More than a decade after the emergence of the major platforms of the collaborative economy, disenchantment has set in. Little by little, the business models so widely praised for their economic and social liberalism have proved restrictive, liberty-destroying and prone to unlawfulness of every kind: ride-hailing platforms very often conceal an employment contract; defective and counterfeit goods are rife on e-commerce platforms; while social networks struggle to combat the manipulation of information. For some time now, it is the furnished accommodation rental platforms that have been revealing their harmful effects. It was well established that they seriously threatened public housing policies, and some municipalities have hit back hard. Even where municipalities were well disposed towards the platform, serious failings were found in the collection of the tourist tax (taxe de séjour) and record fines were imposed. In the end, private individuals, holidaymakers and public bodies have each found effective weapons to combat the most perverse effects of this type of platform. Only landlords seemed defenceless.
Everyone is aware of the difficulties faced by landlords who discover that their tenant is subletting the property very lucratively on an accommodation platform. First, they must have included a clause prohibiting subletting in the lease. Where it is prohibited, the landlord must still discover and sue the disloyal tenant, who will respond with procedural tactics and insolvency. Airbnb, for its part, was untouchable. It merely, it said, put owners and tenants in contact, and was not responsible for an unlawful listing. It is precisely this immunity that the French Supreme Court (Cour de cassation) overturned in two judgments given on 7 January 2026.
The facts were fairly standard. The first case (Com., 7 January 2026, No.23-22.723) involved a social landlord and its tenant, who was unlawfully subletting his social housing unit (HLM). The landlord sued the tenant and the platform for payment of the sum corresponding to the rent received. The trial judges ordered the tenant to pay but refused to order Airbnb to do so, since it enjoyed hosting provider status. In the second case (Com., 7 January 2026, No.24-13.163), an ordinary tenant had sublet his flat without the owner’s permission. Sued on the same grounds, the defendants were ordered without hesitation, the tenant and the platform alike, to pay the owner a sum corresponding not only to the rent received, but also to the commissions received by the platform. Two appeals to the Supreme Court were lodged, both turning on the same question: does the Airbnb platform have the status of hosting provider? If so, Airbnb cannot, save in exceptional cases, incur liability for the publication of an unlawful listing on its platform. It is a hosting provider and merely hosts data and puts users in contact. If not, Airbnb incurs liability where an unlawful listing is published on its interface. That would mean that the platform does not merely host, but intervenes deeply enough to control the hosted content. It would then fall into the category of publishers, which do not enjoy the shield offered by platform law.
The French Supreme Court (Cour de cassation) chose the second option: on the basis of a body of evidence pointing to decisive control by the platform over the content published, and on the basis of European and national platform law, the Supreme Court judges held that Airbnb does not have the status of internet hosting provider. Consequently, the platform does not benefit from the exemption from liability that the applicable law grants to hosting providers. Its liability is engaged whenever users rely on its platform for unlawful subletting. It will be ordered, together with the tenant, to pay not only the rent received but also the commissions.
To fully grasp the considerable significance of this judgment, it is necessary to revisit the complexity of hosting provider status (I) before analysing the facts that may lead to its loss (II).
I. Hosting provider status
Hosting provider status results from a regime built up over the years, the sources of which now flow from EU regulations. The liability regime for hosting providers balances two fundamental considerations. On the one hand, it cannot let platforms that host information go unpunished, given that they occupy a central position and are the place where the most flagrant unlawful content is found (hate speech, child sexual abuse material, counterfeits, etc.). On the other hand, the right to freedom of expression precludes automatic liability, as that would presuppose that the platform checks all the content published by users a priori. On social networks, for example, this would amount to a form of censorship.
That is why the law takes a more nuanced approach. Article 6, I, 2 of Act No.2004-575 of 21 June 2004 (the LCEN, still applicable in the case under review and transposing Article 14 of Directive 2000/31/EC of 8 June 2000) laid down a duty of vigilance for hosting providers based on one principle and two exceptions: the hosting provider does not incur liability for hosted content except where the content is manifestly unlawful (1) or where it has not acted promptly to remove unlawful content reported to it (2).
Article 6, I, 2 of the LCEN was subsequently repealed by the Act of 21 May 2024 in order to bring domestic law into line with Regulation (EU) 2022/2065, better known as the Digital Service Act (DSA). The DSA, which is directly applicable, has replaced the national legislation. Article 6 of the DSA now provides for a regime to the same effect: “Where an information society service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that the provider: (a) does not have actual knowledge of illegal activity or illegal content and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or illegal content is apparent; or (b) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the illegal content.” For the sake of completeness, it should also be noted that the Regulation provides for a stricter regime for platforms designated as a very large online platform (VLOP), which imposes on them heightened due diligence requirements regarding the systemic risks that may arise from their activities.
Moreover, in the judgments of 7 January 2026, the French Supreme Court (Cour de cassation) begins by recalling that, under EU law, it is essential that a hosting provider confine itself to being an “intermediary service provider” and that this is not the case “where that service provider, instead of confining itself to providing that service neutrally by a merely technical and automatic processing of the data provided by its customers, plays an active role of such a kind as to give it knowledge of, or control over, those data”. Here the Court simply adopts the criterion laid down by the Google judgment (CJEU, 23 March 2010, C-236/08 to C-238/08) which, although clear, left in its wake a serious problem of interpretation and method (on this point, see N. Balat, “Une méthode de mesure du rôle des plateformes numériques face aux qualification d’hébergeur et d’éditeur de contenu”, D.2025. 1933).
As can be seen, applied to our case, had the judges decided to grant hosting provider status to the Airbnb platform, it could not have been held liable, since in this case the listing that breaches the lease is not “manifestly unlawful”, and also because the content may not have been reported in time. To engage Airbnb’s liability, it was therefore necessary to strip it of hosting provider status and move it into the category of publisher. To achieve this, the platform’s active role still had to be demonstrated.
II. Refusal of hosting provider status
For the platform, the loss of hosting provider status amounts to a form of loss of immunity. The hosting provider shield collapses, and the company becomes exposed, liable under the same conditions as any user. It was therefore necessary to rely on decisive facts regarding the creation of the hosted content. Two of them convinced the judges.
First, the platform requires users to follow a set of rules which proves that “this company supervises and controls the content of the listings published on its site, issuing not general rules but precise instructions which constitute so many constraints to which hosts must submit”. Thus, the fact that a platform issues very precise rules of use prevents it from regarding itself as a mere hosting provider. Hosts cannot do as they please within a given interface: they must comply with the site’s requirements in order to publish their listing. In other words, the more restrictive the rules, the greater the risk of the platform being regarded as a publisher. Beyond this, it may be inferred from this judgment that the judges’ review of the active role is based on the a priori control that the platform exercises before the listing goes online.
Second, users who best comply with the instructions are awarded “superhost” status, which necessarily shows that the platform seeks to influence users and encourage behaviour that it considers virtuous. Beyond this, superhost status demonstrates a sufficiently strong degree of intervention for the platform to be able to judge the quality of a listing. This shows that it looks at, if not controls, the listings posted on its interface. Moreover, “superhost” status is obtained after the listing has been published, once the user has complied with a number of pre-established instructions; it is a kind of reward. This shows that, in reviewing a platform’s active role, the French Supreme Court (Cour de cassation) does not hesitate to examine its conduct after publication, whereas one might have thought that only upstream control was decisive.
The practical significance of this judgment is obviously considerable, since landlords will find in this solution formidable weapons to combat the misuse of the letting of their property. Beyond this, the fairly broad assessment of the “active role” criterion opens up an ever more effective line of attack against unlawful content on certain platforms which, under the guise of collaboration, very often exercise particularly extensive control over users’ activity (notably marketplaces). The perverse effect of this type of case law, however, could be that platforms take note of the vulnerability of hosting provider status and adopt a stricter control policy, which would run counter to the liberal spirit of platforms and, more generally, of the digital world.
Its theoretical scope, however, is confined to the practices described in the judgment, and no general principle of method can be drawn from it. The case law appears to wish to retain some flexibility. It may simply be noted that restrictive rules regarding the content of the listing and a reward system that intervenes a posteriori in the content of the listing are all evidence sufficient to establish active control by the platform.
