In early September, the Sixth Circuit Court of Appeals ruled that TripAdvisor cannot be held liable for defamation for crowning Tennessee’s Grand Resort Hotel and Convention Center as the “Dirtiest Hotel in America.” In the $10 million lawsuit, the owner of the unlucky winner claimed that TripAdvisor used a flawed rating system, based on unreliable rumors.
What happened here?
Businesses who have gone through the scorn and criticism of online reviewers (e.g. on Yelp) have met with varying success in defamation cases based on damaging reviews. Normally, businesses can bring defamation lawsuits when the reviewer posts false information. They can sue for reviews based on untruths (e.g. “They steal their employees’ tips”), rather than opinion-based reviews (e.g. “Their food smells like moth balls”).
TripAdvisor’s “Dirtiest Hotels in America” list is a unique case. It’s pretty obvious to most readers that this is more like an entertaining form of truth-telling. However, it also raises the issue that opinion-based ratings that draw a conclusion can also count as false assertions of fact, and potentially be defamatory.
However, the Sixth Circuit Court of Appeals doesn’t agree. Circuit Judge Karen Nelson Moore analyzed the list and determined that the word “dirtiest” is rhetorical hyperbole; no reader would think that Grand Resort is literally the dirtiest hotel in America. Judge Moore then pointed to BuzzFeed-type lists, such as “Top Ten Dumb Asses,” as well as a Reader’s Digest poll saying that Tom Hanks was the most trusted person in America, as evidence that such lists are opinion, rather than fact.
Defamation vs. False Light
Over the past fifty years, First Amendment lawyers have successfully convinced courts and state legislatures to make it more difficult for plaintiffs to bring defamation lawsuits. Such chances have facilitated and protected the public debate so vital to democracy and free speech.
However, privacy law has created a loophole; rather than filing a defamation lawsuit, plaintiffs bring claims under a privacy tort known as “false light.” In certain states, it is simpler to bring claims under false light, rather than defamation law.
Recent developments have indicated that federal and state courts have made it more difficult to bring false light claims. Even though many states still allow false light claims, a number of courts have dismissed false light lawsuits, perhaps indicating that it will be more difficult for plaintiffs to file false light claims.
Defamation and false light lawsuits are very similar, though there are a few important differences, as listed below.
- Defamation claims focus on injury to the plaintiff’s reputation. False light claims generally involve harm to an individual’s dignity or emotional well-being.
- Certain courts have set a lower bar for false light claims. In defamation cases, the plaintiff must demonstrate that the defendant’s statement was false. Plaintiffs in false light privacy lawsuits in some states only have to demonstrate that the statement portrayed the defendant in a false light.
- Certain states limit damages for defamation claims, though these limits don’t apply to false light.
What this means is that in some states, a plaintiff could bring a false light claim, even if the defendant’s statement was arguably true and did not damage the plaintiff’s reputation. Some think such a tort is unnecessary, since it largely overlaps with defamation law.
Courts in some states (i.e. New York, Virginia, Texas and Florida) have refused to recognize the false light tort. According to the Florida Supreme Court in 2008, false light “allows the plaintiff to circumvent the strict requirements that have been adopted by statute and developed by case law to ensure the right to freedom of expression.”
The US Court of Appeals for the Sixth Circuit affirmed a district court’s dismissal of false light and defamation claims against TripAdvisor for its “Dirtiest Hotels in America” list. The court’s decision in this case is a good reminder for both business owners and their lawyers that hyperbolic critiques of their businesses typically will not be considered defamatory.
CIPP Exam Preparation
In preparation for the Certified Information Privacy Professional/United States (CIPP/US), a privacy professional should be comfortable with topics related to this post, including:
- Theories of legal liability – tort (I.B.b.ii.)
- Federal vs. state authority (V.A.)