Table of Contents
Type: Full Dissertation | Subject: Law | Level: Masters | Word Count: ~9000 words
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Produce an LLM dissertation of approximately 9,000 words critically evaluating whether the current UK statutory and regulatory framework provides adequate consumer protection for individuals who purchase goods from third-party sellers on online marketplaces such as Amazon Marketplace and eBay. The dissertation should engage with the Consumer Rights Act 2015, the Consumer Protection Act 1987, the Consumer Protection from Unfair Trading Regulations 2008, the Electronic Commerce (EC Directive) Regulations 2002 and the Digital Markets, Competition and Consumers Act 2024, supported by relevant case law and secondary literature.
Online marketplaces now mediate a substantial share of UK retail spending, yet the statutory architecture of consumer protection was largely conceived for bilateral, bricks-and-mortar transactions between a single trader and a single consumer. This dissertation asks whether that architecture remains adequate when the “trader” a consumer sees on screen is in fact a marketplace operator hosting an independent third-party seller who may be based overseas and difficult to trace once a dispute arises. Using a doctrinal methodology, the dissertation analyses the Consumer Rights Act 2015, the Consumer Protection Act 1987, the Consumer Protection from Unfair Trading Regulations 2008, the Electronic Commerce (EC Directive) Regulations 2002 and the Digital Markets, Competition and Consumers Act 2024 alongside Court of Justice of the European Union authority retained as persuasive precedent, including Coty Germany v Amazon and Christian Louboutin v Amazon. It finds that liability continues to attach primarily to the underlying seller, that marketplace operators can shelter behind the “mere conduit” and hosting defences in the E-Commerce Regulations even where they exercise considerable operational control over fulfilment and payment, and that the Consumer Protection Act 1987’s “producer” and “own-brander” categories do not comfortably capture the marketplace intermediary. The Digital Markets, Competition and Consumers Act 2024 materially strengthens enforcement against fake reviews and unfair practices but does not resolve the underlying attribution problem. The dissertation concludes that the framework is adequate in principle but structurally lags the commercial reality of platform-mediated retail, and it recommends a statutory duty of care on marketplace operators modelled on emerging EU practice under the Digital Services Act.
The manner in which UK consumers acquire goods has changed more in the past fifteen years than in the preceding half-century. Office for National Statistics figures show that internet sales, which accounted for a small fraction of total retail turnover at the start of the 2010s, now regularly exceed a quarter of all retail spending, with clothing, electronics and household goods disproportionately represented (Office for National Statistics, 2023). A significant proportion of that spending no longer flows to a single identifiable retailer trading under its own name from its own website. Instead, it is routed through a small number of dominant online marketplaces — Amazon Marketplace, eBay and, increasingly, social-commerce platforms — on which the platform itself sells some products directly but hosts many thousands of independent third-party sellers who list, price and fulfil orders under the platform’s branding, search infrastructure and, frequently, its logistics network.
This structural shift matters because UK consumer protection law was built around a simpler transactional model: a consumer who buys defective or misdescribed goods has a clear counterparty — “the trader” — against whom rights under the Consumer Rights Act 2015 and remedies under the Consumer Protection Act 1987 can be asserted, and whom trading standards authorities and the Competition and Markets Authority can investigate and, if necessary, prosecute or sanction. The marketplace model disrupts each link in that chain. The consumer may not know, and may have no practical means of discovering, the true legal identity or trading address of the seller behind a marketplace listing. The seller may be based outside the United Kingdom, may cease trading and re-register under a new name within days, or may simply be unreachable once a complaint is raised. The marketplace operator, meanwhile, typically presents itself — through its terms of service and through statutory instruments such as the Electronic Commerce (EC Directive) Regulations 2002 — as a neutral intermediary rather than as the seller, notwithstanding that it may control the checkout process, hold the consumer’s payment, warehouse and dispatch the goods through a fulfilment programme, and rank and recommend listings through an opaque algorithm (Rott, 2022).
Parliament has not been inactive. The Digital Markets, Competition and Consumers Act 2024 introduces new direct enforcement powers for the Competition and Markets Authority against unfair commercial practices, including a specific prohibition on the publication or commissioning of fake reviews, and reforms subscription-contract and pricing-transparency rules (Competition and Markets Authority, 2024). Nonetheless, that Act, like its predecessors, continues to define its central obligations by reference to the “trader” who is the counterparty to the consumer contract, a definitional choice that this dissertation interrogates throughout.
The practical problem facing a UK consumer who buys a defective, counterfeit or misdescribed product through a third-party listing on an online marketplace is threefold. First, there is an information problem: the consumer frequently cannot establish, before or even after purchase, precisely who they have contracted with. Second, there is an enforcement problem: even where the seller can be identified, they may be resident outside the jurisdiction, insolvent, or simply unresponsive, leaving the Consumer Rights Act 2015 remedies of repair, replacement, price reduction or rejection practically unenforceable. Third, there is an attribution problem at the level of legal doctrine: the entity best placed to act — the marketplace operator, which controls the platform architecture, the payment flow and often the fulfilment logistics — is not straightforwardly a “trader”, a “producer” or a “supplier” within the meaning of the relevant statutes, and can generally rely on intermediary liability defences designed for a different technological era. Which? (2023) has characterised this combination of information asymmetry, cross-border enforcement difficulty and doctrinal ambiguity as rendering some marketplace categories a “wild west” in which consumer protection exists robustly on paper but functions weakly in practice.
The aim of this dissertation is to critically evaluate the adequacy of the current UK legal framework for protecting consumers who transact with third-party sellers on online marketplaces, and to identify reform options that would better align legal liability with the operational reality of platform-mediated retail.
The specific objectives are:
This dissertation contributes to a growing but still comparatively thin doctrinal literature on platform liability in the specifically UK post-Brexit context, in which the Court of Justice of the European Union’s evolving jurisprudence is persuasive but no longer binding, and in which the Digital Markets, Competition and Consumers Act 2024 represents the first substantial domestic legislative response to platform-era consumer harms since the United Kingdom left the European Union. Practically, the findings are of direct relevance to policymakers at the Department for Business and Trade and the Competition and Markets Authority, to consumer organisations such as Which?, and to practitioners advising both marketplace operators and consumers on the scope of platform liability.
Chapter 2 reviews the literature on consumer protection theory, platform intermediary liability and unfair commercial practices regulation, identifying the conceptual gap this dissertation addresses. Chapter 3 sets out the doctrinal methodology and sources used. Chapter 4 undertakes the substantive legal analysis across four themes: the attribution of seller status; product liability and the “producer” fiction; unfair trading and fake reviews under the new 2024 Act; and the practical reach of enforcement powers. Chapter 5 discusses the findings against the literature and offers a comparative reflection on the EU Digital Services Act. Chapter 6 concludes and sets out recommendations for reform.
Consumer protection law is conventionally justified as a corrective to the structural information and bargaining-power asymmetry between traders and consumers (Cartwright, 2019). Micklitz (2020) frames the “consumer” not merely as a private-law contracting party but as a constitutional category whose vulnerability the state has an interest in mitigating, a framing that underpins the mandatory, non-waivable character of core rights such as satisfactory quality under the Consumer Rights Act 2015. Reich (2019) extends this analysis to the concept of the “vulnerable consumer”, arguing that protective standards should be calibrated not to the notional “average consumer” but to those least equipped to protect themselves — a point of particular salience in digital markets where algorithmic personalisation can be used to identify and target precisely the consumers least able to evaluate an offer critically.
Twigg-Flesner and Wilhelmsson (2018) trace the historical development of UK and EU consumer law from sector-specific interventions (sale of goods, doorstep selling, distance selling) toward the more holistic, harmonised model reflected in the Consumer Rights Act 2015 and the Consumer Protection from Unfair Trading Regulations 2008. They observe, however, that this harmonisation project was substantially complete before the platform economy reached its current scale, meaning the underlying conceptual architecture — trader, consumer, contract — was not designed with multi-sided platform markets in mind. This observation forms the starting point for the second strand of literature reviewed below.
A related theme in the theoretical literature concerns the shift from a purely bilateral model of the consumer transaction to what Grundmann (2021) terms a “triangular” model, in which the platform sits between the consumer and the seller and shapes the terms on which they interact without itself being a party to the resulting contract of sale. Micklitz (2020) argues that this triangulation is not incidental to the platform business model but central to it: platforms profit from facilitating a high volume of transactions while structuring their legal relationship with each side of the market so as to minimise their own exposure to liability for what happens between the two. Consumer protection theory built for a bilateral world therefore struggles to allocate responsibility coherently once a third party — present at every stage of the transaction, yet formally absent from the contract itself — is added to the picture.
The liability of online intermediaries for third-party content and conduct has been governed in the United Kingdom, since 2002, by the Electronic Commerce (EC Directive) Regulations 2002, which implement defences for intermediaries acting as a “mere conduit” (regulation 17), engaged in “caching” (regulation 18) or “hosting” third-party content (regulation 19). Grundmann (2021) argues that these defences, conceived primarily with early internet service providers and bulletin-board hosts in mind, sit uneasily with the modern marketplace operator, which does far more than passively host a listing: it may set the price range through dynamic pricing tools, select which listings appear in response to a search query, process payment, and — through “Fulfilled by” logistics programmes — physically warehouse and dispatch the goods.
The Court of Justice of the European Union’s decision in Coty Germany GmbH v Amazon Services Europe Sarl (Case C-567/18) held that a marketplace operator which merely stores goods on behalf of a third-party seller, without itself pursuing the purpose of offering the goods or putting them on the market, does not itself “use” a trademark within the meaning of EU trademark law, even though its facilities were used to store infringing goods (Coty Germany GmbH v Amazon Services Europe Sarl, EU:C:2020:267). Rott (2022) is critical of this outcome, arguing that it draws an artificially narrow line around “use” that does not track the commercial reality of Amazon’s role in bringing the goods to market. The subsequent decision in Christian Louboutin v Amazon Europe Sarl (Joined Cases C-148/21 and C-184/21) qualified Coty by holding that where a marketplace operator combines its own branding with third-party listings in a manner that would lead a reasonably well-informed user to believe the operator itself is marketing the goods in its own name, the operator may be directly liable (Christian Louboutin v Amazon Europe Sarl, EU:C:2022:444). Cauffman (2021) reads Louboutin as the beginning of a doctrinal shift toward assessing marketplace liability by reference to the consumer’s reasonable perception of the platform’s role, rather than by reference to a formalistic distinction between hosting and selling. Although these are CJEU decisions and therefore only persuasive in UK courts following Brexit, Twigg-Flesner (2021) argues they remain influential because UK courts have historically drawn on EU consumer-protection jurisprudence when interpreting parallel domestic provisions, and because the underlying policy problem — an operator that structures its platform to blur the line between hosting and selling — is identical on both sides of the Channel.
Duivenvoorde (2022) situates this debate within the broader “average consumer” benchmark used throughout EU and UK unfair-practices law, arguing that where a platform’s design actively obscures the identity of the true seller, the operator should not be permitted to rely on a benchmark of consumer diligence that the platform’s own interface makes it difficult to meet.
The practical significance of the Louboutin qualification should not be overstated, however. Cauffman (2021) notes that the Court’s “reasonable perception” test is highly fact-sensitive and turns on granular details of interface design — the placement of a platform’s own logo relative to a listing, whether the platform’s own products and third-party products are visually distinguished, and how prominently the third-party seller’s name is displayed at the point of sale — meaning that two marketplaces with materially similar underlying commercial arrangements could nonetheless attract different liability outcomes purely because of cosmetic differences in how their checkout page is designed. This fact-sensitivity, Duivenvoorde (2022) argues, is precisely the kind of ex post, case-by-case uncertainty that a well-functioning consumer protection regime should aim to minimise, since it leaves both consumers and platforms unable to predict, in advance of a dispute, which legal regime will apply.
A parallel literature addresses unfair commercial practices in the specific context of online reviews and reputational signals, which function as a substitute for traditional trust mechanisms (a known shopfront, a long trading history) in marketplace transactions. Willett (2020) argues that the “average consumer” test embedded in the Consumer Protection from Unfair Trading Regulations 2008 was designed for practices such as misleading pricing and high-pressure sales tactics, and translates only awkwardly to algorithmically curated review ecosystems in which fake or incentivised reviews can be generated at scale and are extremely difficult for an individual consumer to detect. Which? (2022) documented widespread evidence of both purchased reviews and “review merging”, whereby a seller migrates the accumulated positive reviews from a discontinued or unrelated listing onto a new product, concluding that existing enforcement under the 2008 Regulations was too slow and too case-specific to keep pace with the scale of the practice.
The Competition and Markets Authority’s own market study confirmed these findings, estimating that a substantial share of UK online shoppers had been influenced by a fake or misleading review in the preceding twelve months, and recommending that fake review generation and hosting be made a specific, directly enforceable civil offence rather than left to general unfair-practice provisions requiring proof of materially distorting the average consumer’s transactional decision (Competition and Markets Authority, 2023). This recommendation was substantially adopted in the Digital Markets, Competition and Consumers Act 2024, which for the first time creates specific prohibited practices addressing fake reviews and grants the Competition and Markets Authority direct civil enforcement powers, including the ability to impose fines without needing to bring proceedings through the courts (Department for Business and Trade, 2023; Competition and Markets Authority, 2024). Loos (2021), writing on the equivalent EU reform trajectory, cautions that direct enforcement powers, while faster, shift a great deal of interpretive discretion to the regulator, raising due-process questions that the literature has not yet fully worked through in the UK context.
Willett (2020) further observes that the “average consumer” benchmark itself sits awkwardly alongside review-based trust signals, because the benchmark assumes a consumer who is “reasonably well informed and reasonably observant and circumspect”, a standard developed for evaluating discrete acts such as a misleading advertisement rather than for evaluating an aggregated reputational signal built from thousands of individual reviews of uncertain provenance. No amount of individual circumspection, Willett argues, equips an ordinary consumer to detect a review-manipulation scheme operating at scale, which is precisely why the shift to a per se prohibition — removing the need to prove an effect on the average consumer’s decision-making in each case — represents a more defensible regulatory response than attempting to stretch the existing benchmark to cover the practice.
A further strand of literature addresses the practical enforceability of consumer rights against overseas-based sellers trading through UK-facing marketplace listings. Howells, Twigg-Flesner and Wilhelmsson (2018) note that even under the pre-Brexit EU framework, cross-border consumer enforcement against small traders was resource-intensive and rarely pursued to a satisfactory individual remedy; the House of Lords European Union Committee (2016) had already flagged, prior to the referendum, that online platforms complicated jurisdictional questions in ways the existing consumer-protection cooperation network struggled to address. Post-Brexit, the House of Commons Library (2023) observes that the United Kingdom’s departure from the EU’s Consumer Protection Cooperation network removed a formal cross-border enforcement channel, leaving UK regulators more reliant on bilateral cooperation and on placing obligations directly on the UK-facing marketplace operator — who, unlike an individual overseas seller, is generally within the jurisdiction and has assets that can be the subject of enforcement action. Ofcom and the Competition and Markets Authority (2022) frame this as a pragmatic justification, independent of any doctrinal theory of platform “fault”, for extending direct obligations to marketplace operators: they are simply the only party reliably present within the jurisdiction.
Reading these strands together, the literature converges on a shared diagnosis — that the doctrinal architecture of UK consumer protection continues to allocate primary liability to the “trader” or “seller”, that intermediary liability defences designed for passive hosts sit uneasily with the operational control modern marketplaces exercise, and that recent reform (principally the Digital Markets, Competition and Consumers Act 2024) has strengthened enforcement of specific unfair practices such as fake reviews without resolving the underlying attribution problem for defective or unsafe goods. What the literature has not yet done comprehensively is bring these three strands together into a single doctrinal assessment, applying the post-Louboutin “reasonable perception” test, the Consumer Protection Act 1987’s producer categories, and the new 2024 Act’s enforcement architecture to the single, practically dominant scenario of a UK consumer buying a defective product from a third-party seller on a major marketplace. This dissertation addresses that gap.
This dissertation adopts a doctrinal, black-letter research philosophy, treating legal sources — primary legislation, statutory instruments, case law and, where retained as persuasive authority, CJEU jurisprudence — as the principal object of analysis, interpreted through established techniques of statutory construction and precedent (Wood v Capita Insurance Services Ltd [2017] UKSC 24). Doctrinal method is appropriate to the research questions because they ask what the law currently provides and whether that provision is internally coherent and fit for purpose, rather than asking how the law is experienced empirically by consumers or sellers, which would call for a socio-legal or empirical design.
The doctrinal design proceeds in three stages. First, the relevant primary legislation is identified and its material provisions are set out: the Consumer Rights Act 2015 (particularly the implied terms in sections 9 to 11 and the digital content provisions in Chapter 3), the Consumer Protection Act 1987 (particularly the “producer” and “own-brander” categories in section 2), the Consumer Protection from Unfair Trading Regulations 2008 (particularly the general prohibition on unfair commercial practices and the “average consumer” benchmark), the Electronic Commerce (EC Directive) Regulations 2002 (particularly the intermediary defences in regulations 17 to 19), and the Digital Markets, Competition and Consumers Act 2024 (particularly the new direct enforcement powers and the prohibited-practices schedule addressing fake reviews and drip pricing). Second, each provision is analysed against the fact pattern of a UK consumer purchasing a defective, counterfeit or misdescribed good from an independent third-party seller operating through a major online marketplace, testing whether liability can, on the current wording, be attributed to the marketplace operator, the seller, or both. Third, the analysis is triangulated against relevant case law, principally Coty Germany v Amazon and Christian Louboutin v Amazon at CJEU level and Office of Fair Trading v Purely Creative Industries Ltd [2011] EWHC 106 (Ch) at domestic level on the interpretation of unfair commercial practices.
Primary sources comprise the Acts, statutory instruments and cases identified above, accessed through their official published text. Secondary sources were purposively sampled from peer-reviewed journals (Journal of Consumer Policy, European Review of Contract Law, European Review of Private Law, Journal of Business Law, Yearbook of European Law), specialist monographs on consumer protection and platform regulation, and grey literature from bodies with direct regulatory or research remit in this area — the Competition and Markets Authority, the House of Commons Library, the House of Lords European Union Committee, Ofcom, the Department for Business and Trade, the Office for National Statistics and Which?. Search terms combined “consumer protection”, “online marketplace”, “platform liability”, “intermediary liability” and “unfair commercial practices” across Westlaw, HeinOnline and Google Scholar, supplemented by citation-chasing from key texts such as Twigg-Flesner and Wilhelmsson (2018) and Cartwright (2019). Sources were included where they addressed the liability of digital intermediaries or platforms for third-party conduct, whether in the specific context of consumer sales or in the cognate contexts of trademark or defamation liability, on the basis that the underlying doctrinal reasoning about when a platform’s conduct crosses from passive facilitation into active participation is transferable across these fields. Sources concerned solely with data protection or competition law in the strict sense (as opposed to consumer protection) were excluded unless they bore directly on the marketplace liability question, in order to keep the review focused and avoid diluting the analysis with tangentially related regulatory regimes.
The analysis in Chapter 4 uses statutory interpretation techniques (literal, purposive and contextual reading) alongside case analysis of the ratio and persuasive value of the CJEU authorities discussed in Chapter 2. Where a provision is genuinely ambiguous as applied to the marketplace fact pattern, the dissertation identifies the competing interpretations and evaluates each against the stated purpose of the legislation, as expressed in its long title, explanatory notes or, in the case of the 2024 Act, the accompanying government consultation response (Department for Business and Trade, 2023). Persuasive CJEU authority is treated, consistently with the approach endorsed in Wood v Capita Insurance Services Ltd [2017] UKSC 24 for interpreting analogous domestic provisions, as informative of the underlying policy rationale rather than as binding precedent, reflecting its status following the United Kingdom’s departure from the European Union.
As a purely doctrinal dissertation drawing exclusively on published legal and secondary sources, no primary data involving human participants was collected, and no institutional ethics approval was therefore required. Care has nevertheless been taken to represent all cited authorities accurately and in their proper context, and to avoid selective quotation that would misrepresent the reasoning of a court or the conclusions of a cited author.
A doctrinal method has inherent limitations. It cannot, by itself, establish how frequently the legal gaps identified in Chapter 4 translate into practical consumer detriment, nor can it capture how marketplace operators’ internal complaints-handling and “A-to-z Guarantee”-style compensation schemes may informally mitigate gaps in formal legal liability. The dissertation also necessarily analyses the law as at the time of writing; the Digital Markets, Competition and Consumers Act 2024’s provisions are being commenced in phases, and some enforcement guidance discussed in Chapter 4 may be refined as the Competition and Markets Authority gains operational experience under its new powers.
The Consumer Rights Act 2015 implies terms of satisfactory quality, fitness for purpose and conformity with description into every contract for the sale of goods by a “trader” to a “consumer” (Consumer Rights Act 2015, s.9-11). Section 2 defines a “trader” as a person acting for purposes relating to that person’s trade, business, craft or profession. On a straightforward reading, the third-party seller who lists a product on a marketplace and enters a contract of sale with the consumer is plainly the “trader” for the purposes of the Act, and the marketplace operator — which typically characterises itself in its terms of service as merely providing the venue, the payment processing and, in some cases, the logistics, rather than being a party to the contract of sale itself — is not.
This formal position is reinforced by the drafting of most major marketplaces’ terms of service, which expressly state that the contract of sale for third-party listings is formed directly between the consumer and the seller, with the platform acting as agent or facilitator only. Applying ordinary principles of contract formation, a court would likely give effect to this characterisation absent evidence that the platform’s conduct at the point of transaction contradicted it — for example, by presenting itself, rather than the seller, as the counterparty on the checkout screen. It is here that the Louboutin qualification to Coty becomes analytically significant: Christian Louboutin v Amazon Europe Sarl holds that where the platform combines its own branding so closely with the third-party listing that a reasonably well-informed and observant user would believe the platform itself is marketing the goods in its own name, the platform’s claim to be a mere intermediary weakens considerably (Christian Louboutin v Amazon Europe Sarl, EU:C:2022:444). Applied to the “trader” definition in the Consumer Rights Act 2015, this reasoning suggests that a marketplace operator whose interface design does not clearly distinguish first-party from third-party listings — a common design choice, since undifferentiated presentation improves conversion — risks being treated, on the facts of a particular transaction, as itself the trader, notwithstanding its terms of service.
In practice, however, no reported UK decision has yet tested this reasoning directly against the Consumer Rights Act 2015’s trader definition, meaning the position remains genuinely uncertain rather than settled either way. Rott (2022) argues this uncertainty is itself a form of inadequacy: a consumer cannot reliably know, in advance of a dispute, whether their statutory remedy lies against the seller, the platform, or potentially both, and the cost of resolving that uncertainty through litigation is prohibitive relative to the value of most individual consumer purchases.
A further complication arises from the operation of fulfilment programmes, under which a marketplace operator takes physical possession of a third-party seller’s stock, stores it in its own warehouses, and dispatches it to the consumer under its own logistics branding once an order is placed. From the consumer’s perspective, the parcel arrives in the platform’s own packaging, dispatched from the platform’s own distribution network, tracked through the platform’s own courier integration — a bundle of signals that, applying the Louboutin “reasonable perception” test by analogy, would tend to suggest the platform itself is the party fulfilling the transaction. Yet the contractual documentation in most such programmes carefully preserves the position that the platform is fulfilling the order as agent for the seller, and that the seller remains the trader for the purposes of the Consumer Rights Act 2015. This divergence between the transactional experience presented to the consumer and the legal characterisation preserved in the platform’s terms of service is, on the analysis above, unlikely to be resolved definitively without either a test case squarely raising the point or legislative intervention of the kind recommended in Chapter 6.
Where a product is not merely misdescribed but actually defective and causes damage, the Consumer Protection Act 1987 provides a strict-liability route that does not require proof of fault, running against the “producer” of the product, any person who holds themselves out as the producer by affixing their own branding (the “own-brander”), or the importer who first brought the product into the European Economic Area or, post-Brexit, the United Kingdom (Consumer Protection Act 1987, s.2). A marketplace operator hosting a third-party listing is typically none of these things: it did not manufacture the product, it does not brand the product as its own, and — critically for goods dispatched directly from an overseas seller to a UK consumer, bypassing any UK-based importer — there may be no UK importer within the meaning of section 2 at all.
This creates what might be termed the “orphaned defect” scenario: a consumer injured by a defective product bought through a marketplace listing from an overseas seller may find that the nominal producer is outside the jurisdiction and impractical to sue, that there is no UK “importer” in the section 2 sense because the goods were shipped directly rather than imported by a UK-based intermediary, and that the marketplace operator — the only UK-based party with any connection to the transaction — does not fall within any of the Act’s liability categories, notwithstanding that it processed the payment and, in many cases, physically warehoused and dispatched the product through a fulfilment programme. Bradgate and Twigg-Flesner (2020) describe this gap as one of the most significant unresolved weaknesses in UK product liability law in the platform era, arguing that the 1987 Act’s categories, drafted before e-commerce existed in any recognisable form, simply do not contemplate an entity that performs a quasi-importer logistical function without formal importer status.
Some mitigation exists at the level of platform self-regulation — most major marketplaces operate voluntary compensation or guarantee schemes covering certain categories of defective or non-delivered goods — but such schemes are contractual commitments the platform can amend or withdraw unilaterally, rather than statutory rights the consumer can enforce as a matter of law. Cartwright (2019) is sceptical of relying on voluntary platform schemes as a substitute for statutory reform, noting that their scope, evidentiary requirements and monetary limits are set entirely by the platform, creating an asymmetry of bargaining power precisely analogous to the asymmetry consumer protection law exists to correct in the first place.
The practical consequence of the orphaned-defect gap falls most heavily on consumers injured by low-value but genuinely dangerous goods — counterfeit electrical items, unsafe children’s toys, mislabelled cosmetics — precisely the categories of product that dominate marketplace fake-listing complaints (Which?, 2023). Because the sums at stake in an individual claim are typically modest relative to the cost of establishing producer or importer status abroad, the strict-liability route the 1987 Act was designed to provide is, for this category of consumer, more theoretical than real. Bradgate and Twigg-Flesner (2020) argue that this is precisely the scenario in which a residual liability category attaching to the marketplace operator would have the greatest practical effect, since it would substitute an easily identifiable, UK-based, financially substantial defendant for a producer or importer who may be none of those things.
The Consumer Protection from Unfair Trading Regulations 2008 prohibit unfair commercial practices, including misleading actions and omissions assessed against the “average consumer” benchmark, and contain a schedule of practices deemed unfair in all circumstances. Office of Fair Trading v Purely Creative Industries Ltd [2011] EWHC 106 (Ch) confirmed that the schedule operates as a set of per se prohibitions not requiring separate proof of materially distorting the average consumer’s transactional decision, which in principle should make enforcement against clearly deceptive practices — such as fabricated urgency claims or fake countdown timers — relatively straightforward. However, as Willett (2020) and Which? (2022) both document, fake and incentivised reviews sit awkwardly within the 2008 Regulations’ existing schedule, which does not specifically name review manipulation as a per se unfair practice, leaving enforcement to the more demanding general prohibition requiring proof of a material effect on the average consumer’s decision — a heavier evidential burden for a Trading Standards authority or the Competition and Markets Authority to discharge at scale.
The Digital Markets, Competition and Consumers Act 2024 directly addresses this gap. It adds fake and incentivised reviews, and the commissioning or publication of such reviews, to the list of practices treated as automatically unfair, removing the need to prove material distortion of the average consumer’s decision in each individual case (Competition and Markets Authority, 2024). Critically, the Act also grants the Competition and Markets Authority direct civil enforcement powers, allowing it to determine that a practice is unfair and impose a fine itself, subject to a right of appeal to the Competition Appeal Tribunal, rather than needing to bring proceedings through the ordinary courts as under the 2008 Regulations (Department for Business and Trade, 2023). This is a substantial procedural strengthening: Loos (2021), reflecting on the equivalent EU reform trajectory, observes that direct administrative enforcement powers of this kind dramatically increase the practical deterrent effect of unfair-practices law, because the regulator no longer needs to build a court case for every instance of non-compliance.
The 2024 Act’s fake-review provisions apply to “traders” broadly defined, and the Competition and Markets Authority’s guidance indicates that a marketplace operator can itself be liable where it fails to take reasonable steps to prevent fake reviews appearing on its platform, in addition to any liability attaching to the seller who commissioned them (Competition and Markets Authority, 2024). This represents a meaningful, if narrow, departure from the trader-centric liability model criticised in section 4.1 above: for this specific category of harm, Parliament has explicitly placed a duty on the platform itself, reflecting the practical reality that the platform, not the individual consumer or even the individual seller, controls the review infrastructure and is best placed to detect manipulation at scale. However, the same duty has not been extended to defective-goods liability under the Consumer Protection Act 1987, meaning the 2024 Act closes one specific gap identified in the literature — fake reviews — without closing the broader gap around product safety and quality that this dissertation identifies as the more consequential of the two.
The 2024 Act also introduces new transparency obligations addressing “drip pricing” — the practice of advertising an initial headline price and adding further mandatory charges only at a later stage of the checkout process — and reforms the rules governing subscription contracts, requiring clearer pre-contract information and easier cancellation routes (Department for Business and Trade, 2023). While these reforms sit slightly outside the core marketplace-liability question this dissertation addresses, they are relevant to the broader adequacy assessment because they confirm a consistent legislative pattern: Parliament has been willing to intervene decisively where a specific unfair practice has been the subject of a dedicated evidence-gathering exercise by the Competition and Markets Authority, but has not undertaken an equivalent exercise, and has not therefore legislated, in respect of marketplace product-safety liability specifically.
Beyond the substantive liability questions addressed above, adequacy also depends on whether the available remedies can practically be enforced. The Consumer Rights Act 2015 gives an individual consumer a private right of action against their trader — but where that trader is untraceable or resident abroad, the remedy is worthless in practice, however sound in principle. The Competition and Markets Authority’s public enforcement powers, by contrast, do not depend on the individual consumer being able to locate or serve proceedings on the seller; the 2024 Act’s direct enforcement mechanism allows the CMA to act against a UK-based marketplace operator that has failed to take reasonable steps to police its platform, without needing to first establish liability against the (potentially unreachable) overseas seller.
This suggests that the practical adequacy of consumer protection in this context increasingly depends less on private-law remedies against an individual trader, which the marketplace structure has substantially eroded, and more on public enforcement against the platform, which the 2024 Act has strengthened only for specific practices (fake reviews, drip pricing, subscription traps) rather than comprehensively. The House of Commons Library (2023) draws a similar conclusion in its analysis of the post-Brexit enforcement landscape, noting that with formal cross-border cooperation mechanisms reduced following EU exit, UK regulators are increasingly reliant on levers that operate against UK-based intermediaries rather than against the (often untraceable) overseas trader directly — a pragmatic response to jurisdictional reality, but one that has developed piecemeal rather than as a coherent statutory strategy.
A related enforcement gap concerns the interaction between local Trading Standards authorities, which retain primary responsibility for enforcing the Consumer Protection from Unfair Trading Regulations 2008 at street level, and the Competition and Markets Authority’s new national powers under the 2024 Act. Ofcom and the Competition and Markets Authority (2022) observe that local authorities, operating with constrained budgets and a remit historically focused on physical premises within their own local area, are poorly resourced to investigate a marketplace seller who may be based anywhere in the world and whose listing is visible simultaneously to consumers in every local authority area in the country. The concentration of new enforcement powers at the national level, in the Competition and Markets Authority, is therefore a rational institutional response to the geographically borderless nature of marketplace retail, but it also means that the practical vindication of an individual consumer’s rights increasingly depends on the national regulator choosing to prioritise a pattern of conduct for investigation, rather than on the consumer being able to pursue an individual remedy directly — a shift from private redress toward public enforcement that the existing literature has not yet fully evaluated in normative terms.
The findings in Chapter 4 substantially corroborate the diagnosis emerging from the literature reviewed in Chapter 2, while adding doctrinal precision to several points left underdeveloped. Grundmann’s (2021) argument that the Electronic Commerce Regulations’ intermediary defences were designed for a different technological era is borne out directly by the analysis in section 4.1: the “mere conduit” and hosting framework simply has no clean answer to a marketplace operator that curates search rankings, sets minimum price floors and dispatches goods through its own logistics network, and the Louboutin qualification, while a step toward closing that gap, has not yet been tested against the UK’s own “trader” definition in any reported domestic decision. Rott’s (2022) critique of the Coty outcome as artificially narrow is likewise supported: this dissertation’s analysis in section 4.2 shows the same narrow, formalistic categorisation problem recurring in the Consumer Protection Act 1987’s producer definitions, where the marketplace operator’s practical logistical role (warehousing, dispatch, payment) is doctrinally invisible because it does not map onto any of the Act’s named categories.
Where this dissertation extends the existing literature is in bringing the fake-review strand (Willett, 2020; Which?, 2022) and the defective-goods strand (Rott, 2022; Bradgate and Twigg-Flesner, 2020) into direct comparison under the 2024 Act. The analysis in section 4.3 shows that Parliament has been willing, for fake reviews specifically, to place a duty directly on the marketplace operator rather than relying solely on the underlying trader — but has not applied the same logic to product safety, despite the underlying justification (the platform’s superior practical control) applying with at least equal, arguably greater, force to a defective and potentially dangerous physical product than to a misleading review. This selective extension of platform duties is not, on the evidence reviewed, the product of a considered policy judgment that product-safety risk is less serious than review manipulation; rather, it appears to reflect the fact that the fake-review reform responded to a specific, well-evidenced Competition and Markets Authority market study (Competition and Markets Authority, 2023), whereas no equivalent dedicated study of marketplace product-safety liability has yet been conducted to inform reform of the 1987 Act.
Returning to the dissertation’s central question, the analysis supports a qualified answer: the UK framework is adequate in the narrow sense that a consumer who can identify and locate their contractual counterparty retains meaningful statutory rights under the Consumer Rights Act 2015, and the 2024 Act has closed a specific, well-evidenced gap around fake reviews through a genuinely novel direct-enforcement mechanism. It is not adequate in the broader sense that matters for a large proportion of real transactions, because the structural features of marketplace retail — an untraceable or unreachable seller, a marketplace operator that exercises substantial practical control but falls outside the formal “trader” and “producer” categories, and a cross-border enforcement landscape weakened by EU exit — mean that the strongest private-law rights in the statute book can, in a material share of cases, simply have no one against whom they can effectively be enforced. Micklitz’s (2020) constitutional framing of the consumer as a category the state has a positive interest in protecting is difficult to reconcile with a system in which the practical value of a statutory right depends so heavily on the happenstance of whether a particular seller happens to be traceable.
It is worth being precise about what “adequacy” should mean in this context, since the term can be assessed against different baselines. Measured against the baseline of the pre-2024 regime, the framework has undeniably improved: the fake-review reforms are a genuine, well-targeted response to a well-evidenced harm, and the Competition and Markets Authority’s new direct enforcement powers are a structural improvement over the court-dependent enforcement model of the 2008 Regulations. Measured against the baseline of what the marketplace business model makes technically and commercially feasible for a platform operator to police — verification of seller identity, monitoring of listing accuracy, oversight of fulfilment quality — the framework remains some distance short of adequate, because it does not yet impose obligations commensurate with that technical and commercial capacity outside the narrow category of fake reviews. The second baseline is the more demanding, and, this dissertation argues, the more appropriate one, because it asks not merely whether the law has improved but whether it has kept pace with what the regulated entities are actually capable of doing to prevent harm.
The European Union’s Digital Services Act, which entered into force after the United Kingdom’s departure from the EU and therefore does not apply domestically, offers an instructive comparator because it addresses precisely the attribution problem identified in section 4.1 through a different mechanism: rather than relying solely on trademark or contract law to determine when a platform has “used” a mark or become a contracting party, it imposes free-standing regulatory due-diligence obligations directly on “online marketplaces” as a defined category, including obligations to collect and verify seller identity information (“know your business customer” requirements) and to design interfaces that do not mislead consumers about who they are contracting with (European Commission, 2022). Grundmann (2021) argues that this regulatory, rather than purely liability-based, approach is better suited to the platform context because it does not require a court to resolve, case by case, whether a particular platform’s conduct crossed the line into “acting as trader”; it instead imposes upfront, structural obligations that reduce the likelihood of the underlying harm (an untraceable seller) arising in the first place.
The Digital Markets, Competition and Consumers Act 2024 takes a step in this direction for fake reviews specifically but does not adopt an equivalent “know your business customer” verification duty for marketplace sellers generally, nor does it impose an EU Digital Services Act-style due-diligence obligation covering product safety. This suggests that, notwithstanding the UK’s departure from the EU regulatory orbit, the Digital Services Act’s structural approach remains a relevant and arguably superior template for the specific product-safety and seller-traceability gaps this dissertation has identified, independent of any question of formal legal alignment with the EU.
This dissertation has brought together, within a single doctrinal framework, three strands of analysis that the existing literature has generally treated separately: marketplace operator liability under intermediary-defence and trademark jurisprudence (Coty, Louboutin), product liability under the Consumer Protection Act 1987’s producer categories, and unfair-practices enforcement under the newly commenced Digital Markets, Competition and Consumers Act 2024. In doing so, it has shown that the 2024 Act’s genuine strengthening of consumer protection is real but narrow — targeted specifically at fake reviews and related transparency practices — and that it leaves the more consequential gap around defective and unsafe goods sold by untraceable third-party sellers substantially unaddressed. This is the dissertation’s principal original contribution: demonstrating, through close textual and case-law analysis, that recent reform has closed the gap the evidence base happened to be strongest on (fake reviews) rather than the gap most likely to cause serious consumer harm (defective and unsafe products).
Three reforms follow directly from the analysis in Chapters 4 and 5. First, Parliament should extend a duty analogous to the 2024 Act’s fake-review provisions to product safety, requiring marketplace operators to take reasonable verification and monitoring steps in respect of third-party sellers’ safety compliance, with direct Competition and Markets Authority enforcement powers mirroring those already created for fake reviews. Second, the Consumer Protection Act 1987 should be amended to create a residual liability category for marketplace operators that perform a fulfilment or logistics role in relation to a defective product, closing the “orphaned defect” gap identified in section 4.2, without requiring the operator to be reclassified as the “producer” for all other purposes. Third, following the Digital Services Act model discussed in section 5.3, marketplace operators above a defined size threshold should be placed under a statutory “know your business customer” obligation, requiring verification of a seller’s identity and UK-reachable contact details as a precondition of listing, which would directly address the traceability problem that underlies both the private-law enforcement difficulties discussed in section 4.4 and the cross-border enforcement weaknesses documented by the House of Commons Library (2023).
These three recommendations are deliberately incremental rather than radical: none requires displacing the existing trader-centric architecture of the Consumer Rights Act 2015 or the Consumer Protection Act 1987, and each instead adds a narrowly targeted, marketplace-specific supplementary duty at the point where the existing architecture demonstrably fails to reach the party best placed to prevent harm. This incremental approach is deliberate. Wholesale reclassification of marketplace operators as “traders” or “producers” for all purposes, as canvassed by some commentators, risks unintended consequences for platforms’ ordinary hosting and intermediary functions that lie well outside the scope of the specific harms identified in this dissertation. A more surgical extension of duties, calibrated to the fake-review precedent Parliament has already legislated in the 2024 Act, is both more politically achievable and more precisely targeted at the gaps this analysis has identified.
As acknowledged in Chapter 3, this dissertation is doctrinal in method and does not empirically measure the frequency or severity of the harms it discusses, nor the extent to which platforms’ voluntary compensation schemes already mitigate the statutory gaps identified. Its analysis of the Digital Markets, Competition and Consumers Act 2024 is also necessarily provisional, given that certain provisions were still being commenced and elaborated through Competition and Markets Authority guidance at the time of writing, and the practical operation of the Act’s new direct-enforcement powers may develop in ways that qualify some of the conclusions reached here.
Future work could usefully combine this doctrinal analysis with an empirical study of Competition and Markets Authority enforcement outcomes once a meaningful body of decisions under the 2024 Act’s new powers has accumulated, to test whether the fake-review provisions are achieving their intended deterrent effect in practice. A comparative doctrinal study tracking how the Digital Services Act’s “know your business customer” obligations are enforced against major marketplaces operating in the EU would also usefully inform the design of any future UK reform along the lines recommended in section 6.2.
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