We previously wrote about a Tennessee district court’s decision holding that a hotel’s inclusion at the top of the 2011 TripAdvisor “Dirtiest Hotels” list constituted hyperbolic opinion and rhetorical exaggeration, and thus was not actionable under Tennessee defamation law.  This past month, a circuit court upheld the ruling.

On appeal, the Sixth Circuit affirmed the lower court’s grant of TripAdvisor’s motion to dismiss, ruling that the plaintiff could not prove falsity on its defamation claim because the placement of hotels on TripAdvisor’s list constituted protected opinion.  Seaton v. TripAdvisor LLC, 2013 WL 4525870 (6th Cir. Aug. 28, 2013).  In brief, the appeals court found that TripAdvisor’s “dirtiest” top ten list amounted to rhetorical hyperbole and that the general tenor of the “2011 Dirtiest Hotels” list undermined any impression that TripAdvisor was seriously maintaining that the plaintiff’s hotel was, in fact, the dirtiest hotel in the country.  The court also noted that the list’s explanatory caption — “Dirtiest Hotels – United States as reported by travelers on TripAdvisor” – clearly indicated that TripAdvisor’s rankings were based on the subjective views of its users, not on objectively verifiable facts or the results of a scientific survey.

Lists and rankings are rampant on the web, and the court found that reasonable people likely understand the vast majority of them to be mere opinion.  What we might call the ‘Top Ten List/Just a Bit of Hyperbole’ defense is not novel, and was also successfully used at least once before in a California case to defeat defamation claims – See Vogel v. Felice, 26 Cal. Rptr. 3d 350, 361 (Cal. App. 2005) (while the defendant’s website was decidedly “puerile,” “it is inconceivable that placement on the ‘Top Ten Dumb Asses’ list could be understood to convey any imputation of provable defamatory fact.”).

Interestingly, the court also rejected the plaintiff’s argument that the defendant used a faulty methodology or arbitrary method in compiling the rankings. The court stated that such an allegation would not undermine the conclusion that placement on the top ten list could not be interpreted as stating actual facts and therefore the subjective weighing of factors could not be proven false and could not form the basis of a defamation claim.

“[E]ven if Seaton is correct that TripAdvisor employed a ‘flawed methodology’ in creating the list, his claim for defamation still fails because TripAdvisor’s method of compiling its user reviews and surveys, as alleged by Seaton, is ‘inherently subjective [in] nature’…”

The court’s only reference to Section 230 of the Communications Decency Act (the “CDA”) was in a footnote to the opinion, which asserted that TripAdvisor would not have been liable for any defamatory statements of its users. See Seaton v. TripAdvisor LLC, 2013 WL 4525870 at FN 8. Thus, the issue of how the CDA applies to a “Top Ten List” scenario was not addressed in this case, although it seems like it could have been.  No worries, however…it seems like there is no shortage of interesting CDA cases coming down the pike.