Snap and Airbnb Aren’t Liable for Tragic Shooting–Jackson v. Airbnb

This case involves a tragedy of a minor shooting another minor (the shooter and the victim’s family disagree about whether it was accidental or intentional). The shooter acquired the gun via Snapchat, and the shooting took place at an Airbnb rental. In two separate rulings, the court dismisses claims against Snap and Airbnb.

Claims Against Snap. Jackson v. Airbnb, Inc., 2022 WL 16753197 (C.D. Cal. Nov. 4, 2022).

Snap’s liability involves a straightforward application of Section 230:

  • ICS Provider. Not disputed.
  • Publisher/Speaker Claims. The plaintiffs claimed Snap failed to detect gun listings or disable accounts selling guns. “Identifying content of social media users requires monitoring third-party content. Plaintiffs are clearly seeking to treat Snap as a speaker or publisher.”
  • Third-Party Content. “the allegations clearly center on third parties selling the guns…There are no allegations that Snap sold the gun to McGowan, that Snap posted the gun itself, that Snap required that content to be posted, that Snap suggested that type of content, or any like accusation.” To be clear, suggesting content shouldn’t affect 230.

To get around this, the plaintiffs invoked Lemmon v. Snap:

the claims here are predicated on holding Snap liable for third party content posted on its platform. Plaintiffs try to avoid Section 230 immunity, insisting, in the Lemmon lingo, that they are seeking to hold Snap liable for Snap’s actions and negligent design. But no matter how it is dressed up, the negligent design claim is just a claim that Snap did not properly monitor and curb third-party content on its platform. The complaint makes this clear. The allegations of negligence are based on “users often upload[ing] items for sale.” The blame cast on Snapchat is not that any particular feature encouraged the sale of guns, but rather that the app “allowed users to engage in the unlawful sale and purchase of guns” and that Snap “knew or should have known” that “many of its users have been unlawfully selling and purchasing guns.”

The accusation here is fundamentally that Snap should have monitored and curbed third-party content. The “policy of section 230 is to avoid” the chilling of speech “by the imposition of tort liability upon companies that do not create potentially harmful messages but are simply intermediaries for their delivery.” [Doe v. Internet Brands] This is exactly the sort of case for which Section 230 provides an impenetrable shield.

Despite the court’s rhetoric, Section 230 never creates an “impenetrable shield.” For example, if the federal government believes the gun sale is illegal and prosecutes Snap for facilitating it, Section 230 simply does not apply.

At the same time, it’s unfortunate to see plaintiffs try to treat the Lemmon case as a guaranteed free pass around Section 230. Fortunately, courts are cutting through the sophistry.

The court didn’t engage with other cases involving Section 230 and gun sales, such as the Armslist cases. Because Snap didn’t actually sell the guns, it’s in a different position than a gun marketplace like Armslist.

Claims Against Airbnb. Jackson v. Airbnb, Inc., 2022 WL 16752071 (C.D. Cal. Nov. 4, 2022)

The court dismisses the claims against Airbnb on their prima facie elements instead of Section 230. I’m not sure if Section 230’s omission is due to the HomeAway case or something else. Whatever the reason, this is another example where plaintiffs aren’t losing because of Section 230, they are losing because the law doesn’t apply to their facts.

Negligence. Airbnb does not have a duty of care. “Michael McGowan, not Airbnb, pulled the trigger. Airbnb had no duty to protect Decedent from Mr. McGowan’s malfeasance.”

The various common law exceptions don’t apply. “Landowners owe a special duty to invitees on their land. Airbnb does not exercise sufficient control over the subject property to support finding a special relationship here….there are claims that Airbnb provides a platform for renting and sets policies for rentals. This is insufficient.” The negligent undertaking doctrine doesn’t apply because “None of Airbnb’s actions increased risk, nor did they stop others from stepping in. The facts alleged do not support that Airbnb saw a risk, stepped in, and, in doing so, increased the risk of harm.”

The court also rejects foreseeability: “It would have taken something near the level of psychic powers to foresee the May 18, 2020, events at the subject property even with knowledge of these other crimes….Airbnb is not responsible for not outlawing illegal conduct. Airbnb is responsible only if it encourages it….the foreseeability of teenagers mishandling a firearm at the subject property was low.”

Products Liability. An online marketplace isn’t a “product.” “Airbnb is a platform that connects users; it is more akin to a service than to a product.” Lemmon v. Snap isn’t helpful because (1) the district court ruled on ordinary negligence, not products liability, and (2) the Ninth Circuit only opined on Section 230, not the prima facie elements. Bolger v. Amazon doesn’t help because “There was still a tangible product for which there was liability.”