Digital Services Act : The situation of self-employed individuals offering services through online platforms

1. Companies (personal analysis)

Nowadays, companies depend on platforms. Therefore, it allows platforms, outside EU, to impose their contractual conditions upon any EU company (negociation, ranking, etc.). A monopoly exists. They are key figures on the EU market, providing for example visibility online.

The binding character of the EU rules will allow to rebalance these relations. Considering disputes, companies are the weaker party to the contract because platforms are both judge and judged when they have to rule on the compliant’s outcome.

The efficiency of the penalty raises question. Are they really dissuasive ?

2. Lawyers (Paris Bar’s communication)

Platforms are now focusing on the law area as an economic market (contact platforms or process automation).

Regarding the impact on the legal market, the EU Commission needs to take into account how platforms can include lawyers’code of ethics in their workflow.

A market place without lawyers and without respecting ethics cannot be created in the interest of the citizens and of legal services’ consumers. France decided to defend this position (CA Versailles, 12e ch., 14 nov. 2017, n° 16/03656). It was a clear judgment that a commercial company owned by non lawyers is considered as unfair competition when platforms offer legal tools or services.

The CNB and the Paris Bar sued Demanderjustice.com platform both under civil law (by offering legal advices and court representation, private agreement) and under criminal law (by illegally practicing the profession)[1].

Under criminal law, the Court decided to reject CNB’s argument because the website was a legaltech which did not provide intellectual services including major syllogistical aspects of legal reasoning and that they were no legal advices and court representation (Cass. Crim. 21 mars 2017, n° 16-82.437).

Under civil law, the Court (CA Paris, p?le 2, ch. 1, 6 nov. 2018) said that the platform works close to the legal perimeter dedicated to lawyers. But the Court considered that neither the user’s free application nor the documents established by the paralegal were intellectual services specific to lawyers profession. In fact, the user fulfilled the documents online on his own.

The Court ordered under penalty the website to stop using the French flag’s colors which lead the costumer to assimiliate it to a state services and to remove the rate of success on the website.

The Paris’s Tribunal imposed a 500 000 euros fine to the website because they have created a confusion on the people’s mind that is to say that it was an official website and giving them rate of success.

But if lawyers use a platform or are involved into a platform, then the platform has to respect their ethics. In France, each Bar establish specific rules on this matter that the Commission could take into account.

An audit could be made by law firms upon platforms which offer legal advices. But in order to do so and for public transparency, platforms need to contract with lawyers in France[2].

The Commission needs to understand both that lawyers cannot break their ethics if they use platforms and that using platforms is a need nowadays (visibility, indexing, etc.).

The problem is that platforms trade strategy does not include lawyers ethics and the Commission needs to take it in account.

For example, in France, lawyers cannot canvass whereas platforms can. The March 17th, 2014 law also called ? Hamon law ? enables flexibility and lawyers can make targeted sollicitation by writing, online and showing prices[3].

Furthermore, finder’s fees are forbidden for lawyers in France. Therefore platforms cannot ask lawyers to be paid for that matter.

If a platform wants to give lawyers contact, it can only give his/her name, address and phone number, no more.

The contract between platforms and lawyers cannot bar lawyers to negociate freely their prices with their client and it is forbidden to give to the platforms their invoices.

Breaches of professional secrecy is an issue here and data protection also matters because article 29 GDPR limits data collecting including platforms.

Platforms cannot interfere in the management of the lawyers affairs. The lawyer needs to keep the lead and to be able to communicate directly with their client. Lawyers need also to maintain professional secret and avoid conflict of interest while using a platform. In addition, lawyers need to be able to comment and post on the platform without breaking professional secrecy or clients’confidence.

Algorithms can also influence the customer’s choice on his/her lawyer which means that platforms can note lawyers’competence in a way. Moreover platforms can impose their terms of use upon their users including lawyers. If lawyers do not accept it, they will not be able to be referenced.

By the way, the user needs to be the only one able to choose his/her platform and lawyers do not have to influence them specially if they are using that specific platform.

In addition, platform are subjected to article L.121-11 of the French Consumer Code which forbid refusal to sell without due cause. How conciliate refusal to sell with lawyer’s freedom of conscience and the client’s free choice of attorney specially when fees were already paid ?

The EU Commission should give the control of the respect of ethics by platform specialized on legal services or regulated activities to the Bar Councils, but also when these platforms are able to interfere directly or indirectly in this area. Besides it is one the Paris Bar Commission digital plan’s mission.

Thus, the EU Commission could recall to the platforms that :

• Being a lawyer is part of a regulatory environment and that platforms cannot use this title or include this word into their source code ;
• Legal advices and services is a monopoly according to consumer protection. Therefore platforms cannot give legal advices without respecting the same rules than lawyers, that is to say ethics ;
• When platforms introduce a lawyer or when comments are made on lawyers, they need to respect the aforementioned rules ;
• Bar Councils should be able to control and condemn unethical platforms’ activities regarding legal services.

[1] https://www.dalloz-actualite.fr/flash/demanderjusticecom-condamnation-au-paiement-de-500-000-d-astreinte#.XzaBPegzbIU

[2] Guide du CNB : Participation des avocats aux plateformes en ligne détenues par des tiers https://www.cnb.avocat.fr/sites/default/files/cnb_guide_pratique_participation_des_avocats_aux_plateformes_detenues_par_des_tiers.pdf

[3] https://www.village-justice.com/articles/Regard-sur-decret-octobre-2014,18260.html