Listing on “Dirtiest Hotels in America” Defamatory?
The Internet is full of sites that allow users to review, compare, and evaluate all sorts of products and services. One such that that I’m particularly fond of is TripAdvisor, which bills itself as offering “[u]nbiased hotel reviews, photos and travel advice for hotels and vacations.” But what happens if the reviews don’t go your way – can a hotel’s designation as the “Dirtiest Hotel in America” be the basis of a defamation lawsuit?
In 2011, the Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee was “awarded” number one on TripAdvisor’s survey of the “Dirtiest Hotels in America.” After dialing zero and asking for housekeeping, Kenneth Seaton, owner of the Grand Resort, filed suit, alleging defamation, false-light invasion of privacy, trade libel/injurious falsehood, and tortuous interference with prospective business relationships. In its complaint, the Grand Resort alleged that Trip Advisor…
published its allegations . . . to cause the public to cease and refrain from doing business with [Grand Resort] and to cause great injury and irreparable damage to and to destroy [Grand Resort’s] business and reputation by false and misleading means.
TripAdvisor argued that the list was subject to First Amendment protection. The U.S. District Court agreed with TripAdvisor’s position, dismissing the case. The U.S. Court of Appeals for the Sixth Circuit upheld this ruling. In its opinion (which can be read here), the Sixth Circuit held that:
Seaton did not state a plausible claim for defamation because TripAdvisor’s placement of Grand Resort on the “2011 Dirtiest Hotels” list is not capable of being defamatory. Placement on the “2011 Dirtiest Hotels” list constitutes protected opinion because the list employs loose, hyperbolic language and its general tenor undermines any assertion by Seaton that the list communicates anything more than the opinions of TripAdvisor’s users. Seaton failed to state a plausible claim for false-light invasion of privacy because he did not allege that he was personally named on the list and because Grand Resort, as a business, cannot make such a claim under Tennessee law. Seaton’s claim for trade libel/injurious falsehood is not plausible, as pleaded by Seaton, because it requires proof of publication of a false statement of fact regarding Grand Resort; Seaton cannot prove falsity because the placement of hotels on TripAdvisor’s list constitutes protected opinion. Finally, Seaton did not state a plausible claim for tortuous interference with prospective business relationships because, as he acknowledges, it relies on the “2011 Dirtiest Hotels” list being defamatory.
Focusing on the defamation claim, the key here is the general tone of TripAdvisor’s list. In its opinion, the court states over and over that the list is full of hyperbole and was clearly meant for entertainment purposes. No reasonable observer would be led to believe TripAdvisor had performed a scientific survey and was putting forth as a factual statement the idea that the Grand Resort is literally America’s dirtiest hotel.
Courts are not always among our most tech-savvy institutions. Therefore, I was pleased to read, in this opinion, observations such as, “’[T]op ten’ lists and the like appear with growing frequency on the web. It seems to us that a reasonable observer understands that placement on and ranking within the bulk of such lists constitutes opinion, not a provable fact.”*
Seaton did try to argue that TripAdvisor’s claims should be taken as statements of fact based upon TripAdvisor’s own claims regarding the value of their services. TripAdvisor refers to itself as providing the “World’s Most Trusted Travel Advice.” The court – correctly, in my view – held that such a statement does not “have any bearing on whether placement on the list can ‘reasonably be interpreted as stating’ an actual fact about Grand Resort…Instead, TripAdvisor’s claim of trustworthiness relates to its conveyance of its individual users’ personal opinions.”
So we’ve learned that the scope of First Amendment protection for lists on the Internet is fairly broad – but that tone and context do make a difference. Presumably, the more serious one’s tone (This is the Absolute, Scientific List of the Top Ten Dirtiest Hotels in America), the more likely it is to give rise to a successful defamation claim.
* Along these lines, I simply cannot resist copying this cite from the opinion: Vogel v. Felice, 26 Cal. Rptr. 3d 350, 361 (Cal. Ct. App. 2005) (“[I]t is inconceivable that placement on the ‘Top Ten Dumb Asses’ list [appearing on a website] could be understood to convey any imputation of provable defamatory fact.”)
