Cass. com., 7 January 2026, No. 23-22.723 and No. 24-13.163
Introduction
In two rulings handed down on 7 January 2026, the Commercial Chamber of the Court of Cassation put an end to the legal ambiguity surrounding the status of digital platforms: a platform that actively organises, controls and promotes content can no longer benefit from the limited liability regime reserved for hosts.
In disputes concerning illegal subletting via Airbnb, the High Court affirmed that the platform, far from being limited to passive storage, exercises a decisive influence on the content of offers and the behaviour of its users. This “interference” brings it under the common law liability regime.
The legal framework: technical neutrality or active role?
Article 6, I, 2 of the Law of 21 June 2004 on confidence in the digital economy (LCEN) establishes a limited liability regime for hosting providers. They can only be held liable for stored content if they were actually aware of its illegal nature and did not act promptly to remove it.
However, this protective regime assumes that the service provider limits itself to a neutral, technical and passive role of simple storage.
The Court of Cassation relies on the case law of the CJEU which, since the Google France ruling (23 March 2010), has held that a service provider loses its status as a hosting provider when it plays an active role consisting in particular of optimising or promoting offers (L’Oréal, 12 July 2011; YouTube and Cyando, 22 June 2021).
Two cases, one conclusion
First case (No. 23-22.723): a social housing company rented an apartment to a tenant who illegally sublet it on Airbnb from October 2019. The Aix-en-Provence Court of Appeal had exonerated Airbnb, considering that it was an accommodation provider. The Court of Cassation overturned this decision, criticising the judges for failing to examine whether the restrictive rules imposed by Airbnb and the awarding of “superhost” status did not constitute an active role incompatible with the neutrality of a host.
Second case (No. 24-13.163): a Parisian owner rented a furnished flat to a tenant who sublet it on Airbnb from March 2016. The Paris Court of Appeal held Airbnb liable and ordered it to pay damages jointly and severallywith the tenant. The Court of Cassation approved this reasoning and dismissed Airbnb Ireland’s appeal.
These two decisions converge: Airbnb does not merely store advertisements, but actively organises and supervises the activity that takes place on its platform.
The four criteria for an active role
The Court of Cassation identified a coherent set of mechanisms characterising the platform’s “interference”:
- The imposition of binding rules of conduct: Airbnb issues specific instructions (responsiveness, acceptance of bookings, avoidance of cancellations, maintaining a good rating) and checks that they are being followed.
- The power to sanction: The platform can remove listings and suspend or permanently deactivate accounts in the event of a breach of its rules.
- Selective promotion: The “superhost” status rewards hosts who comply with Airbnb’s guidelines and offers them greater visibility, thereby actively promoting certain listings.
- Transaction supervision: Airbnb prohibits off-platform bookings, controls financial flows and penalises contractual breaches.
These constraints are applied before the listing is published and during the transaction. It is this systemic approach that characterises the active role, rather than any particular mechanism taken in isolation.
Consequences: a new liability regime
The shift in regime
The Court of Cassation notes that Airbnb “interferes in the relationship between hosts and travellers” and plays an active role that gives it knowledge of or control over offers. It can therefore no longer claim to be an accommodation provider and is subject to the common law civil liability regime (Article 1240 of the Civil Code).
Practical implications
For landlords: they can now seek joint and several liability from Airbnb without having to demonstrate prior knowledge as required by the LCEN, but by establishing a common law fault relating to the organisation of the service itself. Recovery is facilitated by the platform’s solvency.
For platforms: it is impossible to hide behind the protective status of host. They must either reduce their control over content and users or assume their role as publisher and the associated responsibilities.
Scope: beyond Airbnb
These rulings go far beyond the Airbnb case and set a guideline for all digital platforms: the more the operator organises, prioritises, promotes and controls, the further it moves away from the protective status of a host.
This case law could apply to other collaborative economy platforms (Uber, Deliveroo, Leboncoin, Blablacar) that exercise similar control over their users.
These decisions are also in line with the Digital Services Act (EU Regulation 2022/2065), which enshrines a logic of increased accountability for digital intermediaries.
Conclusion
By confirming that platforms lose their hosting status when they play an active role, the Court of Cassation reaffirms a principle that is now well established in European law: neutrality entitles immunity; interference entails liability.
These decisions are an important milestone in the regulation of the digital economy and offer landlords and all litigants a new tool for challenging platforms which, while presenting themselves as mere intermediaries, in reality structure the entire contractual relationship.
It remains to be seen how this case law will be applied to other collaborative economy models and how platforms will adapt their operations to these new requirements.
