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From the Desk of Jeff Eberhard:
When many hear of CDA Section 230 the focus may be why can’t Facebook, Twitter, etc. be sued because of the content posted on their website applications. For some an outcry ensues that that is “not fair”. But how does Section 230 effect something we all in the insurance industry care about: trip and fall accidents?
In a world that has hailed content creators king, you may actually want to be a service provider. The distinction between being a content provider and a service provider is incredibly important when a website is claiming immunity under CDA Section 230. The Oregon Appellate Court was faced with the question of whether Airbnb was immune from liability when one of its users fell off a hot tub and deck while vacationing on a property that was listed on their site. The Court reiterated the test to determine when a website can and cannot claim immunity and held that none of the tools or functions of Airbnb’s website transformed Airbnb from an immune service provider to an unimmunized content provider.
Smith v. Airbnb Inc., 316 Or App 378 (2021).
What started as a fun birthday get-away quickly turned into vicarious-and premises-liability claim for injuries sustained at a rental property owned by Barry Dennis (“Dennis”) and listed on Airbnb’s website. To celebrate her birthday, plaintiff booked a weekend at the Old Barn in the Woods through Airbnb. Dennis created the listing on Airbnb’s website writing a paragraph describing the property and checking a box in a drop-down menu to show the amenities available, including that the property had a hot tub. The listing did not contain any warnings about hot tub safety.
The hot tub was located on a deck about 10 to 12 feet above the driveway. The deck was surrounded by a railing that was lower than required by the applicable building codes. On the first night, after plaintiff had multiple alcoholic drinks, she decided to use the hot tub alone. While in the hot tub plaintiff felt dizzy and faint and, in a panic, attempted to exit the hot tub but fell over the deck railing, sustaining multiple injuries.
Plaintiff subsequently sued Dennis and Airbnb based on the unsafe conditions of, and the inadequate warnings about, the hot tub. Airbnb moved for summary judgment arguing that it could not be held liable for Dennis’ listing under section 230 of the Communications Decency Act of 1996 (“CDA 230”).
CDA 230, in general, “immunizes providers of interactive computer services against liability arising from content created by third parties.” Fair Hous. Council of San Fernando Valley v. Roomates.Com, LLC, 521 F3d 1157, 1162 (9th Cir 2008). Courts have interpreted CDA 230 as providing two types of immunity. The immunity that this case concerns, protects “from liability for material posted on the website by someone else.” Doe v. Internet Brands, Inc., 824 F3d 846, 850 (9th Cir 2016). The text states “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.” 47 USC §230(c)(1) (emphasis added). Two terms become central to any CDA 230 analysis. An “interactive computer service” provider (“service provider”) is “any information service, system, or access software provider that provides or enables computer access to multiple users to a computer server.” 47 USC §230(f)(2). Contrastingly, an “information content provider” (“content provider”) is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet or any other interactive computer service.” 47 USC §230(f)(3).
Courts have repeatedly held that a service provider does not become an unimmunized content provider by “merely augmenting the content” at issue. Roomates.Com, 521 F3d at 1167-68. Further, “a website is not transformed into a content creator or developer by virtue of supplying ‘neutral tools’ that deliver content in response to user inputs.” Gonzalez v. Google LLC, 2 F4th 871, 893 (9th Cir 2021). A service provider becomes an unimmunized content provider when the service provider’s actions “contributes materially to the alleged illegality of the conduct” at issue. Roomates.Com, 521 F3d at 1186 (emphasis added).
On appeal the Oregon Appellate Court was faced with the question of whether Airbnb’s actions materially contributed to the alleged illegality of Dennis’ listing. In plaintiff’s argument she lists many of Airbnb’s activities which she believed unimmunized Airbnb including “creating a special search category for hot tubs”; “highlighting” the hot tub listings; asking “targeted questions” about hot tub availability; and having “drop-down menus” that allowed Dennis to indicate whether the property had a hot tub.
The Court first looked at Airbnb’s “special search category” which allowed site users to search for rentals based on user-provided information about hot tubs. The Court concluded that the mere act of providing that search tool did not materially contribute to the alleged illegality but rather that it was a neutral tool. When looking at Airbnb’s ability to “highlight” listings that mention hot tubs, the Court also came to the same conclusion. The Court then disagreed with plaintiff’s contention that Airbnb was not immune because Airbnb asked, “targeted questions” and encouraged users to list if their property had a hot tub. The Court held that Airbnb did not become a content provider by “requiring prospective hosts to include specific information about the property and themselves.” La Park La Brea A LLC v. Airbnb, Inc., 285 F Supp 3d 1097, 1104 (CD Cal 2017). Finally, the Court was unpersuaded by plaintiff’s contention that Airbnb helped develop the content of the listing because Airbnb allowed Dennis to indicate his property had a hot tub using a “drop-down menu.”, holding that the drop-down menu did not unimmunize Airbnb because Airbnb did not require Dennis to provide any information through the dropdown menu.
In the end, the Court held that Airbnb’s activities did not transform it into a content provider thus foreclosing immunity under CDA 230.
The Big Picture:
Websites should be careful to understand the difference between a content provider and service provider when designing their website. This distinction is focal to ensure that the tools and services on the website don’t take them out of CDA 230 immunity territory.