ODR, Reputation by Litigation and (Ex Post) Discrimination
摘要
This paper explores how Online Dispute Resolution (ODR) mechanisms reshape traditional justice systems, leading to increased privatization of coercion and the rise of private autonomy in dispute resolution. The emergence of platforms as “online courts” raises concerns about due process guarantees and substantive justice, with platforms acting as powerful private actors exerting regulatory, executive, and judicial authority over vast, heterogeneous communities. The core inquiry is whether ODR on platforms ensures fair access to justice and effective protection, particularly for vulnerable consumers. The analysis delves into how technological functionalities influence adjudicative dispute resolution for individual consumers in high-volume, low-value, and cross-border disputes, especially within online marketplaces where platforms may play a dual role as provider and party. The paper highlights how the digital environment exacerbates power imbalances, questioning if ODR can lead to discrimination in dispute handling and outcomes. It discusses consumer complaining behavior (CCB), noting how online voice empowers consumers, yet platforms’ use of consumer profiles and scores can result in ex-post discrimination, favouring profitable consumers and potentially silencing others. Notably, it introduces the concept of reputation by litigation, highlighting how consumers themselves become reputational subjects through their complaint behavior. Finally, the study identifies key vulnerabilities hindering consumer access to justice in the digital realm: redress vulnerability (costs, complex procedures, personal attitude, cross-border issues), economic vulnerability, and digital vulnerability. While ODR may alleviate the first two by offering affordable, accessible solutions, it unfortunately exacerbates digital vulnerability, potentially leading to exclusion for less tech-savvy individuals.