Last year, we posted about a district court decision out of Tennessee with an interesting fact pattern. A hotel in Pigeon Forge, TN, had sued the popular travel website TripAdvisor.com, after it was named “America’s dirtiest hotel”, following a survey of the site’s users. The district court found that this did not constitute defamation, as:
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.”
The hotel appealed to the Sixth Circuit, and almost a year to the day later, that court issued its appellate opinion. It fairly quickly affirms the lower court’s decision, stating:
[Hotel owner, and plaintiff] Seaton did not state a plausible claim for defamation because TripAdvisor’s placement of Grand Resort on the “2011 Dirtiest Hotels” list is not capable of being 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.
So, fairly similar reasoning as before – this time, instead of the statements being “inherently subjective” and therefore protected, now the “loose, hyperbolic language” is the reason for protection. (You can’t get much more hyperbolic than “America’s Dirtiest Hotel”). The upshot is the same, though. The Sixth Circuit found that the list could not be considered defamatory 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.
The court recognizes that calling a hotel – or indeed, anything – the “dirtiest”, cannot be considered a statement of fact “because it is the superlative of an adjective that conveys an inherently subjective concept.” Said the court:
“[E]ven 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.
Next, it is noted that the webpage on which the statement appeared featured the heading ”Dirtiest Hotels — United States as reported by travelers on TripAdvisor.” Here’s an additional, gross detail that wasn’t in the lower court’s opinion a year ago:
Also on the list, the entry for Grand Resort includes a photograph of a ripped bedspread and a quotation from a TripAdvisor user: “`There was dirt at least 1/2″ thick in the bathtub which was filled with lots of dark hair.’”
Unpleasant. (The Sixth Circuit opinion also has some user reviews for the other hotels that made the list, and they get pretty nasty. “Hold your nose for the garbage smell” is a personal favorite). The nature of the language used in these reviews and statements supports the stance that they are merely hyperbolic, and the Sixth Circuit repeatedly mentions the “general tenor” of the list, as a reason to deny plaintiff’s defamation claim.