Ilaria Pretelli (Swiss Institute of Comparative Law; University of Urbino) has posted “A Humanist Approach to Private International Law and the Internet a Focus on Platform Users as Weaker Parties” (Yearbook of Private International Law, Volume 22 (2020/2021), pp. 201-243) on SSRN. Here is the abstract:
The apps and platforms that we use on a daily basis have increased the effective enjoyment of many fundamental rights enshrined in our constitutions and universal declarations. These were drafted to guarantee a fairer distribution of the benefits of human progress among the population. The present article argues that a humanist approach to private international law can bring just solutions to disputes arising from digital interactions. It analyses cases where platform users are pitted against a digital platform and cases where platform users are pitted against each other. For the first set of cases, an enhanced protection of digital platform users, as weaker parties, points to an expansion of the principle of favor laesi in tortious liability and to a restriction of the operation of party autonomy by clickwrapping, in consideration that a gross inequality of bargaining power also exists in business to platform contracts. In the second set of cases, reliable guidance is offered by the principles of effectiveness and of protection of vulnerable parties. Exploiting the global reach of the internet to improve the situation of crowdworkers worldwide is also considered as a task for the ILO to seriously commit upon. In line with the most recent achievements in human rights due diligence, protection clauses pointing to destination-based labour standards will be a welcome step forward. The principle of effectiveness justifies the enforcement of court decisions in cyberspace, which has become a political and juridical necessity.
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