Beyond Passive Hosting: The French Supreme Court Rules on Airbnb’s Liability for Third-Party Illicit Content

Cour de cassation, Commercial Chamber, 7 January 2026, Nos. 23-22.723 and 24-13.163; ECLI:FR:CCASS:2026:CO00001

In two decisions handed down on 7 January 2026, the French Supreme Court (Cour de cassation) addressed whether Airbnb can rely on the hosting provider exemption when its services are used for illicit purposes. Although the decision does not strictly concern intellectual property, the Court’s answer (in the negative) is clearly of great relevance to infringing IPR content, as the underlying legal issues are comparable. Moreover, the Court’s reasoning relied substantially on the case law of the Court of Justice of the European Union (CJEU) developed in the field of intellectual property.

In the two cases at stake, tenants had sublet their homes via Airbnb without the landlord’s consent, in breach of French tenancy law. The landlord claimed that Airbnb should be held liable alongside the tenants.

Under EU and French law, liability exemptions are available for providers of internet hosting services (defined as services that consist of the storage of information provided by users), provided that they had no actual knowledge of the illegal content and that they act expeditiously to remove such content or disable access thereto after becoming aware of it. This regime was originally laid down in Article 14 of the E-Commerce Directive (2000/31/EC), transposed into French law by the “Law on Confidence in the Digital Economy” (LCEN), and is now reflected in Article 6(1) of the Digital Services Act (DSA).

Building on this definition, the CJEU has clarified that a service provider may qualify as a hosting service only where it acts as an intermediary (CJEU, C-236/08 to C-238/08, Google France and Google Inc.), meaning that its role is limited to the neutral provision of services involving the purely technical and automatic processing of data provided by its customers. Where the provider departs from this neutral role and plays an active role capable of giving it knowledge of, or control over, the data at issue, it falls outside the scope of the hosting liability exemption (CJEU, C-236/08 to C-238/08, Google France and Google Inc.; CJEU, C-324/09, L’Oréal and others; CJUE, C‑682/18 and C‑683/18, YouTube/Cyando).

Against this background, the question before the French Supreme Court was whether Airbnb could be regarded as having merely stored and displayed user-generated content, or if it had played a more active role. The two cases had given rise to divergent rulings at appellate level with the Paris Court of Appeal holding that Airbnb could not benefit from the hosting provider exemption, while the Aix-en-Provence Court of Appeal reached the opposite conclusion. The French Supreme Court approved the Paris judgment and quashed the Aix-en-Provence judgement.

The reasoning in the latter was based on the following considerations: Airbnb does not determine the content of the advertisements and has no control over them; since users remain free to determine the content of their advertisements and the rental price, it is irrelevant that Airbnb designed the architecture of the website, that it imposes a layout for the advertisements, or that it offers a professional photography service, assistance in setting rental prices, and a discussion forum for hosts; these features constitute technical operations that are typically offered by a hosting provider, and are justified by the need to streamline the organization of the service and facilitate access for the user;  before finalizing the creation of a rental listing, Airbnb requires all hosts to confirm that they comply with regulations and any restrictions arising from their own tenancy agreement, all which confirms that Airbnb has no capacity to determine or select the content uploaded by advertisers, nor to carry out any control of such content. Airbnb could therefore not be regarded as exercising editorial control over the listings.

The French Supreme Court found that the Aix court should have further examined whether Airbnb can be regarded as exerting an influence over the content of the advertisements and the behavior of the users, by means of the specific and binding instructions it gives its users, requiring them to adopt certain standards of conduct towards guests. The Court also pointed out that Airbnb promotes the advertisements, notably by providing reward mechanisms such as “Superhost” status, which grants enhanced visibility on the platform. The quashed decision has been referred for a rehearing. As it has been referred to the Paris Court of Appeal, it looks unlikely that Airbnb will win on the merits in view of the Paris Court’s position.