This is a follow-up to an
earlier blog post on this issue from March,
2014.
On March 25th, I posted about the legal implications of
using on-line apartment-renting services like AirBnB. Specifically,
the post discussed how AirBnB hosts should be mindful of their
state's tax laws and occupancy laws. A few days after the post,
AirBnB addressed the tax issue in a letter to New York City Mayor
De Blasio, encouraging the Mayor to tax the City's hosts
(which would bring in over $21 million in revenue to the city).
Early last week, AirBnB announced their efforts to start collecting
a 15% hotel sales tax in San Francisco.
Although these actions by AirBnB have alleviated some of the tax
concerns, AirBnB still hasn't addressed state occupancy laws.
As mentioned in the earlier blog post, it is a misdemeanor in New
York to rent out an apartment for less than 30 days unless the
owner is present. If you go on the AirBnB website to list your
apartment, you can filter by "Entire Place",
"Private Room", and "Shared Room". Thus,
because hosts seeking to rent their "Entire Place" for
less than 30 days would be breaking the law, the question
becomes:
Is AirBnB liable for the actions of its users?
Many on-line service providers have faced lawsuits over this
very question, such as eBay (users selling forged autographs),
Craigslist (users using the erotic services section to facilitate
prostitution), and StubHub (users illegally re-selling tickets). In
response, these companies have relied on Section 230 of the
Communications Decency Act to shield them from liability for the
content being posted. Section 230, which preempts contrary state
law, states that:
No provider or user of an interactive computer service shall
be treated as the publisher or speaker of any information provided
by another information content provider.
Using this defense, a company like Yelp has argued that its
users are "information content providers" and that Yelp -
as the "interactive computer service" - is merely serving
as a conduit for its users' information (i.e., business
reviews).
The issue is less clear-cut, however, when it comes to sites that
actually shape the content that is being posted. By narrowing the
scope of user responses through the use of drop down menus and
filters, courts have sometimes considered such companies the
"information content providers" themselves, thus making
them ineligible for the Section 230 safe harbor. For instance,
Roommates.com (a roommate matching service), a website somewhat
analogous to AirBnB, was denied Section 230 immunity when
it posted questions that required answers allegedly in violation of
the Fair Housing Act and state housing discrimination laws.
The roommates.com example is more the exception than the rule,
however. Courts have increasingly applied Section 230 to protect
on-line service providers, especially when such providers have
taken other steps to prohibit illegal use of its platform. Although
AirBnB does shape the content provided through the use of filters
(such as renting an "Entire Place"), a court would most
likely find that Section 230 would be applicable. Whether the issue
appears in court, however, AirBnB appears to be taking the right
steps to tackle some of these issues head on. And who knows –
a $21M "gift" to the State of New York may be just enough
incentive to overturn an obscure and little known occupancy
law.
This article is presented for informational purposes only and is not intended to constitute legal advice.