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.
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