Seaton v. TripAdvisor, LLC [1]

In January 2011, TripAdvisor, operator of the travel review website http://www.tripadvisor.com, published a list [2] entitled "Dirtiest Hotels, as reported by travelers on TripAdvisor," which purported to be a list of the dirtiest hotels in the United States. Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee, topped the list. The feature included a user-provided picture of a ripped bedspread and a quote from a user report - "There was dirt at least ½" thick in the bathtub which was filled with lots of dark hair." It also noted that "87% of reviewers do not recommend this hotel."

In an accompanying press release [3], titled "TripAdvisor Lifts the Lid on America's Dirtiest Hotels: Top 10 U.S. Grime-Scenes Revealed, According to Traveler Cleanliness Ratings," TripAdvisor wrote, "true to its promise to share the whole truth about hotels to help travelers plan their trips, TripAdvisor names and shames the nation's most hair-raising hotels." The press release also contained the slogan "world's most trusted travel advice." The press release also stated, "If you are looking for a hotel with chewing tobacco spit oozing down the halls and corridors; spiders actively making webs in every corner of your room; carpeting so greasy and dirty you wouldn't want to sit your luggage down - let alone walk around barefoot ..... by all means stay at the Grand Resort."

The list and the accompanying press release stated that the list was based on traveler ratings for cleanliness posted on the site. According company policy, available on its website, while TripAdvisor "dedicate[s] significant time and resources" to detecting fraud, and screens reviews to ensure they meet posting guidelines, it does not verify or fact check reviews.

On Oct. 11, 2011, after TripAdvisor produced a list naming his hotel the dirtiest hotel in America, Kenneth M. Seaton sued [4] the travel site for defamation and false light in Tennessee state court, asking for five million dollars in compensatory damages and five million dollars in punitive damages and demanding a jury trial.

In his complaint [4], the plaintiff alleged that TripAdvisor had defamed his business with "unsubstantiated rumors and grossly distorted ratings and misleading statements," and that TripAdvisor used a rating system that is "flawed and inconsistent" and "overstates the level of trust that can be placed in" TripAdvisor's review of the hotel.

TripAdvisor removed the case to the U.S. District Court for the Eastern District of Tennessee and filed a motion to dismiss [5] for failure to state a claim on Jan. 6, 2012. Seaton filed a response [6] to the motion on March 31, 2012. TripAdvisor filed a reply brief [7] on May 14, 2012.

On August 22, 2012, the court granted the motion to dismiss [8]. The court treated the plaintiff's complaint as raising claims for defamation and false light, but disposed of the claims together, focusing its discussion on the defamation claim. It did not address the parties' arguments under the Communications Decency Act.

According to the court, the central question the case presented was whether a reasonable person could understand the language in question as an assertion of fact or as a mere hyperbolic opinion or rhetorical exaggeration. It cited to Milkovich v. Lorain Journal Co. for the proposition that "expressions of ‘opinion' may often imply an assertion of objective fact," and therefore "can give rise to a defamation claim when they imply an assertion of fact or when the opinion is based upon erroneous information." 497 U.S. 1, 18 (1990).

However, the court ultimately concluded that TripAdvisor's "Dirtiest Hotels" list is "clearly unverifiable rhetorical hyperbole," and that a reasonable person "would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact."

According to the court, a reasonable person could not believe that TripAdvisor's list and press release reflected anything more than "the opinions of TripAdvisor's millions of online users, and the article was therefore not ... a statement of opinion that it intended readers to believe was based on facts."

Finally, the court noted that TripAdvisor's method of compiling the list based on unverified online user reviews "is a poor evaluative metric," but held that, "it is not a system sufficiently erroneous so as to be labeled ‘defamatory' under the legal meaning of the term."

On September 21, 2012, Seaton filed a notice of appeal in the U.S. Court of Appeals for the Sixth Circuit.

Update:

On January 4, 2013, Seaton filed his brief [9] before the Sixth Circuit. Seaton argued that the stated reliability and accuracy of TripAdvisor's list made the statements objectively verifiable, and thus capable of being found to be actionable defamation. Seaton further argued that TripAdvisor used a flawed methodology to reach its conclusion, and that Section 230 did not shield TripAdvisor against liability because the alleged defamation comes from statements made by TripAdvisor directly.

On February 20, 2013, TripAdvisor filed its appellee brief [10] urging affirmance of the district court's opinion. TripAdvisor argued that a top-10 list is inherently subjective, as it necessarily includes editorial judgments, and therefore cannot be objectively verified. TripAdvisor further noted that its own list was based on sliding-scale rankings by its users, which also include inherently subjective considerations.

On February 27, 2013, the Digital Media Law Project (DMLP, the operator of this website) filed a brief as an amicus curiae [11]. The DMLP argued that TripAdvisor's statements were protected under Tennessee law and the First Amendment as an opinion based on disclosed facts. The DMLP also argued that finding liability for TripAdvisor could jeopardize the many crowdsourced research efforts conducted in both journalism and academia.

Oral argument before the Sixth Circuit was held on July 30, 2013, and on August 28, 2013, the Court of Appeals issued a decision [12] affirming the district court's dismissal of the case and its denial of leave to amend the complaint. The Sixth Circuit ruled that TripAdvisor's description of the Grand Resort as the "dirtiest" hotel was rhetorical hyperbole, and could not be read as "an actual assertion of fact."