The new Platform-to-Business Regulation: A case study on Airbnb Terms of Service
How does the transparency concept under Regulation no 2019/1150 apply to the business users of Airbnb?
Master Thesis European Private Law
Öykü BARLAS 12532460
Supervisor: Mia Junuzović, LL.M. Mag. iur. Date: 24 July 2020
Abstract
Online platforms are important actors in both consumers’ and businesses’ lives. While playing an intermediary role between consumers and businesses, online platforms help businesses to access a broad group of consumers across borders. However, studies have shown that there is a significant difference in the economic and bargaining power between online platforms and business users. Having no room for negotiation business users find themselves in a ‘take it or leave it’ situation when accepting unilaterally decided terms and conditions. As a consequence, businesses face a long list of practices including abrupt changes in terms and conditions, lack of information regarding the collection of data, and the ranking system. Eventually, the EC has adopted the P2B Regulation, to prevent the foregoing practices and establish transparency in P2B relationships of online intermediation services. This study aims to investigate the transparency concept established by the EC with a case study on one of the well-known online platforms of our age, Airbnb. The analysis of the P2B Regulation shows that the EC aimed to achieve a transparency concept by imposing a set of obligations on online intermediation services. In terms of the reflection of these obligations to Airbnb, three observations could be made: (1)With respect to several of the obligations, Airbnb established a transparency concept way before the P2B Regulation entered into force; (2) There are a few obligations of the P2B Regulation that requires Airbnb to modify its terms and conditions to fulfill compliance; and (3) Since the EC once again failed to make the distinction between transparency and information obligations, the P2B Regulation fails to achieve transparency in practice, which is observed in the example of Airbnb ranking mechanism. For further clarification for the transparency concept in P2B relationships, the EC guidelines or ECJ interpretation on the matter might be needed.
TABLE OF CONTENTS
I. INTRODUCTION
1. General ……….….. 4
2. Methodology ……….………. 8
II. THE ROAD TO REGULATING P2B RELATIONSHIPS AT THE EU LEVEL………...……….………….… 8
i. The P2B Regulation in General ……….………... 8
ii. A Revolutionary Step ……….……… 9
III. TRANSPARENCY CONCEPT UNDER the P2B REGULATION………….……….…. 12
1. Information Obligations……….……….……….……….. 13
1.1. Additional Distribution Channels and Affiliate Programs …….…...……... 13
1.2. Ownership and Control of Intellectual Property……….……….. 14
1.3. Differential Treatment ………..……….... 14
1.4. Most Favored Nation (“MFN”) Clauses ……….…. 14
1.5. Ancillary goods and services ……...……….………... 15
1.6. Ranking ………....……….……... 15
1.7. Use and Access to Data ………..………. 16
1.8. Restriction, Suspension and Termination of Services ………....……. 17
1.9. Internal Complaint-Handling System……….……….. 18
1.10. Identity of Business Users ………..………….……….. 18
1.11. Changes to the Terms and Conditions ……….……….. 18
2. Transparency Obligations ……….…..…….. 19
2.1. Availability ………..….……....……... 19
2.2. Plain and Intelligible Language ………...….……....……... 20
3. Consequences in case of Non-Compliance ……...….……….………….….……... 21
IV. Airbnb and P2B REGULATION ………..…….. 22
1. Areas in which Airbnb is providing better transparency for Hosts ………... 24
2. Areas that require improvement ………... 27
a. A matter of anxiety for hosts: Ranking …..…...………...………… 30
V. CONCLUSION i. Final words on P2B Regulation ……….………... 32
ii. Response to the Research Question ………..………... 33
I. INTRODUCTION
1. General
Online platforms have become the main contributors to innovation and growth in the digital economy. They have become an integral part of our daily lives as consumers and businesses alike since they allow us to access and provide goods and services. Furthermore, by playing an outstanding role in the creation of digital value and the future economic growth in the European Union (“EU”), online platforms are also one of the newest contributors to the functioning of the European Digital Single Market.
Today, we observe many successful businesses operating as platforms (a long list including Airbnb, Booking.com Uber, Deliveroo, Amazon.com), which consequently disrupted our perceptions towards multiple industries as accommodation, transportation and retail.1 The new
business models introduced by online platforms have gained more importance over the past years and established the so-called ‘platform economy.’2 In the platform economy, we see that
online platforms may appear in various shapes and activities such as ‘search engines, social media and creative content outlets, application distribution platforms, payment systems, online advertising platforms, market places’.3
Despite the difference of activities in which the online platforms engage, one of the common and -as the European Parliament calls it-4 a fundamental feature of the online platforms is the
triangular structure. The triangular structure manifests itself with three sets of relationship types between (i) online platform and the business; (ii) online platform and the consumer; and (iii) the business and the consumer.5 Whereas the relationship between an online platform and
the businesses constitute a platform-to-business relationship (“P2B”), the latter two sets constitute a business-to-consumer relationship (“B2C”).
1 Mark Fenwick, Joseph A. McCahery, Erik P.M., ‘ The End of 'Corporate' Governance: Hello 'Platform' Governance’, (2019),
European Business Organization Law Review 20, 171.
2Carolien Michielsen, ‘Regulating online platforms: piece of the puzzle’ (Stibbe, 08.08.2019)
<https://www.stibbe.com/en/news/2019/august/regulating-online-platforms-piece-of-the-puzzle >, last access on 20.06.2020.
3 European Commission, ‘Communication From the Commission to the European Parliament, The Council, the European
Economic and Social Committee and the Committee of the Regions. Online Platforms and the Digital Single Market Opportunities and Challenges for Europe’ COM (2016) 288 final.
4 European Parliament, ‘Briefing, How to Adapt Regulatory Framework to the Digital Age’, (European Parliament Think
Thank, 08.09.2017), <https://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_BRI(2017)607323>, last access on 20.07.2020.
B2C relationships have frequently mentioned at the EU legislative level. Indeed, European legislator, by using the information asymmetry in B2C relationships as the core ground, has taken quite a few policy actions for the protection of European consumer.6 These policy actions
are observed in both general areas such as consumer contracts7 and also in more specific areas
like consumer credit8, product liability9, and the package travels for consumers10. It is
admirable that the information asymmetry in B2C relationships is recognized at the EU level and consumers are provided with improved protection.11
Nonetheless, the triangular structure presents that online platforms are also engaging with a strong supply side, namely companies/businesses seeking to conduct their businesses through online platforms and to reach out to the consumers. In the P2B relationships, the possibility of one party abusing the other unilaterally imposing contract terms may be less obvious, since both parties of the relationship are thought to have the same equal bargaining power in the commercial atmosphere.12 However, this is not the reflection of reality.13 By acting as
intermediaries between businesses and users, online platforms have reached such a position that they enable businesses to target a wide range of audience that goes beyond borders of Member States.14 This may be particularly beneficial especially for small and medium-sized
enterprises (“SMEs”) and ‘any private individual acting in a commercial or professional capacity’15 since online platforms have become the main gateway towards certain markets and
a tool to access consumers at a very low cost. This shows that similar problems may also exist
6 European consumer is a crucial concept in the consumer acquis and plays an important role in terms of defining the
application of consumer regulations of European Union. The notion of consumer at the EU legislative level can be defined in the following manner: “a natural person, who is acting outside the scope of an economic activity (trade, business, craft, liberal profession)” (European Parliament, ‘Library Briefing on the notion of ‘consumer’ in EU law’)
7 Directive 2005/29/EC on Unfair Commercial Practices (“UCPD”), Article 1; and Directive 93/13/EEC on Unfair Contract
Terms (“UCTD”) Article 1.
8 Directive 2008/8/EC on credit agreements for consumers and repealing Council Directive 87/102/EEC, Article 1: “The
purpose of this Directive is to harmonize certain aspects of the laws, regulations and administrative provisions of the Member States concerning agreements covering credit for consumers.”
9 Directive 85/374/EEC on Product Liability.
10 Directive (EU) 2015/2302 on Package Travel and Linked Travel Arrangements, Article 1.
11 UCPD and UCTD, which were adopted under this influence provide several definitions e.g. ‘good faith’ and ‘professional
diligence’ which may also be considered essential for P2B relationships but are unfortunately captivated within B2C transactions due to their very limited personal scope. UCTD Preamble for good faith: “whereas, in making an assessment of good faith, particular regard shall be had to the strength of the bargaining positions of the parties, whether the consumer had an inducement to agree to the term and whether the goods or services were sold or supplied to the special order of the consumer; whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account;”. UCPD Article 2(h) for professional diligence: “the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader's field of activity.”
12 Marco Loos, (2016). ‘Art. 70-71: Incorporation and making available of standard contract terms.’(2016), In A. Colombi
Ciacchi (Ed.), Contents and effects of contracts - Lessons to Learn from the Common European Sales Law. 13 Ibid.
14 Prof. Alexandre de Streel, ‘Online Intermediation Platforms and Fairness: An Assessment of the Recent Commission
Proposal’, (University of Namur, CRIDS, CERRE, September 2018).
in P2B relationships since parties in a P2B relationship do not always hold the same economic power.16 Nonetheless, no EU level action has taken place regarding the P2B relationships until
the beginning of 2016. The lack of regulation at the EU level for P2B relationships put the business users in a vulnerable position vis-à-vis online platform.17 As a matter of fact,
forty-six percent (46%) of the business users reflect that they encounter problems with online platforms during their businesses due to the lack of EU level, harmonized protection for P2B relationships.18
Online platforms and business users are dependent on each other in terms of their economic interests as one aims to increase the operation on their platform and the other aims to conduct their business and reach the relevant customers.19 Nevertheless, research has shown that while
online platforms are mostly are very large and global incorporations, their business users are very often small and local natural and legal persons.20 This results with business users not
having much room for negotiation about the business model and contract terms of the online platforms and usually finding themselves in a ‘take it or leave it’ situation.21 It has been
observed that online platforms hold more economic power compared to their business users and this power leads them to impose unilaterally decided terms and conditions which business users will use to offer goods.22 This situation originates from an imbalance in bargaining power
relating to the business model of the online platform, especially regarding terms and conditions and collection and use of data.23 With a much similar position as consumers, due to the fear of
retaliation, business users accept the terms and conditions despite the information asymmetry.24
Transparency at this point plays a crucial role to prevent the foregoing problems since it aims
16 Marco Loos, (2016). ‘Art. 70-71: Incorporation and making available of standard contract terms.’(2016), In A. Colombi
Ciacchi (Ed.), Contents and effects of contracts - Lessons to Learn from the Common European Sales Law.
17 Paul-Jasper Dittrich, ‘Online Platforms and How to Regulate Them: An EU Overview’ (Jaques Delors Institute Berlin,
14.06.2018).
18 European Commission, ‘Business-to-Business relations in the online platform environment’,
<https://op.europa.eu/fr/publication-detail/-/publication/04c75b09-4b2b-11e7-aea8-01aa75ed71a1/language-en>, last Access on 16.05.2020.
19 Inge Graef, ‘Differentiated Treatment in Platform-to- Business Relations- EU Competition Law and Economic
Dependence’, (2019), 38, Yearbook of European Law, 448.
20 Prof. Alexandre de Streel, ‘Online Intermediation Platforms and Fairness: An Assessment of the Recent Commission
Proposal’, (University of Namur, CRIDS, CERRE, September 2018).
21 Ibid.
22 Christian Twigg-Flesner, ‘The EU’s Proposals for Regulating B2B Relationships on Online Platforms – Transparency,
Fairness and Beyond’ (17.09.2018). (2018) 7 Journal of European Consumer and Markets Law 222-233.
23 Prof. Alexandre de Streel, ‘Online Intermediation Platforms and Fairness: An Assessment of the Recent Commission
Proposal’, (University of Namur, CRIDS, CERRE, September 2018).
to eliminate the information asymmetry between the business users and online platforms and prevent exploitation of business users by unilaterally imposed terms and conditions. 25
Additionally, from the European Commission’s (“the EC”) perspective, transactions conducted by online platforms also carry importance in the cross-border trade, hence they intrinsically contribute to the functioning of the internal market26 by connecting parties across
national borders.27 Hence, the EC found it appropriate to implement “a targeted set of
mandatory rules” at the EU level28 ‘to ensure a fair and transparent environment’ in the
platform economy.29
Following that the EC announced in the mid-term review of the Digital Single Market Strategy30 its intensions to adopt solid measures to address transparency problems resulting
from the imbalance in the bargaining power and information asymmetry in P2B relationships.31
On 26th of July 2019, as part of the Digital Single Market Strategy, the EU adopted the
Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20th June 2019
on promoting fairness and transparency for business users of online intermediation services (“the P2B Regulation”).32
25 Philippe Chappatte, Janitra Raftery, Katie Hudson, ‘Increasing transparency and fairness for business users on online
platforms’, (Slaughter and May, April 2019), <https://www.slaughterandmay.com/media/2537434/increasing-transparency-and-fairness-for-business-users-on-online-platforms.pdf>, last access on 14.07.2020.
26 P2B Regulation, Recital 6.
27 European Commission, ‘Commission Staff Working Document Impact Assessment Accompanying the document
Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services’ COM (2018) 238 final, page 9.
28 P2B Regulation, Recital 7. 29 Ibid., Recital 7.
30 Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions on the Mid-Term Review on the implementation of the Digital Single Market Strategy A Connected Digital Single Market for All, COM(2017) 228 final.
31 Caroline Cauffman, ‘New EU rules on business-to-consumer and platform-to-business relationships’ (2019) 26(4)
Maastricht Journal of European and Comparative Law 469.
32 Practical Law EU, ‘Online Platforms: Regulation (EU) 2019/1150 on promoting fairness and transparency for business users
2. Methodology
This Thesis includes a normative and critical assessment of the transparency concept of the P2B Regulation and the application of the obligations imposed by it to one of the well-known online platforms of our age, Airbnb. Ultimately, this Thesis aims to bring an answer to the following research question: How does the transparency concept under Regulation no 2019/1150 apply to the business users of Airbnb? (“Research Question”)
In order to answer the Research Question as clearly as possible, the Thesis is structured in the following manner: Chapter II will introduce the P2B Regulation in general and elucidate the transparency concept established by it. Chapter III will present the obligations that the P2B Regulation impose on online platforms. Chapter IV focuses on the business model and the terms and conditions of the prominent online platform, Airbnb. In the way of exploring how the transparency concept of P2B Regulation affects Airbnb, this Chapter examines and questions practices of Airbnb under the obligations of P2B Regulation. Finally, the Conclusion will include a final assessment of the P2B Regulation in providing the needs of business users in terms of transparency and consequently provide an answer to the Research Question.
II. THE ROAD TO REGULATING P2B RELATIONSHIPS AT THE EU LEVEL
i. The P2B Regulation in General
By focusing on the supply-side of online platforms, the P2B Regulation aims to strengthen the rights of the business users vis-à-vis online platforms and establish a fair and trusted business environment for the business users.33 The personal scope of the P2B Regulation covers
providers of online intermediation services, their business users34, online search engines and
corporate website users.35 In order to be under the personal scope of the P2B Regulation, these
actors need to “have their place of establishment or residence in the EU and that through those online intermediation services or online search engines, offer goods or services to consumers located in the EU”.36 The P2B Regulation shall be applied to the online intermediation services,
online search engines and their business users “irrespective of their place of establishment or
33Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for
business users of online intermediation services’
<https://www.eumonitor.eu/9353000/1/j4nvke1fm2yd1u0_j9vvik7m1c3gyxp/vknue8jaloxk/v=s7z/f=/com(2018)238_en.pdf>, page 6.
34 P2B Regulation, Article 2(1). 35 P2B Regulation, Article 2(7). 36 P2B Regulation, Article 1.
residence and otherwise applicable rules as long as they intermediate between business users and consumers located in EU.” 37
In order to achieve its aim, the P2B Regulation focuses on three main areas: (i) improvement in transparency as a concept in P2B relationships by introducing new obligations for providers of online information services and online search engines; (ii) alternative and enhanced redress mechanisms to provide sufficient access to effective tools to resolve disputes; and (iii) a monitoring mechanism of the P2B Regulation to ensure that the P2B Regulation itself is kept up-to-date and able to keep up the pace of a fast-growing and rapid-changing industry.38 Out
of the three areas that the P2B Regulation governs, the focus of this Thesis shall only be the established transparency concept by the P2B Regulation and the obligations imposed on the online intermediation services as a result of the transparency concept. The two main reasons to limit the focus of this Thesis with transparency are as follows: (i) the use of superior bargaining power by online platforms towards their business users results with unilaterally determined terms and conditions which are not clear to the business users and consequently lead deviation from the “good commercial conduct”39; (ii) ensuring a transparent and fair environment in P2B
relationships may indirectly benefit to consumer protection and improvement of consumer trust40, especially in cases where online platforms use a single set of terms of conditions for
both their consumers and business users.41
ii. A Revolutionary Step
The P2B Regulation may in a sense be considered very revolutionary since before its adoption, there was no specific legislation at the EU level regulating the P2B relationships of online platforms.42 There is one EU legislative piece, the Directive 2006/114/EC concerning
Misleading and Comparative Advertising (“MCAD”)43, that has a personal scope covering the
P2B relationships, but limited to advertising practices, providing protections against
37 Ibid.
38 Philippe Chappatte, Janitra Raftery, Katie Hudson, ‘Increasing transparency and fairness for business users on online
platforms’, (Slaughter and May, April 2019), <https://www.slaughterandmay.com/media/2537434/increasing-transparency-and-fairness-for-business-users-on-online-platforms.pdf>, last access on 14.07.2020.
39 P2B Regulation, Recital 2. 40 Ibid., Recital 3.
41 Airbnb is a great example of such practice. Airbnb Terms of Service is directed to both the consumers and business users
who are using the platform. The Terms of Service then includes specific sections directed towards business users and consumers. However, a member of Airbnb, whether a consumer or a business users signs the same set of terms and conditions before start using the platform.
42 European Commission, ‘Commission Staff Working Document Impact Assessment Accompanying the document
Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services’ COM (2018) 238 final, page 3.
misleading advertising, thus remains inadequate to cover actual policy aim of regulating transparency in P2B relationships.44
The lack of a specific legislative action establishing transparency concept in P2B relationships at the EU level has resulted in an open threat for business users of online platforms.45 This is
mainly because online platforms have superior bargaining power and may unilaterally determine their terms and conditions in such a way that is unfair and may be to the detriment of their business users.46 This superior bargaining power may be used by online platforms
through a long list of practices, including but not limited to an abrupt change in terms and conditions, use of complicated language in drafting these terms which makes it excessively difficult for business users to understand, suspension or termination of services without justification and possible a mysterious ranking system.47 Indeed, a fact-finding exercise
conducted by the EC showed that a significant majority of online platforms are engaging with the foregoing trading practices which might have serious detriments on their business users.48
Therefore, is crucial to ensure transparency for business users in P2B relationships at the EU level, especially in the foregoing matters to avert the current problems faced by the business users and maintain the proper function of the internal market in the platform economy.49
The Impact Assessment prepared by the EC prior to the adoption of the P2B Regulation is worth mentioning at this point, since it reflects concerns of various stakeholders and EU institutions concerning the lack of EU-level regulation in this area and presents all policy options considered by the EC for the adoption of a new legislative piece to establish a transparency concept in P2B relationships.50 The EC considered four policy options, starting
from the baseline fact that there is no EU action taken in this area before.51 At this point, I
44 European Commission, ‘Commission Staff Working Document Impact Assessment Accompanying the document
Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services’ COM (2018) 238 final, page 4.
45 Ibid, page 5.
46 P2B Regulation, Recital 2.
47 Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions on the Mid-Term Review on the implementation of the Digital Single Market Strategy A Connected Digital Single Market for All, COM(2017) 228 final, page 10.
48 European Commission, ‘Commission Staff Working Document Impact Assessment Accompanying the document
Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services’ COM (2018) 238 final, page 11.
49 Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions on the Mid-Term Review on the implementation of the Digital Single Market Strategy A Connected Digital Single Market for All, COM(2017) 228 final, page 5.
50 European Commission, ‘Commission Staff Working Document Impact Assessment Accompanying the document
Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services’ COM (2018) 238 final, page 4.
believe it is important to mention very briefly all four options, including legislative and non-legislative methods, to present the pertinence of the option that was pursued by the EC for the P2B Regulation. However since the focus of this Thesis is the transparency concept in P2B relationships, I will only assess the four policy options with their reflection on transparency concept.
First, the EC considered the non-legislative approach based on pure-self regulation. This approach would encourage the industry to develop its own measures with the support of a non-binding instrument established by the EC. The instrument of the EC would guide the industry with respect to the measures to establish a transparency concept in P2B relationships and inform online platforms on harmful trading practices caused by a lack of transparency.52
However, the EC believed that pure self-regulation would be ineffective to achieve the main goal of establishing a fair and transparent environment for P2B relationships. Likewise, obtaining mandatory and binding rules and extension of the existing rules to P2B relationships, the second option, are discarded on grounds that they would respectively be inappropriate in a fast-growing technology environment and disproportionate.53
Finally, as a result of the Impact Assessment, the EC decided on the option in which it obtains a co-regulatory approach built on the EC’s Principles for Better Self and Co-Regulation.54 It is
believed that co-regulation which will support a legal framework will provide predictability as well as flexibility, something the industry requires from the beginning. With this approach, the EC will provide a predictable legal framework for the transparency concept in P2B relationships of online platforms which will provide minimum protection for business users of online intermediation services and online search engines, and online platforms would be free to adopt further measures with a code of conduct.55
Ultimately, with an overall policy objective of establishing a safe, transparent, fair and trusted business environment, the EC has eventually decided to propose a legislative piece that would be directly applicable in all Member States and would “address the issues of unfair contractual
52 Ibid, page 40. 53 Ibid, page 41.
54 Commission, ‘Principles for Better Self- and Co- Regulation’ (2018).
55 Katharina Eisele, Anne van Heijst, ‘European Parliament Briefing, Initial Appraisal of a European Commission Impact
clauses and trading practices identified in platform-to-business relationships, including by exploring dispute resolution, fair practices criteria and transparency.”56
III. THE TRANSPARENCY CONCEPT UNDER the P2B REGULATION
As mentioned in the foregoing Chapters, providers show a falling tendency towards using “pre-formulated” and unilaterally decided terms and conditions in their relationship with their business users.57 It is important to mention that the P2B Regulation considers “all terms and
conditions or specifications, irrespective of their name or form, which govern the contractual relationship between the provider of online intermediation services and its business users and are unilaterally determined by the provider of the online intermediation services” within the scope of this obligation.58 This shows the EU legislator’s intention to keep the definition of
terms and conditions as broad as possible so that the transparency concept will cover all terms and conditions of the online intermediation services regardless of their name and form, once they are unilaterally determined.59
Before going into an in-depth analysis of the obligations of the P2B Regulation, it is crucial to explain the transparency concept drawn by the P2B Regulation. It appears from the Proposal of the P2B Regulation that the EC tries to achieve a transparency concept for P2B relationships by the way of imposing a set of obligations on providers of online intermediation services and online search engines.60 These obligations are imposed to ensure that these actors behave in a
transparent manner in their relationship with their business users.61 Since the main focus of this
Thesis is the application of the new transparency concept to Airbnb, an online intermediation service, the Thesis will solely focus on the obligations of P2B Regulation on the providers of online intermediation services (“providers”). Concerning these obligations, it is important to distinguish between obligations regarding the content of information that the providers obliged
56 Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions on the Mid-Term Review on the implementation of the Digital Single Market Strategy A Connected Digital Single Market for All, COM(2017) 228 final, page 9.
57 P2B Regulation, Recital 14. 58 Ibid, Article 2(10).
59Christian Twigg-Flesner, ‘The EU’s Proposals for Regulating B2B Relationships on Online Platforms – Transparency,
Fairness and Beyond’ (17.09.2018). (2018) 7 Journal of European Consumer and Markets Law 222-233.
60Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for
business users of online intermediation services’,
<https://www.eumonitor.eu/9353000/1/j4nvke1fm2yd1u0_j9vvik7m1c3gyxp/vknue8jaloxk/v=s7z/f=/com(2018)238_en.pdf>, page 6.
to display (“information obligations”), and how this information shall be presented (“transparency obligations”).
Even though it appears from the Proposal of the P2B Regulation that the EC collected the two intrinsically different types of obligations under the title of transparency obligations,62 with
respect to B2C relationships the two types of obligations are clearly distinguished by several scholars. While the information obligations are defined as the information that businesses need to provide consumers63, transparency obligations concern (1) the presentation of information,
namely where or when it has been presented; (2) the comprehensibility, namely whether the addressed person is able to understand the information and; (3) the language of the provided information.64 Even though the same distinction should also exist in the concept of P2B, the
EC did not make a differentiation in terms of P2B relationships.65 Contrary to the EC’s
approach, I believe it is crucial to make the distinction between two types of obligations to make a clear assessment of whether the EC managed to establish an effective transparency concept in P2B relationships. Therefore, this Chapter shall further assess both obligation categories differently.
1. Information Obligations
The P2B Regulation includes the following eleven information obligations:
1.1. Additional Distribution Channels and Affiliate Programs. The P2B Regulation obliges providers to include into their terms and conditions the information regarding additional distribution channels and potential affiliate programs -if there are any- which they use to market goods and services offered by business users. This obligation aims to ensure that business users of online intermediation services are provided with clarity “regarding where and to whom, their goods or services are being marketed.”66
1.2. Ownership and Control of Intellectual Property. The P2B Regulation imposes the obligation to include into the terms and conditions any information explaining the
62Ibid, page 4; and P2B Regulation Recital 24.
63 Zofia Bednarz, ‘Breach of information duties in the B2C e-commerce: adequacy of available remedies’, (22.06.2016),
IDP. Revista de Internet, Derecho y Política.
64 Marco Loos, ‘Double Dutch: On the role of the transparency requirement with regard to the language in which standard
contract terms for B2C-contracts must be drafted’ , (2017), EuCML, 6(2).
65Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for
business users of online intermediation services’,
<https://www.eumonitor.eu/9353000/1/j4nvke1fm2yd1u0_j9vvik7m1c3gyxp/vknue8jaloxk/v=s7z/f=/com(2018)238_en.pdf>, page 4.
effects of the relevant terms and conditions on the ownership and control of the intellectual property of their business users.67 It goes without further saying that
intellectual property rights may carry significant economic interests for both providers of online intermediation services and their business users. In order to provide a general understanding and clarity towards these economic interests, providers are obliged to present a detailed explanation in their terms and conditions regarding what kind of an impact these terms and conditions will have on the intellectual property rights of the business users.68
1.3. Differential Treatment. A provider may offer goods or services to customers through its online intermediation services or may perform this through a business user which it controls and in this way competes with other business users who are using its online intermediation services. Since the provider pursues these practices are mainly pursued with economic incentives, the provider may use his control over the online intermediation services and achieve advantages by this way, which consequently may result in unfair competition.69 This may also harm consumer choices by way of
creating a restriction on their preferences.70 In these types of situations, for the
efficiency of the online platform economy, the providers must act in a way that is transparent and ensures that the business users are provided with a proper description of any kind of differential treatment.71
Considering the above, the P2B Regulation obliges providers to display in their terms and conditions a detailed explanation of any kind of differential treatment which they are currently practicing or may practice in the future about the goods and services that are offered to consumers through their platform.
1.4. Most Favored Nation (“MFN”) Clauses. Providers might provide in their terms and conditions restrictions on the “ability of business users to offer goods or services to consumers under more favorable conditions through other means than through online intermediation services.”72 The P2B Regulation obliges providers to include an
67 Ibid, Article 2. 68 Ibid, Recital 17. 69 Ibid, Recital 30. 70 Ibid. 71 Ibid. 72 Ibid, Recital 36.
explanation in their terms and conditions regarding the grounds of envisaging such restriction.73 This obligation is put in place specifically to address the MFN clauses.74
Under Article 10 of the P2B Regulation, providers are obliged to state in their terms and conditions “the economic, commercial and legal considerations” for using such MFN clauses and make this explanation easily available for the public.75
1.5. Ancillary goods and services. The P2B Regulation obliges providers to include in their terms and conditions whether they are offering ancillary goods and services to consumers and the conditions under which the business users may offer its own ancillary goods and services to the consumers through the online intermediation services.76
1.6. Ranking. “Ranking refers to the relative prominence of the offers of business users … as presented, organized or communicated by providers of online intermediation services …, resulting from the use of algorithmic sequencing, rating or review mechanisms, visual highlights, or other saliency tools, or combinations thereof.”77 It
goes without further saying that the ranking of goods and services carries out a crucial effect on consumer choice and eventually the business strategy and success of the business users of online intermediation services.78
Considering these, the P2B Regulation obliges providers to state in their terms and conditions the main parameters that determine the ranking, which may be “any general criteria, process, specific signals incorporated into algorithms or other adjustments or demotion mechanisms used in connection with the ranking.”79 At this
point, it should be clearly emphasized that the P2B Regulation imposes an obligation to disclose neither the details of the functioning of the ranking mechanism nor the algorithms. Providing a framework understanding of the ranking mechanisms by way of explaining only the main parameters is deemed to be sufficient to protect the interest
73 Ibid, Article 10.
74 Carmen Buono, François-Guillaume de Lichtervelde, Fynn Dewald, Beatriz Martos Stevenson, Conor Opdebeeck-Wilson,
Jan Przerwa, ‘EU Competition Law Newsletter’, (Clearly Gottlieb, June 2019), < https://www.clearygottlieb.com/-/media/files/eu-competition-newsletters/european-competition-newsletter--june-2019-pdf.pdf>. 75 P2B Regulation, Article 10. 76 Ibid, Article 6. 77 Ibid, Recital 24. 78 Ibid. 79 Ibid.
of the business users in their relationship with providers.80 Considering that it might
be tricky to identify the main parameters, the EC is obliged to prepare guidelines for the providers to provide guidance in determining the main parameters.81
Additionally, the P2B Regulation envisages that in cases where the main parameters include a factor of direct or indirect remuneration that is paid by the business users, the providers are obliged to explain the remuneration mechanisms and their effects in their terms and conditions. Providers may have remuneration mechanisms under their business structure to give the business users increase their ranking by either making payments with that aim or by accepting additional obligations which have the effect that results with a higher ranking.
Ultimately, after the application of this information obligation for ranking, the P2B Regulation aims to ensure that business users can understand “(a) the characteristics of the goods and services offered to consumers through the online intermediation services; and (b) the relevance of those characteristics for those consumers…”82
1.7. Use and Access to Data. It is believed that access and use of data may lead to significant “value creation in the online platform economy.”83 Therefore, it is seen very
important that business users are provided with information regarding the conditions they can access and use data. Accordingly, it is also important that business users are informed clearly whether providers of online intermediation services shares with third parties any data that is produced during the period in which the business providers use the online intermediation service.84
Based on the foregoing, the P2B Regulation obliges providers to describe in their terms and conditions ‘the technical and contractual access’ in which business users may access or use data that is generated during the course business user uses the online intermediation service. This obligation will include informing business users (category - i) whether providers have access to both their or consumers’ data generated during
80 Ibid, Recital 27. 81 Ibid, Recital 28. 82 Ibid, Article 5(5)(a),(b). 83 Ibid, Recital 33. 84 Ibid, Recital 34.
the provision of online intermediation services; (category - ii) whether business users have access to their data that is provided during the provision of online intermediation services, (category – iii) whether business users have access to the data that is generated during the provision of services to all business users and consumers; and (category - iv) whether any data under category-i has been provided to third parties that are “not necessary for the proper functioning of the online intermediation services”.85 The main goal of this obligation is to help business users understand the
kinds of data providers collect during their participation in the online intermediation services.86
1.8. Restriction, Suspension and Termination of Services. First, the P2B Regulation obliges providers to present in their terms and conditions the grounds of suspending or terminating the online intermediation services or imposing other types of restrictions on the specific business users.87 Second, the P2B Regulation obliges providers to
submit a prior statement to the business users on a durable medium explaining the grounds for restriction or suspension.88 In cases where the provider decided to
terminate providing services to that specific business user, the reasoned statement shall be provided 30-days before the termination takes effect.89 The reasoned statement shall
include relevant facts and notifications from third parties that lead to the restriction, suspension or termination90 and in this way allow business users to understand whether
there is ground to challenge the decision.91 Finally, the P2B Regulation provides
certain exceptions to the periods for the reasoned statement. Following that, the provider is exempted from the stated period if he is subject to a legal obligation which does not allow to abide the period, is exercising its termination right due to a mandatory reason under national law or if the relevant business user has ‘repeatedly infringed’ the terms and conditions of the provider.92
85 Ibid, Article 9.
86 Carmen Buono, François-Guillaume de Lichtervelde, Fynn Dewald, Beatriz Martos Stevenson, Conor Opdebeeck-Wilson,
Jan Przerwa, ‘EU Competition Law Newsletter’, (Clearly Gottlieb, June 2019), < https://www.clearygottlieb.com/-/media/files/eu-competition-newsletters/european-competition-newsletter--june-2019-pdf.pdf>.
87 P2B Regulation, Article 3(c). 88 Ibid, Article 4(1).
89 Ibid, Article 4(2). 90 Ibid, Article 4(5).
91 Philippe Chappatte, Janitra Raftery, Katie Hudson, ‘Increasing transparency and fairness for business users on online
platforms’, (Slaughter and May, April 2019), <https://www.slaughterandmay.com/media/2537434/increasing-transparency-and-fairness-for-business-users-on-online-platforms.pdf>, last access on 14.07.2020.
1.9. Internal Complaint-Handling System. In order to provide business users with “immediate, suitable and effective possibilities of redress”93, Article 11 of the P2B
Regulation obliges providers to establish an internal complaint-handling system. Although this system falls within the scope of the second focus area of the P2B Regulation, alternative and enhanced redress mechanisms to provide sufficient access to effective tools to resolve disputes, I find it necessary to briefly mention it here since it includes an information obligation.
First, the P2B Regulation envisages that the internal complaint-handling system which will be established by the providers needs to be based on principles of transparency.94
Second, providers are obliged to include in their terms and conditions all the information relating to their internal complaint-handling system.95 Finally, providers
are obliged to publish annual statements to present the “functioning and effectiveness” of their internal complaint-handling mechanism and in this way provide an understanding to the business users of types of problems that may arise during the provision of online intermediation services.96
1.10. Identity of Business Users. Article 3(5) of the P2B Regulation obliges the providers to ensure that the identities of the business users that are providing goods and services through their services are clearly visible. This obligation is put in place in order to help business users to “fully exploit commercial opportunities.”97
1.11. Changes to the Terms and Conditions. Last but definitely not least, the P2B Regulation imposes an important information obligation on the providers when it comes to making modifications in their terms and conditions. The P2B Regulation obliges that any change to the terms and conditions shall be notified to the business users within a reasonable and proportionate notice period, which is at least 15-days. It is envisaged that the 15-day notice period may be prolonged in cases where the changes to the terms and conditions require the relevant business user to make “technical or commercial adaptations” in order to comply with the changes. Due to the change of
93 Ibid, Recital 37. 94 Ibid, Recital 37. 95 Ibid, Article 11(3). 96 Ibid, Recital 37. 97 Ibid, Recital 21.
the terms and conditions, business users are entitled with the right to terminate their contract within 15-days after receiving the notice of a change to the terms and conditions.98 The P2B Regulation sets certain exceptions to the 15-day notice period.
Where the provider is subject to a legal obligation which does not allow them to abide by the 15-day period or is obliged to change its terms and conditions to address an unforeseen and urgent danger, the 15-day rule may be overlooked.99
It is also worth-mentioning that the P2B Regulation obliges providers to notify their business users regarding the change to the terms and conditions on a durable medium, which is defined under the P2B Regulation as “any instrument which enables business users to store information addressed personally to them in a way accessible for future reference.”100
2. Transparency Obligations
Transparency obligations play a crucial role in the effectiveness of the information obligations. This is simply because information does not mean anything unless the reader is able to find the information and/or understand what has been given to him/her.101
The transparency obligations of the P2B Regulation have a complex aspect since the EC avoided to provide clear details for these obligations. The P2B Regulation introduces two transparency obligations on providers, availability and use of plain and intelligible language. This sub-section shall discuss these obligations and investigate their meaning. 2.1. Availability. The P2B Regulation obliges providers to make sure that they keep their
terms and conditions easily available for their business users at all stages of their relationship, especially at the pre-contractual phase.102 The important emphasis
regarding availability at the pre-contractual stage aims to prevent business users from being deprived of the transparency framework of the P2B Regulation before they actually enter into a contractual relationship with providers.103
98 Ibid, Article 2. 99 Ibid, Article 3(4)(a),(b). 100 Ibid, Article 2(13)
101 Marco Loos, ‘The Regulation of Digital Content B2C Contracts in CESL’ In: Purnhagen K., Rott P. (eds) Varieties of
European Economic Law and Regulation. Studies in European Economic Law and Regulation, (2014), vol 3. Springer, Cham
102 Ibid, Article 3(b). 103 Ibid, Recital 14.
2.2. Plain and intelligible language. The P2B Regulation obliges providers to draft their terms and conditions in plain and intelligible language. Terms and conditions that are drafted in plain and intelligible language are believed to increase predictability and fairness on the side of the business users. Terms and conditions that are vague, unspecific and lacking details regarding the crucial commercial details will fail to provide predictability to business users regarding the details of their contractual relationship with providers.104
Plainness and intelligibility is a crucial requirement in the way of reaching transparency. As it was presented in B2C debates, the provision of information does not always lead to transparency.105 The information that the consumers are able to
comprehend is considered to be the key in this way. Therefore plain and intelligible language requirement could be understood as the tool to help readers to comprehend the information provided.
The “plain and intelligible language” requirement is frequently used in the consumer directives106 and became subject to interpretation in the ECJ judgements.107 In one of
the most famous cases, Kásler, ECJ concluded that the plain and intelligible language requirement shall not simply mean grammatical and formal intelligibility but clauses shall be drafted in such a way that the consumer will be able to assess the economic consequences that may result from a specific contract term.108 Based on my foregoing
argumentation on the similarities between B2C and P2B relationships, I believe that the ECJ’s interpretation of plainness and intelligibility will provide guidance on understanding this transparency obligation in terms of P2B relationships. Therefore, the transparency obligation of the P2B Regulation can be understood as the obligation to use such a language that the business user will be able to understand the economic consequences of that specific clause.
104 Ibid, Recital 15.
105 Howells, Geraint G., Christian Twigg-Flesner, Thomas Wilhelmsson, ‘Rethinking EU Consumer Law’. Abingdon,
Oxford, England; Routledge, Taylor & Francis Group. Print., page 33.
106 UCTD Article 5 (93/13/EEC), Consumer Rights Directive Article 5 and 6 (2011/83/EU).
107 ECJ 20 Sep. 2017, C-186/16 Ruxandra Paula Andriciuc and Others and Banca Românească SA, ECLI:EU:C:2017:703;
ECJ 23 Apr. 2015, 96/14 Jean-Claude Van Hove and CNP Assurances SA, ECLI:EU:C:2015:262; ECJ 30 Apr. 2014, C-26/13 Kásler and Káslerné Rábai/OTP Jelzálogbank Zrt, ECLI:EU: C:2014:282
A remarkable point here to make is that, under the Proposal of the P2B Regulation, the same transparency obligation was drafted as “clear and unambiguous language”.109
According to some scholars, such wording would limit the transparency obligation to formal and grammatical intelligibility and “the interpretative baggage” of the ECJ could be avoided.110 However, the EC later changed the phrase and preferred to use
“plainness and intelligible language” and yet again avoided to define plainness and intelligibility, even though it is crucial to understand the meaning in order to be able to fully comply with the obligation.111
3. Consequences in Non-Compliance
The P2B Regulation states that non-compliance in certain above-mentioned obligations shall hamper the validity of those clauses. Specifically, in case a provider fails to comply with informing business users with respect to additional distribution channels and affiliate programs, ownership and control of intellectual property, differential treatment or fails to comply with transparency obligations of the P2B Regulation, non-compliant clauses shall be null and void, which implies that they will be treated as never existed “with effects erga omnes and ex tunc.”112
The reason behind this sanction may be explained with the considerable disruption of the operation of business users with respect to non-compliance with the obligations of the P2B Regulation. In order to prevent such consequences on business users and their operation and eventually discourage these kinds of behavior, the P2B Regulation found it appropriate to impose such a serious sanction. However, this sanction shall only be imposed on the provisions that are non-compliant with the P2B Regulation and the remaining provisions of the terms and conditions shall remain in place.
109 Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for
business users of online intermediation services’,
<https://www.eumonitor.eu/9353000/1/j4nvke1fm2yd1u0_j9vvik7m1c3gyxp/vknue8jaloxk/v=s7z/f=/com(2018)238_en.pdf>, Article 3(1)(a).
110 Christian Twigg-Flesner, ‘The EU’s Proposals for Regulating B2B Relationships on Online Platforms – Transparency,
Fairness and Beyond’ (17.09.2018). (2018) 7 Journal of European Consumer and Markets Law 222-233.
IV. Airbnb and P2B REGULATION
Airbnb indeed changed our perceptions towards a huge accommodation industry. Being one of the online platforms that has disrupted the traditional business models of accommodation and hospitality,113 Airbnb describes itself as “a community marketplace for people to list, discover,
and book unique accommodations around the world.”114 Airbnb platform facilitates
connections between platform users who want to rent their homes (“Hosts”) and publish their Host services on Airbnb (“Listings”) on one hand, and travelers from all around the world who are looking for a cozy and a ‘budget-friendly’ space to stay (“Guests”) on the other.115 With
its disruptive business model, Airbnb as an online platform became very popular among Hosts over the last years, since the platform allows them to easily convert their homes or unused spaces, have Guests and earn extra income.116 This popularity is also present at the consumer
side of the platform, Guests since through the platform they get the chance to have a local and homelike experience in the cities that they visit.
In this new business model, transparency is crucial due to two main reasons: (1) consumers are indirectly affected from the transparency of Airbnb towards its business users117; and (2) when
becoming a Member of the Airbnb platform, the same set of Terms of Service is presented for both Guests and Hosts for signature.118
As mentioned in the previous Chapters, the P2B Regulation limited its personal scope to online intermediation services and online search engines. This left many of the online platform models contributing to the platform economy outside of the protective scope of the P2B Regulation. Before going in-depth analysis of Airbnb’s terms and conditions, it is crucial to present that Airbnb is a provider of online intermediation service because only then Airbnb will be subject to the obligations under the P2B Regulation. In order to fall under the personal scope of the
113 Airi Lampinen and Coye Cheshire, ‘Hosting via Airbnb: Motivations and Financial Assurances in Monetized Network
Hospitality’ (May 2016), DOI: 10.1145/2858036.2858092
114 Micelle Maese, ‘Rethinking "Host" and "Guest" Relations in the Advent of Airbnb and the Sharing Economy’, (2015)
2(3) Texas A&M Journal of Property Law, 481.
115 Registered Guests and Hosts of the Airbnb platform shall be collectively referred to in this Thesis as Members. 116 Micelle Maese, ‘Rethinking "Host" and "Guest" Relations in the Advent of Airbnb and the Sharing Economy’, (2015)
2(3) Texas A&M Journal of Property Law, 481.
117 Clement Salung Petersen, Vibe Garf Ulfbeck, Ole Hansen, ‘Platforms as Private Governance Systems –The Example of
Airbnb’ (2018) 2018(1) Nordic Journal of Commercial Law, 28.
P2B Regulation, online intermediation services need to fulfill three conditions119, one of those
conditions being an information society service.120 In recent years, constituting an information
society service has led to heated debates across the EU. The debates orbited mostly around the ECJ’s Uber judgement, which resulted in the conclusion that Uber is not merely an online intermediation service constituting information society service but instead a transportation service provider (“Uber judgement”).121 Inevitably, after the Uber judgement, Uber fell out
of the scope of the P2B Regulation. Therefore, at this point, I find it important to draw a clear distinction between Uber and Airbnb.
The ECJ reached the result of Uber being a transportation service provider since Uber as a platform operator carries a “decisive influence” over the services that are provided through the platform.122 Contrastingly, the ECJ with a judgement dated 19 December 2019, ruled that
Airbnb is an information society service, but not a real estate agent that conducts online operation (“Airbnb judgement”).123 The judgement stated that the essential function of Airbnb
as a platform is to intermediate between Hosts and Guest.124 In contrast to Uber, Airbnb lacks
the firm decisive influence since it does not determine the remuneration of the services that are offered through its platform. Those services are freely determined by the Hosts themselves.125
Although Airbnb holds certain control over the terms and conditions through which the services offered, its business model can still be classified as an “information society service”, which eventually places Airbnb under the protective scope of the P2B Regulation.126
119 “(1) constitute an information society service within the meaning of Directive no. 2015/1535 , (2) allow business users to
offer good and/or services to consumers to facilitate the initiating of direct transactions between those business users and consumers, irrespective of where those transactions are ultimately concluded; and (3) being provided to business users on the basis of contractual relationships between the provider of those services and business users which offer goods and/or services to consumers.”
120 Directive No. 2015/1535 Article 1(1).
121CJEU, 20 December 2017, C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain SL, ECLI:EU:C:2017:981. 122 Ibid page 173. ECJ drew this conclusion based on two distinctive criteria: (1) Uber drivers who wish to provide
transportation and passengers who wish to make such a journey would not be able to respectively provide or use transportation services without Uber being there to provide the digital platform for that. (2) Uber is the one in these relationship who decides the fare, receives the payment from the passengers and then transfers a part of this payment to the drivers. While doing that, Uber also keeps a part of the fee as a remuneration for the usage of the online platform.
Additionally, Uber exercised a control over the vehicles, their quality, the drivers and their actions. Ultimately these two main criteria lead ECJ to decide that Uber has a “decisive influence” on the conditions that the drivers provide services.
123 C 390/18 Airbnb Ireland [2019] ECLI:EU:C:2019:1112, para 49.
124 Clement Salung Petersen, Vibe Garf Ulfbeck, Ole Hansen, ‘Platforms as Private Governance Systems –The Example of
Airbnb’ (2018) 2018(1) Nordic Journal of Commercial Law, 28
125 Christoph Busch, ‘The Sharing Economy at the CJEU: Does Airbnb pass the ‘Uber test’? Some observations on the
pending case C-390/18 – Airbnb Ireland’ (2018) 4/2018 EuCML, 172.
At this stage, after establishing that Airbnb constitutes an online intermediation service and falls under the protective scope of the P2B Regulation, I find it appropriate to move into an in-depth analysis of the terms and conditions of Airbnb.
Airbnb terms and conditions mainly consist of Airbnb Terms of Service127, which incorporates
several other policies into this agreement, including but not limited to Airbnb Privacy Policy128,
Payments Terms of Service129, Host Guarantee Terms and Conditions.130 For this analysis part,
I will solely focus on Airbnb Terms of Service and Airbnb Privacy Policy, since those two policies shall be the most affected ones by the P2B Regulation in terms of its obligations towards Airbnb Hosts.
The rest of this Chapter shall include an analysis of Airbnb Terms of Service and Airbnb Privacy Policy under the reflection of the obligations envisaged by the P2B Regulation. To demonstrate how these information and transparency obligations apply to the practices of Airbnb, I find it useful to divide Airbnb’s terms and conditions under the following two main categories: (i) the current practices of Airbnb established through self-regulation presenting that Airbnb is already one step ahead of the transparency concept of the P2B Regulation; and (ii) obligations of the P2B Regulation that require Airbnb to improve its terms and conditions. Each category will present various practices of Airbnb and further analyze them concerning the P2B Regulation. This analysis shall be based on Airbnb Terms of Service for European Users, which are in effect and published on the Airbnb website as of 10 May 2020.131
1. Areas in which Airbnb is providing better transparency for Hosts
“We commit to do more than comply with the minimum requirements established by law.”132
These are words of Airbnb displaying the private governance system established by Airbnb. It is observed in the platform economy that online platforms take the form of state actors and replace state governance with alternative private legal orders.133 These private legal orders
reveal itself in certain practices of online platforms, including ranking, dispute resolution and
127 Airbnb Terms of Service < https://www.airbnb.com.tr/terms#eu>, last access on 21.07.2020. 128 Airbnb Privacy Policy <https://www.airbnb.com.tr/terms/privacy_policy>, last access on 21.07.2020.
129 Airbnb Payments Terms of Service <https://www.airbnb.com.tr/terms/payments_terms>, last access on 21.07.2020. 130 Airbnb Host Guarantee Terms and Conditions <https://www.airbnb.com.tr/terms/host_guarantee>, last access on
21.07.2020.
131 Airbnb Terms of Service < https://www.airbnb.com.tr/terms#eu>, 21.07.2020.
132 Clement Salung Petersen, Vibe Garf Ulfbeck, Ole Hansen, ‘Platforms as Private Governance Systems –The Example of
Airbnb’ (2018) 2018(1) Nordic Journal of Commercial Law, 28.
generally are indicated under their terms and conditions. For this very reason, it is important to present the practices of Airbnb to provide a transparent environment for its Members and which are already existing before the P2B Regulation.
As discussed in the earlier Chapters, as one of its transparency obligations, the P2B Regulation requires the availability of the terms and conditions of the online intermediation services at all stages, including the pre-contractual stage. This is something already achieved by Airbnb way before the Proposal of the P2B Regulation was published. To illustrate the availability of terms and conditions of Airbnb, let’s take an example of a house owner who wants to rent his house using Airbnb. To be able to publish his/her home, this person needs to be registered as a Member of Airbnb. Becoming a Member and publishing houses as Listings require the completion of a set of steps, including the signature of Airbnb Terms of Service. Notwithstanding these steps, Airbnb provides its terms and conditions way before the person reaches to these steps. Any random person, who is simply curious about the terms and conditions of Airbnb can access them since Airbnb Terms of Service and all the additional policies are available on the main page of the Airbnb website. This presents the long-sightedness of Airbnb, especially compared to one of its rivals in the online platforms for the accommodation sector, Booking.com. When a hotel wants to register its entity on Booking.com and start using the services of the platform, they may only access the terms and conditions once they register their hotel on the platform, which proves that there is no sign of actual terms and conditions at the pre-contractual stage. On the other hand, a person simply considering whether to list its property on Airbnb or not, can with a simple search find the Airbnb Terms of Service and base his/her decision on the terms.
I believe it is important to mention provisions of Airbnb Terms of Service regarding the ownership and control of intellectual property rights. After observing Airbnb Terms of Service, it goes without further saying that Airbnb informs Hosts very clearly regarding their intellectual property rights, how these rights are used and owned by whom.134 Therefore, even
before the P2B Regulation entered into force, Airbnb complies with this information obligation regarding the ownership and control of intellectual property rights.
