Sixthcontinent case: can e-commerce platforms “satisfy” legitimate expectations of users?

On 18 January 2021, the Italian Competition Authority (AGCM) announced that it imposed a fine of 1 million euros on the digital platform “Sixthcontinent” in so far as – without prior notice and arbitrarily – it prevented consumers from using the products, money and other utilities purchased or obtained on said platform including, to the extent that is of interest here, the credits accumulated by virtue of the purchases they made.

Sixthcontinent is primarily an e-commerce platform: the registered user buys on this platform shopping cards via which he can then make purchases online or directly at physical stores. For each new purchase made with a shopping card, the user receives bonuses that can be used in lieu of money to buy additional shopping cards, which allows for considerable savings. The platform in question also functions as a social network in that it allows users to interact with each other and take advantage of their virtual social relationships. Indeed, users obtain points – which may also be used for purchases – if they introduce the platform to new members, or when people connected to them (on the basis of a mechanism similar to that of “friendships” on Facebook) make purchases on the same platform.

Thus, the idea behind this business is to take advantage of the community (in this case a virtual one) by means of accumulating points and credits and then saving on the purchase of essential goods, such as food and fuel.

In essence, the contract that is signed between the platform and the user at the time of his/her registration provides, on the part of the user, the commitment to introduce the platform to as many people as possible, and on the part of the platform, to offer users a virtual environment in which it is possible to save money on purchases made.

What we should pay attention to in this case is precisely the role that the platform takes on and the relationship that it establishes with each consumer. Indeed, seeing as these platforms are proposed as instruments of savings and advantages in the purchase of goods of daily use and that they find their strength in the large adhesion of users (Sixthcontinent counts several million users worldwide), it may be said that they create trust in the public of users that is worthy of protection.

The greater the use of the platform by the user (think of the need to purchase essential goods during lockdown periods), the greater the expectation that is created within the user.

As already noted above, in just a few days the Sitxhcontinent platform rendered the shopping cards unusable, also requiring users to accept a refund in “points” instead of money. The conduct of the Sixthcontinent platform is similar to that of a bank who out of the blue decides to prevent account holders from withdrawing their money or making payments from their account.

In its decision the AGCM goes to great lengths in condemning the platform in question for having unlawfully imposed a refund on the consumer in the form of “points”, without therefore having left the consumer free to choose how to receive his or her credit.

As is well known, this conduct is not in line with the rules of the Consumer Code (Legislative Decree no. 206/2005) and it is certainly not the first time that the AGCM has sanctioned an e-commerce platform for this type of conduct.

There is, however, a further insight that may be gathered from that decision, which is the intention of the authority to sanction the deceptive conduct pursued by the platform in presenting users with the alleged convenience of joining the community and its various offers, and then proceeding with the unjustified blocking of the platform itself.

In other words, the sanctioning measure of the AGCM seems to highlight the existence of an actual responsibility of the online platform towards registered users, inasmuch as it presents itself as a virtual environment where it is possible, also thanks to the interactions between registered users, to purchase essential goods at a lower price.

The platform that makes such an offer to the public creates in its users a legitimate expectation of being able to use the platform itself safely and continuously, especially for those purchases that are socially more “sensitive” because they are essential to daily life. Consequently, the aforementioned decision intends to affirm that there is an infringement of this expectation when the service offered through the platform is suddenly and arbitrarily interrupted.

What we have said leads us to reflect on two important aspects.

First of all, it is reasonable to say that there is a general contractual public commitment that an e-commerce platform undertakes towards each registered user and which cannot be arbitrarily disregarded without notice, just like any contract stipulated between two parties (in this case stipulated between two parties online).

On the other hand, it is reasonable to state that a continuous provision of services offered online, like any other service, creates a legitimate expectation towards the community/registered users, which as such can be protected and enforced by means of civil and administrative remedies offered by the legal system.