Online platforms – lawyers act now!

The EU has three gigantic, existential crises on its hands: Ukraine, the euro and immigration. But it is also dealing with a challenge of a lesser order, which could have an existential impact on us lawyers. That is the arrival of online platforms, which are disrupting traditional providers everywhere.

I have explained before that the European Commission is being forced - mainly by responses at member state level to Uber, the online-based transportation service - to decide the nature of online platforms. It is interesting that Uber has grabbed all the headlines on a topic which affects many other services as well.

For instance, just last week, Uber lost court cases in Belgium and France, when the UberPop service was banned in each country. A judge from the Barcelona Commercial Court has asked the Court of Justice (Case C-434/15, Asociación Profesional Élite Taxi) to rule on whether Uber, which claims it is an online intermediary linking willing drivers to passengers, is a ‘mere transport activity’ or ‘an electronic intermediation or information society service’.

The difference between the two is huge, since if it is the latter, national regulators lose control.

Meanwhile, in the US, Uber drivers are claiming that they are employees and not independent contractors. One has won, and others are now bringing a class action. Our very own GMB trade union is bringing a court case on the same subject in the UK, claiming that Uber has breached its legal duty by failing to provide UK drivers with the minimum wage along with rights such as holiday pay and occupational health and safety provisions.

Why does Uber dominate the headlines? Because taxi drivers are fighting hard. In Brussels, just a few days ago, taxi drivers brought the streets to a standstill by blocking roads in protest. Some passengers had to wheel their suitcases for the last stretch to the airport, and missed their flights.

The hotels don’t take to the streets to complain about Airbnb, although they have an almost identical case. And lawyers are certainly not demonstrating about the great variety of online platforms - automated document assembly, online dispute resolution, legal advice - which are providing legal services without regulation.

This week the first important step was taken by the commission to gather views from all affected parties. It launched a questionnaire with the cumbersome title of ‘Public Consultation on platforms, online intermediaries, data, cloud computing and the collaborative economy’. The deadline is 18 December 2015. Don’t be put off by the title – the eventual decision will be vital for our sector.

And in case you don’t think it will affect us, among the only four categories which the commission has specifically identified as being affected, we appear under ‘professional services’, the other three being transport, tourism and accommodation.

The term ‘online platform’ is very broadly defined by the consultation, covering every online service we know (and many I had never heard of) – Google, TripAdvisor, Amazon, eBay, Spotify, Netflix, Facebook, LinkedIn, Twitter, PayPal, plus the ones already mentioned. There are pertinent questions specifically on the regulatory environment, and whether more needs to be done.

But don’t think that the commission has a slant in favour of more regulation. The attractions of what are called the collaborative or sharing economy - using existing assets, such as is done by BlaBlaCar, the car-sharing service, or Uber and Airbnb - are strong, and being heavily promoted by the platforms. It is the new industrial revolution, we are told.

And Uber - the devil again - has a very sophisticated PR operation, headed by president Obama’s former campaign strategist.

We can’t say we weren’t warned. The threat from unregulated legal services provided by online platforms has the potential to dwarf all our other problems, even cuts to legal aid. Indeed, cuts to legal aid actually play into the platforms’ hands, since the pool of unmet need grows, which they can cater for cheaply through economies of scale – without any lawyers’ guarantees, such as membership of a regulatory body or professional indemnity insurance.

Some law firms are trying to harness the technology for themselves. But the size of the investment and complexity of the IT know-how is likely to make that possible for only a handful.

It is in all our interests that legal services, however provided, are regulated in the same manner, given that they are an intrinsic part of the administration of justice and the rule of law.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs