Airbnb ruled responsible for illegal subletting by French court
Short-let service fined as court rules it provides more than ‘internet service’
The service may appeal the result
Romain LONGIERAS / Shutterstock
French judges have ruled that Airbnb was liable when tenants rented properties and then unlawfully sublet them to holidaymakers through the platform.
The ruling made in January by judges at the Cour de cassation, France’s highest criminal and civil court, clarifies the law.
It comes after two different appeal courts – in Paris and Aix-en-Provence – came to different conclusions when faced with similar cases about the short-term letting service.
The point of contention in each case was whether Airbnb was deemed to be solely an online service provider or not.
Under EU rules, online service providers benefit from protection against legal action arising from the misconduct of their clients.
In the Paris case, the appeal court judges ruled that Airbnb could not present itself solely as an online service provider.
It found that the company played an active role in relations between hosts and visitors, as shown by its rules and regulations and its promotion of some hosts as ‘superhosts’ (a designation for top-rated, experienced hosts who provide exceptional hospitality).
This showed it “had largely contributed” to the tenant’s breaking of their contract with their landlord, to sublet illegally.
By contrast the Aix-en-Provence appeal court judges ruled that Airbnb was a simple internet services provider.
Airbnb ‘does not play a neutral role’ for letters
Following the January ruling, the Cour de cassation publicly issued a communiqué (a kind of official announcement) explaining the decision, a step it rarely takes.
“Airbnb is not an internet provider because it plays an active role with regard to its users, allowing it to have knowledge of, and control of, the offers on its platform,” the court wrote.
“As it cannot claim to be an internet provider, it does not have the protection given to internet providers, and it can be held responsible if the users of the platform use it for illicit subletting.”
The Cour de cassation said it based its ruling on decisions handed down by the EU Court of Justice.
“According to the EU Court of Justice, an internet provider must just play an intermediate role, and limit itself to supplying neutral technical services allowing the automatic storing and sending out of data supplied by clients.”
“The internet provider therefore does not play an active role in the handling of data: it does not have knowledge of what is in the data or control of it.”
It added: “Airbnb does not play a neutral role with respect to its users. It inserts itself into the relation between ‘hosts’ and ‘travellers’, and imposes on them to follow rules (during the publication of the announcement or the transaction), which it is able to impose; (and) in promoting some offers with the attribution of ‘super hosts’, have an influence on the behaviour of users.”
Airbnb may challenge decision
The Aix-en-Provence case was sent back to the Aix-en-Provence appeal court to be rejudged in the light of the Cour de cassation ruling.
In the Paris case, a decision of the appeal court that reduced the fine payable by Airbnb to €32,399 from the original €58,000 was annulled, meaning the initial fine imposed by the first court now stands.
Airbnb told Agence France Presse that judicial proceedings over the two cases “were continuing” and hinted that it might appeal the decision to the European courts.
“We are determined to explore all possible avenues so that French jurisprudence reflects European principles for the regulation of platforms,” the company said.
“These decisions go against European law.”
