The High Court of Justice of the Balearic Islands confirms that Airbnb is an information society service provider and annuls a sanction for infringement of tourism regulations

In 2018, the Balearic Tourism Department imposed a €300,000 fine on the Airbnb platform for infringing the Balearic Tourism Act. The fine was imposed for failing to comply with the obligation to publish the tourist establishment registration number in vacation accommodation advertisements.

This is an obligation that the Balearic tourist regulations—and those of other autonomous regions—impose on tourism companies and the owners of public offer channels.

After Airbnb’s appeal, the High Court of Justice of the Balearic Islands (TSJB) annulled the fine in a judgment of April 2, 2020 (ES:TSJBAL:2020:220). Based on the judgment of December 19, 2019 of the Court of Justice of the European Union (TJUE), the TSJB considers that Airbnb is an “intermediary operator limited to a neutral, merely technical and automatic provision of accommodation with content posted by its users.” The TSJB states that the obligation established in the Balearic Tourism Act “does not apply to information society service providers included in Directive 2000/31/EC on e-Commerce.”

The TSJB warns that Airbnb’s activity is protected by the liability exemptions envisaged in the e-Commerce Directive. In particular, it highlights that general supervisory obligations cannot be imposed on intermediaries and argues that an obligation of this nature would constitute the duty to check that all the offers published on its platform contain that registration number. The TSJB argues that extending the obligation to publish registration numbers to public offer channels in equivalent terms to accommodation offerors is contrary to European law.

Finally, the judgment reminds that it is the offeror of the vacation property that must include the registration number, and Airbnb did not breach the legal system as it did not prevent offerors from complying with their legal obligation to include the tourist establishments registration number of the advertised accommodation.

The current liability system applicable to intermediation platforms and whether they are subject to the sector regulations is under debate and review at European level, so we will keep the blog updated on any news.

By Ane Alonso and José Luis García de Cal