VRBO Qualifies for Section 230–Wiener v. Miller
This lawsuit involves a tragic and deadly fire at a VRBO rental. The court dismisses VRBO from the resulting lawsuit on Section 230 and other grounds. That conclusion would have been unremarkable except that the Ninth Circuit held that VRBO doesn’t qualify for Section 230 when it processes third-party transactions. That was a nonsensical result, but the New York federal judge doesn’t discuss it at all. Thus, the court reaches what becomes a surprising result in light of the Ninth Circuit precedent elsewhere.
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Section 230
The plaintiffs alleged that VRBO “lists and markets” the property, placed it into the “stream of commerce,” and communicated the property’s conditions. The court responds:
the defendants merely transmit information provided by third-party property owners and in no way “develop” the content of the messages. Section § 230 thus remains a complete bar to the claims for violation of §§ 349 and 350 of the New York General Business Law. This protection extends to the transmission of false statements like those alleged to have been made by the Miller defendants. [cite to Marshall’s Locksmith]….
That Vrbo provided the Millers a platform to list their home for rental and published information the Millers provided nestles them squarely within the protections of Section 230…The allegations that the Vrbo defendants failed to properly vet the information also fail, as Vrbo has done nothing more than provide “neutral assistance,” i.e. providing users a platform to input their own content [cites to Herrick v. Grindr, Ynfante v. Google]…
Section 230’s protections extend to the publication of false information. That the Millers may have submitted false information that Vrbo then published has no bearing on Vrbo’s liability
Negligent Misrepresentation
As usual, Section 230 isn’t the only reason why the plaintiffs lost. The court explains why the complaint fails to satisfy the prima facie elements.
With respect to negligent misrepresentation, the court says that at most the plaintiffs were in an arms-length commercial arrangement with VRBO, which is not a “special” relationship and does not create a requisite duty.
Breach of Contract/Warranty
The court says the breach of contract/warranty claim is just an attempt to work around 230. It doesn’t succeed because the claim still turns on VRBO’s publication of third-party content. “Liability could not be established here without treating Vrbo as a publisher, the exact outcome Section 230 was enacted to avoid.” Cite to Cohen v. Facebook (what became Force v. Facebook on appeal). Add this to the growing stack of precedent that there isn’t a breach of contract workaround to Section 230.
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Still, what about that uncited 9th Circuit Homeaway Section 230 case? In a footnote, the court says “Vrbo is nothing more than an intermediary providing a forum for transactions between third parties in the same way that Craigslist is not a party to every transaction that facilitated by its platform.” Treating VRBO like Craigslist is a different fact conclusion than the Ninth Circuit reached, but it would be harmonizable with the 9th Circuit’s ruling if the facts bore it out. It’s also possible the plaintiffs’ lawyer mispleaded VRBO’s role in the case.
Case Citation: Wiener v. Miller, 2023 U.S. Dist. LEXIS 175727 (E.D.N.Y. Sept. 29, 2023)