Law of new technologies
AIRBNB recognized in France as a content publisher
Purpose of the decision
By a judgment of the Paris Court of Justice dated June 5, 2020, it was ruled that:
“AIRBNB IRELAND is a company whose purpose, through a digital platform taking the form of the website ww.airbnb.fr which it administers, is to put people wishing to offer their accommodation for rent, “the hosts”, in touch with other people seeking accommodation for a short period of time, “the travelers”.
Article 6-I.2 paragraph 1 and 7 of the law n°2004-575 of June 21, 2004 for the confidence in the digital economy (known as LCEN) stipulates that “the physical or moral persons who ensure, even free of charge, for provision of the public by services of communication to the online public, the storage of signals, writings, images, of signals, writings, images, sounds or messages of any kind provided by recipients of these services may not be held civilly liable for the activities or information stored at the request of a recipient of these services if they did not have actual knowledge of their illicit nature or of the facts and circumstances revealing this nature or if, as soon as they had such knowledge, they acted promptly to remove this data or to make access impossible. (…)7. “The persons mentioned in 1 and 2 are not subject to a general obligation to monitor the information they transmit or store, nor to a general obligation to search for facts or circumstances revealing illicit activities.
On the other hand, when they play an active role that gives them knowledge or control of the data, these persons, natural or legal, have the status of publisher.
In this case, the AIRBNB platform refers to general conditions that set the rules for using the site, but also the contractual relationship between members, in particular by requiring them to respect what AIRBNB refers to as its values and expectations, which are mostly reminders of principles, such as non-discrimination, or legislation such as the rules on dangerous animals or the presence of weapons. However, in addition to this reminder of rules of good behavior, it gives guidelines to these hosts: to be responsive, to accept reservation requests, to avoid cancellations, to maintain a good overall rating, and to provide basic amenities, and failure to comply with these guidelines may result in removal of content and/or penalties.
It is contractually intended that by posting content on AIRBNB, the host agrees to abide by these rules and that AIRBNB reserves the right to remove any content in part or in whole that does not comply with these rules, its terms and conditions, community values, and comment policy or for any other reason in its sole discretion. It is also provided that in the case of repeated or particularly serious breaches, AIRBNB may suspend or permanently deactivate the account or accounts concerned.
AIRBNB thus has a right of control and arrogates to itself the right to withdraw contents for failure to respect the contractual conditions, but also for any other reason at its sole discretion.
Conversely, those who best comply with these guidelines may be rewarded with the designation of “superhost”.
AIRBNB defends itself from making a selection of the best hosts by putting forward the automatic character of a software, which attributes this qualification as soon as the criteria are met. Nevertheless, automatic or not, the attribution of this qualification is the result of criteria defined by AIRBNB itself, regularly checked by AIRBNB, and results in a promotion of the advertisements of the “superhost” as soon as their advertisement is indicated by a visible logo and that it profits from a privileged place in the list of the similar advertisements, being specified that AIRBNB is remunerated by a percentage on the rents perceived by the host.
Besides the control of the contents of the hosts, AIRBNB envisaged penalties striking the members of the contract of lodging, in particular by imposing to the traveler who would leave after the deadline of occupation, the payment of a penalty in compensation of the inconvenience undergone by the host as well as the accessory expenses. In the same way, AIRBNB prohibits to ask, make or accept a reservation outside the platform.
All of these elements show the active nature of the AIRBNB company’s approach in putting hosts and travelers in touch with each other and its interference in the content posted by hosts on its platform.
It is therefore established that the AIRBNB company does not carry out a simple activity of accommodation with regard to the hosts who use its site, but an activity of editor.
As such, it is able to verify whether the host has the right to offer a property for rent or not. The article 2.4 of its conditions of service confirms it since it stipulates: (… ), for the purposes of transparency and fraud prevention, subject to applicable law, we may, but are not obligated to, ask Members to provide official identification or other information, or to undergo other checks to verify the identity and background of Members, search third party databases or other sources of information to verify whether Members are listed, and request reports from service providers and, if we have sufficient information to identify a Member, obtain criminal or sexual offence (or similar) records from local authorities.
As soon as the host carries out an illicit activity through its intermediary, taking into account its right of control over the content of the advertisements and the activities carried out through its intermediary in its capacity as editor, it commits a fault by abstaining from any verification, which contributes to the damage suffered by the owner.
Its responsibility being retained in this respect, it is not necessary to examine the other arguments developed by Mrs. KAUFFMANN in support of its request for condemnation of AIRBNB”.
It appears from this judgment that:
AIRBNB had to reimburse the owner for the commissions it received as a result of the unauthorized subletting of the property, applying the theory of accession according to which real estate ownership gives right to everything it produces. Indeed, insofar as “the commissions received by AIRBNB are a percentage of the rents paid by travelers for the subletting of the property,” then the owner is entitled to obtain reimbursement.
AIRBNB does not carry out a simple activity of Web hosting: “It is thus established that the AIRBNB Company does not carry out a simple activity of hosting with regard to the hosts who use its site, but an activity of editor”. The Court of First Instance drew the legal consequences of the fact that: “when they play an active role that gives them knowledge or control of the data, these persons, natural or legal, have the status of publisher”.
AIRBNB must therefore operate a priori and not a posteriori control of the advertisements on its site: “Since the host carries out an illicit activity through its intermediary, taking into account its right to control the content of the advertisements and the activities carried out through its intermediary in the capacity of publisher, it commits a fault by not abstaining from any verification, which contributes to the prejudice suffered by the owner”.
AIRBNB is responsible for the acts committed by its users and will have to answer for all the illicit acts committed on its platform.
Thus, it was ordered to pay with provisional execution (immediate execution of the judgment, notwithstanding appeal) :
51.936,61 € of sub-rent which were cashed due to an abusive subletting
1.558,20 € for commissions received
5.000 € for lawyer’s fees
That is to say a total condemnation of 58.494,81 €.
In this case, a landlord had seen his home sublet by his tenant without his permission on the AIRBNB platform for 534 days during the years 2016 and 2017, which had allowed him to collect 51,936.61 €.
This decision is fundamental in that it will definitively put an end to the illegal actions committed on the AIRBNB platform and which could harm owners, users of the platform, syndic, and hoteliers whose defense I have been providing for many years.
The game of illicit will no longer be profitable for the platform; if it does not control, it will have to assume the damaging consequences that amount to colossal amounts. This decision was expected, it had to happen.
This decision is the result of a judicial adventure of several years aimed at making the AIRBNB platform responsible by allowing owners to recover illegal rents and by allowing any victim to sue the platform in case of damages committed through it.
AIRBNB can no longer rely on the status of content host, which was not applicable to it and which allowed it to enrich itself thanks to illicit actions.
The legal basis existed to make the web giants accountable, and the justice system, guarantor of our rule of law, has enforced it.
Olivia Zahedi and Jonathan BELLAICHE