By Jim Rosenfeld and Sam Bayard
In a helpful decision for online publishers of rankings and ratings, the 6th Circuit Court of Appeals held that a travel website’s annual top-ten list of the dirtiest hotels in the United States, based on data compiled from its users’ reviews, was subjective opinion that did not give rise to a defamation claim. Seaton v. Tripadvisor, No. 12-6122 (6th Cir. Aug. 28, 2013) (Moore, Clay, White, JJ.).
TripAdvisor LLC operates a popular travel research website where users can post reviews and exchange information about hotels, resorts, restaurants and other businesses of interest to travelers. The TripAdvisor website also publishes surveys, lists, and reports regarding travel-related businesses. One such list was the “Dirtiest Hotels” list, which TripAdvisor published annually between 2006 and 2011. Plaintiff Kenneth M. Seaton’s Grand Resort Hotel and Convention Center (“Grand Resort”) in Pigeon Forge, Tennessee captured the number one spot on the 2011 list. On the website, the “2011 Dirtiest Hotels” feature listed the ten “dirtiest hotels,” providing each establishment’s name and location, a quote from a user review, a user-provided photograph, and the percentage of reviewers who “do not recommend this hotel.” It also included a link to each hotel’s listing page on TripAdvisor, where website visitors could see all its individual reviews and the numerical ratings that users submitted concerning “Cleanliness,” “Service,” “Value,” “Sleep Quality,” “Rooms,” and “Location.”
For the Grand Resort Hotel and Convention Center, the user quote stated that “There was dirt at least ½” thick in the bathtub which was filled with lots of dark hair,” and the photograph showed a ripped bedspread. The user quotes for the other nine hotels on the list was equally harsh (e.g., “Hold your nose for the garbage smell” and “Camp out on the beach instead”). Text at the top of the page explained that the information displayed in the list was “as reported by travelers on TripAdvisor.” TripAdvisor also issued a “2011 Dirtiest Hotels” press release with similar information, which featured additional language such as “TripAdvisor lifts the lid on America’s Dirtiest Hotels” and “Top 10 U.S. Grime- Scenes Revealed, According to Traveler Cleanliness Ratings.”
In October 2011, Seaton sued TripAdvisor for libel in Tennessee state court, claiming that the “2011 Dirtiest Hotel” list was based on “unsubstantiated rumors and grossly distorted ratings and misleading statements.” TripAdvisor removed the case to the United States District Court for the Eastern District of Tennessee and moved to dismiss under Rule 12(b)(6), arguing that the list was constitutionally protected opinion rather than a statement of objectively verifiable fact. Seaton opposed the motion and also moved to amend the complaint to add claims for false light, tortious interference with prospective business relationships, and trade libel/injurious falsehood.
The District Court’s Decision
On Aug. 22, 2012, Judge Thomas W. Phillips of the United States District Court for the Eastern District of Tennessee issued an opinion granting TripAdvisor’s motion to dismiss and denying Seaton’s motion to amend.
Recognizing that the federal and Tennessee Constitutions protect “statements of pure opinion, hyperbole or rhetorical exaggeration,” the District Court focused on whether the statements about Grand Resort in the “Dirtiest Hotel” feature implied any assertions of objective fact, so as to be actionable under Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-20 (1990). It found that “neither the fact that Defendant numbers its opinions one through ten, nor that it supports its opinions with data, converts its opinions to objective statements of fact. Any reasonable person can distinguish opinions based on reasons from facts based on reasons….” It accordingly found the “Dirtiest Hotels” list to be “unverifiable rhetorical hyperbole.”
Judge Phillips observed that lists and numerical rankings like TripAdvisor’s are “omnipresent,” and reasonable readers understand them to convey subjective opinion:
From law schools to restaurants, from judges to hospitals, everything is ranked, graded, ordered and critiqued. Undoubtedly, some will accept the array of “Best” and “Worst” rankings as impenetrable maxims. Certainly, some attempt to obfuscate the distinction between fact and opinion as part of the course of their business. For those that read “eat here,” sleep there” or “go to this law school” and are unable to distinguish measured analysis of objective facts from sensational “carnival barking,” compliance will be both steadfast and assured. Nevertheless, the standard, fortunately, is what a “reasonable person” would believe. A reasonable person would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact; the reasonable person, in other words, knows the difference between a statement that is “inherently subjective” and one that is “objectively verifiable.”
The District Court therefore dismissed the libel claim and also denied Seaton’s motion to amend the complaint as futile.
The 6th Circuit Affirms
On August 28, 2013, the 6th Circuit affirmed the District Court’s decision in all respects. Judge Karen Nelson Moore, writing for a unanimous panel, concluded that the “Dirtiest Hotels” list had not stated, as an assertion of fact, that Grand Resort was the dirtiest hotel in the United States. The Court focused both on TripAdvisor’s specific use of the term “dirtiest” and on the “general tenor” of the list and website.
First, TripAdvisor’s use of the word “dirtiest” was rhetorical hyperbole. The Court explained that “[d]irtiest’ is a loose, hyperbolic term because it is the superlative of an adjective that conveys an inherently subjective concept.” Readers would understand, the Court explained, that the term’s use was an exaggeration, rather than taking it literally.
Second, the Court found that the “general tenor” of the “Dirtiest Hotels” list reinforced the impression that the rankings were based on the subjective views of TripAdvisor users, not a scientific study that produced objective rankings. Readers would reasonably interpret the photographs and user quote accompanying the ranking of Grand Resort as “entertaining examples of the specific experiences of two of TripAdvisor’s users.” Likewise, the quotes regarding other hotels on the list were similarly “dramatic,” “entertaining,” and “hyperbolic,” such that “any reader would understand the list not to be communicating anything more than the experiences of individual users of TripAdvisor.”
TripAdvisor’s statements on its website that it provides the “World’s Most Trusted Travel Advice” and “share[s] the whole truth about hotels” did not alter the Court’s conclusion. The panel found that these claims of trustworthiness related to the site’s “conveyance of its individual users’ personal opinions,” not objective facts. Finally, like the District Court, the Circuit Court noted the ubiquity of top-ten lists and the like on the Internet, finding that reasonable observers interpreted such features as opinion, not provable fact.
The Circuit Court also disposed of plaintiff’s argument that TripAdvisor had employed “flawed methodology.” To the extent these arguments had been pled below, they were simply irrelevant given that the end-product of the challenged methodology was subjective opinion rather than verifiable fact. The Court reaffirmed its holding in a prior case, Compuware Corp. v. Moody’s Invs. Servs., Inc., 499 F.3d 520, 529 (6th Cir. 2007), that “the subjective weighing of factors cannot be proven false and therefore cannot be the basis of a defamation claim.”
The 6th Circuit also rejected plaintiff’s other claims, both as pleaded and as set forth in its proposed Amended Complaint. It held that Seaton could not prevail on a false light claim because such a claim could only be asserted by an individual, and the “Dirtiest Hotels” list had not identified Seaton personally. It affirmed the dismissal of Seaton’s trade libel/injurious falsehood claim because, like defamation, the claim could not be founded on subjective opinion. Finally, it similarly affirmed as to plaintiff’s tortious interference claim because plaintiff had relied on defamation as defendant’s allegedly “improper means” of interference.
The 6th Circuit’s decision in this case protects the efforts of consumer-oriented websites like TripAdvisor to gather, synthesize and organize the individual views and feedback of a multitude of reviewers in a form that, while subjective, is tremendously useful to users. In short, it allows these sites to distill the wisdom of the crowd. In particular, the case provides comfort to websites using star-rating and similar consumer-feedback systems to rank business, organizations, and individuals. For years, there’s been a good argument that Section 230 protects this type of aggregation of user commentary. See Levitt v. Yelp! Inc., 2011 WL 5079526 (N.D. Cal. Oct. 26, 2011); Gentry v. eBay, 121 Cal. Rptr. 2d 703, 714 (Cal. Ct. App. 2002). But the prospect remains that, in some situations, a website can lose Section 230 protection by crossing the line into creating its own content.
While the application of Section 230 is fact-dependent, this decision suggests that websites that go beyond mere aggregation and publication of user-generated content are entitled to constitutional protection against libel claims, at least so long as the underlying data relates to a subjective judgment. The decision may also be a boon to journalists and academic researchers who work with crowd-sourced data, or to anyone who wishes to go beyond simply publishing third-party content to drawing conclusions based on that content.
TripAdvisor LLC was represented in the District Court by Jim Rosenfeld and Sam Bayard of Davis Wright Tremaine in New York and Russell Headrick and Meghan Morgan of Baker, Donelson, Bearman, Caldwell & Berkowitz in Knoxville. Laura Handman of Davis Wright Tremaine joined the defense team for, and argued, the 6th Circuit appeal. Seaton was represented by John T. Milburn Rogers and Todd A. Shelton of the John Rogers Law Group and Sidney Gilreath of Gilreath & Associates.