Antitrust Law Daily Wrap Up, ADVERTISING—6th Cir.: Inclusion in "Dirtiest Hotels" list not defamatory, (Aug 29, 2013)

By Edward L. Puzzo, J.D.

A hotel's inclusion on a travel website's "Dirtiest Hotels" list was not defamatory because it conveyed the opinions of travelers and was not the assertion of provable fact, the U.S. Court of Appeals in Cincinnati has ruled (Seaton v. TripAdvisor LLC, August 28, 2013, Moore, K. N.).

After travel website TripAdvisor ranked his hotel as No. 1 on its "2011 Dirtiest Hotels" list, hotel proprietor Kenneth Seaton filed suit against TripAdvisor, alleging defamation, false-light invasion of privacy, trade libel and injurious falsehood and tortious interference with prospective business relationships. The case was removed to federal district court, and that court ruled against Seaton's claims by granting TripAdvisor's motions to dismiss. Upon appeal, the appellate court affirmed.

Opinion vs. provable fact. The appellate court explained that Seaton had not stated a plausible claim for defamation because placement on the "2011 Dirtiest Hotels" list cannot be reasonably interpreted as stating, as an assertion of fact, that the hotel was the dirtiest hotel in America. First, the term "dirtiest" is the superlative of an adjective that conveys an inherently subjective concept. Even the most careless reader must have perceived that "dirtiest" was simply an exaggeration, not that that the hotel was literally the dirtiest in America as a statement of fact, the court opined.

In addition, the list employed loose hyperbolic language and its general tenor undermined the assertion that it communicated anything other than the opinions of TripAdvisor's users. The caption of "Dirtiest Hotels - United States as reported by travelers on TripAdvisor" on the same web page as the list also made it clear that the rankings were based on the subjective views of its users, not on objectively verifiable facts.

Seaton argued that placement of his hotel on the list connoted an assertion of fact because TripAdvisor advertises the "World's Most Trusted Travel Advice" and to "share the whole truth about hotels." The court responded that TripAdvisor's claim of trustworthiness related to its conveyance of individual users' personal opinions. "TopTen" lists and the like on the Internet are understood by the public to constitute opinion, not provable fact. Statements that cannot be interpreted as stating actual facts, or which use loose or hyperbolic language which negate the impression that they are serious assertions of fact, are protected opinion. Seaton failed to state a plausible claim for defamation because TripAdvisor's list is protected nonactionable opinion, the court concluded.

Remaining claims. The court also rejected the false-light invasion of privacy claim, because the cause of action is a personal right and the list named the hotel, not Seaton personally. It rejected the trade libel and injurious falsehood claim, because this action requires the publication of a false statement of fact, and, as previously discussed, TripAdvisor's statements were protected opinion, not statements of fact. Finally, the court rejected the tortious interference with prospective business relationships claim, because this action also relies on the list being defamatory.

The case is Civil Action No. 12-6122.

Attorneys: Todd A. Shelton (John Rogers Law Group) for Kenneth M. Seaton. Laura R. Handman (Davis Wright Tremaine LLP) for TripAdvisor LLC.

Companies: Grand Resort Hotel and Convention Center; TripAdvisor LLC.

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