Although we have confidence in the quality of our work, the headline above might be viewed by some as mere hyperbole or rhetorical exaggeration. And that is the case with most top ten lists, at least those that are based on consumer reviews, a court recently ruled. In Seaton v. TripAdvisor, LLC, 2012 U.S. Dist. LEXIS 118584 (E.D. Tenn. August 22, 2012), the district court concluded that 2011 Trip Advisor “Dirtiest Hotels” ranking constituted hyperbolic opinion and rhetorical exaggeration, and thus was not actionable under Tennessee defamation law.
TripAdvisor.com is one of the top travel information sites (we can refer to Hitwise for that opinion); it refers to itself as providing the world’s “most trusted travel advice.” Since 2006, it has published the “Dirtiest Hotels” list. Kenneth Seaton is the proprietor of the Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee, which had the unhappy distinction of being named the top “Dirtiest Hotel” in the 2011 TripAdvisor rankings. Seaton responded with an action for defamation and false light invasion of privacy.
Noting that the First Amendment is at least passively implicated in any defamation case, the court grounded its ruling in the fundamental distinction between actionable statements of fact, and constitutionally protected “pure opinion, hyperbole, or rhetorical exaggeration.” But an opinion implying an assertion of objective fact can fall outside that constitutional protection, the court noted. Thus, to state a cause of action for defamation or false light under Tennessee law, the court said, the plaintiff must assert the publication of either “a false or misleading statement of fact, or a statement of opinion that implies having a basis in defamatory facts.”
Where is the line between an assertion of “actual, objectively verifiable facts” and mere opinion? It is, the court said, “whether a reasonable person could understand the language in question as an assertion of fact, or, on the other hand, regard the language as merely hyperbolic opinion or rhetorical exaggeration.” In the case of the Dirtiest Hotels list, the court found, it “is clearly unverifiable rhetorical hyperbole” that reflects nothing more than the opinions of TripAdvisor’s millions of users. In a passage that is likely to be widely quoted in future “top ten” defamation cases, especially those involving consumer reviews, the court said:
"TripAdvisor’s list is of the genre of hyperbole that is omnipresent. 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 their course of 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.”
Accordingly, the court found that the “Dirtiest Hotels” list was not defamatory, and declined to address the direct First Amendment challenge posed by Trip Advisor.
An Important Line of Defense for User Review Sites
This is an important opinion for sites that feature user reviews and then utilize those reviews to generate editorial content. Although Section 230 of the Communications Decency Act protects such sites from liability for the content of the user reviews themselves, the availability of that protection can become tenuous when the site can be regarded as an “information content provider” with respect to claimed defamatory or otherwise harmful assertions.
What this ruling establishes is the best defense ever for an online consumer review site: there was no actionable defamation from which the provider needs protection.