EU 에어비앤비 정보사회서비스 분류의 의미와 약관법 적용 시 시사점

A judgment of the European Court of Justice (ECJ) recently ruled Airbnb Ireland(hereinafter referred to as Airbnb) should be classified as an Information SocietyService (ISS), which guarantees benefits from the freedom movement except somespecialized areas such as tax among the EU member states by Directive 2000/31. However, the freedom may be restricted if necessary. But before the examination onsubstantive conditions such as comsumer protection for a possible restriction, the ECJheld that a French domestic regulation may not be enforceable against Airbnbbecause the French government did not notify its intention of regulation to the EUCommission and Ireland. The implications of the ECJ judgment to us are as follows: First, it is amisinterpretation if someone argues that the “Act on the Regulation of Terms andConditions (ARTC) may not be applied to Airbnb since it is classified as an ISSwhich may imply Airbnb is not one of the parties to accommodation servicecontracts. What we could learn from the ECJ judgment is its criterion of Airbnb’s“decisive influence” or “control” over accommodation services in its classification. Airbnb is the one who writes the terms and let their accommodation serviceproviders (hosts) choose one(s) among them and Airbnb has the rights andresponsibilities to change the terms. Thus, Airbnb is one of the parties with respectto the terms as it has control over the terms. Moreover, the terms are presented onAirbnb’s platform, not hotels’ sites. Thus the one who should be given correctivemeasures from the government is Airbnb if the terms on Airbnb platform are not consistent with the ARTC. Next, it should be noted that Airbnb has not been regulated by the Frenchdomestic law (the Hoguet law) because of procedural deficiency before a possibleconsideration of substantive conditions such as consumer protections. We can refer tothe principle of its possible restrictions on the ISS’s freedom. Therefore, it is controlover “terms” rather than over “overall accommodation services” that we shouldconsider when determining who should be regulated by the ARTC, one of consumerprotection laws in Korea. That is a way of interpreting the law suited to its purposeof consumer protection.