The new online platform rules and the accommodation booking services by Matija Damjan IJTTHL Pre-print

www.tourismlaw.pt The new online platform rules and the accommodation booking services Matija Damjan Law Faculty University of Ljubljana International Journal of Tourism, Travel and Hospitality Law PRE-PRINT

1 The new online platform rules and the accommodation booking services Dr Matija Damjan1 1 Introduction The internet has now become the main communication channel through which tourist accommodation is booked. Hotels and other accommodation providers usually allow the guests to make reservations of rooms on their websites. Nevertheless, most online reservations are not made directly but through a new kind of tourist intermediaries – online booking platforms that enable their customers to compare and choose between the offerings of a large number of accommodation providers in a chosen area. Booking.com and Airbnb.com are the two most prominent examples of such platforms. The former is similar to traditional travel agencies as it facilitates bookings in hotels and other established commercial accommodation providers, whereas the latter is typically associated with the concept of sharing economy in the form of short-time rentals of private apartments and other lodgings not primarily intended for tourist purposes. Yet, the distinction between both types of booking platforms is not strict. Both have contributed to the rapid growth in tourism before the Covid-19 pandemic by bringing together accommodation providers and potential guests, which should in principle benefit both groups. Most online platforms present themselves as mere intermediaries between the providers and the recipients of accommodation services and the platforms’ terms and conditions contain express provisions to that effect.2 However, the largest platforms are much more than passive facilitators as they determine the terms and conditions of the service, influence the price, and manage the payment service, often charging a processing fee.3 The dominant role of a limited number of large platforms in the tourist sector also has downsides. If most transactions between consumers and accommodation providers are concluded through these platforms, this reinforces their position as gatekeepers and potentially strengthens existing barriers to market entry. The European Commission has argued that anti-competitive behaviour of dominant online platforms could lead to inefficient results in the digital sector to the detriment of European consumers.4 For this reason, it has proposed new ex-ante rules for gatekeeper platforms in the Digital Markets Act that could also affect the operation of the leading accommodation booking platform. Additionally, the new stricter rules on the liability of the largest platforms for illegal content under the proposed Digital Services Act might expose short-term rental platforms to legal liability in cases where such offerings fall foul of the local regulations on the commercial use of residential properties. 1 Matija Damjan is an Assistant Professor at the University of Ljubljana, Faculty of Law, and Secretary General of the Institute for Comparative Law at the Faculty of Law in Ljubljana. Email: matija.damjan@pf.uni-lj.si. The paper is based on research supported by the Slovenian Research Agency under the research programme P5-0337 “Legal challenges of the information society”. 2 Vlahek and Damjan, 2018, p. 123. 3 De Franceschi, 2018, p. 1. 4 Hučková and Semanová, 2022, pp. 510-511.

2 The paper will have a look at whether and how the new online platform rules currently discussed in the European Parliament will address the often-mentioned misgivings against online accommodation booking services. 2 The disruptive effect of online booking services 2.1 Online travel agents Online travel agents such as Booking.com differ from traditional travel agents not so much by the content of their service but mostly due to the fact that they are much more concentrated as a single online platform can cover the entire world. HOTREC’s hotel distribution study shows that between 2013 and 2019, the market shares of online travel agents have steadily increased in the European hotel sector from 19.7% in 2013 to 29.9% in 2019. At the same time, the share of direct bookings has decreased across Europe by over 10 percentage points from 57.6% in 2013 to 45.5% in 2019. The three main online travel agents are Booking Holding, Expedia Group and HRS Group, out of which Booking.com is by far the most influential player, with a share of 68.4% in the online travel agent market.5 The majority of tourist accommodation providers offer their inventory via online travel agents, although the share of providers listed on specific platforms varies between countries. Most hotels engage in multi-homing, meaning that they are listed on more than one online travel agent’s platform.6 From the consumers’ perspective, one of the main benefits of online travel agents is that a single platform gives them the possibility to compare the offers of different hotels and thus increases their choice. Consumer feedback and reviews concerning each accommodation are also helpful in making the choice. Finally, the platform makes it easy to make a reservation as it stores the user’s address, payment information and preferences. Nevertheless, competition authorities have been concerned, that the dominant platforms might misuse these features to mislead the consumers, e.g., by giving a false impression of a room’s popularity or not displaying the full cost of a room upfront. Recommended search results might not be in the interest of the consumer but may result from a hotel’s payment to receive a higher ranking. Since online platforms can collect all sorts of data on consumers and their online behaviour, the possible exploitation of the consumers’ behavioural biases is also a concern.7 Hotels and other tourist accommodation providers listed on online travel agents’ platforms benefit from increased visibility which brings in increased demand and new customers due to the platform’s wide customer base and their advertising. When consumers see a hotel on a platform and then book it via the hotel’s own website, this is referred to as billboard effect. The platforms can also provide accommodation providers with analytics concerning their user base, thus helping them to make their offers more competitive and adjusted to potential guests’ requirements.8 On the other hand, the use 5 HOTREC, 2022. 6 VVA and LE Europe, 2022, p. 15. 7 Ibid., p. 17-18. 8 Ibid., 2022, pp. 19-20.

3 of platform means that accommodation providers themselves obtain less information on their customers and become more dependent on the platform’s data. Since a few large mediate the vast majority of transactions between consumers and accommodation providers, they benefit from strong network effects.9 Their gatekeeper role gives rise to the concern that they will act as private rule-makers as businesses often feel pressured into accepting the platforms’ terms on a ‘take it or leave it basis’.10 This can result in unfair conditions, such as high commission rates and price parity clauses which restrict the hotel from offering better prices or otherwise more favourable conditions on their own website (narrow parity clause) or through any other sales channels other than the contracted platform (wide parity clause).11 Hučková and Semanová point out that the emergence of online platforms is accompanied by three main problems: i) insufficient possibility of competition and weak competition in platform markets; ii) unfair trading practices towards commercial users; and iii) fragmented regulation and supervision of entities operating in these markets.12 2.2 Short-term holiday rental platforms Short-term rental platforms, such as Airbnb, serve as intermediaries between the owners of different types of lodgings who wish to rent them out (hosts), and visitors (typically tourists) looking for shortterm accommodation (guests). Hosts and guests communicate and transact directly with one another through the platform.13 Accessible via a website and mobile application, the digital platform allows hosts to present their residential premises (individual apartments, entire houses, holiday cottages, single or shared rooms) and the per-night prices for their use. Prospective guests can contact the homeowner through the platform and make a reservation for their selected option. Platform operators usually charge a service fee in the form of a commission on each booking made.14 This relationship may be described as a sharing economy where individuals temporarily rent out their residential property for a period in which they do not intend to use it themselves. However, digital platforms are also seeing increasing use by owners who do not use the property to live in but invest in it mainly for the purposes of renting it out to tourists, namely, as their supplementary economic activity.15 Before the onset of the pandemic, many European cities were faced with tourist overcrowding, partly boosted by short-term rental platforms, which had the negative social effects of removing housing from the market and driving up prices. Local authorities in many places have tried limiting the availability of short-term rentals in order to protect general interests like preservation of public space, neighbourhood coexistence, and guaranteeing a balanced offer of affordable housing and shops for residents. For this reason, urban planning restrictions have been introduced as well as limitations on 9 Hučková and Semanová, 2022, pp. 513–514. 10 VVA and LE Europe, 2022, p. 21. 11 Quinn, 2021, p. 3. VVA and LE Europe, 2022, p. 22 and 69. 12 Hučková and Semanová, 2022, p. 512. 13 Airbnb, 2020, p. 1. 14 The Airbnb platform is made available to users free of charge, but Airbnb charges fees to guests and/or hosts when a booking is made. Airbnb, 2020, p. 1. 15 Vlahek and Damjan, 2018, p. 119.

4 the number of nights a residential property can be rented out annually in combination with the requirement that any advertising of tourist accommodation includes a correct registration number of the service provider.16 However, the authorities generally lack effective legal mechanisms to enforce such tourism regulations, particularly against the platforms themselves,17 which can rely on the exemption from liability for third-party activities and services provided through a platform under the rules of the E-Commerce Directive.18 As a general principle, the E-Commerce Directive prohibited Member States from imposing on internet intermediaries any general obligation to monitor their users’ activities and prevent them from posting illegal content.19 Platform operators try to avoid any obligation to ensure the rental services comply with legal requirements prescribed by the local housing laws or zoning regulations for short-term tourist rentals. The responsibility for taking care of the legality of the rental is left to the hosts. Terms of service of short-term rental platforms typically stipulate that the platform acts only as an intermediary between the guest and the host and is not party to the contractual relationship between them. By accepting the terms of service, the property owner pledges that the lodging is rented out in accordance with the local zoning laws and with the neighbours’ consent, if required, and that all administrative permits have been obtained that may be prescribed for short-term tourist rentals.20 The platform assumes no responsibility for possible violations of these rules. 3 The proposed new platform rules In December 2020, the European Commission proposed a comprehensive set of new rules for all digital services, including social media, online market places, and other online platforms that operate in the European Union (EU). The legislative package consists of drafts of two new pieces of legislation dealing with the activity of online platforms: the Digital Markets Act (DMA)21 and the Digital Services Act (DSA)22. Both legislative proposals build on the idea that the dominant position of certain platforms operating in the digital environment requires an increase in their legal responsibilities. 23 In the Commission’s words, the Digital Services Act and the Digital Markets Act have two main goals: to create a safer digital space in which the fundamental rights of all users of digital services are protected and to establish a level playing field to foster innovation, growth, and competitiveness, both in the European Single Market and globally.24 The European Parliament adopted both acts in July 2022. 16 Martinez, 2021. Vlahek and Damjan, 2018, p. 135. 17 Martinez, 2021. 18 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, OJ L 178, 17. 7. 2000, p. 1-16. 19 Rowland, Kohl and Charlesworth, 2012, p. 73; Spindler, 2020, pp. 3–4. 20 Vlahek and Damjan, 2018, p. 123. 21 Proposal for a Regulation on contestable and fair markets in the digital sector (Digital Markets Act), COM(2020) 842 final, 15. 12. 2020. 22 Proposal for a Regulation on a Single Market for Digital Services (Digital Services Act) and amending Directive 2000/31/EC, COM(2020) 825 final, 15. 12. 2020. 23 Quinn, 2021, p. 2. 24 European Commission Press release, 15 December 2020, ‘Europe fit for the Digital Age: Commission proposes new rules for digital platforms’, available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2347 (accessed 7. 10. 2022).

5 Council of the EU gave final approval to the Digital Markets Act in July 2022 and is expected to approve the Digital Services Act in the autumn of the same year.25 The rules specified in the Digital Services Act primarily concern online intermediaries and platforms that connect consumers to goods, services, or content. The new harmonised obligations for digital services include new procedures for faster removal of illegal content as well as comprehensive protection for users' fundamental rights online, which should contribute towards rebalancing the rights and responsibilities of users, intermediary platforms, and public authorities. The Digital Services Act will also apply to service providers established outside the who offer services within the EU. Failure to comply with the rules could result in fines up to 6% of annual revenue.26 The Digital Markets Act establishes a new category of gatekeeper online platforms. These are large dominant intermediaries that play a systemic role in the internal market by providing certain “core” services and therefore exert significant control in the digital economy. When a gatekeeper engages in unfair business practices, it can prevent or slow down valuable and innovative services of its business users and competitors from reaching the consumer. The new ex ante regulation seeks to prevent these large technology companies from abusing their market power.27 This is particularly important as new platforms have found new ways of tying, bundling and self-preferencing based on the mass customer data they collect in their operation, which poses new challenges for competition law.28 The Digital Markets Act will apply only to major providers of the core platform services which meet the objective legislative criteria to be designated as gatekeepers. It will prohibit a number of practices which are clearly unfair as well as require gatekeepers to proactively put in place certain measures to prevent abuse. The proposal also gives the Commission extensive enforcement tools.29 If a gatekeeper violates the rules laid down in the Digital Markets Act, it risks a fine of up to 10% of its total worldwide turnover. For a repeat offence, a fine of up to 20% of its worldwide turnover may be imposed (Article 30). 4 Online booking services as digital gatekeepers 4.1 The definition of digital gatekeepers One of the key points of contention of the Digital Markets Act was how to define a gatekeeper, which will determine which online platforms are covered by this term and will have to comply with the corresponding obligations. A gatekeeper must be a de-facto digital market bottleneck, which EU businesses and consumers find hard to avoid. Article 3 first defines qualitative and quantitative criteria that a gatekeeper must meet cumulatively. 25 Council of the EU Press release, 18 July 2022, ‘DMA: Council gives final approval to new rules for fair competition online’, available at: https://www.consilium.europa.eu/en/press/press-releases/2022/07/18/dmacouncil-gives-final-approval-to-new-rules-for-fair-competition-online (accessed 7. 10. 2022). 26 Quinn, 2021, p. 3. 27 Ibid., p. 2. 28 Hučková and Semanová, 2022, p. 515. 29 Quinn, 2021, p. 3.

6 An undertaking can be designated as a gatekeeper if it has a significant impact on the internal market. This criterion is presumed to be satisfied where the undertaking achieves an annual Union turnover equal to or above EUR 7,5 billion in each of the last three financial years, or where its average market capitalisation or its equivalent fair market value amounted to at least EUR 75 billion in the last financial year (both financial thresholds are higher than in the Commission’s initial proposal), and it provides the same core platform service in at least three Member States. The second criterion is that a gatekeeper provides a core platform service which is an important gateway for business users to reach end users. The core platform services list includes online intermediation services, online search engines, online social networking services, video-sharing platform services, number-independent interpersonal communication services, operating systems, cloud computing services, advertising services provided by a provider of any of the services listed before. The core platform service is considered an important gateway if it had at least 45 million monthly active end users established or located in the Union in the last financial year and at least 10 000 yearly active business users. If the conditions relating to the numbers of active users are met in each of the last three financial years, the platform is presumed to satisfy also the third qualitative criterion, that is that it enjoys an entrenched and durable position in its operations, or it is foreseeable that it will enjoy such a position in the near future.30 The definition of active end users has been a contentious issue in the legislative procedure. Online travel agents have been alarmed by the proposal to define active end users as visitors for all transaction-based platforms, regardless of their size. They claimed that merely considering the number of website or app visitors would dramatically distort the number of users considered and extend the gatekeeper status to companies that do not have the systemic effect that the regulation is trying to address.31 Under the final version of the Digital Markets Act, the number of active end users will be identified and calculated in accordance with the methodology and indicators set out in the Annex, which provides that only the number of ‘unique users’ should be taken into account. These will be determined based on the number of registered users or, for end users outside signed-in or logged-in environments, on an alternate metric such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. For online intermediation services, the number of unique end users is further defined as end users who engaged with the online intermediation service at least once in the month for example through actively logging-in, making a query, clicking or scrolling or concluded a transaction through the online intermediation service at least once in the month. As for business users, what is relevant is the number of unique business users who had at least one item listed in the online intermediation service during the whole year or concluded a transaction enabled by the online intermediation service during the year. If we apply the above criteria to online booking services, we can conclude that these are certainly a sort of online intermediation service and therefore fall under the core platform services performed by 30 See Hučková and Semanová, 2022, pp. 517-518. 31 Bertuzzi, 2021.

7 digital gatekeepers. Booking.com and Airbnb are close to meeting the financial thresholds and criterion of the numbers of unique active users under Article 3 of the Digital Markets Act so these two platforms could be considered digital gatekeepers if their business remains successful in the following years. Online travel agents have been generally opposed to being considered digital gatekeepers. They pointed out that they operate in a highly competitive accommodation sector competing both with online and offline accommodation providers and distributors – including several other platforms, hotel websites, travel aggregators, meta search engines, and offline travel agencies.32 One of the most common criticisms of the Digital Markets Act is that it does not take the user or business’s ability to use multiple platforms for the same purpose into account. A user can look for prices and book a room on various available platforms, or directly on the hotel’s website; and the hotel can offer its rooms via the same channels (multi-homing). If businesses and customers can multi-home, they are more likely to escape conditions imposed by one platform by increasing the use of a competing platform. Booking.com expressed this view figuratively: “If there is no single gate through which business must pass, then there is no reason that would justify the application of a gatekeeper regulation in this sector.”33 Regardless, these criticisms were not heeded by the EU legislators. 4.2 New obligations of digital gatekeepers When an online platform has been identified as a gatekeeper under the Digital Markets Act, it will have to comply with its mandatory rules within six months. Under Article 5 to 7, gatekeepers are subject to certain obligations and prohibitions. Focusing on those that seem most relevant for online booking services, gatekeepers will have the obligation to ensure freedom for users, which includes, for example, freedom of pricing for corporate users and freedom to do business outside the platform. They will be prohibited from combining users’ personal data for targeted advertising without the users’ express consent. On the other hand, they will have to allow data portability and give business users access to their marketing or advertising performance data on the platform.34 Gatekeepers will be prohibited from preventing or restricting corporate users from raising issues with any relevant public authority in connection with any practice of the gatekeeper. They will also be prohibited from ranking their own products or services higher compared to similar services or products of third parties is prohibited and fair and non-discriminatory conditions must apply to such evaluations.35 If a gatekeeper violates the rules laid down in the DMA, it can be fined up to 10% of its total worldwide turnover. For a repeat offence, a fine of up to 20% of its worldwide turnover may be imposed (Article 30). 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 32 Airbnb, 2020, p. 2. 33 Booking.com Public Affairs, 2020. 34 Hučková and Semanová, 2022, p. 519. 35 Ibid., p. 520.

8 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 shortterm 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. Online platforms are defined as hosting services which, at the users’ request, store and disseminate information to the public (such as online marketplaces, app stores, collaborative economy platforms and social media platforms). This clearly also includes online accommodation booking services. Online platforms will no longer be able to shift the whole burden of identifying illegal content to the persons whose rights are affected through the public availability of such information. Rather than opening the doors for the very contentious upload filters, the draft new rules require online platforms to rely on trusted flaggers, i.e., independent expert entities that review content available on the platforms and report any illegal content. Trusted flaggers are already used in practice by the major social networks,40 so the mechanism will not be a novelty, but the status of trusted flaggers will now be awarded by the Digital Services Coordinator of the Member State rather than the platforms themselves. Any takedown notices received from trusted flaggers will have to be processed and decided upon by the platform operator with priority and without delay. Furthermore, the draft Regulation introduces important new measures against the misuse of online platforms’ services. The platforms will be allowed and legally required to suspend for a reasonable time, after a prior warning, 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. 40 Communication COM(2017) 555 final, Tackling Illegal Content Online, point 6.

9 the users of their service that frequently provide manifestly illegal content, and the individuals or entities who frequently submit takedown notices or complaints that are manifestly unfounded.41 The second new category of hosting services are very large online platforms, defined as online platforms that reach at least 45 million average monthly active users (10% of the EU's population). These will be required to perform an annual assessment of any significant systemic risks stemming from the functioning and use of their services. The assessment will need to include, among others, the risk of the dissemination of illegal content through their services.42 Following the risk assessment, very large online platforms will have to put in place reasonable, proportionate, and effective mitigation measures to address the specific systemic risks identified, such as content moderation or recommender system, limiting the display of advertisements or reinforcing the existing internal processes for the detection of systemic risks. Finally, very large online platforms will be subject, at their own expense and at least once a year, to independent audit to assess their compliance with the above requirements. It seems that among online booking services the new liability rules under the Digital Services Act will mostly affect short-term rental platforms, such as Airbnb, which will have to accept a system of trusted flaggers to oversee their rental offers and to report those in contravention with the local short-term tourist rental rules. Municipal authorities in the cities most affected by mass tourism might be happy to help set up a network of trusted flaggers to help them enforce those rules. If the platforms meet the threshold of 45 million average monthly active users, they will themselves have to be more proactive in detecting systemic risks relating to illegal short-term rentals. Whether this makes them actually more cooperative in ensuring the legal compliance of short-term rentals remains to be seen, particularly since the very large platforms’ risk-reducing obligations are defined in very general terms and leave the formulation and implementation of the measures to the platforms themselves. Some critics believe that a one-fits-all approach for all types of platforms will prove to be inefficient and that more specific sectoral rules would be in place.43 6 Conclusion The new online platform rules contained in the Digital Markets Act and in the Digital Services Act will certainly affect the online accommodation booking services. The largest online travel agents, particularly Booking.com, will likely be considered digital gatekeepers and will have to comply with the corresponding obligations arising from the Digital Markets Act. This ex ante regulation should prevent abuses of their market power as well as unfair business practices by the largest platforms, create a level playing field for all accommodation service providers and also benefit the consumers. The ban on parity clauses seems to be a feature particularly welcomed by the accommodation service providers. The updated liability regime for the largest hosting providers, contained in the Digital Services Act, will be particularly important for the short-term rental services, such as Airbnb, which will have to assume a more active role in removing illegal offerings of short-term rentals in contravention with the local 41 Damjan, 2021, p. 57. 42 Recital 57 of the Draft Digital Services Act. Damjan, 2021, p. 57. 43 See Martinez, 2021.

10 rules, particularly if they reach the threshold to be considered a very large online platform. This will be welcomed by the local authorities in the areas most burdened by mass tourism. Nevertheless, both regulations introduce horizontal rules applying to all types of online platforms with a significant market power, regardless of the nature of their particular services. If these rules turn out to be too general to address the specific concerns relating to online booking services, we can expect the European Commission’s initiative to introduce additional sectoral rules. The Commission’s 2021 initiative on short-term accommodation rental services,44 for instance, aims to create a regulation ensuring a level playing field for all accommodation service providers. This should involve offering balanced solutions for cities, peer and professional short-term rental providers and platforms, while benefiting small and medium-sized firms. It seems, therefore, that the story on the regulation of online accommodation booking services has only just begun. 44 Ref. Ares(2021)5673365 – 16. 9. 2021.

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12 Vlahek, A., Damjan, M. (2018) ‘Slovenian regulation of short-term apartment rentals via digital platforms’ in Hojnik, J. (ed.) Sharing economy in Europe: opportunities and challenges. Ljubljana: Zavod 14; Brussels: European Liberal Forum, pp. 119-143. VVA, LE Europe (2022) Market study on the distribution of hotel accommodation in the EU: Final report, COMP/2020/OP/002Competition. Brussels: European Commission.

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