www.tourismlaw.pt Liability of Online Platforms in Tourism Sector Monika Jurčová Trnava University International Journal of Tourism, Travel and Hospitality Law PRE-PRINT
1 Liability of Online Platforms in Tourism Sector1 Monika Jurčová Trnava University Rise of the platform economy and gamification The tourism and hospitality sector is one of those that has been hugely transformed and technology-driven in the last decade. This transformation is mainly due to the online platforms and various smart tourism mobile apps.2 The internet has become an essential tool in tourism and hospitality, facilitating potential tourists to search for information on products and services, compare and evaluate the alternatives and eventually selecting and buying the finalized alternative.3 Rise of the platform economy in almost all relevant sectors, tourism included, has not been enabled solely by technological progress. The phenomena of ‘gamification’ succesfully implemented in many platforms business models significantly contributed to the succes of online platforms. Gamification brings the application of typical elements of game playing (e.g., point scoring, competition with others, rules of play) to other areas of activity, typically as an online marketing technique to encourage engagement with a product or service. ‘Gamification is exciting because it promises to make the hard stuff in life fun’.4 Examples of gamification can be found in Airbnb, where the platform uses badges and travel coupons to engage hosts and accommodation providers (e.g. ‘Superhost‘badge), in Ryanair with the tempting possibility to fly anywhere on the possible lowest price or in Booking.com where the guest may reach various levels of „Genius ranking“. Gamification implemented by digital platforms helps to improve services and it has been argued that it generates engagement and value for both providers and tourists/users. Through game elements, users are more informed and involved, and they participate in the co-creation of value, while service providers acquire information 1 The paper has been prepared under project APVV-17-0562 Platform based contracts. 2 Kennedy-Eden and Gretzel, 2012, p.47-50. The apps may be divided to categories: Navigation, Social, Mobile Marketing, Security/Emergency, Transactional, Entertainment, and Information. 3 „United Nations World Tourism Organization (UNWTO) confirmed in its report that 95 percent of users exploited web channels to gather travel-related information and about 93 percent indicated that they visited tourism web sites while planning for vacations. The entire process has resulted in the emergence of e-tourism reflecting digitization of all processes and value chains in tourism, travel, hospitality and catering industries. European Travel Commission identified the web as the main primary source of information for searching or booking suitable travel destinations. In the last decade, the tourism and hospitality sector is characterized by a wide range of electronic applications (e.g. social networks, review Web sites, blogs, interactive websites and photo- and video-sharing platforms), facilitating interactions among the web-users.“ Vij, 2019. 4 Pasca, Renzi, Di Pietro and Guglielmetti Mugion, 2021, p. 691-737.
2 from users. In addition, sustainable as well as healthy behavior can be promoted by educating and transmitting rules through games.5 Models implementing gamification to transactions executed on the online platform bring an inherent risk that cannot be overlooked. While playing games it is easy to forget about duties and obligations, responsibilities, and liabilities. Therefore, it is the duty of lawyers to draw attention to the need to regulate such platforms. The functioning of digital online platforms creates several diverse legal issues. Liability of involved actors is one of the most frequently discussed. Liability is a specific form of legal responsibility that is connected to the violation of a duty that the person held liable was obliged to comply with, or to the infringement of one's rights. Obligations and duties may be imposed by the contract or may be derived from the law. Hand in hand with liability goes the social responsibility of the platform, which could manifest itself through the cooperation of the platform operator with the regulatory authorities. 6 Online platform, its definition and classification criteria Online platform creates a two-sided market, as it attracts and enters relationships with two groups of users. An example that is not exclusive to the digital world represents the media market, where advertisers on one side meet viewers, readers, and listeners on the other side. Online intermediary platforms also create a two-sided market. Intermediaries like booking.com know that the more guests visit their website, the more likely it is that accomodation providers are to use their services and vice versa. Different types of two-sided markets can be distinguished. Most important for the analysis of two-sided market is the distinction between two-sided transactional and non-transactional markets. Two-sided non-transactional markets, such as most media markets (e.g. Tourism Review, travel and hospitality news portal), are characterized by the absence of a transaction between the two sides of the market and, even when an interaction is present, it is usually not observable, so it is not possible to set a per-transaction fee or per-interaction fee or a two-part tariff. Two-sided transaction markets, such as those providing intermediation services, are instead characterized by the presence and observability of a transaction between the two groups of platform users. Consequently, the platform is not only able to charge a price for joining the platform but also one for using it—i.e., it can ask for a two-part tariff. 7 The term ‘online platform’ is widely used not only in academic literature but in our everyday speech as well. For the sake of theoretical and practical clarity it is important to distinguish between the notion of ‘online platform’ and the term ‘operator of an online platform’: The former is a kind of ‘virtual marketplace’ and an ecosystem comprising different agents, whereas the latter is a person or a company who runs the platform.8 For example, company Gotogate, Inc. is the operator of the booking portal – platform us.mytrip.com. Apart from already mentioned distinction between transactional and non transactional markets, other classifications of on-line platforms may be done according to various 5 Ibid. 6 Jurčová, 2018, p. 266. 7 Filistrucchi,Geradin, van Damme, and Affeldt, 2013, p.1-30. 8 Filatova-Bilous, 2021.
3 criteria (activities, sectors of relevance, actors, level of control, etc.) These criteria are of the utmost importance for determination of the applicable law (B2B or B2C transaction, sectoral legislation) and the liability of platform. According to activities we differentiate among: web hosting providers,9search engines,10 online media sharing providers,11 social media, networking and discussion forums, allowing users to connect and communicate publicly or semi-publicly or messaging platforms, allowing users to communicate and share content privately; matchmaking and e-commerce platforms, facilitating the transaction of services, marketplaces, app stores; within this group, a narrower category may be identified, namely: collaborative platforms, offering non-professional actors to offer offlineservices on an occasional basis (e.g. short term let of one apartment); and the other matchmaking platforms, such as dating apps;12 The present EU law has already reflected the existence of the on-line platforms. Modernisation of Unfair Commercial Practices Directive has been processed by the Directive 2019/2161 known broadly as the Omnibus Directive or “Enforcement and Modernization Directive”. It came into effect on 7 January 2020 and introduced the term ‘online marketplace’ that means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader which allows consumers to conclude distance contracts with other traders or consumers. Furthermore, Regulation 2019/1150 on promoting fairness and transparency for business users of online intermediation services is specially targeted to this area and it has introduced set of rules governing principles for relations between providers of online intermediation services and online search engines and business users and corporate website users that offer goods or services to consumers through these channels. Platforms operating in the tourism market and their services For our purposes are most relevant platforms connected with provision and intermediation of travel services. If we borrow the definition of ‚travel service’ from the Package Travel Directive 2015, most prominent services in tourism are • carriage of passengers. • accommodation. • rental of cars, other motor vehicles or motorcycles • and ‘other services’ as admission to concerts, sport events, excursions or event parks, guided tours, ski passes and rental of sports equipment such as skiing equipment, or spa treatments. Platforms operating in the tourism market may have a different nature in terms of the activities and level of control, e.g., interference or influence on the actual provision of the service by a third party. The operator of the platform can participate in the market 9 Allowing users to host a website or other internet-based offering. 10Allowing users to carry out systematic web searches for particular information, specified in a textual web search query, indexing results accordingly. 11 Allowing publication and consumption of online content and which, according to the type of material shared, can be further distinguished in news aggregation and broadcasting, music streaming, video streaming, blogs, etc. 12 Bertolini, Episcopo, Cherciu, 2021, p. 4.
4 by controlling the transactions carried out on the given platform, while the contracts are concluded directly by the platform, or their conclusion is at least demonstrably mediated by the platform. Such intermediary platforms achieve their income exclusively or at least predominantly through commissions from concluded contracts (Airbnb, booking.com, etc.). The role of the platform as the intermediary is to facilitate mutual transactions between providers and service users, but it is not excluded that relevant services are also provided by the platforms themselves.13 Platforms enable customers to conclude contracts for the supply of services with suppliers within a digital environment controlled by the platform operator or they enable suppliers to place advertisements within a digital environment controlled by the platform operator which can be browsed by customers in order to contact suppliers and to conclude a contract outside the platform (e.g. Tripadvisor redirecting to the platform booking.com); Under regulation (EU) 2019/1150 „online intermediation services’ means services which meet all of the following requirements: (a) they constitute information society services (b) they allow business users to offer goods or services to consumers, with a view to facilitating the initiating of direct transactions between those business users and consumers, irrespective of where those transactions are ultimately concluded; (c) they are provided to business users on the basis of contractual relationships between between the provider of those services and business users which offer goods or services to consumers; Unlike intermediary platforms, information and advisory platforms do not tend to control market transactions. They offer comparisons or other advisory services to customers which identify relevant suppliers of tourist services and which direct customers to those suppliers, their websites or provide contact details; or they enable platform users to provide reviews regarding suppliers, customers, services offered by suppliers, through a reputation system. In such a way they indirectly support creation of market transaction by enabling the search for suitable contractual opportunities and, through the evaluation system, they contribute to the control of the behaviour of the participants and the quality of the service provided (Trivago, Tripadvisor, etc.). Distinction between intermediary and advisory platforms partly represents differentiation between transactional and non- transactional platforms. Online platforms in tourism sector provide for their customers a) the information society service, where they host or transmit content provided by a third party, b) these services are frequently presented as information, advice or intermediaton and may be provided also directly by online platform, c) they may provide the travel service itself. 13 Novotná and Hulmák, 2020, p. 23.
5 Sources of liability of online platforms generally The recent study conducted for the needs of European Parliament outlined many sources and types of the liability connected to the functioning of the online platforms.14 The rules of media law, child protection, online piracy, IP and copyrights infringement, hate speach, voting manipulations or liability deriving from infringements of privacy and data protection law, are in great extent relevant for online content-sharing providers, video sharing, social networks. This contribution is concentrated on the liability of online platforms for the services provided in tourism sector, where we will deal with the contractual and some issues of extra- contractual liability. Tourism sector is not exemption to the problems emerging with development of platforms. Sharing economy and the ecosystem of the platforms creates the grey area when it comes to legal categories. One of the issues that break through the application procedures used so far is the multiplicity of the nature of the interested entities, in contrast to the platform operator, who is an entrepreneur and professional, on the side of users (customers and providers) can be traders as well as non-professionals, consumers and prosumers (abbreviation of the words "producer" and "consumer".) Typical example in tourism is the expansion of accommodation provided by non- profesional hosts. Primary liability of the online platform Intermediary and advisory platforms are directly liable in case of failure to comply with duties ascribed directly to them. This consequence represents primary liability of the platform.15 Obligation of platform may arise out of contract, or it may be derived from the law. Contractual liability of platform operator will be governed by the general civil law, if users are consumers, consumer law will be applicable. Liability of the platform operator for the intermediation services is generally not questionable, Modernisation of Unfair Commercial Practices Directive by Omnibus Directive has introduced special rules and obligation targeted on onlinemarkets (additional information requirements, rules for online search engines and ranking results).16 Special attention has been paid to traders enabling consumers to search for services, such as travel, accommodation, and leisure activities, offered by different traders or by consumers by Recital 22 of Omnibus Directive. Consumers shall be informed about the default main parameters determining the ranking of offers presented to the consumer as a result of the search query and their relative importance as opposed to other parameters. Information should be succinct and made easily, prominently, and directly available. 14 Bertolini, Episcopo, Cherciu, 2021, p.86-89. 15 Such approach has been adopted also by the ELI Model Rules on Online Platforms, that were elabored with purpose to promote fairness and transparency in the relations between platform operators and platform users and should serve as a model for national, European and international legislators as well as a source of inspiration for self- regulation and standardisation. 16 Duivenvoorde, 2022, p.43-52.
6 Next to the administrative liability resulting in fines and sanctions by states authorities, new rules for online markets have imposed duty to Member States to introduce measures and remedies for consumers applicable in private law relations. Consumers harmed by unfair commercial practices, shall have access to proportionate and effective remedies, including compensation for damage suffered and, where relevant, a price reduction or the termination of the contract (Article 11a of Unfair Commercial Practices Directive as amended). In contract law, it is presumed that you are a party to the contract you engage in, unless it is very clear that you are not. The platform to avoid being considered the main contracting party is obliged to clearly present itself as merely an intermediary when the provider and customer engage into a contract through the platform. 17 Example (Terms and condition on portal mytrip.com) Scope of services: Mediation of Travel Services 1. For the flight, hotel, insurance, train and car rental services offered on the Portal (collectively referred to as "Travel Services"), We exclusively act within our capacity as an intermediary. To that end, our role and obligations are limited to mediating Travel Services that will be rendered by third parties such as airlines, travel operators, hotels, insurers, car rental companies or other service providers (hereinafter in each case "Service Provider"). 2. Consequently, the agreement for the actual provision of Travel Services (e.g. transport contract, insurance contract, rental agreement) comes into effect directly between You and the relevant Service Provider. We are not a co-vendor of the Travel Services and We are not a party to the contractual relationship between You and the Service Provider. The CJ EC case Wathelet from 9 November 2016 has been crucial for situations when platform gives an impression being actually the provider of the intermediated services and the direct contractual partner of the customer. In this case the CJ EC interpreted the concept of ’seller’ under the Sales Directive 1999. „The concept of ‘seller’, .... must be interpreted as covering also a trader acting as intermediary on behalf of a private individual who has not duly informed the consumer of the fact that the owner of the goods sold is a private individual, which it is for the referring court to determine, taking into account all the circumstances of the case. The above interpretation does not depend on whether the intermediary is remunerated for acting as intermediary. ‘18 The CJ EC leaves it up to Member States to decide, when an intermediary gives the impression of a seller CJ EC provides some guidelines: The intermediary can be regarded as the seller if: “He fails to duly inform the consumer that he was not the owner of the goods in question, which involves, on the part of that court, taking into consideration all of the circumstances of the case... The degree of participation and the amount of effort employed by the intermediary in the sale, the circumstances in which the goods were presented to the consumer and the latter’s behaviour may, in particular, be relevant in that regard in order to determine whether the consumer could have understood that the intermediary was acting on behalf of a private individual.” 19 17 Sorensen, 2018, p. 75. 18 Case C-149/15 Sabrina Wathelet v Garage Bietheres & Fils SPR. 19 Ibid, point 44.
7 Even though the platform in giving information uses the correct legal terms, case law indicates that additional information and matching behaviour also is necessary in order to ensure that the consumer understands that the platform is not the main contracting party.20 Under Article 3 (5) of Regulation (EU) 2019/1150, providers of online intermediation services are obliged to ensure that the identity of the business user providing the goods or services on the online intermediation services is clearly visible. Recital 27 of Omnibus Directive spell out main features of information duties for providers of online marketplaces: • They should inform consumers whether the third party offering goods, services or digital content is a trader or non-trader, based on the declaration made to them by the third party. • When the third party offering the goods, services or digital content declares its status to be that of a non-trader, providers of online marketplaces should provide a short statement to the effect that the consumer rights stemming from Union consumer protection law do not apply to the contract concluded. • 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 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 20 Sorensen, 2018, p.77. 21 Regulation (EU) 2019/1150, recital p.30, 31.
8 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 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 22 Sorensen, 2018, p. 84. 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.
9 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 to be of a mere technical, automatic, and passive nature. The CJEU applied Recital (42) to hosting services in Google France26 and L’Oréal v. eBay, initiating the division between active and passive hosts.27 The active role of the platform within the mentioned activities results in the platform operator losing the protection of safe harbour. The safe harbour is not applicable to other activities of platforms, (e.g., payment tools, provision of a basic service, publication of reviews, etc.).28 The boundary between active and passive role of the platform is blurred. Several academic studies have highlighted the uncertainties surrounding the application of the E-commerce Directive to online platforms.29 Secondly, the E-commerce Directive was drafted at a relatively early stage of the development of internet. 30The CJEU has ruled in different ways on the question of whether the service provided by online platforms must be classified as an 'information society service'. In its Uber case31 from 2017 the CJEU concluded that the services provided by Uber should be classified as ‘a service in the field of transport’ and should be excluded from the information society services. On the contrary, in the judgement from 19 December 2019 in the Airbnb case32, the 25 Busch and Mak, 2021, p.111. 26 CJEU (C-237/08) Google France SARL and Google Inc. v Louis Vuitton Malletier SA (C-236/08), Google France SARL v Viaticum SA and (C-238/08) Luteciel SARL and Google France SARL v Centre national de recherche en relations humaines (CNRRH) SARL and Others Judgment of the Court (Grand Chamber) of 23 March 2010. Point 3 of Judgment ‚Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.‘ 27 Kuczerawy, 2018. 28 Madiega and Members' Research Service, 2020, p.4. 29 Ibid p.5. 30 Duivenvoorde, 2022, p. 45. 31 The CJ EU (C-434/15), Asociación Profesional Elite Taxi v Uber Systems Spain, SL of 20 December 2017. 32 The CJ EU (C-390/18) in the criminal proceedings against X of 19 December 2019.
10 CJEU came to the opposite conclusion on the nature of services provided by the respective platform: Airbnb was affirmed to be a pure intermediary providing information society services. In Uber case the CJEU stated that an intermediary service that, through a smartphone application, allows the transfer of information regarding the booking of a transport service between a passenger and non-professional drivers using their own vehicle, who will carry out the transport, basically corresponds to the qualification criteria of "information society service" in the sense of Article 1 point 2 of Directive 98/34 (point 35 of the judgment). However, the CJEU also stated that the intermediary service in question, as was the case in the case in which the judgment was issued, is not only an intermediary service consisting in contacting non-professional drivers using their own vehicles with persons who need to be transported within the city, through smartphone applications. He came to such an assessment based on the development of certain criteria such as: ‚the intermediation service provided by Uber was inextricably linked to the offer of urban non-public transport services created by this company, because it is based on the selection of non-professional drivers using their own vehicle, to whom the company provides an application without which (i) those drivers would not be led to provide transport services and (ii) persons who wish to make an urban journey would not use the services provided by those drivers. In addition, Uber exercises decisive influence over the conditions under which that service is provided by those drivers. On the latter point, it appears, inter alia, that Uber determines at least the maximum fare by means of the eponymous application, that the company receives that amount from the client before paying part of it to the non-professional driver of the vehicle, and that it exercises a certain control over the quality of the vehicles, the drivers, and their conduct, which can, in some circumstances, result in their exclusion ‘.33 The CJEU decided that intermediation service must thus be regarded as forming an integral part of an overall service whose main component is a transport service and, accordingly, must be classified not as ‘an information society service’ within the meaning of Article1(2) of Directive 98/34, to which Article 2(a) of Directive 2000/31 refers, but as ‘a service in the field of transport’ In Airbnb Ireland, however, the CJEU held that the services provided by Airbnb Ireland (consisting of connecting, via an online platform, potential guests with hosts offering accommodation to rent) fall within the definition of an 'information society service'. The CJEU stated that the facts mentioned by the national court do not allow to prove that Airbnb Ireland has such a decisive influence on the conditions of the provision of accommodation services, which are concerned by its intermediary service. Airbnb Ireland does not directly or indirectly set the price of the requested rent, and does not select the landlords or accommodation capacities offered for rent on its platform. For that reason, the CJEU decided that Article 2 letter a) of the E- commerce Directive should be interpreted in the sense that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with 33 Point 39 of the Judgment CJ EU (C-434/15).
11 professional or non-professional hosts offering short-term accommodation, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under the E- commerce Directive. Following the Court's reasoning, the classification as an 'information society service' depended on the degree of control that the platform had over the service provided. The lesser the degree of control, the greater the likelihood of being classified as an information society service.34 The assessment of the nature of the performance of the platform does not influence only liability of the platform operator but it substiantially influences the conditions under which the operator is authorized to operate the platform at all. In contrast to the guaranteed freedom to provide information society services, platform-mediated services may be subject to national or EU regulation, including special permit, concession or reporting systems as a prerequisite for authorized business in this area. Relevant decision of the CJEU based the assessment of these issues on the criteria later adopted and further developed by ELI Model Rules for online platforms.35 Under its article 20 Liability of the Platform Operator with Predominant Influence: ‘If the customer can reasonably rely on the platform operator having a predominant influence over the supplier, the customer can exercise the rights and remedies for the nonperformance available against the supplier under the supplier-customer contract also against the platform operator’. When assessing whether the customer can reasonably rely on the platform operator ‘s predominant influence over the supplier, the following criteria may be considered in particular according to ELI model rules: a) The supplier-customer contract is concluded exclusively through facilities provided on the platform; b) The platform operator withholds the identity of the supplier or contact details until after the conclusion of the supplier-customer contract. c) The platform operator exclusively uses payment systems which enable the platform operator to withhold payments made by the customer to the supplier; d) The terms of the supplier-customer contract are essentially determined by the platform operator; e) The price to be paid by the customer is set by the platform operator; f) The marketing is focused on the platform operator and not on the suppliers; or g) The platform operator promises to monitor the conduct of suppliers and to enforce compliance with its standards beyond what is required by law. 34 Madiega, T. and Members' Research Service, 2020, 5. 35 ELI Model rules on online platforms.
12 The actual decisions on secondary liability have been reflected in the business practice of online platforms in tourism. In 2021, Airbnb introduced its insurance product, AirCover, for hosts. As stated, „it was meant to inspire even more individuals to join the platform as hosts and list their property, guaranteeing coverage of any damage or issues. For example, many Airbnb hosts were reluctant to allow pets to stay at their listings despite the tremendous increase in pet ownership since the pandemic. AirCover solved for that.“ This year Airbnb added AirCover for guests. Guests should be protected against host cancellations, check-in issues, and will have access to a 24/7 Safety Line. Moreover, Airbnb is offering a “Get-What-You-Booked” guarantee. If a listing isn’t as it was advertised, Airbnb will give guests a refund or find them a listing of the same or better quality for their trip.36 This service for users of platform may cover problems if the platform’s operator secondary liability was disputable. In cases of non- performance at all, defective or delayed performance of host, or where damages due to non- performance or damages to listed property have been incurred to the guest, claims of users may be remedied by the insurance. Is this only act of social responsibility of Airbnb taking in the regard the fact that in case Airbnb Ireland the operator of online platform has benefited from liability exemption of the safe harbour? Not only. Insurance attracts users of platform on both sides of two sided market. And moreover, the terms and conditions for intermediation services provided by Airbnb are developing, the nature of the service develops and the ambiguos and unclear boundary between pure ‘information society service’ and services of providers on platform may result in different decisions and outcomes of national courts proceedings on the secondary liabiliy of platforms operator. Of these risks are operators of platforms fully aware. Similar policy is followed by booking.com by its offer of ‘Partner Liability Insurance Protection against liability claims from guests and neighbors‘.37 Liability under Package Travel Directive 2015 Under New Package Travel Directive organisers are responsible for the performance of the travel services included in the package travel contract unless national law provides that both the organiser and the retailer are liable. For our purposes is important retailer. This trader may act as an intermediary online platform and the applicable jurisdiction will decide whether this retailer will be liable for the travel services included in the package travel contract. Also traders facilitating a linked travel arrangements may have form of online platforms. According to Recital 22 of NPTD „Only in cases where another trader is acting as the organiser of a package should a trader, typically a high street or online travel agent, be able to act as a mere retailer or intermediary and not be liable as an organiser. Whether a trader is acting as an organiser for a given package should depend on that trader's involvement in the creation of the package, and not on how the trader describes his business. When 36 Crook, 2022. 37 https://join.booking.com/partner-liability-insurance/index.html
13 considering whether a trader is an organiser or retailer, it should make no difference whether that trader is acting on the supply side or presents himself as an agent acting for the traveller.“ Online platform acting as retailer will always have special rights and obligations stemming from NPTD.38 Liability for travel services included in the package retailers will bore in cases when national legislator has decided to prefer joint liability of organiser and trader. We should not exlude the possibility for the regime of secondary liability of retailers in the form of online platforms. Concerning the right of choice for Member States, this discretion right has led to ambiguity in EU, because different Member States may have different liability regimes for retailers. 39 Conclusion Online platforms in tourism sector provide the information society service for their customers, where they host or transmit content provided by a third party. The information society service is usually presented as information, advice of intermediation and its content is usually extracted from the users of the platform or exceptionally directly provided by the platform. The users’ status is important for establishing the applicable regime in contractional relations between actors in the platform. E- commerce Directive does not preclude the liability of online platforms for their own conduct under EU consumer law. Informational duties, professional diligence and no misleading actions are required to be preserved on the online platform. Reasonable expectations of users represent the important factor. The online platforms should duly inform the users. The terms and conditions itself may not be sufficient if the expectation of users based on the platforms’presentation evoke the impression of platform as the service provider or if the online platform has predominant influence over the provision of the travelservice itself. Secondary liability of online platforms has evolved also as the guarantee for the users of platforms. Platforms aware of the risks connected to this possibility provide the protection of intermediated services by the insurance. At the very beginning of my presentation, I stated that the tourism and hospitality sector is one of those that has been hugely transformed and technology-driven in the last decade. Later we discussed the most prominent cases concerning liability of online platforms that deal with travel services: Uber (transport), Airbnb (accommodation). I assume the practice fully proves the premise of the importance of platforms and necessity for clarification of their responsibilities in tourism industry. Digital Services Act shall be the next step. 38 Franceschelli and Torres, 2020, p.128-129. 39 Tincani, 2020, 368- 371.
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