Airbnb Uses Section 230 to Defeat a Personal Injury Claim–Smith v. Airbnb
I was a little surprised by this ruling. The Ninth Circuit’s HomeAway ruling seemingly eliminated Section 230 for any transactions that Airbnb booked, at least in the Ninth Circuit. Yet, this court finds that Section 230 fully protects Airbnb…amazingly without a single citation to HomeAway.
The plaintiff in this case suffered personal injuries after using the hot tub at an Airbnb rental (the “Old Barn”) hosted by Dennis. The listing told prospective renters about the hot tub but didn’t provide any usage warnings. The plaintiff argued the following facts disqualified Airbnb for Section 230 protection:
“Airbnb acted as a curator of its website entries” by “creating a special search category” for listings with hot tubs and “highlighting” those listings; “adding icons” to rental listings with hot tubs; asking “targeted questions” and “encourage[ing] individuals to specify whether their property has a hot tub, which is displayed in the listing”; and allowing individuals listing their property to “choos[e] answers from drop-down menus.”
Here is the hot tub icon referenced in this claim. The court refers to it as an emoji, but it’s just an icon. The plaintiff argued that she wasn’t asserting publisher/speaker claims because Airbnb became an ICP of the listing. (In light of the HomeAway case, this seems like an unnecessarily hard vector to get around 230). The court responds that “courts have repeatedly indicated that a service provider does not become a content provider, thereby losing immunity, ‘merely [by] augmenting the content’ at issue.” Cites to Roommates.com; Zeran; Batzel; Carafano; Dart v. Craigslist.
So what constitutes too much augmentation? Roommates.com answered this question by referring to “materially contributing” to the illegality. This court says Airbnb didn’t do that:
- Allowing users to search for listings with hot tubs. “Merely providing that search tool did not augment—much less, materially contribute to—Dennis’s indication that the Old Barn had a hot tub.”
- Highlighting listings with hot tubs. “Airbnb did not materially contribute to any portion of the hot tub information contained in Dennis’s listing.” Cites to Dowbenko v. Google & Ascentive v. Opinion Corp.
- Asking targeting questions and encouraging vendors to identify if they have hot tubs. “requiring prospective hosts to include specific information about the property and themselves” does “not make Airbnb an information content provider.” Cite to La Park La Brea v. Airbnb.
- The hot tub icon. “similar icons have repeatedly been characterized by courts as neutral tools that merely represent, in graphic form, the information provided to a website like Airbnb by third-party users,” such as star ratings. Cites to Kimzey v. Yelp; Marshall’s Locksmith v. Google; Gentry v. eBay.
- Using a drop-down menu for vendors that included a hot tub option. The court distinguishes Roommates.com: “Airbnb did not require Dennis to provide any information through Airbnb’s drop-down menu; instead, Dennis could—and did—provide information, in his own words, separately in the paragraph describing the Old Barn. And, though Dennis also provided information about his hot tub through Airbnb’s drop-down menu, he did so voluntarily. In addition, the information that Airbnb did ask about in the drop-down menu pertained only to the Old Barn’s amenities—information that, by itself, was not used by Airbnb for a prohibited purpose like the protected-class information at issue in Roommates.”
This is a carefully reasoned and cited opinion that reaches the obvious conclusion that Airbnb isn’t liable for offline injuries resulting from a marketplace transaction it mediated. However, because the opinion oddly doesn’t discuss HomeAway or the other marketplace cases clipping Section 230, I wonder if this same result would be reached in future cases.
Case citation: Smith v. Airbnb, Inc., 316 Or. App. 378 (2021).