The Grand Resort Hotel and Convention Center in Tennessee sued TripAdvisor for defamation after being ranked #1 on TripAdvisor's Dirtiest Hotels list in 2011, won, and was awarded $10 million. This week, the 6th Circuit Court of Appeals overturned the award, holding that TripAdvisor's list is speech protected by the First Amendment. The director of the Digital Media Law Project at Harvard told Reuters that the decision is “a victory for online review sites by letting them not only publish user comments but also draw conclusions.”
For Grand Resort Hotel and Convention Center, TripAdvisor's list showed a photo of a ripped bedsheet accompanied by a quote, “There was dirt at least 1/2" thick in the bathtub which was filled with lots of dark hair;” a thumbs down icon; and the statement “87% of reviewers do not recommend this hotel.” ABA Journal reports that Grand Resort closed in 2012 and has been purchased by a holding company.
It takes a strong stomach to read the list and the opinion, but there is some perverse satisfaction to be had in being reminded that your own nightmare hotel experiences pale in contrast to others. From the opinion:
No reader of TripAdvisor’s list would understand Grand Resort to be, objectively, the dirtiest hotel in all the Americas, the North American continent, or even the United States. TripAdvisor did not conduct a scientific study to determine which ten hotels were objectively the dirtiest in America. ...
The quotations regarding other hotels on the “2011 Dirtiest Hotels” list confirm that the list cannot be reasonably understood as asserting that the hotels on the list are, in fact, the ten dirtiest hotels in America. Beside each of the nine other hotels on the list is one of the following:
- Hotel #2: “Had to go buy socks so my feet wouldn’t touch the carpet.”
- Hotel #3: “They have dead roaches all over the hotel.”
- Hotel #4: “The bathtub was full of dirty black stuff.”
- Hotel #5: “Hold your nose for the garbage smell.”
- Hotel #6: “Probably more sanitary to sleep in the bathroom of the room.”
- Hotel #7: “Crusty white stains on the blankets and sheets.”
- Hotel #8: “Mouse feces located around the base of the bathroom.”• Hotel #9: “Camp out on the beach instead.”
- Hotel #10: “25 bug bites between the two of us.”
It is clear that these are dramatic examples of TripAdvisor’s users’ experiences at these various hotels and serve the function of entertaining readers. Thus, the hyperbolic nature of these quotes highlights why the general tenor of the entire “2011 Dirtiest Hotels” list supports our conclusion that the list cannot reasonably be understood as asserting that these are, in fact, the ten dirtiest hotels in America. Further, the lack of a recurring theme of what TripAdvisor’s users considered to be dirty in each of the hotels on the list underscores why any reader would understand the list not to be communicating anything more than the experiences of individual users of TripAdvisor. In other words, the meaning of “dirtiest” is not easily pinned down when read beside these quotations; therefore, readers would not interpret “dirtiest” as making an assertion of fact. See Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997) (“The vaguer a term, or the more meanings it reasonably can convey, the less likely it is to be actionable.”). Therefore, the general tenor of the entire “2011 Dirtiest Hotels” list supports our conclusion that TripAdvisor’s placement of Grand Resort as the dirtiest hotel in America cannot reasonably be understood as communicating an actual fact about Grand Resort.
Stock photo: Nowhere in particular