TY - JOUR

T1 - Ex-ante and Ex-post Access Restrictions in Marketplaces’ Terms of Service

AU - van der Donk, Berdien B E

PY - 2022

Y1 - 2022

N2 - Online marketplaces can exert great power over their platforms, and consequently, over the users and content on it. The goal of this article is to assess the current state of access restrictions and termination clauses in online marketplaces’ terms of service and to evaluate whether intervention is necessary to safeguard third-party resellers’ access to (essential) platforms to carry out their business.The article is divided into two parts. The first part discusses two types of online marketplaces’ power: ex-ante and ex-post access restrictions. It illustrates how both types of access restrictions form obstacles for third-party resellers to offer goods and services on online marketplaces’ platforms. Following this initial scene-setting, the article continues with an in-depth discussion of the redress mechanisms available for both types of access restrictions, and a case-study to illustrate the application of ex-post access restrictions on online marketplaces. The case study examines the terms of service of the five most frequently visited online marketplaces in the European Union and confirms the existence of a fragmented approach towards ex-post access restrictions. The author concludes that a ‘right to access a platform’ does not exist. An online marketplace cannot be obliged to contract a third-party reseller. Opposingly, the way the terms of service are currently applied on the assessed online marketplaces to handle ex-post access refusals do not to live up to the safeguards in the new Digital Services Act and will need (significant) amendment.

AB - Online marketplaces can exert great power over their platforms, and consequently, over the users and content on it. The goal of this article is to assess the current state of access restrictions and termination clauses in online marketplaces’ terms of service and to evaluate whether intervention is necessary to safeguard third-party resellers’ access to (essential) platforms to carry out their business.The article is divided into two parts. The first part discusses two types of online marketplaces’ power: ex-ante and ex-post access restrictions. It illustrates how both types of access restrictions form obstacles for third-party resellers to offer goods and services on online marketplaces’ platforms. Following this initial scene-setting, the article continues with an in-depth discussion of the redress mechanisms available for both types of access restrictions, and a case-study to illustrate the application of ex-post access restrictions on online marketplaces. The case study examines the terms of service of the five most frequently visited online marketplaces in the European Union and confirms the existence of a fragmented approach towards ex-post access restrictions. The author concludes that a ‘right to access a platform’ does not exist. An online marketplace cannot be obliged to contract a third-party reseller. Opposingly, the way the terms of service are currently applied on the assessed online marketplaces to handle ex-post access refusals do not to live up to the safeguards in the new Digital Services Act and will need (significant) amendment.

KW - Faculty of Law

KW - platform regulation

KW - online marketplaces

KW - freedom of contract

KW - obligation to contract

KW - competition law

KW - essential facilities doctrine

KW - gatekeepers

KW - Digital Markets Act

M3 - Journal article

VL - 30

SP - 909

EP - 280

JO - European Review of Private Law

JF - European Review of Private Law

SN - 0928-9801

IS - 6

ER -