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.
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