Opinion: Why Airbnb shouldn’t be held liable for its ads (but Backpage.com should)

Hoping to protect innovation online, Congress included in a 1996 telecommunications law a provision that has shielded countless websites from lawsuits. The provision holds sites responsible only for the content they create, not material posted by their users — a crucial safeguard that has enabled companies to build Internet platforms for the public to publish creative works, sell products, offer services and share photos of the most excellent breakfast they’re having.

It’s a good principle. Nevertheless, that shield has been under steady attack from people looking for bigger pockets to tap, and to make websites pay for their users’ misdeeds. One recent example comes from six Angelenos who say they were evicted from a North Formosa Street apartment building ostensibly because their units were being taken off the market, when in fact they were being offered for more lucrative short-term rentals on Airbnb. If that’s true, the landlord violated city ordinances and state law. But not content to seek damages just from the building owner and manager, the six (aided by the Eviction Defense Network advocacy group) also sued Airbnb, accusing it of forming a joint venture with their landlord to violate city rental codes and state unfair business practices law.

The claims against Airbnb seem like just the sort of thing Congress was trying to prevent. The company’s critics argue that Airbnb enables and encourages landlords to flout the law, but the proper response is for cities to set and enforce rules for property owners in the short-term rental market, not for the courts to foist that duty onto Airbnb.

The Times’ editorial board has supported the city’s push to legalize home-sharing while regulating the websites that enable it, arguing that it will be impossible to enforce these rules without the help of Airbnb and its ilk. But imposing a set of requirements governing Airbnb’s behavior is one thing; holding Airbnb liable for illegal evictions by its users is something else entirely.

Again, the point is to hold sites such as Airbnb responsible for their own behavior, not their users’. The case of Backpage.com, an online advertising site, is instructive here.

The site’s owners amassed a fortune from the fees it charged for its adult services advertisements, which critics say are filled with listings by prostitutes and human traffickers. Along the way, the courts tossed out multiple attempts to prosecute the company, including one brought by the California attorney general’s office, on the grounds that the website wasn’t responsible for the ads posted by users.

On Monday, however, Backpage announced that it would no longer publish ads for adult services. The site said the move stemmed from unconstitutional censorship and pressure tactics by its foes in government. But it came as a U.S. Senate subcommittee was about to release a report outlining how the site hadn’t merely published adult ads created by its users — according to the investigators, Backpage employees altered some of the submissions to remove telltale signs of child sexual exploitation and other illegal activity. Its defenders say sites should be able to determine what is and isn’t suitable for publishing, but there’s a real difference between rejecting users’ posts because they didn’t meet the guidelines and rewriting them to conceal the problem.

A 2008 ruling by the 9th Circuit Court of Appeals against Roommates.com taught websites that once they start editing their users’ uploads, they put their immunity at risk. That’s a bright line — the sort of clarity that helps innovation flourish. According to Senate investigators, Backpage crossed that line by editing ad submissions in a way that contributed to the alleged illegality of its users’ activities.

The California attorney general has filed a second set of charges against Backpage.com, and the new information about its practices may lead the courts to let this case proceed. Doing so poses no real threat to other online platforms because, despite what some tech advocates and civil libertarians argue, the boundaries of the 1996 law’s safe harbor would still be clear. Allowing the six displaced renters to hold Airbnb liable for their eviction, however, would blur those boundaries so much that it would defeat the purpose of the safe harbor. The renters’ beef is with their former landlord, and that’s where their focus should be.

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Twitter: @jcahealey