THE NEW ONLINE PLATFORM RULES Among the most discussed provisions of the Digital Markets Act in connection with online travel agents is the ban on parity clauses. Article 5(3) provides that the gatekeeper must not prevent business users from offering the same products or services to end users through third-party online intermediation services or through their own direct online sales channel at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper. Unlike its first drafts, the final provision bans both narrow and wide parity clauses.36 This solution will be welcomed by the hotels although a recent study has found that individual Member States’ laws prohibiting online tourist agents from imposing parity clauses did not lead to any differences in hotel distribution arrangements in those countries relative to other study countries.37 Of course, the effect of an EU-wide ban might be different. 5 NEW LIABILITY REGIME FOR SHORT-TERM RENTAL SERVICES Short-term tourist rental platforms like Airbnb can currently avoid the liability for any illegality of the short-term rentals offered on their platform by their users. Under the E-Commerce Directive, a hosting service provider is not liable for the information stored at the user’s request if the provider does not have actual knowledge of illegal activity or information and is not aware of facts or circumstances from which the illegal activity or information is apparent.38 Under the “notice-and-takedown” system, since the hosting providers are not required to search for illegal content posted on their online platforms but must promptly remove or block such content when they are notified of the infringement by the affected party.39 This means that the local authorities that might wish to crack down on illegal short-term tourist rentals in their area must go after individual hosts who violate the local zoning rules or tax regulations rather than act against the platform facilitating such illegal practices. The proposed Digital Services retains the existing safe haven provisions for hosting providers but introduces two new categories of hosting services for which additional requirements apply before their providers can rely on exemptions from liability: online platforms and very large online platforms. 36 See Andriychuk, 2022, p. 116. 37 VVA and LE Europe, 2022, p. 75. 38 Edwards, p. 65. 39 Rowland, Kohl and Charlesworth, 2012, p. 85. Damjan, 2021, pp. 49-50.
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