There is an interesting ruling out of the Sixth Circuit this month where the court threw out a $10 million defamation lawsuit by a resort in Pigeon Forge, Tennessee. The resort was ranked the Number 1 on the 2011 “dirtiest hotels” list by TripAdvisor. Hotel owner Kenneth M. Seaton sued the website for defamation but Judge Thomas W. Phillips in Knoxville correctly rejected the claims in August 2012. The case is Seaton v. TripAdvisor LLC, 2013 FED App. 0255P (6th Cir.).
TripAdvisor published the resort as part of its listing of dirty hotels, the result of the informal polling of its many reviewers. The “2011 Dirtiest Hotels” list showed a picture of the Grand Resort Hotel & Convention Center in Pigeon Forge, Tennessee next to the number “1” position with a photograph of a ripped bedspread and a quotation that “‘There was dirt at least 1/2” thick in the bathtub which was filled with lots of dark hair. The display included a thumbs-down image beside the statement “87% of reviewers do not recommend this hotel.”
The Court determined that the listing is clearly protected opinion:
Seaton failed to state a plausible claim for defamation because TripAdvisor’s “2011 Dirtiest Hotels” list cannot reasonably be interpreted as stating, as an assertion of fact, that Grand Resort is the dirtiest hotel in America. We reach this conclusion for two reasons. First, TripAdvisor’s use of “dirtiest” amounts to rhetorical hyperbole. Second, 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. For these reasons, TripAdvisor’s placement of Grand Resort on the “2011 Dirtiest Hotels” list constitutes nonactionable opinion.
The use of the word “dirtiest” “negate[s] the impression that” TripAdvisor is communicating assertions of fact. Milkovich 497 U.S. at 21. “Dirtiest” is a loose, hyperbolic term because it is the superlative of an adjective that conveys an inherently subjective concept. Here, no reader of TripAdvisor’s list would understand Grand Resort to be, objectively, the dirtiest hotel in all the Americas, the North American continent, or even the United States. Instead, “even the most careless reader must have perceived” that “dirtiest” is simply an exaggeration and that Grand Resort is not, literally, the dirtiest hotel in the United States. See Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970). [*15] Thus, it is clear to us, as it would be to any reader, that TripAdvisor is not stating that Grand Resort is the dirtiest hotel in America as an actual assertion of fact. See id. at 20.
The general tenor of the “2011 Dirtiest Hotels” list buttresses the conclusion that readers would understand that by placing Grand Resort on the list, TripAdvisor is not stating an actual fact about Grand Resort. On the webpage in which the list appears, TripAdvisor states clearly “Dirtiest Hotels – United States as reported by travelers on TripAdvisor.” The implication from this statement is equally clear: TripAdvisor’s rankings are based on the subjective views of its users, not on objectively verifiable facts.
Notably, the Grand Resort closed in 2012 and has been purchased by a holding company. Yet, Seaton pursued the lawsuit. If he had put a modicum of this effort into running a minimally adequate hotel, he might not have been the subject of the listing. The hotel is now owned by a holding company but it clearly has a way to go according to visitors on TripAdvisor.