Civil Liability of Providers in Sharing Economy

The sharing economy is an alternative way of enjoying resources and items within the capitalist logic, but, theoretically, away from large corporations. It is based on the interaction between digital platforms users, enabling exchanges involving money, services, goods and others. The economic value isn’t relevant in some cases, a few platforms don’t accept cash as retribution for services, for example, but encourages users to exchange abilities.

For this economic logic to work, the users need to trust each other. If they are sharing a car, sleeping in each other’s homes or making their items available for unknown people, they must trust the person they are interacting with. This principle of being guided by the ratings given by other users, establishing trust networks, is essential for the economy. In a more chaotic picture, like the one created by TV series Black Mirror, all the personal interactions would be ranked to build a person’s reputation on a five-star rating system.

What does the Brazilian Civil Rights Framework for the Internet and the Code of Consumer Defense and Protection say

Based on the regimentation of the Brazilian Civil Rights Framework for the Internet (Law 12.965/2014), we can frame the sharing economy platforms as application providers¹. We’ll be using cases involving Uber and Airbnb, due to their services notoriety in Brazil, as examples on a quick discussion on provider’s liability. Therefore, it is important to distinguish the reflexes of the liability existent within the relation between service final users and their providers or within the relation between people performing services or lending goods and the platforms.

When we talk about the link between platforms and final users on sharing economy, we consider platforms as service providers and users as consumers, on a business-to-consumer (B2C) model. Thus the Code of Consumer Defense and Protection (CDC) regency is explained, such as the application of the objective responsibility (Article 12)². In other words, the provider’s liability is applicable, regardless of guilt.

On the other hand, within the relation between the intermediaries, a driver or a homeowner, and the platforms, we find sapid debates. From an economic perspective, it is reasonable to categorize the structure as peer-to-peer, with both parts sharing their services: the platform offers its database and connection to bring intermediaries and final users together. On a liberal perspective, it is understood that the hirer’s liability must be comprehended as far as established by the contract and under a subjective perspective. In other words, the guilt should be proven.

Airbnb, with its site, allows communication between tourists and homeowners who want to rent their houses or rooms, proposing an interaction between the tourist and the destination’s everyday life, offering a hosting option apart from hotels. Recently, a Brazilian couple, during their honeymoon in New York City, were surprised negatively by the apartment they rented throw the platform. The specifications described on the site did not match reality. When they came back to Brazil, they filed a lawsuit against Airbnb. The site tried to exempt itself by declaring their head office was in Ireland, which would make it impossible to complain about it in Brazil. The judge’s understanding, however, was favorable to the claimants. The site had to pay for moral and material damages caused to the couple. The understanding is good for consumers, recognizing the liability of sites that don’t want to get involved in the transaction’s legal matters³.

Evasive measures were also taken by Uber when a passenger related the app’s negligence towards its driver when an accident damaged his car in service4. Uber affirmed that they have a policy to require insurance covering drivers and passengers from car owners, but the car insurance isn’t required. The measure is a way to imply detachment between app and intermediaries, denying an employment relationship. It is also required for drivers to testify they exercise a paid activity other than Uber, only complementing their incomes with the app money.

The company was recently regulated in São Paulo, a fact that might shed a new light on the civil liability problem. There is a warrant up to fifty thousand reais (R$50.000,00) to passengers and drivers for expenses relating to car accidents, but that’s the limit of the responsibility imposed by Uber on itself. There isn’t, so far, relevant jurisprudence about Uber on the country concerning this theme. It is possible to apply the consumerist rules to Uber, since it is jointly and severally liable for the acts of its intermediaries, according to the CDC (Article 34)5. It is also plausible to infer that the platform’s responsibility should be enhanced due to the one-fifth fee it charges upon the service’s payment6. Shouldn’t Uber be responsible for car damage during the service provision?

Labor and consumer relations

Another discussion is put on the table: could the relation between Uber and its drivers be considered a labor relationship? The defenders of the extension of the legal subordination concept that exists in the labor relation to characterize alienation and economic dependence think this vision matches the new economic reality. Considering the existence of a disciplinary system that delivers penalties to drivers and concentrates the power of decision on the price of the service, the form to pay, the treatment standards, etc., there’s a clear hierarchy within the Uber platform, possibly enough to characterize a labor relation. On the other side, there are those who deny subordination and alienation, considering the intermediary autonomous, guiding his own journey. The guidelines are seen as community values only. According to this point of view, the vehicles are not made available by the company, but by its drivers7.

The Uber modus operandi is seen as better to final users than conventional taxi services due to its easy tactic to solve conflict: triggering the company. There are truly autonomous taxi drivers who may not entirely satisfy the customer’s indemnification credit, but the Company has a considerable capital and outstanding balances with credit card companies.

Business to business models

Finally, the provider’s liability amplitude within the sharing economy scope when a company makes a contract with another juridical person fits the business-to-business (B2B) model. For example, a deal between Uber and Google Maps. It’s a contract relation that, in Brazil, must be understood outside the scope of consumer relations. Therefore, this contract must follow the Brazilian Civil Rights Framework for the Internet rules and, subsidiarily, the Brazilian Civil Code rules. Assuming there is symmetry between the parties, ignoring the concentration of information in some companies, it seems fair to demand from the company who experienced damages to prove it. We can think of a national startup that uses data from a streaming service or a deal between Cabify and Waze, regarding the exclusivity of Waze’s maps on Cabify’s platform.

[1] The Brazilian Civil Rights Framework for the Internet defines internet application in its Article 5, VII: “Internet applications: the joint of functionalities that can be accessed by a terminal connected to the internet”.

[2] Article 12. The maker, producer, constructor, national or foreign, and the importer reply, regardless of the existence of guilt, for the repair of damages caused to consumers by defects arises from project, fabrication, construction, assemblage, formulas, handling, presentation or packaging of its products, as well as for insufficient or inadequate information about its utilisation and risks.

[3] PEREIRA, André Arnaldo. Ação contra o site Airbnb beneficia reclamante, 2016. Disponível em:  <https://juridicocerto.com/p/andrearnaldopereira/artigos/acao-contra-o-site-airbnb-beneficia-reclamante-> Acesso em: 31 out. 2016.

[4] RAINAN, João. Descaso total após acidente em corrida, 2015. Disponível em: <http://www.reclameaqui.com.br/15944475/uber/descaso-total-apos-acidente-em-corrida/>. Acesso em: 31 out. 2016.

[5] MAGRO, Américo Ribeiro; AGUDO, Hugo Crivilim. O aplicativo “Uber” e a defesa do consumidor, 2015. Disponível em: <http://intertemas.toledoprudente.edu.br/revista/index.php/ETIC/article/view/4931/4748> . Acesso em 31 out. 2016.

[6] Ibidem.

[7] CHAVES JUNIOR, José Eduardo de Resende. Motorista do Uber poderá ser considerado empregado no Brasil, 2016. Disponível em: . Acesso em: 31 out. 2016. 8 LOPES, Felipe dos Santos. É mais fácil exigir reparação de danos do Uber do que de taxistas, 2016. Disponível em: . Acesso em: 31 out. 2016.