The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

13 (v) whether the platform bears the costs and bears all the risks related to the provision of the underlying service; or (vi) whether there is an employment relationship with the host 27 . These factors will all be evidence that will contribute to the discrimination of its status as a provider of the underlying service and consequently to its status as an ISS provider 28 . We see, therefore, that Airbnb does not seem to fit the model of the underlying service provider, at least not as clearly as Uber can, as we will see below. III.1.2. Hospitality consumption platforms (Couchsurfing, HomeExchange, etc.) If we found it difficult to frame Airbnb as a provider of the underlying service, being a platform that operates similarly to a traditional business model in the booking of accommodation, we will be less likely to qualify as a provider of an accommodation service to consumer hospitality platforms such as Couchsurfing 29 and HomeExchange. Such platforms are, in the author’s opinion, perfect examples of the so-called 27 COM (2016) 356 final, pp. 6 et seq . 28 Certainly, the Commission understands that, where these criteria are met, there are clear indications that the collaborative platform exercises significant influence or control over the provider of the underlying service, which may, in turn, indicate that, in addition to providing an Information Society service, it should be considered as providing the underlying service. According to MIRANDA SERRANO, L. M., “La determinación de la naturaleza jurídica de los servicios que prestan las plataformas digitales en la economía colaborativa”, La Ley Mercantil , no. 50, 2018, electronic edition, p. 11, two questions can be raised because of this situation: the first is whether the list of criteria offered by the Commission to specify whether the platform provides the underlying service is closed or exhaustive; and, the second is whether all the criteria must be met to be able to assert that the digital platform exercises significant control or influence over the service providers. In his opinion, the only decisive element or criterion which the lawyer must take into account is the existence of decisive control or influence on the part of the platform to determine whether it is the provider of the underlying service. This control will exist “when the platform has the necessary capacity or ability to exercise a decisive influence on the commercial behaviour of the service providers, whose decision-making autonomy (commercial, competitive and business) is naturally greatly diminished, if not nullified”. 29 Although this is the most widespread and known, within the field of hospitality consumption, there are also other platforms such as Servas, which was born as a pacifist organization that seeks exchanges between people from different countries for a better understanding of the idiosyncrasies of each of them. Servas starts from a simple premise: if people knew each other better, they would never go to war . Apart from the accommodation of no more than two nights, Servas allows other types of services demanded by a tourist eager for knowledge and more real experiences in the destination. This is the case of the day hosts , that is, people who do not have accommodation to give away for free to third parties but can help them by offering information about the destination, acting as tourist guides, offering meals or simply accompanying the tourist while they visit the places, thus helping the traveller to cover their desire to have authentic knowledge of the destination and its people. In addition to those already mentioned, other accommodation platforms are limited to specific profiles or users, such as Gocambio, which allows travellers to obtain their accommodation in exchange for cultural exchanges and to help learn, improve or reinforce a language; Women Welcome Women, as a form of accommodation between women; or Warm Shomers, as a community limited to cyclists, among others.