International Journal of Tourism, Travel and Hospitality Law 2023

INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW • Consumers should be informed of how obligations related to the contract are shared between third parties offering the goods, services or digital content and providers of online marketplaces. • The information should be provided in a clear and comprehensible manner and not merely in the standard terms and conditions or similar contractual documents“- Regulation 2019/1150 specifically adresses the situations where a provider of online intermediation services itself offers certain goods or services to consumers through its own online intermediation services, or does so through a business user which it controls. In such situations, in particular, it is important that the provider of online intermediation services acts in a transparent manner and provides an appropriate description of, and sets out the considerations for any differentiated treatment that it might give in respect of goods or services it offers itself compared to those offered by business users. To ensure proportionality, this obligation should apply at the level of the overall online intermediation services, rather than at the level of individual goods or services offered through those services.21 4.2 Secondary liability and safe harbour under E-commerce directive Secondary liability refers to an obligation that is the responsibility of another party (user of platform, usually provider of the services) if the user as directly responsible person fails to satisfy the obligation in the first place. In these cases, the online platform may be liable under a ‘secondary or intermediate liability’, when it is held responsible for the mere fact that its intermediation enabled the users’ illegal and harmful activities. While the platform operators usually seek the role of mere intermediaries without considerable liability for the proper performance of the main contracts, there is increasing support for a tightened responsibility of the platform operators. According to contract law, as an intermediary, the platform has no contractual obligations regarding the contract between the two users.22 The development of business models of some digital intermediary platforms brought about the question to what extent these platforms can be considered only as information society service providers and to what extent their involvement 21 Regulation (EU) 2019/1150, recital p.30, 31. 22 Sorensen, 2018, p. 84.