The Brussels Ia Regulation is the main instrument in Europe dealing with both international jurisdiction and recognition and enforcement of foreign decisions in civil and commercial matters. This Regulation provides for a number of forums which detail which courts may assume international jurisdiction in a particular case, having more than one international element. Moreover, the Regulation in its art. 18 provides for special protection rules to a party considered as weaker in a contract, specifically a consumer in a contract performed with a trader. From a jurisdiction point of view, the consumer is protected by not forcing him to move to the courts of the trader’s foreign defendant if willing to sue him; instead, he has the option of suing a foreign trader before his own courts, or suing the trader before the courts of the trader. Yet, when it is for the foreign trader, who wants to sue the consumer defendant, he has to move to the consumer’s place of habitual residence.

The Brussels Ia’ consumer protection rules require the fulfilment of some cumulative requirements: first, it is necessary that there is a contract; second, that this contract has to be signed between a consumer and a trader or professional; and third, that the contract has to fall within one of the categories of art. 17.1a-c; specifically, that there is a territorial connection with the territory of the consumer [ 11, 12 ].

The problem, nowadays, is that there are new roles users of online platforms may have, and thus it is not always straightforward to characterise a consumer or a trader since the dividing line between a consumer and a trader is less obvious. For one thing, whereas some years ago consumers were simply passive buyers, now they may turn into active prosumers. In other occasions, users may be involved in a relationship with a platform with an aim of gaining commercial activity such as it happens with instagramers or vloggers.

Art. 17 Brussels Ia Regulation requires that there is a “contract concluded by a person (…) for a purpose which can be regarded as being outside his trade or profession.” When proving a proof of such a subjective element the ECJ only considers objective elements, in particular, the signed contract between the parties, as only the contract can show whether the person concluded a contract “for the purpose of satisfying an individual’s own needs in terms of private consumption.” [ 13 ] When such a person has concluded a contract for a purpose lying in his business or profession he cannot claim the protection of the consumer rules, and when he signed a contract with a purpose, which is partly professional and partly private, he can claim the consumer protection rules only when the link between the contract and the trade or profession is so slight as to be marginal [ 14 ].

Subscribers of AVM platforms perform a contract with the platform for a purpose, which lies outside of their trade. All Terms of Use analysed (Netflix, Amazon Prime, Apple Music, HBO Max) set out that such services are provided only for personal and non-commercial uses. Therefore, subscribers cannot make any profit out of the access of this content, nor they can show it in public performances. This is also applicable when members of the family have access to the content through several devices. Yet, a subscriber could theoretically circumvent the protective measures of the AVMS provider, perhaps with a lucrative intention. In this case, it would be interesting to see whether such a person could claim the application of the consumer protection rules. According to the ECJ case-law, he could claim such a protection since the purpose of the contract was outside his trade or profession.

There are some cases that have been dealt with by the ECJ where a person has had a very lucrative relationship with a trader and still, he has been characterised as consumer. In the Personal Exchange case, a company, which ofered online gambling services via the website www.mybet.com, was directing its commercial activity towards Slovenia, among other countries. Then, a person opened a user account on that website and, had to accept the general terms and conditions drawn up unilaterally by the company, where there was a clause establishing the jurisdiction of the courts of the Republic of Malta. In fact, that person won approximately EUR 227000 from playing poker on that website around nine hours a day; after a while his account was blocked by the company, and that amount was withheld by it on the ground that apparently the person infringed the rule of play. Having brought an action at first instance before the Slovenian courts, this raised a jurisdiction issue, whether the person was a consumer, since in these cases, choice-of-forum clauses are limited. In the case, the ECJ stated that the person in question was still a consumer even if that person plays the game for a large number of hours per day and receives substantial winnings from that game [ 15 ].

Furthermore, in the Jana Petruchová case, a university student concluded a contract with a brokerage company, trading on the FOREX market, and the Court also stated that she was a consumer, according to the Brussels Ia Regulation [ 16 ].

More interestingly, perhaps noticing the unfairness of such outcomes, the Court has opened the possibility for consumers to lose their status as consumers, when the predominately nonprofessional use of those services, for which the person initially concluded a contract, has subsequently become predominately professional [ 13 ]. As for the proof, the Court opens the possibility for such a person to lose its status as a consumer should he have ofered his services as a payment service, or when oficially declaring such activity [ 15 ]. Thus, a subscriber could lose its status as a consumer if he makes, not only a profit but a predominant business with the sharing of such audio-visual content.

Additionally, users of VSP can be considered as consumers in certain occasions, and as professionals in others. For instance, an influencer signing up with a VSP according to a business account cannot invoke the consumer protection rules. Arguably this would be applicable when he signed as professional even if the real purpose was outside of his trade or profession, such as when an amateur musician signs up an account as a professional musician in Instagram; otherwise, the person in question should have to prove with objective elements that even if he signed up with a professional account the purpose was merely private. On the contrary, when the user signs up with a personal account, he could claim his characterisation as consumer. Furthermore, a user signing up with a personal account for a purpose which is partly professional and partly personal, the consumer rules shall be applicable only when the link between the contract and the profession or trade is merely marginal.

Additionally, art. 17.1.c) requires a territorial connection from the trader or professional towards the consumer’s territory. Thus, it sets out that: “(…) the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.”1 Such territorial connection demonstrates that a particular website has suficient contacts with the forum, meaning that the courts may assume jurisdiction because there is a close link between the case and those courts. Yet, the targeting of activities does not intrinsically indicate that the forum at which a company is targeting is the most appropriate forum or the most closely connected with a dispute [ 17 ]; Indeed, art. 17.1.c sets out that it is necessary that the company “by any means, direct(s) (…) such activities to the consumer’s Member State”, and that the contract falls within the scope of such activities. This targeting test has been interpreted by the ECJ in the Pammer case, and it is still the reference landmark ruling. In this regard, the Pammer case refers to the use of indicative elements in order to assess whether a particular webpage targets the consumer’s domicile [ 18 ]. Yet, the approach opened by this ruling establishes the necessity to analyse how a particular website addresses its customers in order to see whether there are suficient elements establishing that it is targeting the territory of a consumer, among others. In particular, the court in Pammer establishes that when the website mentions an international clientele, or there is an indication of how to arrive to a particular place from abroad, or when the website uses a top-level domain name, these could be indicative elements of the targeting of activities. And yet, is for the national courts to ascertain whether such evidence exists, and therefore, to apply this test to a particular case.

When applying the Pammer test to audio-visual platforms one can see some particularities. Indeed, audiovisual platforms usually geo-locate the country of subscription in order to assign the account to a particular country. This may be important because they do not require any activity from the subscriber’s perspective, since they do not require the subscriber to fill in his billing address or home address when creating an account. When registered, the subscriber has access to the “national” catalogue. According to this kind of action, it may be arguable to establish that the audiovisual platform targets the country in which the subscriber is located. If at the registration process the platform asks the subscriber to fill in the details, the targeting of activities could be derived from other elements such as the display of language directed towards a particular country. 1This territorial connection is not necessary to apply when any of the following two categories are fulfilled: a contract for the sale of goods on instalment credit terms, and a contract for a loan repayable by instalments, or any other form of credit, made to finance the sale of goods (art. 17.1 a) and b).

Moreover, it is relevant to analyse the use of geoblocking by such platforms, and its relationship with the targeting of activities. In this regard, since audio-visual services are currently excluded from the scope of application of the EU geoblocking Regulation [ 19 ], AVMS platforms are allowed to geoblock users from other countries. In such cases, a consumer in one country may not be allowed to access a “national” catalogue available in another EU country. Therefore, it could be afirmed that a platform not geoblocking users in a particular territory, it does prima facie target that territory. This presumption is excluded by the geoblocking Regulation in its art. 1.6, when it sets out that the trader who does not geo-block ”shall not be, on those grounds alone, considered to be directing activities to the Member State where the consumer has the habitual residence or domicile.” Nevertheless, as already mentioned, this (lack of) presumption is not applicable to audiovisual platforms. Other than this, when a platform does not geoblock consumers in a particular territory, an analysis of the display of the website should be taken into account in order to see whether it targets a particular territory.

As regards VSP, it should be taken into account that their outreach is most of the times global. Platforms such as Instagram, YouTube or Tik-Tok provide those services to users located anywhere in the world. Therefore, arguably the interpretation of the targeting test should be widely understood when referring to the activity of global, VSP platforms.

Usually traders include choice-of-court clauses in their contracts. The main aim of such clauses is to avoid the uncertainty of being sued in a distant forum and thus to know in advance which forum shall be competent in case a conflict arises. Additionally, traders may also include Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) clauses in their contracts, so that if a conflict arises parties shall refer to out-of-court mechanisms such as arbitration or mediation, or to online out-of-court mechanisms. When the parties perform a contract through Internet one of them usually signs up the Terms of Use by checking a box saying, “I agree” (also called click wrap agreements), where a choice-of-forum clause may be included.

This study shows that AVMS providers usually include such choice-of-court and ADR clauses in their Terms of Use. For instance, Amazon Prime’s Terms of Use indicate the option that subscribers have in order to bring the proceedings before the courts of the subscriber’s domicile or before the courts of the AVMSP’s domicile. Literally, Amazon Prime states that “We both agree to submit to the non-exclusive jurisdiction of the district courts of the city of Luxembourg, which means that you may claim your rights as a consumer in relation to these Terms of Use both in Luxembourg and in your Member State of residence in the European Union.“2 The platform HBO Max also correctly identifies the courts of the consumer’s domicile as the competent ones since it states that: “As a consumer, you have the right to refer the matter to a court of law where you reside.”3 In addition, HBO Max also refers to institutional ADR as well as the EU ODR platform: “You may also choose to make a complaint in the first instance to the relevant consumer protection agency in the Europe Service Area or to the relevant EU or national board/authority for consumer disputes (…) or, you can go to (EU ODR Platform) to 2See https://www.amazon.co.uk/gp/help/customer/display.html?nodeId=201909000 (last accessed, 16 January 2023). 3art. 5.4. https://www.hbomax.com/terms-of-use/en-emea (last accessed, 16 January 2023). resolve a consumer dispute out of court online.”4 Furthermore, under the Governing Law section of its terms of use, the Apple platform states that for European consumers the jurisdiction shall be the courts of the consumer’s habitual place of residence, but it does not mention the trader’s forum. In particular, it states that “If you are a resident of any European Union country or the United Kingdom, Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence.”5 Finally, Netflix does not contain any choice-of-court provision.

When dealing with party autonomy in consumer contracts there are a number of aspects to be analysed. First, in order for these choice-of-court agreements to be valid they have to fulfil some requirements enshrined by art. 25 of the Brussels Ia Regulation. Second, party autonomy is limited to consumer contracts by art. 19 of the same Regulation.