Collective Commentary about the New Package Travel Directive

ARTICLE 5 | JOSEP MARIA BECH SERRAT 223 voluntarily and there is debate regarding the metrics to be used 31 . Moreover, information remains internal for the traders’ disposal. Service providers sometimes use dubious and illegal means for promoting their services, for example, posting fake traveller reviews 32 . A high level of consumer protection would not be reached if information was left to markets in the form of ratings, rankings or reviews 33 . Indeed, information technology, as it stands, causes more inconvenience than it provides advantages from a consumer protection perspective. It was held by the legal doctrine that it would be helpful if additional information were available on demand for those consumers who are interested 34 , meaning that travellers would actively have to seek such information, read it, be able to understand and act on it –as they do not under the “mandatory disclosurism” model. In fact, the adequacy of the mechanism in this scenario would depend mostly on the proactive attitudes of the travellers 35 . There is also potential concern about the lack of privacy regarding the collection of personal data. Moreover, converting the traditional model of the mandatory disclosure of standard information into a system of personalised disclosure with the help of Big Data neither addresses the problems of bounded attention and bounded rationality of travellers when buying the products, nor the problems with the above-mentioned vulnerable travellers 36 . To sum up, it is argued that adapting information duties using the results of insights of modern technology does not offer an appropriate level of traveller protection 37 . 31 For example, beyond the package travel contract, if the data analysis of previous transactions shows that a certain client is particularly prone to missing deadlines for withdrawal rights (e.g. sending products back after the deadline expired), personalised law could require the sellers to highlight withdrawal deadlines when this client places an order online. Amazon, for example, is already storing such information about its clients, but it remains unclear whether this company is planning to tailor the salience of deadlines along a metric of ‘withdrawal diligence’ in the future. Hacker, ‘Personalizing EU Private Law: From Disclosures to Nudges and Mandates’, cit., pp. 667-670. 32 As for fake online consumer reviews of hotel services and unfair commercial practices, Josep Maria Bech Serrat, “Consumer travel law”, in Christian Twigg-Flesner (Ed.), Research Handbook on EU Consumer and Contract Law , Edward Elgar, Cheltenham and Northampton, 2016, 360-387, pp. 383-386. 33 According to Recital (3) of the new Package Travel Directive, “Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU”. The Directive was also addressed at ensuring a high level of consumer protection within the Union, in accordance with Article 38 of the Charter. See Recital (52). 34 Busch, “The future of pre-contractual information duties: from behavioural insights to big data”, cit., p. 237, referring to a second level of “impersonal” yet more detailed information. 35 Poludniak-Gierz, ‘Personalization of Information Duties Challenges for Big Data Approach’, cit., p. 302. 36 Regarding the objections to a personalization of information on the basis of Big data, see Hacker, ‘Personalizing EU Private Law: From Disclosures to Nudges and Mandates’, cit., p. 662-665. 37 Cf. It is argued that information duties as regulatory can have a future if they adapt to the insights from behavioural research and embrace the possibilities of modern technology: see Busch, “The future of pre-contractual information duties: from behavioural insights to big data”, cit., p. 221.