Smith v. Airbnb, Inc.

378

Argued and submitted April 9, affirmed December 15, 2021, petition for review

denied April 21, 2022 (369 Or 675)

Amanda SMITH,

Plaintiff-Appellant,

v.

AIRBNB, INC.,

a foreign corporation,

Defendant-Respondent,

and

Barry DENNIS,

Defendant.

Multnomah County Circuit Court

18CV32897; A173133

504 P3d 646

Plaintiff brought multiple claims against defendants Dennis and Airbnb,

Inc., for injuries that she sustained at a rental property owned by Dennis and

listed on Airbnb’s website. Plaintiff now appeals a limited judgment entered as

to defendant Airbnb. She contends that the trial court erred when it granted

summary judgment in favor of Airbnb based on a determination that Airbnb’s

liability was foreclosed under section 230 of the Communications Decency Act of

1996 (CDA 230), 47 USC § 230 (2018), which immunizes website operators from

liability arising from third-party content. More specifically, plaintiff contends

that several activities undertaken by Airbnb in relation to Dennis’s rental listing

are so extensive that Airbnb is no longer a mere service provider but is also a con-

tent provider, and therefore, Airbnb falls outside the immunity provided under

CDA 230. Held: Airbnb’s activities, as identified by plaintiff, did not materially

contribute to the alleged unlawfulness of Dennis’s rental listing that appeared on

Airbnb’s website; therefore, the trial court did not err in granting Airbnb’s motion

for summary judgment.

Affirmed.

Christopher J. Marshall, Judge.

J. Randolph Pickett argued the cause for appellant. Also

on the briefs were Kristen W. McCall, Kimberly O. Weingart,

and Pickett Dummigan McCall LLP.

Kathleen C. Bricken argued the cause for respondent. Also

on the brief was Foster Garvey PC.

Cite as 316 Or App 378 (2021) 379

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

TOOKEY, J.

Affirmed.

380 Smith v. Airbnb, Inc.

TOOKEY, J.

Plaintiff brought multiple claims against defen-

dants Dennis and Airbnb, Inc., for injuries she sustained at a

rental property owned by Dennis and listed on Airbnb’s web-

site. Plaintiff now appeals a limited judgment entered as to

Airbnb.1 We reject without discussion plaintiff’s assignment

of error related to document production, and we write only

to address plaintiff’s contention that the trial court erred by

granting summary judgment in favor of Airbnb based on a

determination that Airbnb’s liability was foreclosed under

section 230 of the Communications Decency Act of 1996

(CDA 230), 47 USC § 230 (2018), which immunizes website

operators from liability arising from third-party content.

We conclude that CDA 230 provides immunity to Airbnb in

this case, and therefore, the trial court did not err in grant-

ing Airbnb’s motion for summary judgment. Affirmed.

“We review a trial court’s grant of summary judg-

ment for legal error, and we will affirm if there are no gen-

uine issues as to any material fact and the moving party is

entitled to judgment as a matter of law.” Towner v. Bernardo/

Silverton Health, 304 Or App 397, 400, 467 P3d 17, rev den,

367 Or 115 (2020). “There is ‘[n]o genuine issue as to a mate-

rial fact’ when ‘no objectively reasonable juror could return

a verdict for the adverse party on the matter that is the

subject of the motion for summary judgment.’ ” Id. (quoting

ORCP 47 C). We view the facts and all reasonable inferences

that may be drawn from them in the light most favorable to

the nonmoving party. Id. at 401.

BACKGROUND

To celebrate plaintiff’s birthday, her significant

other, Havens, used Airbnb’s website to book a weekend at

the Old Barn in the Woods (Old Barn)—a vacation rental

owned by Dennis. Dennis had used Airbnb’s website to cre-

ate a listing for the Old Barn. In so doing, he wrote a para-

graph describing the Old Barn, and he voluntarily checked

a box in a drop-down menu to indicate that, among other

amenities, the Old Barn had a hot tub. Dennis’s listing did

not contain any warnings about hot tub safety.

1

The claims against defendant Dennis were abated pending this appeal.

Cite as 316 Or App 378 (2021) 381

On the day plaintiff and Havens arrived at the Old

Barn for check in, Dennis was present and gave them a brief

tour of the premises. The parties did not discuss the hot

tub, which was located on a deck about 10 to 12 feet above a

driveway and surrounded by a railing that was lower than

required by the applicable building code. Plaintiff subse-

quently consumed about five alcoholic beverages throughout

that evening, and around 2:00 a.m., she and Havens both

went to bed. Plaintiff was unable to fall asleep, however,

so she decided to use the hot tub alone. While in the hot

tub, plaintiff felt “faint,” as though she “was going to pass

out.” Feeling “dizzy” and “panicked,” plaintiff attempted to

climb out of the hot tub but fell over the deck railing to the

driveway below, sustaining numerous physical injuries. As a

result, plaintiff lay in the driveway until Havens discovered

her there at around 8:00 a.m.

Plaintiff subsequently brought vicarious- and

premises-liability claims against Dennis and Airbnb based

on the unsafe condition of, and inadequate warnings about,

the hot tub. With respect to Airbnb, plaintiff specifically

alleged that Airbnb failed to “properly vet potential rental

listings” on its website; failed “to obtain adequate control

over” Dennis’s Old Barn listing on its website; and failed to

provide “basic hot tub safety” warnings to users of Airbnb’s

website.

Airbnb moved for summary judgment, arguing,

among other points, that under CDA 230, “Airbnb cannot be

held liable for the content, or lack of content, on defendant

Dennis’s listing, as a matter of established law.” Plaintiff

opposed summary judgment, and a hearing was held on

Airbnb’s motion.

At that hearing, Airbnb reiterated that, under CDA

230, Airbnb was immune to liability based on the content,

or lack of content, provided to its website by third-party con-

tent providers like Dennis. Plaintiff responded, in essence,

that Airbnb was immune under CDA 230 only if “they’re

simply passing on the content that Mr. Dennis provides

to them without organizing it, categorizing it, [or] giving

it rankings,” and that Airbnb was “doing more than just

simply passing on the information from Mr. Dennis.” After

382 Smith v. Airbnb, Inc.

some discussion, the trial court sought to clarify plaintiff’s

position:

“THE COURT: [W]hat I hear you saying is * * *, once

Airbnb takes the information that [Dennis] has provided

and puts the two words ‘hot tub’ with an emoji next to it,

then that somehow has added to or subtracted from the

content that was provided by [Dennis] in a way that takes

away the immunity.

“Are you saying that repeating those words under

a heading that says ‘amenities’ * * * somehow that takes

away the immunity?

“[PLAINTIFF’S COUNSEL]: Yes, Your Honor. That’s

exactly what we’re saying.”

Airbnb responded that “all of the factors [plaintiff’s counsel

is] talking about which he thinks creates or makes Airbnb an

information content provider” had been previously rejected

by courts interpreting and applying CDA 230.

Ultimately, the trial court granted Airbnb’s motion

for summary judgment and issued an order stating that

there was no genuine issue of material fact relating to plain-

tiff’s claims against Airbnb, and, as a matter of law, Airbnb

was immune under CDA 230. The trial court then entered

a limited judgment in favor of Airbnb, which plaintiff now

appeals.

On appeal, plaintiff argues that the trial court

“erred in granting Airbnb’s motion for summary judgment

on the basis that the CDA bestowed immunity on” Airbnb,

because “Airbnb acted as a curator of its website entries”

by “creating a special search category” for listings with hot

tubs and “highlighting” those listings; “adding icons” to

rental listings with hot tubs;2 asking “targeted questions”

and “encourage[ing] individuals to specify whether their

property has a hot tub, which is displayed in the listing”;

and allowing individuals listing their property to “choos[e]

answers from drop-down menus.” Given “[t]his level of activ-

ity,” plaintiff argues, Airbnb “is not immune from liability.”

2

The record shows that the specific icon (or emoji) at issue in this case is

a small, gray rectangle with three squiggly lines above, which is presumably

intended to depict a steaming hot tub. That icon appears in Dennis’s Airbnb list-

ing for the Old Barn beside the words “Hot tub,” under the heading “Amenities.”

Cite as 316 Or App 378 (2021) 383

In response, Airbnb argues that the trial court did

not err in granting summary judgment, because plaintiff

“seeks to hold Airbnb liable as a publisher of [Dennis’s] con-

tent,” which “falls squarely within CDA 230’s protections.”

Airbnb further argues that a website “is not required to be a

passive conduit” in order to enjoy immunity under CDA 230,

because “CDA 230 allows websites to perform some editing

on user-generated content,” and “courts consistently have

held that arranging and organizing third-party content or

making minor edits to such content does not take a platform

outside of CDA 230’s protections.”

Given the parties’ arguments, the dispute in this

case centers on whether the activities identified by plain-

tiff take Airbnb outside the immunity provided by CDA 230.

We begin our analysis by explaining the immunity provided

under CDA 230 before turning to its application in this case.

CDA 230 IMMUNITY

Broadly speaking, CDA 230 “immunizes providers

of interactive computer services against liability arising

from content created by third parties.” Fair Hous. Council

of San Fernando Valley v. Roommates.Com, LLC, 521 F3d

1157, 1162 (9th Cir 2008). In Zeran v. Am. Online, Inc.,

129 F3d 327 (4th Cir 1997)—a seminal case interpreting

CDA 2303 —the court explained that the purpose of Congress

in providing that immunity was as follows:

“Interactive computer services have millions of users.

The amount of information communicated via interactive

computer services is therefore staggering. The specter of

tort liability in an area of such prolific speech would have

an obvious chilling effect. It would be impossible for service

providers to screen each of their millions of postings for

possible problems. Faced with potential liability for each

message republished by their services, interactive com-

puter service providers might choose to severely restrict the

number and type of messages posted. Congress considered

the weight of the speech interests implicated and chose to

3

See Valerie C. Brannon & Erin N. Holmes, Cong. Research Serv., Section

230: An Overview (R46751) at 10 & n 90 (Apr 7, 2021) (noting that, “[s]ince its pub-

lication, other courts of appeals have largely adopted Zeran’s reasoning,” and col-

lecting cases), available at https://crsreports.congress.gov/product/pdf/R/R46751

(accessed Nov 5, 2021).

384 Smith v. Airbnb, Inc.

immunize service providers to avoid any such restrictive

effect.

“Another important purpose of § 230 was to encour-

age service providers to self-regulate the dissemination of

offensive material over their services.”

Id. at 331 (internal citations omitted).

Reflecting those legislative concerns, courts have

interpreted CDA 230 as providing two types of immunity.

First, section 230(c)(1) “protects websites from liability

for material posted on the website by someone else.” Doe

v. Internet Brands, Inc., 824 F3d 846, 850 (9th Cir 2016).

Second, section 230(c)(2) protects websites “from liability for

claims arising out of the removal of potentially ‘objection-

able’ material.” Batzel v. Smith, 333 F3d 1018, 1030 n 14 (9th

Cir 2003), superseded in part by statute on other grounds as

stated in Breazeale v. Victim Servs., Inc., 878 F3d 759, 766-67

(9th Cir 2017) (quoting 47 USC § 230(c)(2)). This case con-

cerns the first type of immunity—i.e., section 230(c)(1).

Pursuant to the text of CDA 230(c)(1), “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)

(emphases added). Two terms used in that statute are par-

ticularly important. An “interactive computer service” pro-

vider (service provider) is “any information service, system,

or access software provider that provides or enables com-

puter access by multiple users to a computer server.” 47 USC

§ 230(f)(2). Courts have considered platforms such as Google,

Yahoo!, Facebook, and Craigslist to be service providers.

Valerie C. Brannon & Erin N. Holmes, Cong. Research

Serv., Section 230: An Overview (R46751) at 3 (Apr 7, 2021)

(collecting cases). By contrast, an “information content pro-

vider” (content provider) is “any person or entity that is

responsible, in whole or in part, for the creation or devel-

opment of information provided through the Internet or

any other interactive computer service.” 47 USC § 230(f)(3).

Thus, CDA 230(c)(1) distinguishes between those who create

content (content providers) and those who provide access to

that content (service providers)—and, as discussed below,

an entity can be both, depending on the circumstances.

Cite as 316 Or App 378 (2021) 385

Based on the text of CDA 230(c)(1), the Ninth Circuit

has set forth—and numerous other federal and state courts

have applied—a three-element test to determine whether a

defendant is immunized: CDA 230(c)(1) provides immunity

to “(1) a provider or user of an interactive computer service

(2) whom a plaintiff seeks to treat, under a state law cause of

action, as a publisher or speaker (3) of information provided

by another information content provider.” Barnes v. Yahoo!,

Inc., 570 F3d 1096, 1100-01 (9th Cir 2009); see also, e.g., Jane

Doe No. 1 v. Backpage.com, LLC, 817 F3d 12, 19 (1st Cir 2016);

Fed. Trade Comm’n v. LeadClick Media, LLC, 838 F3d 158,

173 (2d Cir 2016); Jones v. Dirty World Entm’t Recordings

LLC, 755 F3d 398, 409 (6th Cir 2014); F.T.C. v. Accusearch

Inc., 570 F3d 1187, 1196 (10th Cir 2009); Teatotaller, LLC v.

Facebook, Inc., 173 NH 442, 450, 242 A3d 814 (2020); Murphy

v. Twitter, Inc., 60 Cal App 5th 12, 24, 274 Cal Rptr 3d 360

(Cal App Div 1, 2021); Maynard v. Snapchat, Inc., 346 Ga

App 131, 134, 816 SE2d 77 (Ga Ct App, 2018). Consequently,

“section 230 provides immunity only if the interactive com-

puter service does not create or develop the information [at

issue] in whole or in part.” Roommates.Com, 521 F3d at 1166

(brackets and internal quotation marks omitted).

In this case, plaintiff states, and we agree, that

“Defendant Airbnb satisfies the first and third elements

of the test.” Plaintiff instead contests the second element,

arguing that Airbnb’s “curation of its site” goes “beyond the

traditional functions of a publisher,” because Airbnb was

“creating or designing content,” and therefore does not qual-

ify for immunity under CDA 230. In other words, plaintiff

contends that Airbnb’s “curating” activities are so extensive

that it is no longer a mere publisher (or service provider) but

is also an unimmunized content provider.

As indicated above, there are circumstances where

“[a] website operator can be both a service provider and a

content provider.” Roommates.Com, 521 F3d at 1162. But

CDA 230(c)(1) immunity “applies only if the interactive com-

puter service provider is not also an ‘information content

provider’ * * * who is ‘responsible, in whole or in part, for the

creation or development of’ the offending content.” Id. (quot-

ing 47 USC § 230(f)(3)). Consequently, “[t]he prototypical

386 Smith v. Airbnb, Inc.

service qualifying for CDA immunity is an online messag-

ing board (or bulletin board) on which Internet subscribers

post comments and respond to comments posted by others.”

Dyroff v. Ultimate Software Grp., Inc., 934 F3d 1093, 1097

(9th Cir 2019), cert den, 140 S Ct 2761, 206 L Ed 2d 936

(2020) (brackets and internal quotation marks omitted).

“Immunity is not foreclosed,” however, “simply because a

website offers more than a ‘bulletin board’ service, or an

online site on which Internet subscribers post comments

and respond to comments posted by others.’’ La Park

La Brea A LLC v. Airbnb, Inc., 285 F Supp 3d 1097, 1104 (CD

Cal 2017) (internal quotation marks omitted).

Indeed, courts have repeatedly indicated that a ser-

vice provider does not become a content provider, thereby

losing immunity, “merely [by] augmenting the content” at

issue. Roommates.Com, 521 F3d at 1167-68; see also Zeran,

129 F3d at 330 (An entity’s “exercise of a publisher’s tra-

ditional editorial functions” such as “alter[ing] content”

does not foreclose CDA 230 immunity.); Batzel, 333 F3d at

1031 (To “develop information” requires “something more

substantial than merely editing portions of an e-mail.”);

Carafano v. Metrosplash.com, Inc., 339 F3d 1119, 1124 (9th

Cir 2003) (“[T]he fact that Matchmaker classifies user char-

acteristics into discrete categories * * * does not transform

Matchmaker into a developer of the underlying informa-

tion.”); Dart v. Craigslist, Inc., 665 F Supp 2d 961, 968 (ND Ill

2009) (rejecting plaintiff’s argument that Craigslist “plays a

more active role than an intermediary or a traditional pub-

lisher” by providing “an ‘adult services’ category” on its web-

site). Courts have also repeatedly held that “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); see also, e.g., Dyroff, 934 F3d at 1096 (Website’s

“functions, including recommendations and notifications,

were content-neutral tools used to facilitate communica-

tions.”); Kimzey v. Yelp! Inc., 836 F3d 1263, 1270 (9th Cir

2016) (Yelp!’s “star-rating system is best characterized as [a]

kind of ‘neutral tool’ operating on voluntary [user] inputs.”);

Dart, 665 F Supp 2d at 969 (Craigslist’s “word-search func-

tion is a ‘neutral tool.’ ”).

Cite as 316 Or App 378 (2021) 387

Thus, service providers may retain CDA 230 immu-

nity even when they have “augmented” user content to some

extent. The question relevant to us, then, is: When is a ser-

vice provider also an unimmunized content provider?

The Ninth Circuit and others have answered that

question: A service provider “helps to develop unlawful con-

tent, and thus falls [outside the protection of] section 230, if

it contributes materially to the alleged illegality of the con-

duct” at issue. Roomates.Com, 521 F3d at 1168 (emphasis

added); see also Gonzalez, 2 F4th at 892 (noting that “[o]ther

circuits have adopted this ‘material contribution’ test,” and

collecting cases). The court in Roomates.Com explained that

“material contribution” test, in part, by way of examples.

For instance, the court explained,

“A dating website that requires users to enter their

sex, race, religion and marital status through drop-down

menus, and that provides means for users to search along

the same lines, retains its CDA immunity insofar as it does

not contribute to any alleged illegality; this immunity is

retained even if the website is sued for libel based on these

characteristics because the website would not have con-

tributed materially to any alleged defamation. Similarly, a

housing website that allows users to specify whether they

will or will not receive emails by means of user-defined cri-

teria might help some users exclude email from other users

of a particular race or sex. However, that website would be

immune, so long as it does not require the use of discrimi-

natory criteria. A website operator who edits user-created

content—such as by correcting spelling, removing obscen-

ity or trimming for length—retains his immunity for any

illegality in the user-created content, provided that the

edits are unrelated to the illegality. However, a website

operator who edits in a manner that contributes to the

alleged illegality—such as by removing the word ‘not’ from

a user’s message reading ‘[Name] did not steal the artwork’

in order to transform an innocent message into a libelous

one—is directly involved in the alleged illegality and thus

not immune.”

521 F3d at 1169 (emphasis in original).

With that framework in mind, we next determine

whether Airbnb’s activities identified by plaintiff materially

388 Smith v. Airbnb, Inc.

contributed to the alleged illegality of the content at issue—

i.e., Dennis’s indication in his Airbnb listing that the Old

Barn had a hot tub, with no accompanying warning about

hot tub safety.

ANALYSIS

Here, we conclude that Airbnb’s activities did not

materially contribute to the alleged unlawfulness of Dennis’s

listing. To reiterate, the activities identified by plaintiff

include “creating a special search category for hot tubs” and

“highlighting” those listings; “adding icons” to rental list-

ings with hot tubs; asking “targeted questions” and “encour-

age[ing] individuals to specify whether their property has

a hot tub, which is displayed in the listing”; and allowing

individuals listing their property to “choos[e] answers from

drop-down menus.”

Airbnb’s provision of a “special search category”

allowing users to search for and obtain results based on

user-provided information about hot tubs does not make

Airbnb a content provider or developer. Merely providing

that search tool did not augment—much less, materially

contribute to—Dennis’s indication that the Old Barn had

a hot tub. Moreover, the search function was simply a neu-

tral tool that provided listings of properties with hot tubs

to Airbnb users in response to their queries. See Dart, 665

F Supp 2d at 969 (“The word-search function is a ‘neutral

tool.’ ”); Gonzalez, 2 F4th at 893 (“A website is not trans-

formed into a content creator or developer by virtue of sup-

plying ‘neutral tools’ that deliver content in response to user

inputs.”); La Park La Brea A LLC, 285 F Supp 3d at 1104

(Airbnb’s “auto-complete search function” does “not make

Airbnb an information content provider.”); cf. Carafano, 339

F3d at 1124 (“[T]he fact that Matchmaker classifies user

characteristics into discrete categories,” allowing “highly

structured searches,” did “not transform Matchmaker into

a developer of the underlying misinformation.”).

Likewise, by “highlighting” the user-created list-

ings that mention hot tubs—including Dennis’s Old Barn

listing—Airbnb did not materially contribute to any portion

of the hot tub information contained in Dennis’s listing and,

thus, did not become a content provider. See Dowbenko v.

Cite as 316 Or App 378 (2021) 389

Google Inc., 582 Fed Appx 801, 805 (11th Cir 2014) (reject-

ing argument that Google was transformed into a content

provider when it “manipulated its search results to prom-

inently feature the article at issue”); Ascentive, LLC v. Op.

Corp., 842 F Supp 2d 450, 476 (EDNY 2011) (“The fact that

the defendants * * * alter the way [users’] postings are dis-

played” and caused content to “appear higher in search

engine results list * * * do[es] not render [defendant] an

information content provider.”); cf. Dyroff, 934 F3d at 1096

(The defendant’s website “is immune from liability under

CDA because its functions, including recommendations and

notifications, were content-neutral tools used to facilitate

communications.”).

Plaintiff also contends that Airbnb is not immune

under CDA 230, because it “asks targeted questions” and

“encourages individuals to specify whether their property

has a hot tub.” But “requiring prospective hosts to include

specific information about the property and themselves” does

“not make Airbnb an information content provider.” La Park

La Brea A LLC, 285 F Supp 3d at 1104; see also Roommates.

Com, 521 F3d at 1174 (“The fact that Roommate encourages

subscribers to provide something in response to the prompt

is not enough to make it a developer of the information[.]”

(Brackets and internal quotation marks omitted.)).

As for plaintiff’s contention about Airbnb “adding

icons” to listings that indicate the presence of hot tubs, sim-

ilar icons have repeatedly been characterized by courts as

neutral tools that merely represent, in graphic form, the

information provided to a website like Airbnb by third-

party users like Dennis. See, e.g., Kimzey, 836 F3d at 1270

(“[S]tar rating” accompanying a user’s review was a “neu-

tral tool” and did not transform Yelp! into a content pro-

vider, because it was “based on rating inputs from third

parties” and “user-generated” data.); Marshall’s Locksmith

Service Inc. v. Google, LLC, 925 F3d 1263, 1270-71 (DDC

2019) (rejecting argument that “translation” and “display”

of user-provided information in “pictorial form”—i.e., “map

pinpoints”—transformed Google into a content provider);

Gentry v. eBay, Inc., 99 Cal App 4th 816, 833, 121 Cal Rptr

2d 703 (Cal App Ct Div 1, 2002) (Adding “a color-coded star

symbol” next to user’s name did not “transform[ ] eBay into

390 Smith v. Airbnb, Inc.

an information content provider,” because it was “simply a

representation of the amount of such positive information

received by other users of eBay’s web site.”). Accordingly,

Airbnb was not transformed into a content provider by rep-

resenting the information it received from Dennis in icon

form.

Finally, plaintiff contends that Airbnb helped

develop the content at issue, because Airbnb allowed Dennis

to indicate the Old Barn’s amenities—including the hot

tub—by “choosing answers from drop-down menus.” As

support for that contention, plaintiff argues that “[t]he

court in Roommates.Com[, 521 F3d 1157 (9th Cir 2008)]

addressed this issue directly” and “found that, even on web-

sites where the users are the primary content providers, the

[service provider] can also be an information content pro-

vider if it helps ‘develop’ at least ‘in part’ the information

posted.”

Plaintiff is correct that the Roommates.Com case

involved users providing information to the defendant’s

website by selecting from “a limited set of pre-populated

answers” in a “drop-down menu” furnished by the defen-

dant’s website. 521 F3d at 1165-66. However, the court’s

holding in that case was not based merely on the provision

and use of drop-down menus.

In Roommates.Com, housing agencies in California

sued the operators of the website Roommates.Com—a web-

site that allows individuals to locate prospective roommates.

Id. at 1161-62. New Roommates.Com users were required

to complete a questionnaire that included the user’s prefer-

ences for a roommate’s age, gender, sexual orientation, and

number of children. Id. at 1161. Roommates.Com would then

display the user’s answers on their website for other users

to search and view. Id. The housing agencies alleged that

Roommates.Com had violated the Fair Housing Act (FHA)

by publishing advertisements for housing that indicate pref-

erences based on age, sex, family status, and other protected

characteristics. Id. at 1162. In its defense, Roommates.Com

argued that the housing agencies sought to hold Roommates.

Com accountable for content provided by third parties, and

therefore, it was immune under CDA 230. Id.

Cite as 316 Or App 378 (2021) 391

Ultimately, the court determined that the website

“does much more than provide options” for inputting infor-

mation. Id. at 1166. Rather, the court reasoned, “[b]y requir-

ing subscribers to provide the information as a condition of

accessing its service, and by providing a limited set of pre-

populated answers, Roommate becomes much more than

a passive transmitter of information provided by others;

it becomes the developer, at least in part, of that informa-

tion.” Id. The court further reasoned that Roommates.Com

“directly participates in developing the alleged illegality,”

because their “website is designed to force subscribers to

divulge protected characteristics and discriminatory pref-

erences, and to match those who have rooms with those

who are looking for rooms based on criteria that appear

to be prohibited by the FHA.” Id. at 1172-74. Thus, it was

Roommates.Com’s role as a provider, “at least in part,” of

the content at issue, along with the forced production and

utilization of protected-class information for unlawful pur-

poses, that stripped Roommates.Com of CDA 230’s protec-

tions; it was not the mere use of “drop-down menus” and

“pre-populated answers” that foreclosed immunity. See id.

at 1169 & n 23 (“A dating website that requires users to

enter their sex, race, religion, and marital status through

drop-down menus, and that provides means for users to

search along the same lines, retains its CDA immunity”

because it “is perfectly legal to discriminate along those

lines in dating.”).

In this case, Airbnb’s use of drop-down menus did

not, as plaintiff suggests, foreclose its immunity under the

holding in Roommates.Com. Unlike that case, Airbnb did not

require Dennis to provide any information through Airbnb’s

drop-down menu; instead, Dennis could—and did—provide

information, in his own words, separately in the paragraph

describing the Old Barn. And, though Dennis also provided

information about his hot tub through Airbnb’s drop-down

menu, he did so voluntarily. In addition, the information

that Airbnb did ask about in the drop-down menu per-

tained only to the Old Barn’s amenities—information that,

by itself, was not used by Airbnb for a prohibited purpose

like the protected-class information at issue in Roommates.

Com. Thus, unlike the website in Roommates.Com, Airbnb

392 Smith v. Airbnb, Inc.

did not “materially contribute” to Dennis’s indication that

the Old Barn had a hot tub by giving Dennis the option

to input that information through a drop-down menu. See

Roommates.Com, 521 F3d at 1168-75 (explaining and apply-

ing the “material contribution” test).

In sum, Airbnb’s activities did not, in this case,

transform it into a content provider, thereby foreclosing

immunity under CDA 230. We therefore conclude that the

trial court did not err in granting Airbnb’s motion for sum-

mary judgment; accordingly, we affirm.

Affirmed.