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Online Reviews of “Dirtiest Hotel” Protected First Amendment Speech, Not Defamation

A bad online review in 2011’s “Dirtiest Hotel” drove the owner of the hotel to file his own complaint against the creator of the dirtiest list, TripAdvisor, for lost business. However, the Sixth Circuit Court of Appeals gave the hotel owner’s complaint a bad review of its own last week, finding that such online reviews are protected under the First Amendment and do not amount to defamation or invasion of privacy.

In Kenneth M. Seaton v. TripAdvisor, the plaintiff complained that his hotel, the Grand Hotel and Convention Center in Pigeon Forge, Tennessee, had been damaged as a result of the hotel being placed number one on TripAdvisor’s “2011 Dirtiest Hotels” list. Seaton filed suit in Tennessee state court alleging defamation and false-light invasion of privacy based on the list. TripAdvisor removed the matter to the local U.S. district court, which granted TripAdvisor’s motion to dismiss all of the hotel owner’s claims.

On appeal, the Sixth Circuit evaluated the validity of the hotel’s claims. In January 2011, TripAdvisor, which publishes online surveys and reviews from customers who have patronized hotels and restaurants around the world, indicated that its latest survey found that Seaton’s Grand Resort was “the dirtiest hotel in America.” The list of dirtiest hotels was published on CNN, ABC, and NBC.

Later that year, the hotel owner sued TripAdvisor, alleging that the publication of the survey led the public to “cease and refrain from doing business with [Grand Resort].” The hotel owner alleged defamation and false-light invasion of privacy and sought $5 million in compensatory damages and an additional $5 million in punitive damages. The hotel owner eventually filed a motion to amend his complaint in order to add two additional claims, but the district court instead granted TripAdvisor’s motion to dismiss.

The Sixth Circuit first addressed the defamation claim. Such a claim is only made upon the showing that a party published a statement with knowledge that the statement is false and defaming to the other, or with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement. However, the First Amendment protects “statements that cannot reasonably be interpreted as stating actual facts about an individual.”

Thus, the Sixth Circuit concluded, Seaton’s defamation claim failed because the 2011 Dirtiest Hotels list “cannot reasonably be interpreted as stating, as an assertion of fact, that Grand Resort is the dirtiest hotel in America. 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.”

Instead, the court held, the list is simply non-actionable opinion. 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.” This is particularly true because TripAdvisor’s conclusion was based on the subjective opinions of its users, and not objective, verifiable facts.

The second claim, false-light invasion of privacy, requires publicity that places the plaintiff in a false light that is highly offensive to a reasonable person, and the defendant knew or acted with reckless disregard to the falsity of the publicized matter and the false light in which the other would be placed. The Sixth Circuit quickly concluded that Grand Hotel, not Seaton, was named in the dirtiest hotels list. This means that Seaton could not advance a claim that he was put in a false light, and the business did not have the right to assert such a claim on its own behalf under Tennessee law.

Finally, the Sixth Circuit found that Seaton’s trade libel/injurious falsehood claim failed because he could not show that a false statement of fact was published, as the list was made of protected opinion. Also, Seaton’s tortious interference with a prospective business relationship failed, as it was based on the previously alleged defamation that the court dismissed.

The attorneys at Dalton & Tomich have extensive experience handling First Amendment constitutional claims on behalf of persons and institutions against local governments in federal courts in Michigan, Mississippi, California, and other states. If you believe you have had your First Amendment rights violated, either as to your free speech or religious exercise, please contact us.

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