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
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