Ranking of “Dirtiest Hotels” Based on User Ratings is “Unverifiable Rhetorical Hyperbole”–Seaton v. TripAdvisor (Partial Forbes Cross-Post)

By Eric Goldman

[This is another situation where I’m posting the first draft of this post here and linking to the Forbes version, which reads a little differently. As always, I welcome feedback about which version you liked better.]

Seaton v. TripAdvisor, LLC, 3:11-cv-549 (E.D. Tenn. August 22, 2012)

TripAdvisor compiles its user ratings into an annual ranking of the top 10 “dirtiest hotels.” Not surprisingly, hotels making the list don’t feel very honored. The 2011 loser, the Grand Resort in Pigeon Forge, Tennessee, sued TripAdvisor for defamation and related claims. Concluding that the “dirtiest hotels” ranking constituted non-actionable opinion, the court dismissed the case on a 12(b)(6) motion to dismiss.

This opinion necessarily gets into the messy distinction between objective facts and subjective opinions. (James Grimmelmann recently explored this ground in some detail, although I wasn’t completely satisfied with his treatment). The underlying user ratings clearly are the users’ opinions; these ratings may be coupled with objective statements that could be actionable (the court gives an example where a user says the hotel’s bathtub was caked with a half-inch of dirt). TripAdvisor then layers its own content onto the user ratings. For example, it said that 87% of its users recommended against staying there, another statement of fact.

But what about just the rankings themselves? I believe TripAdvisor made an objective statement that of its ranked hotels, Grand Resort had the lowest numerical score for cleanliness. Grand Hotel doesn’t seem to be contesting TripAdvisor’s numerical computations. It seems that Grand Hotel is contesting TripAdvisor’s choice of the word “dirtiest,” perhaps enhanced by the numerical ranking which lends a veneer of objective precision to the list. The court rejects this line of thinking, saying “neither the fact that Defendant numbers its opinions one through ten, nor that it supports its opinions with data, converts its opinions to objective statements of fact.”

The court then says that reasonable consumers would not interpret these types of rankings as facts:

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. It does not appear to the Court that a reasonable person could believe that TripAdvisor’s article reflected anything more than the opinions of TripAdvisor’s millions of online users.

That’s not to say that the judge is a fan of consumer reviews:

though TripAdvisor’s method of arriving at its conclusions, unverified online user reviews, is a poor evaluative metric, it is not a system sufficiently erroneous so as to be labeled ‘defamatory” under the legal meaning of the term.

Two general observations about this ruling:

1) This is a great ruling for user-generated content (UGC) sites that compile various rankings of user subjective views. So long as they make it clear that user opinions are the source material, it seems like UGC sites can go quite far in packaging user ratings and providing lists of top/bottom performers without fearing defamation liability for that distillation.

2) In particular, this ruling is a great complement to 47 USC 230, which otherwise immunizes websites for user content. In light of terrible language in the initial Ninth Circuit Roommates.com opinion, we feared that websites would shy away from gathering and providing structured data from users. Those fears partially ameliorated after the Ninth Circuit wiped away its initial ruling, but nevertheless, plaintiffs have continued to hammer websites for their characterizations of user content. This ruling bridges the gap: even if Section 230’s immunity isn’t available for a website’s distillation of structured data provided by users, the website should still be able to avoid defamation liability because its compilation isn’t a “fact.”