The Sixth Circuit Court of Appeals held that a company’s list of the “dirtiest” hotels in America based on user reviews is an opinion and therefore protected speech. Seaton v. TripAdvisor LLC, Case No. 12-6122 (6th Cir. August 28, 2013) (available here). Kenneth Seaton owns the Grand Resort Hotel and Convention Center (“Grand Resort”) in Tennessee. In 2011, TripAdvisor LLC ranked Grand Resort number one on its “Dirtiest Hotels” list. Seaton sued for defamation and false-light invasion of privacy. TripAdvisor moved to dismiss the class, asserting that the list was within TripAdvisor’s First Amendment rights. Seaton moved to amend his complaint to add “trade libel/injurious falsehood” and tortious interference with prospective business relationships to his complaint. The lower court granted TripAdvisor’s motion to dismiss and denied Seaton’s motion to amend. Seaton appealed, and the Sixth Circuit affirmed.
Grand Resort opened in 1982 and TripAdvisor’s list stated that 87% of Grand Resort’s reviewers did not recommend staying at that hotel. Seaton argued that TripAdvisor’s method of ranking Grand Resort as the dirtiest hotel was flawed and based upon unverifiable data. The lower court dismissed Seaton’s case, finding that TripAdvisor’s list was a protected opinion under the First Amendment because it reflected TripAdvisor’s users’ subjective opinions of Grand Resort, and thus these opinions could not be 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, Slip Op. Pp. 4-5.
“To establish a prima facie case of defamation in Tennessee, the plaintiff must establish that: 1) a party published a statement; 2) with knowledge that the statement is false and defaming to the other; or 3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.” Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999). The First Amendment protects statements that cannot reasonably be interpreted as stating actual facts about an individual. Seaton’s claim for defamation fails because TripAdvisor’s list cannot reasonably be interpreted as stating, as a fact, that Grand Resort is the dirtiest hotel in America. The Sixth Circuit listed two reasons for this: (1) “TripAdvisor’s use of ‘dirtiest’ amounts to rhetorical hyperbole” and (2) “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.” Seaton, Slip Op. Pp. 7-8.
The Sixth Circuit reasoned that any reader would know that TripAdvisor was not stating that Grand Resort was the dirtiest hotel, but that the list was merely based on the subjective views of TripAdvisor’s users. Thus, the list was not based on scientific findings that Grand Resort was indeed the filthiest hotel in America, but based on users’ experiences when staying at Grand Resort. Further, there was no recurring theme of what TripAdvisor users considered to be dirty in each hotel, thus allowing each user to apply his or her own definition when writing a review. The Sixth Circuit held that the list is a protected opinion under the First Amendment and is not defamatory in nature. As a result, even if TripAdvisor used a flawed method to create the list, Seaton’s claim for defamation still fails because the list is subjective in nature and therefore protected.
Seaton could not argue a false-light invasion of privacy claim because there is no evidence that he was personally named on the list and Grand Resort, as a business, could not make such a claim under Tennessee law. Further, Seaton’s claim of trade libel/injurious falsehood fails because he cannot prove that any false statements were made about Grand Resort. Lastly, Seaton’s claim for tortious interference with prospective business relationships is not plausible because this claim rests on his argument that the list is defamatory. The Sixth Circuit therefore affirmed the dismissal of Seaton’s action.