Last week, Engine filed an amicus brief in La Park La Brea v. Airbnb, a case pending before the Ninth Circuit that presents serious questions about the viability of Section 230 of the Communications Decency. The Harvard Law School Cyberlaw Clinic drafted the brief on behalf of Engine and Eric Goldman, a professor at Santa Clara Law School professor and leading Section 230 scholar.
Engine has long argued that Section 230 (which ensures that websites cannot be held legally liable for content that their users publish but that they do not themselves develop) is uniquely responsible for facilitating the incredible growth of the Internet economy in the two decades since it was enacted. Without the strong protections in Section 230, many of the innovative companies we know today would never have started, and future startups will find it impossible to get off the ground.
Unfortunately, Section 230 has been under attack in recent years, in legislatures and courts alike. As Congress considers amending Section 230 outright, courts have been weakening 230 through poorly reasoned decisions that create loopholes large enough to undermine the law entirely. The Ninth Circuit must make a similar decision in its review of La Park La Brea v. Airbnb. In short, the case involves a property management company alleging that popular online home sharing platform is liable for users listing properties for short term rentals in violation of contracts that bar subleases. Airbnb does not itself actually post any rental units in violation of the underlying lease (all of the listings at issue were submitted by Airbnb users), therefore Section 230 protects Airbnb from being held liable as the speaker or publisher of those posts. However, the plaintiff is alleging that Airbnb should face legal penalties for providing the facilities and ancillary services that its users relied on to post the offending listings.
In our amicus brief, we detail at length how these arguments violate both the spirit of Section 230 and case law interpreting its provisions. It is well-established that a plaintiff cannot evade Section 230 by claiming that some feature on the defendant website’s is responsible for the plaintiff’s injury rather than the actual user speech at issue. To allow plaintiffs to circumvent Section 230 through artful pleading would undermine the fundamental purpose of the law: to protect online platforms from uncertain liability for user speech that they cannot fully control. A platform like Airbnb is in no position to know whether or not a particular user’s rental agreement precludes subleases. Section 230 puts the burden to address such disputes on the parties best positioned to deal with them: landlords and tenants. And in doing so, Section 230 shields small platforms from ruinous and unforeseeable legal liability for user speech, facilitating the development of innovative online services.
Many thanks to the Harvard team—Mason Kortz, Maia Levy Daniel, Sally Kagay, and Saranna Soroka—for their incredible work on the brief.
