism, are making a contribution to the development of the housing market.     

First amendment protection for online platforms

The United States is home to some of the largest online platforms in the world, in part due to Section 230 of the Communications Decency Act of 1996. Section 230 provides platforms with extraordinarily broad immunity from lawsuits arising from user content. The statute is under unprecedented scrutiny, and Congress already has amended the statute to weaken its protections. This Article examines the First Amendment protections that would remain for online platforms if Congress were to entirely eliminate Section 230. After reviewing pre-Internet cases involving offline distributors such as bookstores and newsstands, this Article concludes that although the First Amendment would offer some protections to platforms, these protections would be limited and likely would require platforms to significantly alter their operations and business models.     

平台扼杀式并购的反垄断法规制

全球大型数字平台通过"复制、收购与扼杀"的策略扼杀并购了大量初创企业,引发了创新赛道垄断的顾虑。初创企业并购通常不会引起显著的市场结构变化,但随着时间推移,平台"切香肠式"的扼杀式并购,在扼杀潜在竞争对手、强化自身市场支配地位的同时,更会扭曲长期创新供给,致使未来市场可竞争性丧失。而并购效率改进收益的消亡、创业者奖励作用的证伪与动态竞争约束工具的全面失灵,进一步要求反垄断执法机构应摒弃目前普遍不作为的监管做法,及时识别与规制平台扼杀式并购。对此,有必要引入内部文档调查、并购价格组成分析等并购动机过滤机制,识别出那些出于消除未来竞争威胁或扼杀潜在迭代式创新目的的初创企业并购;同时,通过引入补充性的申报门槛、设定更具针对性的审查补救措施与授权必要的事后调查,将能有效地遏制平台资本的无序扩张,为初创企业创造一个不受主导平台扼杀式并购威胁的现代化营商环境。     

The Chinese Social Credit System: A Model for Other Countries?

Many countries know financial consumer credit ratings, and recent years have also seen a proliferation of rating systems in relation to online platforms and in the ‘sharing economy’, such as eBay, Uber and Airbnb. In the view of many Western observers, however, the emerging Chinese Social Credit System indicates a paradigm shift compared to these former rating systems as it aims for a comprehensive and uniform social rating based on penalty and award mechanisms. By contrast, this article suggests that the evolving forms of the Chinese system should be seen as a specific instance of a wider phenomenon. Thus, it develops a framework that compares different rating systems by reference to their drafters, users, aims, scoring systems, application, use of algorithms, enforcement and accountability; it identifies shortcomings of both low and high interventionist rating systems; and it discusses a range of regulatory approaches and emerging issues that law makers should consider.     

First Amendment Protection for Online Platforms

The United States is home to some of the largest online platforms in the world, in part due to Section 230 of the Communications Decency Act of 1996. Section 230 provides platforms with extraordinarily broad immunity from lawsuits arising from user content. The statute is under unprecedented scrutiny, and Congress already has amended the statute to weaken its protections. This Article examines the First Amendment protections that would remain for online platforms if Congress were to entirely eliminate Section 230. After reviewing pre-Internet cases involving offline distributors such as bookstores and newsstands, this Article concludes that although the First Amendment would offer some protections to platforms, these protections would be limited and likely would require platforms to significantly alter their operations and business models.     

China's new regulatory regime tailored for the sharing economy: The case of Uber under Chinese local government regulation in comparison to the EU,US, and the UK

Although Uber's arrival in China has resulted in disruptive competition for incumbent taxi companies, it offers an attractive alternative in China's supply-demand-imbalanced urban passenger transport system. China's regulatory regime for Uber has evolved in three stages: from the regulatory vacuum prior to 2015 to its official legalization in 2015–2016, and the enactment of numerous local regulations in 2016, with specific and more demanding requirements for Uber. This policy is a part of the Chinese approach to the gradual liberalization of the urban passenger transport market. Policymakers should consider ‘fair competition’ as the guiding principle to balance the interests of sharing firms and incumbent service providers, as well as between different sharing firms. The core value of this principle lies in the benefits it provides for consumers and the way it engenders a pro-competitive market environment. The labor protection arrangements for sharing firms’ laborers should be more flexible and diversified. In order to recognize whether an Uber-Driver is an employee or independent contractor, a new standard taking into account a range of factors should be established through collective negotiations between the participants of the sharing economy, and dialogues between members of the judiciary, academics, and the policymakers. Further, consumer protection law and personal data protection provisions should apply when sharing firms misuse their distinctive algorithmic management model to compete unfairly to the detriment of consumers and other users. Ex ante regulatory measures designed to protect the personal data of users should be introduced for deployment in the context of the sharing economy. When enforcing these rules, a balance should be struck ensuring free data flow that is essential to sharing firms’ innovation and competition, and the need to ensure the level of data security required to underpin a well-functioning sharing society.     

Taking fundamental rights seriously in the Digital Services Act's platform liability regime

This article highlights how the EU fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the reform of the E-commerce directive by the Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute to a well-balanced and proportionate European legal instrument, this article addresses these potential conflicts from the standpoint of users (those who share content and those who access it), platforms, regulators and other stakeholders involved. Section 2 delves into the intricate landscape of online intermediary liability, interrogating how the E-Commerce Directive and the emerging Digital Services Act grapple with the delicate equilibrium between shielding intermediaries and upholding the competing rights of other stakeholders. The article then navigates in Section 3 the fraught terrain of fundamental rights as articulated by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) under the aegis of the European Convention on Human Rights and the EU Charter. This section poses an urgent inquiry: can the DSA's foundational principles reconcile these legal frameworks in a manner that fuels democracy rather than stifles it through inadvertent censorship? Section 4 then delves into the intricate relationship between fundamental rights and the DSA reform. This section conducts a comprehensive analysis of the key provisions of the DSA, emphasising how they underscore the importance of fundamental rights. In addition to mapping out the strengths of the framework the section also identifies existing limitations within the DSA and suggests potential pathways for further refinement and improvement. This article concludes by outlining key avenues for achieving a balanced and fundamental rights-compliant regulatory framework for platform liability within the EU.     

Justification of the behavior regulatory pattern on data scraping

While the increasing importance of public data calls for urgent attention and effective protection, legislatures and courts are currently divided on the regulatory patterns between entitlement regulatory pattern and behavior regulatory pattern, leaving a dim boundary for data scraping. Data regulation is contextual and multi-dimensional. The business investment of platforms should be respected in an appropriate way. However, the benefit of granting an exclusive right to data is not appropriate to the cost of inhibiting access. Based on the dynamic nature of data competition and contextual nature of data regulation, this article argues that the behavior regulatory pattern adopting a multifactor approach is the best solution for defining the boundary of data scraping, provided the factors can be carefully tailored.     

Corporate Social Responsibility European Style

Abstract: The concept of corporate social responsibility (CSR) emerged in the official discourse of the EU in 2000. This article explains how, while CSR may have been initially an idea about the scope of the responsibility of companies towards their environment, it has now become a process in which the representatives of the business community have come to occupy the main role, and whose purpose is to promote learning among business organisations, rather than to identify the components of a regulatory framework for CSR. The central question now, therefore, is whether the so‐called ‘business case’ for CSR is strong enough, so that we may hope that the forces of market will suffice to encourage companies to behave responsibly, over and above their obligation to comply with their legal obligations. The article shows, however, that this case rests on certain presuppositions about markets and the business environment, which cannot be simply assumed, but should be affirmatively created by a regulatory framework for CSR. Following the introduction, it proceeds in four stages. First, it examines the development of CSR in the EU. Second, it offers a critical examination of the so‐called ‘business case’ for CSR, taking into account the growing diversity within the enlarged EU. It then discusses, as an alternative, what a regulatory framework for CSR could resemble, highlighting a number of initiatives which have been taken in this regard by the EU. The article finally concludes that, since the failure of the European Multi‐Stakeholder Forum on CSR in 2004, the debate has made a turn in the wrong direction, both because of the mistaken view that the establishment of a regulatory framework for CSR would threaten the competitiveness of European companies, and because of the naive (and contradictory) view that reliance on market mechanisms will suffice to ensure that corporations will seek to minimise the negative social and environmental impacts of their activities, even in circumstances where they are not legally obliged to do so.     

Socio-ethical values and legal rules on automated platforms: The quest for a symbiotic relationship

The deployment of artificial intelligence on automated platforms needs to go hand in hand with the development of a legal framework safeguarding socio-ethical values as well as fundamental rights, particularly the self-determination and the non-discrimination principle. A trust-based approach focused on human values can mitigate a potential clash between a solely market- and technology-oriented use of artificial intelligence and a more inclusive multistakeholder approach. The regulatory tools are to be designed in a manner that leads to a symbiotic relationship between ethics and law.     

The challenges of applying turnover threshold to the sharing economy for control of concentrations between undertakings in China

The existing notification threshold for Chinese control of concentrations between undertakings is a turnover threshold, complemented by a market share threshold. The business model adopted by platform enterprises in the sharing economy, where services are provided free and subsidies are given to the platform's basic users, make it very hard for platform enterprises to produce notable turnover for a long period of time; therefore, the turnover threshold is unlikely to be satisfied in the context of concentrations. On the other hand, it is also not appropriate to apply the traditional methodology of constitutionality analysis and the SSNIP (Small but Significant and Non-Transitory Increase in Price) test to define the relevant market for the sharing economy, which is characterized by a two-sided market and cross-group network externalities. The size-of-transaction threshold reflects the importance of the number of basic users to the market power possessed by platform enterprise and has the same advantages of transparency and certainty. Therefore, legislation can be used to introduce the size-of-transaction threshold to Chinese control of concentrations between undertakings in addition to the traditional turnover threshold.     

垄断法下的相关数据市场研究

数据是互联网平台经济的利润中心与关键驱动力.在对平台经济的反垄断审查中,相关机构很少将数据要素纳入审查分析范围.平台经济的反垄断审查分析中需重新审视数据要素的价值.互联网平台是在线经济结构的最有影响力的参与者.与传统的管道业务模型不同,平台市场是多方且相互依存的市场.追求规模化意味着平台须尽一切努力获取数据资源.数据不...     

平台经济领域的反垄断法实施 以经济效率目标为出发点

在平台经济领域,欧盟和美国反垄断法实施力度有很大差异,中国也明显呈现出两个阶段。这种差异需要解释,而经济效率目标构成了理解的出发点。通过福利标准,经济效率目标建立了统一、确定的分析框架。但这一分析框架也受到诸多因素的约束,并面临平台经济的挑战。《反垄断法》虽然明确了经济效率目标,但没有清晰的福利标准。当前对平台企业的高强度执法,更多是追求非经济效率目标的结果。作为多目标法律,非经济效率目标使得《反垄断法》更具现实回应性。不过,要实现更好的实施效果,仍需要完善的反垄断法制度,并在个案中进行更充分地说理。     

'New Governance' in European Corporate Law Regulation as Transnational Legal Pluralism

The present transformation of European corporate governance regulation mirrors the challenges that have been facing the EU's continuously evolving polity, marked by tensions between centralised integration programmes, on the one hand, and Member State's embedded capitalisms, path-dependencies and rent-seeking, on the other. As longstanding concerns with remaining obstacles to more mobility for workers, services, business entities and capital in recent years are aligned with post-Lisbon commitments to creating the world's leading competitive market, European corporate governance regulation (ECGR) has become exposed to and implicated in a set of highly dynamic regulatory experiments. In this context, 'New Governance' offers itself as both a tentative label and immodest proposal for a more responsive and innovative approach to European law making. The following article assesses the recently emerging regulatory forms in ECGR as illustrations of far-reaching transformations in market governance. The arguable parallels between the EU's regulatory transformation in response to growing legitimacy concerns and the recurring question about whose interests a business corporation is intended to serve, provide the framework for an exploration of current regulatory trajectories in European corporate law that can most adequately be understood as a telling example of transnational legal pluralism.     

OTT regulation framework in the context of CJEU Skype case and European Electronic Communications Code

The telecommunications services sector is one of the most dynamically developing segments of the contemporary economy. At the same time, it is undergoing constant change, the result of its adaptation to the needs of modern digital services and the expectations of users. In practice, traditional telecommunications services are being increasingly replaced by those that offer equivalent functionality but are provided via the Internet. Examples of this type of service are VoIP telephony, instant messengers and online chat. This group of services is collectively referred to as OTT.The growing popularity of OTT services not only affects the shape of the telecommunications market, but, from the point of view of legislatures and market regulators, has also led to a number of practical problems. One of them is how to apply a EU regulatory framework established for the electronic communications sector to modern OTT services. Recently, this problem has become an object of interest to both the CJEU and the EU legislature.The purpose of this article is to discuss the effects of the recent Skype adjudication on the regulation of the OTT sector, including the pending entry into force of the European Electronic Communications Code. The analysis considers the technical and regulatory background of issues relating to the judgment, the ongoing legislative work and the importance of the judgment in practice. Ambiguities in interpretation are also identified and discussed, in particular those relating to the attempt to apply the Skype judgment and the entire regulatory framework to OTT services.These aspects will be discussed from the perspective of the protection of users' privacy, an important part of the provision of electronic communications services. The choice of this aspect of OTT services regulation would seem to be particularly apt in light of the ongoing reform of the EU data protection model, which will include the new e-privacy regulation currently being drafted.