Commentary on French Supreme Court (Commercial Chamber), 7 January 2026, No. 23-22.723
In a decision dated 7 January 2026 and published in the Bulletin, the Commercial Chamber of the French Supreme Court provides a major clarification regarding the liability regime applicable to digital platforms, and in particular the conditions under which the operator of the Airbnb platform may be denied the benefit of host provider status under French law governing confidence in the digital economy.
The Court partially quashed a ruling that had excluded any liability on the part of Airbnb Ireland Unlimited Company, criticising the appellate court for failing to sufficiently examine whether the platform operator played an active role capable of conferring knowledge or control over the disputed content.
The dispute arose between Famille et Provence, a social housing provider and lessor of a residential property, and Airbnb Ireland Unlimited Company, the operator of the Airbnb platform in Europe, as well as Airbnb France and the tenant of the property, Ms [S].
Famille et Provence alleged that its tenant had unlawfully sublet the property in breach of the lease agreement, which expressly prohibited any subletting, and had relied on the Airbnb platform to organise such activity.
On 7 December 2017, Famille et Provence entered into a lease agreement with Ms [S]. From October 2019 onwards, the tenant offered the property for short-term subletting via the Airbnb platform.
Claiming to have suffered damage as a result of this unlawful subletting, Famille et Provence brought proceedings against the tenant and against Airbnb France and Airbnb Ireland, seeking an order that they be held jointly and severally liable for restitution of the profits derived from the subletting.
By a judgment dated 21 September 2023, the Aix-en-Provence Court of Appeal dismissed the claims against Airbnb Ireland, holding that it qualified as a hosting service provider within the meaning of Article 6(I)(2) of the French Digital Economy Confidence Act, and that no editorial or active role had been established in relation to the disputed listings.
Famille et Provence appealed to the French Supreme Court.
The core issue concerned the legal classification of Airbnb Ireland’s role: whether it acted merely as a hosting service provider benefiting from a limited liability regime, or whether it played an active role in the intermediation process, capable of engaging its liability under general tort law pursuant to Article 1240 of the French Civil Code.
Famille et Provence argued that the services offered by Airbnb — including assistance in the presentation of listings, pricing optimisation tools, professional photography services, the imposition of behavioural rules on users and the promotion of certain listings — demonstrated active involvement in the content and visibility of the offers.
Conversely, Airbnb Ireland maintained that it did not determine the content of listings, exercised no prior control over them, and merely provided neutral technical tools, leaving users fully responsible for the information published online.
Referring to Article 6(I)(2) of the Act of 21 June 2004, interpreted in light of Directive 2000/31/EC on electronic commerce and the settled case law of the Court of Justice of the European Union, the Supreme Court recalled that only operators whose role is strictly technical, automatic and passive may benefit from host provider status.
The Court held that the Court of Appeal had failed to examine whether Airbnb Ireland exerted a decisive influence over the content of listings and user behaviour, in particular through the imposition of binding rules on hosts and guests, the ability to verify compliance and impose sanctions, and the promotion of certain offers through the granting of “superhost” status, thereby enhancing their visibility.
Such elements were capable of characterising an active role on the part of the platform, conferring knowledge or control over the hosted content and excluding the application of the hosting liability safe harbour.
Accordingly, the Supreme Court partially quashed the judgment and referred the case back to the Paris Court of Appeal, which will have to reassess Airbnb Ireland’s potential liability in light of these criteria.
Through this decision, the French Supreme Court confirms that host provider status cannot be inferred from an abstract assessment of a platform’s functionalities. Instead, a concrete and contextual analysis of the operator’s actual involvement in the structuring, promotion and supervision of content is required.
The ruling sends a clear signal to major digital platforms: the more an operator regulates user behaviour, promotes certain offers and intervenes in user relationships, the greater the risk of liability under general law, outside the protective framework of the hosting safe harbour.
