Earlier this year, we noted that a bunch of cities were looking to make Airbnb liable for residents in those cities using the platform without following certain city rules. As we noted at the time, this seemed to pretty clearly violate Section 230 of the CDA, which says that platforms cannot be liable for the actions of their users. San Francisco went ahead with such a law anyway, even though it tried to rework it at the last minute to deal with Airbnb’s points on why it was illegal. The case ended up in court either way — and unfortunately, the initial ruling has sided with San Francisco over Airbnb.
Now, I know that for a variety of reasons, there are people who just flat out hate Airbnb and think that it’s somehow bad or problematic for cities or rental prices or whatever. I don’t think the data supports this, but either way, you should be concerned about the results here. This isn’t about whether or not Airbnb is “good” or “bad” for cities. It’s about a fundamental principle on which the internet operates — which has allowed the internet to grow and to thrive, and which has protected free speech on the internet, by not making platforms magically liable for what users say or do. But the court here basically doesn’t care about all of that.
The judge tries to carefully parse things out to argue that under this law, Airbnb isn’t liable for its users’ actions, but its own:
As the text and plain meaning of the Ordinance demonstrate, it in no way treats plaintiffs as the publishers or speakers of the rental listings provided by hosts. It does not regulate what can or cannot be said or posted in the listings. It creates no obligation on plaintiffs’ part to monitor, edit, withdraw or block the content supplied by hosts. To the contrary, as San Francisco has emphasized in its briefs and at oral argument, plaintiffs are perfectly free to publish any listing they get from a host and to collect fees for doing so — whether the unit is lawfully registered or not — without threat of prosecution or penalty under the Ordinance…. The Ordinance holds plaintiffs liable only for their own conduct, namely for providing, and collecting a fee for, Booking Services in connection with an unregistered unit.
But that misunderstands both the nature of the platform and the nature of Section 230. First of all, the law absolutely creates an obligation on Airbnb to monitor, withdraw or block the content supplied by hosts — because if they do not, then they will face significant liability. The idea that it’s only targeting Airbnb’s “conduct” of booking an unregistered unit is simply incorrect. The platform allows anyone to put up any unit. Not Airbnb. Not only does this new regulation falsely attribute to Airbnb the actions of its users, this judge does too. That’s a problem.
We’ve written a lot about Section 230 over the years, and unfortunately in the last few months a bunch of cases have chipped away at these important protections. In each case, the courts seem to think that the situation in front of them is somehow unique and Section 230 shouldn’t apply. Considering how important Section 230 has been to the internet as a whole and the protection of free speech, we should be very, very concerned about so many of these cases picking apart the law and adding serious liability. It won’t end well. Hopefully Airbnb appeals this… and the 9th Circuit doesn’t muck it up.