A Win for Opinion: Sixth Circuit Tackles Website Top-Ten Lists

As our friends at the Harvard Law School Cyberlaw Clinic have reported, on Wednesday, the U.S. Court of Appeals for the Sixth Circuit issued a decision that placing a particular hotel at the top of an online list of the "Dirtiest Hotels in America" was protected under the First Amendment and Article I, Section 19 of the of Tennessee as a statement of opinion. The Sixth Circuit's decision is a triumph for consumer ratings websites and their ability to build upon the data submitted by their users. However, the Court's articulation of the doctrine of opinion arguably underestimates the potential value of that same information.

The case, Seaton v. TripAdvisor LLC, arose after online travel website TripAdvisor published its "2011 Dirtiest Hotels" list based upon hotel cleanliness ratings provided by the site's users. #1 on the list was the Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee, owned by plaintiff Kenneth Seaton. Seaton sued, claiming that TripAdvisor's rankings were false because they did not accurately reflect the underlying user data. TripAdvisor in turn argued that the list constituted a statement of opinion that could not be proven true or false, because the rankings on the list and the concept of the "dirtiest" hotel were inherently subjective. A federal district court in Tennessee dismissed Seaton's claims, and Seaton appealed.

At the appellate stage, we at the Digital Media Law Project, with the assistance of the 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. Effectively, Seaton was challenging the methodology by which TripAdvisor reached its conclusions based on data collected from its users. And while TripAdvisor's top-ten list was a more fanciful form of research than that undertaken in scholarly circles (well, mostly), TripAdvisor's analysis of crowdsourced data to reach systemic conclusions echoes important techniques for academic research and data journalism. Allowing debates over methodology to devolve into defamation claims could substantially chill the advancement of research on important but sensitive issues.

In fact, the law provides substantial protection for the publication of conclusions based upon gathered data, under the doctrine of opinion. "Expressions of opinion based on disclosed information [are protected] because we trust that the recipient of such opinions will reject ideas which he or she finds unwarranted by the disclosed information." Lyons v. Globe Newspaper Co., 612 N.E.2d 1158, 1164 (Mass. 1993). In other words, where a researcher supplies the data on which his or her conclusions are based (as TripAdvisor did in this instance, because all of the user reviews were available), the audience is expected to exercise its critical faculties and reject conclusions that are unsupported. Debates over methodology form part of the exchange in the marketplace of ideas, not an issue to be resolved by the courts. As the U.S. Supreme Court has held, "This is the ordinary course in a free society. The response to the unreasoned is the rational[.] . . . [S]uppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse." United States v. Alvarez, 132 S. Ct. 2537, 2550 (2012).

The Sixth Circuit affirmed the dismissal of Seaton's claims under the doctrine of opinion, finding that TripAdvisor's judgments were inherently subjective and providing strong protection the type of activity in which TripAdvisor engaged. Unfortunately, the court did so in a way that implicitly devalued the speech at issue. Rather than analyze the "2011 Dirtiest Hotels" list as an opinion based on disclosed data, the court found that the list was "rhetorical hyperbole":

In [Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)], the Supreme Court reaffirmed its prior decisions that protect statements employing "loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining" an assertion of fact. ...

Seaton failed to state a plausible claim for defamation because TripAdvisor's "2011 Dirtiest Hotels" list cannot rea