The Supreme Court, in its ruling No. 1818/2020 of 30 December 2020, established a doctrine on an issue that had been giving rise to a great deal of conflict and legal uncertainty regarding the liability regime of tourism supply channels or platforms (e.g. Homeaway, Airbnb, etc.) for the advertisements published by their users.
On the one hand, this type of information society services providers (ISSP) understand that when they act as mere intermediaries carrying out a data storage activity (e.g. publishing advertisements or offers on their web platforms for the purpose of advertising tourist accommodation) they are subject to the regulations specific to this type of activity, but, in no case, to sectorial regulations (such as tourism).
On the other hand, the reality is that the regional regulations currently in force governing tourist accommodation are not uniform on this issue and, in fact, some of these rules are in direct conflict with the doctrine laid down by our High Court in the "Homeaway" case.
In the aforementioned judgment of 30 December 2020, the Supreme Court resolves the appeal in favour of the company Homeaway Spain, S.L.U. and determines, in line with the principles and terms already set by the Court of Justice of the European Union (CJEU) in matters of liability of intermediaries, in essence, the following:
- Entities providing information society services (such as tourism supply channels and platforms), when they carry out a mere intermediation activity (e.g. storing data provided by their users) are subject to the provisions of the regulations governing such services. However, they are not subject to the sectorial regulations (in this case, by the autonomous regulations dictated in the field of tourism).
- This type of intermediation companies providing information society services cannot be classified as tourism companies.
- These types of tourism supply channels and platforms, when their services are limited to mere intermediation (i.e. they develop a neutral or passive function of mere technical and automatic processing of the data provided by their users), are not obliged to the general supervision of the contents that are published on their respective platforms (e.g. tourist accommodation advertisements published on their respective websites). In other words, they are exempt from liability in this regard and do not have a kind of "duty of care", but will be obliged to remove or prevent access to advertisements that breach a legal obligation "when the competent administration has declared such breach and informs the ISSP".
The fact is that the aforementioned judgment No. 1818/2020 of the Supreme Court clearly establishes the liability regime for tourism supply channels and platforms and other ISSP, in line with European case law, which clarifies this type of problem between companies and the competent regional authorities in the field of tourism.
However, the reality is that not all autonomous communities currently have regulations governing tourist accommodation that are in accordance with the Spanish Supreme Court's doctrine. Thus, there are Autonomous Communities whose regulations (i) make the tourist supply channels responsible for the infringement of the obligation to display the registration number (e.g. Community of Valencia and Balearic Islands), (ii) others that do not directly establish a liability regime, but contain provisions that could imply a possible liability (e.g. Aragon and Extremadura) and (iii) finally, there are others that do not establish any legal provision in this regard (e.g. Region of Murcia, Community of Madrid and the Foral Community of Navarre).
Therefore, until the autonomous communities modify their sectorial regulations on tourism in accordance with the doctrine of the Supreme Court, it is foreseeable that the conflict will persist on this issue, generating legal uncertainty for this type of channels and platforms.
Consequently, it will be, where appropriate, the competent courts to resolve the contentious-administrative appeals which will have to determine, case by case, their decision by applying the doctrine of the Supreme Court and carrying out a work of interpretation of the autonomous tourism regulations in the light of this doctrine, which is in line with European and State law.