Carlos Rodríguez, community manager at Elite Taxi Association Barcelona and vice-president of the Taxi Project 2.0, summarises a report by Taxi Project on the violation of the rights of consumers using the apps of ridehail platforms Uber and Cabify, finding that the two companies breach numerous fundamental rights of the consumer.
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TWO years ago, when we started Taxi Project, we were clear that one of the pillars on which our actions had to be based was the fight for the rights of users, something that we know that Uber or Cabify violate according to their business model and that, on the other hand, we have always believed that it is very important to act because these are issues that can harm not only the customers of private-hire drivers (VTC) or the taxi, but can also affect the rest of the citizenship if these practices extend to other services or products.
It should be noted that the professionals who have carried out this work for Taxi Project are headed by an expert in the regulations governing the rights of consumers in telecommunications services, with extensive experience as an advisor for more than six years in the Secretariat of State for Telecommunications and Digital Infrastructures, (under the Ministry of Economic Affairs and Digital Transformation in the Spanish government) and who has spent years analysing the clauses of Uber and Cabify contracts, reaching the conclusion that these contracts violate a large number of articles of state laws on consumer and user rights, as well as on information services and electronic commerce, prices, data protection and we even believe that they violate even a Supreme Court ruling.
When listing the large number of legal precepts that we have denounced, we have referred firstly to the so-called “limitation of liability” clauses in the contracts of both Uber and Cabify, which according to our interpretation, come to say that although the client contracts the transport service directly with Uber or Cabify under their conditions, these companies are not responsible for the service they provide, leaving all responsibility to the driver.
From Taxi Project we understand that this violates the most fundamental rights in the sector and above all we believe that it is very dangerous for the safety of any person in such an important service as transport, as these clauses mean that Uber or Cabify, despite selling a service, are not responsible not only for the service but also for the driver, are not responsible not only for what may happen during the provision of the service, such as an accident or an abusive charge, but they are also not responsible for issues such as whether the vehicle has a VTC transport authorisation, or whether the driver has a driving licence or simply that the vehicle is insured.
Reviewing the contracts that users are obliged to sign, in the case of Uber, this condition is worded as follows “Uber shall not be liable for indirect, incidental, special, exemplary, punitive or consequential damages, including loss of profits, loss of data, personal injury or property damage, or for damages relating to, in connection with or otherwise arising out of any use of the services, even if Uber has been advised of the possibility of such damages” (General Conditions 5.)
On the part of Cabify, it is stated that: “The User waives and releases Cabify from any obligations, claims or damages arising as a result of the relationship with the third party transporter”.
Thus, as Taxi Project has pointed out and as we have analysed, for example, these two clauses that Uber and Cabify customers are obliged to sign violate issues such as, for example, the Supreme Court ruling 748/2001 of 23 July 2001, as well as other precepts related to customer service, basic consumer and user rights and also considering these conditions as abusive clauses (RD 1/2007 Chap II Art.8, 10, 21, 82, 86, 161, 162).
It should also be noted that we find in these clauses limiting liability in Uber and Cabify contracts a breach of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts in Article 3.
As for the law regulating the services of the information society and electronic commerce (rules governing the activity of applications), these clauses would also be in breach of the law on the liability of providers of services of the information society (34/2002 Art.13).
Similarly, and only in the case of Cabify, by not informing in their contracts if they are adhered to the Consumer Arbitration System (extrajudicial body to resolve conflicts between users and companies), they would be in breach of Article 24 of Royal Decree 231/2008, which regulates the Consumer Arbitration System.
Similarly, in our research on Uber and Cabify contracts we have also found in the limitation of liability clauses serious breaches in terms of personal data processing and transparency towards users, more specifically on the EU Regulation 2019/679 on issues such as “Principles relating to processing”, “Information and access to personal data”, “Controller and processor” or “Responsibility of the controller” (Chap II Art.5, Chap III Section 1. Art.12, Section 2 Art.13, Chap IV Section 1 Art. 24).
Finally, as far as data protection is concerned, but on a state level, according to the Spanish law (15/1999), Taxi Project concludes that the limitation of liability violates article 6 (“consent of the data subject”), article 5 (“right to information in the collection of data”) and article 12 (“access to data on behalf of third parties”).
We recall that apart from these articles, the same law also establishes sanctions in its article 44 and in the same way, from Taxi Project we come to the conclusion that Uber and Cabify also breach such a fundamental right as the right of access (Article 15).
Finally, regarding prices, the Taxi Project team in the same report has concluded that several European directives are also violated in terms of what these companies call “high demand”, that is, the fewer vehicles available to provide service at a given time, the higher the price increases, something that for us denotes much obscurantism and a very clear violation of the right of users to have real, clear and updated information on prices.
Returning to the contracts and according to Uber’s terms and conditions: “Uber, at any time and in its sole discretion, reserves the right to establish, remove and/or revise the Charges for any or all services or goods obtained through the use of the Services. You further acknowledge and agree that the Charges applicable in certain geographic areas may increase substantially during periods of high demand.”
On Cabify’s part, regarding the price increase it is also explained “You agree that during periods of higher demand a variable additional cost will be charged. This additional cost is included in the final price”.
As we indicated, this clashes with Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market in its section 1 regarding misleading commercial practices or in its article 7 (Misleading omissions).
To conclude, we also understand that “high demand” breaches – also Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights in its chapter III, article 6 regarding information requirements for distance and off-premises contracts.
Finally, to put in contrast with regard to taxis, being a service regulated by state, regional and municipal laws, it is the same public bodies that set both the obligations of taxi drivers and the rights of users, in this case and unlike Uber or Cabify, the taxi driver is always solely responsible for the service provided (in the case of Madrid, for example, being the city with the most taxis, it would be Article 22 of the Taxi Ordinance), having the obligation to submit to the public consumer bodies, which are also the ones that set the prices together with the autonomous communities and the city councils.
This would be a brief summary of the report that has already been presented by Taxi Project to the consumer protection bodies of several autonomous communities, such as Madrid, Catalonia and the Basque Country, and with which we are also waiting for a meeting to present it to the Minister of Consumer Affairs, Alberto Garzón. We know that it is very difficult because in Spain, it is not enough for a platform such as Taxi Project to denounce Uber or Cabify contracts at a general level, but it has to be a large number of clients who sue the companies, and we know that there are a large number of users who do so on social networks, but the problem is that they never go all the way, so without a large number of complaints, the state cannot consider that it is a practice even if the contracts are clearly abusive.
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