By: Diane Ring
Sometimes we do get what we are seeking. In some of my recent work on the sharing economy I have advocated for more discussion and analysis across legal boundaries, so that the rules we develop have outcomes that more closely match our goals and don’t bring unexpected—and undesired—surprises. The two-day conference on “Sharing Economy: Markets & Human Rights” that I have been attending at the College of Law and Business in Ramat Gan, Israel has provided just such an opportunity. The papers presented cover a wide range of legal fields and issues from taxation to discrimination, and will ultimately be published together in the Law & Ethics of Human Rights Journal. Although we are all benefiting from the discussion of our drafts and will continue to revise our work, some interesting themes have emerged already . . .
Regulation: Actually, I should say regulation, regulation, and more regulation. Most of us are grappling with the question of if and how to regulate the sharing economy. To some degree that is almost a boring observation. Isn’t much of law about how to regulate human activity? But there is something a bit more unifying about the conversations here at this international conference. We start with the basic inquiry into whether core regulatory functions that are usually taken for granted in the traditional economy (for example, health and safety, anti-discrimination, etc.) should actually be regulated when transactions take place in the sharing economy. But from there we move to context-specific analysis. Rather than offer a blanket answer to the question of whether the sharing economy should be regulated, we ask what was the justification for regulation in the traditional economy, and why, for example, market forces might have been inadequate substitutes for regulation and government intervention. Then we turn to the sharing economy to examine whether the same reasoning applies, or whether any distinctive features of the sharing economy version of the transaction (e.g., in transportation, housing, services) support a different outcome. And of course, this process inevitably leads to comparisons between existing business activity and the “new” sharing economy . . . and brings me to the next observation:
Old and New: The issue of whether sharing businesses should be treated just like any existing “nonsharing” counterpart is perhaps the oldest single question about the sharing economy. It remains debated, and permeated all of our discussions.
But it has become clear that the question is really the gateway for thinking about why we regulate various conduct at all. Importantly, there is no expectation of a single answer — either for a particular business activity (e.g., dining, lodging, finance, etc) —or a particular legal field (e.g., tax, labor, discrimination). Moreover, any “answer” to this question for sharing businesses would risk being quickly outdated due to the dynamic business environment in the sharing sector.
Through the discussions over the past two days, it has been fascinating to see the ways in which sharing sector business models have evolved in just a few short years, and why. We can’t avoid the question of regulating the sector just because it might change more, but it is instructive to consider the degree to which it is not static, whether it is or is not converging with traditional businesses, and how that reality might be incorporated into regulatory analysis.
Terminology: Everyone, and I mean everyone, raised concerns about the labels used for the sharing economy and whether they were accurate and to what degree it mattered. But where that issue was not the focus of our discussion, we generally relied on the long-standing terminology of “sharing economy” as an effective shorthand. Of course, all I could think of was my co-author’s new paper, “The Trouble with Gig Talk”, which focuses explicitly on the impact of labeling the sharing economy and makes the insightful (and perhaps counter intuitive) argument that a label that is in fact so obviously incorrect (sharing economy) may be least problematic designation.
Data: Lurking within the varied debates about the sharing economy here has been the connected, yet independent, issue of big data (including collection, storage and maintenance of data). Concerns over data are not limited to the sharing economy but rather arise across the economy. In reality, it has emerged as its own independent area of legal, policy and social analysis. But not surprisingly, given the very nature of most platform businesses, the sharing sector has the potential to collect an enormous quantity and variety of data on both consumers and producers.
Beyond certain minimum expectations about protection and use of personalized data, there is not a clear vision yet regarding how the evolving role of data should be managed. One interesting question is whether broader efforts to regulate big data and personal data (think new EU regulation) will dominate the field, or whether there will be space for the experience and operation of the sharing economy to shape the future of data.
Impact on existing law: Perhaps the single most pervasive observation from the conference was the realization that our struggles to resolve a wide variety of legal questions, challenges and problems in the sharing economy inevitably push us to ask really important questions about the “pre-sharing” economy markets and legal world. In justifying either the exclusion of the sharing sector from existing regulation or the extension of existing regulation to the sharing sector, a detailed policy analysis must ask why we regulate on a topic, how the regulation has traditionally been implemented, and what has been the result. Thus, as suggested above, even longstanding regulatory regimes (such as health and safety regulation) are put under the spotlight.
But perhaps even more surprising were the number of circumstances in which the basic existence and shape of the sharing economy led us to question what was going on in the traditional economy (such as discrimination, financing, employment, or wage practices) that incentivized participants to shift to the sharing economy. In particular, we considered whether there are problems, market failures, gaps, or biases in the traditional economy that drive participants to the sharing economy. Essentially, the success and growth of the sharing economy serves as a mirror to highlight flaws, features, and traits of the non-sharing world.
The Surly Subgroup 