The Duties of Online Marketplaces

Is Amazon a seller for the purpose of product liability law? Is it obligated to stop price gouging by its sellers in the midst of the COVID-19 pandemic? Is Airbnb responsible for discrimination practiced by its users? These legal issues are discussed separately, and courts are typically divided into two camps.

Some courts force platforms into unfitting categories such as a seller, a hotel chain, or an employer in order to establish liability; others exempt platforms from liability altogether. This Article argues we need to think of these legal duties holistically, and suggests a new legal category: the market-constituting platform. Certain online platforms constitute a market: they create the infrastructure for the activity, the mechanism for closing a deal, the code of acceptable behavior, and the rules of participation in this activity. The challenge to legal thought and practice is to properly conceptualize the legal role of market-constituting actors and the duties that this role entails.

This novel legal category has broad implications in different legal areas, including antidiscrimination law, tort law, and consumer protection.