Online marketplaces and product liability: Back to where we started?

Online marketplaces have become key actors in the global distribution and sale of goods. However, various incidents and reports around unsafe and dangerous products sold via these digital platforms have raised concerns amongst consumers and regulators. Taking developments in American case law as a starting point, the article analyses the extent to which online marketplaces are liable for harm caused by defective products based on harmonized rules of product liability law in the European Union (EU). The analysis shows that the business models operated by online marketplaces, including its contractual governance over commercial transactions concluded via its services, effectively place these platforms outside the scope of product liability law as regulated by the European Product Liability Directive (PLD). Moreover, these models can make it very difficult for victims to hold other actors in the supply chain liable under the harmonized regime of product liability law. This means that – paradoxically – consumers who rely on the contemporary phenomenon of digital platforms for their day-today purchases of goods must return to the original tools of general contract and tort law to successfully pursue a product liability claim against online marketplaces. In that sense, they are now in the same legal position as victims were vis-à-vis producers and distributors at the advent of modern product liability law in the 1960s.