Illegal subletting on Airbnb: the responsibility of the platform confirmed on appeal

In a judgment consulted by AFP, the court went in the direction of a judgment of the Paris court of June 5, 2020, which retained the responsibility of the platform in the event of publication of illegal content, considering that "it was up to him to ensure the legality of the advertisements published on his site".

It thus again condemned Airbnb Ireland - the European headquarters of the company located in Dublin -, jointly and severally with a tenant who had sublet without authorization her accommodation located in the popular Marais district, in the 4th arrondissement of Paris, in 2016 and 2017, for 534 days.

“This decision constitutes a real legal basis confirming the desire of the French courts to hold the platforms responsible for the abuses (…) which are likely to occur there”, welcomed Me Jonathan Bellaïche, lawyer for the owner, with the AFP. The decision, he noted, recalls "that these web giants have the necessary means to ensure the dissemination of content that respects our legal principles".

The platform and the tenant will have to pay the owner the sum of 32.399,61 euros, i.e. the difference between the amount of sub-rents fraudulently collected (51.936 euros) and that of the 20 months of rental (19.540 euros) paid to the owner on the period.

In a statement to AFP, Airbnb France, for whom "this case is strictly a private dispute between an owner and a tenant", says it is considering "all options to challenge this decision".

The court considered for its part that Airbnb had "largely contributed to the violation by the tenant of its contractual obligations which prohibited it from subletting the accommodation without the agreement of the lessor" by "not claiming" from the tenant to prove the legality of this sublet and by providing him with "logistical assistance" without which the accommodation would not have been sublet "at such a rate".

The responsibility of the platform is "all the greater since this company, by its international reputation, offers its + hosts + the possibility of broadcasting their advertisements to a very large audience" and that it "has the means to proceed “to the “verifications” of the legality of the advertisements on its site, notes the court in its judgment.

For the court, which thus confirms the assessment of the court, Airbnb is indeed a "publisher" and not a "simple host": this company "plays an active role" in the writing of advertisements by "imposing on its +hosts+ to numerous constraints", "accompanied by sanctions", "as to the use of its platform" and "supervise and control" the content of the advertisements via "precise instructions".