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Today, the U.S. Court of Appeals for the Sixth Circuit affirmed the lower court’s dismissal of a lawsuit against TripAdvisor concluding that name a hotel atop its “Dirtiest hotels” list was not defamatory since it was based on opinions.
The sole owner of the Grand Resort Hotel and Convention Center, located in Pigeon Forge, Tennessee, Kenneth Seaton filed suit against TripAdvisor for ranking it No. 1 on its “2011 Dirtiest Hotels in America” list (link below). Seaton alleged claims for defamation and false-light invasion of privacy based on TripAdvisor’s placement of Grand Resort on the list. TripAdvisor filed a motion to dismiss, asserting that Grand Resort’s placement on the list is protected under the First Amendment. Seaton moved to amend his complaint, seeking to add two additional claims: “trade libel/injurious falsehood” and tortious interference with prospective business relationships. The district court granted TripAdvisor’s motion to dismiss and denied Seaton’s motion to amend as being futile. Today, the 6th Circuit Court of Appeals affirmed these rulings.
- The full Opinion is here.
- TripAdvisor’s Review of the Grand Resort is here. (11% “thumbs up”)
- TripAdvisor’s “2011 Dirtiest Hotels” list is here. (check out the quotes!)
Seaton claimed TripAdvisor’s list was published to such news outlets as CNN, ABC, and NBC causing defamation to Grand Resort’s business with “unsubstantiated rumors and grossly distorted ratings and misleading statements used by consumers.” However, the district court disagreed, granting TripAdvisor’s motion to dismiss last August 2012, “reasoning that the list is protected opinion—it reflects TripAdvisor’s users’ subjective opinions—and therefore is not capable of being defamatory,” according to today’s Opinion.
The 6th Circuit Opinion continues:
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 tortious interference with prospective business relationships because, as he acknowledges, it relies on the “2011 Dirtiest Hotels” list being defamatory.
… TripAdvisor’s use of “dirtiest” amounts to rhetorical hyperbole [and] the general tenor of the “2011 Dirtiest Hotels” list undermines any impression that TripAdvisor was seriously maintaining that Grand Resort is, in fact, the dirtiest hotel in America. For these reasons, TripAdvisor’s placement of Grand Resort on the “2011 Dirtiest Hotels” list constitutes nonactionable opinion. (emphasis by travelblawg)
One of my favorite quotes from the 15 page opinion has to be:
TripAdvisor’s claim of trustworthiness relates to its conveyance of its individual users’ personal opinions. Further, “top 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. See, e.g., Reader’s Digest, Reader’s Digest Trust Poll: The 100 Most Trusted People in America (2013), [cite omitted] (stating that Tom Hanks is the most trusted person in America and showing that Judith Sheindlin, “Judge Judy,” is more trusted than all nine Supreme Court Justices). (emphasis by travelblawg)
So next time you see another [travel] blogger’s “Top [insert arbitrary number here] List of [who knows what]“… remember that it’s very likely more protected opinion!
*Note: Solely according to the