International Journal of Tourism, Travel and Hospitality Law 2023

LIABILITY OF ONLINE PLATFORMS IN TOURISM SECTOR in the “realization” of the service mediated by the platform puts them at the level of the provider of this service. Services provided by online platforms represent information society service. The notion of ‘information society services’ spans a wide range of online economic activities including selling goods online, offering online information or commercial communications, providing online search tools allowing for search, provision of electronic network and services etc. The question is whether online platforms as providers of information services can benefit from exemptions from liability under Art. 12- 14, particularly 14 of the E- commerce Directive.23 The E- commerce Directive introduced a ‘safe harbour’ principle, under which online intermediaries who host or transmit content provided by a third party are exempt from liability unless they are aware of the illegality and are not acting adequately to stop it. The E-commerce Directive takes a horizontal approach to the liability of ‘information society service providers’. That means that, when the conditions are fulfilled, the EU legislation exempts the online intermediaries from a wide array of liabilities including contractual liability, administrative liability, tortious (delictual) or extra-contractual liability, penal liability, civil liability or any other type of liability, for all types of activities initiated by third parties, including copyright and trademark infringements, defamation, misleading advertising, unfair commercial practices, unfair competition, publications of illegal content, etc.24 The fact whether online platform will be allowed to benefit from liability exemption depends (according to case of CJEU) on the degree of control over the information stored on the platform. In its case law the CJEU has clarified that the safe harbour under art 14 (1) E- commerce Directive is only available to the intemediaries that take neutral position between customers and providers.25 The distinction between passive and active hosts is based on the expansive application of Recital (42) of E- commerce Directive, which requires intermediaries’ activities 23 Mere conduit service providers (Art. 12) are exempt from liability when the service provider is only passively involved in the transmission of data (i.e. interconnection to the internet provided by traditional internet service providers and network operators), and, Caching providers (Art. 13) are exempt from liability when they temporarily and automatically store data in order to make transmission more efficient (e.g. proxy server) and if several technical conditions for storing the information are met (e.g. local copy identical to original), and, Hosting providers (Art. 14) are exempt from liability when those companies storing data for their users (e.g. webhosting) do not know that they host illegal activity or information and act expeditiously to remove or disable access to the illegal information. 24 Madiega and Members‘ Research Service, 2020, p.4. 25 Busch and Mak, 2021, p.111.