Dirty Opinion: TripAdvisor’s “Dirtiest Hotels” Ranking is Protected by First AmendmentOctober 1, 2013
Tuesday, October 1, 2013, by Amelia Serrat
On August 28, 2013, the Sixth Circuit affirmed that a Tennessee hotel’s claim against TripAdvisor for placing the hotel at the top of the site’s annual “Dirtiest Hotels” list is not actionable. Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee brought suit against TripAdvisor for defamation and false-light invasion of privacy after the Grand Resort was ranked number one on the “2011 Dirtiest Hotels” list. The “Dirtiest Hotels” list, which first appeared in 2006, compiles user cleanliness rankings to list the top ten dirtiest hotels in the United States. The list also includes user comments and pictures. The Sixth Circuit held that TripAdvisor’s “Dirtiest Hotels” list is protected as opinion under the First Amendment and Article 1, Section 19 of the Tennessee Constitution.
TripAdvisor promises visitors “over 100 million candid reviews, opinions, and photos of hotels, restaurants, attractions, and more – all by travelers like you.” The website boasts over 260 million unique visitors each month, so it is easy to see why the folks at the Grand Resort got so upset about its number one ranking.
On August 22, 2012, the District Court for the Eastern District of Tennessee granted TripAdvisor’s motion to dismiss, finding that the list is protected opinion and thus not capable of being defamatory. A year later, the Sixth Circuit agreed and held that “[p]lacement on the ‘2011 Dirtiest Hotels’ list constitutes protected opinion because the list employs loose, hyperbolic language and its general tenor undermines any assertion by [Plaintiff] that the list communicates anything more than the opinions of TripAdvisor’s users.” Because the “2011 Dirtiest Hotels” list “cannot reasonably be interpreted as stating, as an assertion of fact, that Grand Resort is the dirtiest hotel in America,” the ranking of Grant Resort as the dirtiest hotel in America is allowed. In fact, the use of the word “dirtiest” is inherently subjective. The Plaintiff also challenged TripAdvisor’s methodology of compiling user surveys and reviews to create its list, claiming that the methodology was flawed and arbitrary. The Sixth Circuit disagreed and stated “that the subjective weighing of factors cannot be proven false and therefore cannot be the basis of a defamation claim.”
“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 [Plaintiff] that the list communicates anything more than the opinions of TripAdvisor’s users.”
Rankings listing the best or the worst in all sorts of categories are incredibly common. For instance, take a look at the Reader’s Digest 100 Most Trusted People in America list and Empire’s 50 Worst Movies Ever list. However, Jeff Hermes, Director of the Digital Media Law Project, believes that Seaton v. TripAdvisor goes further than protecting lists like the “Dirtiest Hotels.” He wrote that “TripAdvisor’s analysis of crowdsourced data to reach systemic conclusions echoes important techniques for academic research and data journalism.” While Hermes believes that the ruling “provides strong support for the publication of subjective conclusions based upon data from the crowd, the court’s apparent need to tie its analysis to a lack of ‘seriousness’ weakens its value somewhat for opinions on matters of public concern.”
Seaton v. TripAdvisor is a definite win for consumer ratings websites. Under the Communications Decency Act, websites cannot be held liable for the content of its users’ statements. This ruling takes it one step further: Websites are now allowed to compile and build upon its users’ statements and rankings to reach a subjective conclusion.