Disclosure obligation in the event of suspected misappropriation

If there is suspicion that the living space has been misappropriated, the authorities can request online platforms such as Airbnb to transmit the data from the accommodation providers. This is the verdict of the Administrative Court (VG) Berlin after it had largely dismissed a lawsuit by Airbnb (judgment of June 23, 2021, Az. 6 K 90/20).

Airbnb had defended itself against a decision by the Berlin district office Tempelhof-Schöneberg, with which the portal was obliged to provide the names and addresses of many providers whose advertisements were listed in the online publication list, as well as the locations of the vacation homes brokered by Airbnb. In these cases, the district office found violations of the ban on misappropriation of the city of Berlin. However, Airbnb considered the norm on the basis of which the agency issued the decision to be unconstitutional. Furthermore, the decision was unlawful as it required a violation of a number of data protection laws.

The VG Berlin now rejected the complaint. The basis on which the authorities relied (Section 5 (2) sentences 2 and 3 ZwVbG) raised no concerns about unconstitutionality. Although it interferes with the basic right to informational self-determination, it is sufficiently specific and clear to be compatible with constitutional and Union law.

Due to the anonymity of the offers on the Internet platform, according to the VG, there are only minor requirements for sufficient reason for a request for information. Such an occasion could be given, among other things, if the providers of entire accommodations have given no or obviously incorrect registration numbers in their advertisements. According to the court, the legislature introduced the obligation to enter a registration number precisely because of the increasing anonymous offer of holiday apartments on internet portals. This generally applies to landlords who make their apartment available as a holiday home for a short period of time.

Airbnb also relied on Irish data protection law in the lawsuit because the company is headquartered in Dublin. Since the rules there were not applied in the case decided by the court, this argument was also not taken into account. Because of its fundamental importance, the chamber allowed an appeal to the Higher Administrative Court of Berlin-Brandenburg.