6th Circuit Finds Trip Adviser List of Dirtiest Hotels to Be Protected From Libel Suits as a Statement of Opinion

With various sites on the internet giving ratings to businesses in all sorts of professions, the line between what is protected by the Constitution’s First Amendment and what is not can often get blurry, particularly when the reviews are unfavorable. The trial courts have seen defamation lawsuits pertaining to this again and again.

Recently, the Sixth Circuit Court in Cincinnati rejected a $10 million defamation lawsuit which had been filed by Kenneth Seaton, owner of the Grand Resort, a hotel in Pigeon Forge, Tennessee. The resort was ranked No. 1 on TripAdvisor’s 2011 list of “dirtiest hotels”. Next to the hotel’s top position was a picture of a ripped bedsheet and a quote from a user, claiming that “There was dirt at least 1/2″ inch thick in the bathtub which was filled with dark hair.” The website also included a thumbsdown sign next to the quote as well as a claim that “87% of reviewers do not recommend this hotel.”

According to the Court’s decision, “Seaton filed suit in Tennessee state court, alleging claims for defamation and false-light invasion of privacy.” After TripAdvisor filed a motion to dismiss the case, Seaton amended his complaint to include “trade libel/injurious falsehood” and interference with prospective business relationships. TripAdvisor responded by saying that the list was a statement of opinion and, as such, could not be proven true or false because the rankings on the list as well as the concept of “dirtiest” hotel are inherently subjective. A federal district court in Tennessee dismissed the case and Seaton appealed, landing the case in the lap of the Sixth U.S. Court of Appeals in Cincinnati.

At this point, Digital Media Law Project, in connection with Cyberlaw Clinic, filed an amicus brief in the case in support of TripAdvisor “because of the potential impact of Seaton’s argument on journalistic and academic research.” This is because Seaton’s claims could be construed as “challenging the methodology by which TripAdvisor reached its conclusions based on data collected from its users.” However, TripAdvisor’s systematic method of analyzing crowd sourced data to reach conclusions “echoes important techniques for academic research and data journalism” according to Jeff Hermes of Digital Media Law Project.

According to the Court’s decision, “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. With this, readers would discern that TripAdvisor did not conduct a scientific study to determine which ten hotels were objectively the dirtiest in America. Readers would, instead, understand the list to be communicating subjective opinions of travelers who use TripAdvisor.”

However, instead of analyzing the list as an opinion based on disclosed data, the court stated instead that the list was “rhetorical hyperbole.” The court further compared TripAdvisor’s list to other online polls and lists such as “Reader’s Digest’s poll of “100 Most Trusted People in America”. Such a comparison implies that TripAdvisor’s list is not only subjective, but frivolous. Hermes fears that, in doing so, the Court “seems to have confused (1) statements not intended to be taken literally and (2) statements intended to be taken literally that nevertheless reflect a subjective judgment. Both fall within the doctrine of opinion as statements that cannot be proven true or false.”

The Grand Resort closed in 2012 and was bought by a holding company.

You can view the Sixth Circuit’s opinion here.

Our Chicago libel attorneys concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases, including cases representing a consumer sued by a large luxury used car dealer in federal court for hundreds of negative internet reviews and videos which resulted in substantial media coverage of the suit; one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired; and a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law, where the lawyer attended law school and the President of the University of Illinois. One of our partners also participated in representing a high profile athlete against a well-known radio shock jock.

Our Chicago defamation lawyers defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Wilmette and Naperville, who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.

Super Lawyers named Chicago and Oak Brook business trial attorney Peter Lubin a Super Lawyer in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Lubin Austermuehle’s Oak Brook and Chicago business trial lawyers have over a quarter of a century of experience in litigating complex class action, consumer rights, and business and commercial litigation disputes. We handle emergency business lawsuits involving injunctions, and TROS, defamation, libel, and covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud or defamatory attacks on their business and reputations.

Lubin Austermuehle’s Wheaton and Naperville litigation attorneys have more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Aurora and Rock Island, we serve clients throughout Illinois and the Midwest.

If you are the victim of a defamatory attack on your business or a consumer who has been sued to stop you from posting criticism of a business online at Yelp or anywhere else, contact one of our Oak Brook and Chicago defamation lawyers for a free consultation at 630-333-0333 or online by filling out our contact us form.

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