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.