# Smith v. Airbnb, Inc.

> Court of Appeals of Oregon · December 15, 2021 · 316 Or. App. 378

URL: https://www.frixlaw.com/law-library/cases/10601433

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** December 15, 2021
- **Citations:** 316 Or. App. 378; 504 P.3d 646
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Tookey
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10601433. Public record. Not legal advice.