Recently, a list of untouchable streamers in twitch service was revealed in the media. People on the list were supposed to be treated better than the rest – ultimately, they were supposed to avoid penalties for violating the rules of the service. The list dates back to 2015, and it was revealed after a hacking attack. In the article, we will explain whether similar practices are allowed by law and whether big corporations can afford to treat their users unequally.
Any owner of a website can establish any rules and regulations on it. The only limitation is the applying law. As a matter of fact, the users of the website can never be required to behave in a way that is against the law – e.g. persecuting some social group. In Poland, one must also remember about special treatment of consumers (natural persons who do not take their actions as professionals), informational obligations and RODO.
Prohibition of discrimination and refusal to provide a serviceacji i odmowa świadczenia usługi
European Union law prohibits discrimination against persons on the basis of sex, race, nationality, religion, etc. characteristics. Polish law also provides for penalties for refusal to provide a service. It is forbidden to select your customers without a valid reason. The entrepreneur’s motivation is irrelevant here – anyone who provides a service professionally must perform that service for a person willing to pay for it. The service provider can refuse to perform his obligations only if objectively reasonable reasons occur – e.g. illness or lack of seats in a restaurant. So, for example, selection at gates in nightclubs is punishable. On Internet portals, the reason for denying access to a portal or disabling a certain functionality may be e.g. insufficient performance of the user’s computer to operate the site.
Abuse of dominant position
The disclosed – rather scanty – information indicates that the case of the so-called twitch list could be qualified as an abuse of a dominant position. Such an action is prohibited by EU and Polish law. In similar obligation relationships (between the portal and streamers), it creates different conditions for competition among authors of content on the portal. Of course, a definitive ruling on whether an infringement occurred requires knowledge of all the relevant facts of the case, which the media coverage alone cannot provide.
Can twitch be penalized?
The above examples, however, relate to European Union and Polish law. However, Twitch is an entity registered in the United States and is subject to its domestic regulations. Potential penalties can be imposed only by the authorities in the USA and only if, according to local law, Twitch’s activity is forbidden. However, this does not exclude its liability towards the European Union – there have been cases when the European Commission has fined American corporations for practices contrary to the EU law. In order to do so, the Commission would have to state that the actions affected competition in the EU.
We strongly advise the owners of web portals based in the European Union against using similar practices. It exposes the administrator to severe financial penalties. In the abovementioned case of Twitch, however, we can assume that it will end – at least in Europe – only with image losses.
Author: Mateusz Witkowski