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In the midst of the complex debate about the interpretation and practical consequences of the conclusions of the Court of Justice of the European Union (“CJEU”) in the matter regarding the Uber platform (C-434/15), on May 8, the Provincial Court of Appeals of Cuenca (“PCA”) ruled on an appeal (no. 56/2018) that, if confirmed, could have significant implications for many websites and digital platforms that sell vouchers, coupons and passes for recreation, leisure and wellness activities.

What was considered in this case can be summarized as follows: If a consumer buys a coupon for horse riding online and has an accident during the activity, can the platform through which the coupon was bought, which was in no way linked to the equestrian center providing the service, be held liable for this accident? And what if the equestrian center in question was not insured and did not have the administrative licenses necessary to provide the service?

To determine the scope of liability of YUMPING ADVENTURE, S.L., that is, the digital platform that sold the coupon in question, the PCA first analyzed the legal framework on this kind of digital platform on the basis of article 17 of the Spanish Information Society Services Act, distinguishing between two cases: (i) digital platforms that act as mere intermediaries, and that, in general, would be exempted from liability for information sent to recipients; and (ii) platforms that, by exercising some form of management, authorization or control over the service provider, would be liable for the conditions in which the services in question were provided.

Based on the above classification, the PCA considers that YUMPING ADVENTURE, S.L. only acted as an intermediary, as it did not exercise any kind of control over the horse riding prices or conditions. However, as this platform does not only operate as a link or advert page under article 17 of the Spanish Information Society Services Act, but also processes payments, the PCA upheld that elements of mediation, brokerage and the mandate and similar elements regulated in the Commercial Code and the Spanish Civil Code would also apply.

The PCA reached the conclusion that the platform must act as a good father, ensure the correct completion of the booking and the provision of the underlying service, as well as acting in accordance with the principle of contractual good faith and meeting the minimum due diligence required of intermediaries. All of the above without prejudice to meeting the corresponding obligations to provide information to form the contractual intent required by articles 60 and 97 of the Spanish Consumer Protection Act.

It argued that consumers purchase through a certain platform on the basis of the trust it generates about the advertising company’s compliance with law, without the consumer being required to verify this aspect for themselves. In this regard, if the consumer had known that the advertiser’s activity was not authorized, they would have considered their decision and, as such, the omission of such important information in the formation of the contractual intent must be understood as negligent.

Based on the above, the PCA concluded that, independently of the exonerations or limitations contained in the general conditions of the platform, liability exists because a company was offered as an alternative to consumers that did not comply with legislation due to not having the permits or mandatory civil liability insurance and it did not notify consumers of this circumstance. The PCA considered that the platform in question could not be fully exonerated from all liability and it was ordered to pay compensation of €22,459 to the victim.

The judgment is undoubtedly significant, as it seems to result from it that, for platforms such as that examined in this case, the protection granted by article 17 Spanish Information Society Services Act (and, where applicable, by article 16 of the same regulation) would not guarantee the exemption from liability of the platform for the services provided by third parties if the additional requirements of diligence and information gathering are not fulfilled. We will continue to monitor the development of this case, as well as any other cases related to the scope of liability of digital intermediary platforms.

 

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claudia.morgado@cuatrecasas.com

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