This post examines an
opinion the U.S. Court of Appeals for the 6th Circuit issued
recently in a civil case: Seaton v. TripAdvisor LLC, 2013 WL
4525870 (2013). The court begins the opinion by explaining that “Kenneth Seaton
[who brought the lawsuit] is the sole proprietor of Grand Resort Hotel and
Convention Center (`Grand Resort’) located in Pigeon Forge, Tennessee.” Seaton v. TripAdvisor LLC, supra.
The opinion does not
describe the facts that led to filing of this lawsuit in any detail, but one of
the briefs filed on appeal does:
TripAdvisor
is an Internet company `in the business of providing travel research
information, including reviews, reports, opinions, surveys, and other
information regarding hotels, resorts, restaurants, or other similar businesses
of interest’ to travelers. . . .
`Visitors to TripAdvisor's website use its forums to exchange information
relating to travel issues. TripAdvisor users are further encouraged to post
comments and reviews and to answer surveys regarding hotels, resorts,
restaurants, or other such places of interest.’ . . .
On
January 25, 2011, TripAdvisor published a feature which ranked the ten
`Dirtiest Hotels’ in the United States in 2011, `as reported by travelers on
TripAdvisor’ (the `Dirtiest Hotels Ranking’ or the `Ranking’). . . . [It] was
based on traveler reviews of the hotels posted on TripAdvisor's website. . . .
TripAdvisor `does not inquire about, investigate or consider any hotels except
those receiving comments or reviews on TripAdvisor.’
At
the top of the Ranking, . . . were buttons which allowed users to find out
about hotels, flights, restaurants and other travel destinations, or to `Write
a Review.’ . . . The body of the feature ranked the ten `Dirtiest Hotels,’
providing each establishment's name and location, a representative quote from a
user review (for the Hotel: `There was dirt at least 1/2” thick in the bathtub which
was filled with lots of dark hair’) and a user-provided image for each (in the
Hotel's case, a photograph of a ripped bedspread), and the percentage of
reviewers who `do not recommend this hotel,’ based on a number of factors not
limited to cleanliness. . . .
Information on the other nine hotels on the
Ranking was equally as harsh as the information about Seaton's Hotel (e.g.,
excerpts from user reviews stating `Hold your nose for the garbage smell’ and
`Camp out on the beach instead.’). . . Each listing linked to the hotel's full
page on TripAdvisor's website . . . from which all user reviews of the
establishment, good and bad, are accessible.
TripAdvisor
also published an online press release . . . about the Dirtiest Hotels Ranking,
which contained TripAdvisor's owl logo and trademarked tagline `World's Most
Trusted Travel Advice.’ . . . It also contained the headlines `TripAdvisor
lifts the Lid on America's Dirtiest Hotels’ and `Top 10 U.S. Grime Scenes
Revealed, According to Traveler Cleanliness Ratings.’ . . . Summary lead-ins
stated, among other things, `Now in its sixth year, and true to its promise
to share the whole truth about
hotels to help travelers plan their trips, TripAdvisor names and shames the
nation's most hair-raising hotels,’ and `This year, the tarnished title of
America's dirtiest hotel goes to Grand Resort Hotel and Convention Center. . .
.’
Brief for Appellee, Seaton v. TripAdvisor LLC, 2013 WL
773265.
Seaton responded by
filing a lawsuit “in Tennessee state court, alleging claims for defamation and
false-light invasion of privacy based on TripAdvisor's” including his hotel in
the 2011 Dirtiest Hotels list. Seaton
v. TripAdvisor LLC, supra. TripAdvisor “removed” the case to federal court; as Wikipedia explains, a defendant in a lawsuit filed in a state court
can have the case transferred to federal court if the federal court has
jurisdiction to hear it. Since Seaton’s
claims arise under Tennessee state law, rather than federal law, the removal
would have been based on the fact that the parties are, as Wikipedia notes,
“diverse,” i.e., Seaton is a citizen of Tennessee and I am assuming the
corporate entity TripAdvisor is incorporated in and therefore a citizen of
another state.
Once TripAdvisor got
the case into federal district court, it “filed a motion to dismiss [the suit],
asserting that Grand Resort's placement on the list is protected under the 1st
Amendment.” Seaton v. TripAdvisor LLC, supra. The district court judge granted the motion
and denied Seaton’s motion to amend his complaint to add other causes of
action; the judge found amending the complain would be “futile.” Seaton v. TripAdvisor LLC, supra.
Seaton appealed, which led to this opinion.
In his suit, Seaton
alleged, among other things, that
`[b]y
relying, in part or in whole, upon . . .
unverifiable data, and further applying such faulty methodology,
TripAdvisor knew or should have known the statements it made regarding the
`Dirtiest Hotels’ list were false and defaming to [Seaton] and TripAdvisor
acted with negligence or reckless disregard for the truth or falsity of the
statements.
Seaton v. TripAdvisor LLC, supra.
The motion to dismiss
would have been filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. As I have noted in prior
posts, and as Wikipedia explains, the Rule 12(b)(6) motion
is
how lawsuits with insufficient legal theories underlying their cause of action
are dismissed from court. For example, assault requires intent,
so if the plaintiff has failed to plead intent, the defense can seek dismissal
by filing a 12(b)(6) motion.
Since TripAdvisor claimed
the inclusion of Seaton’s hotel in the Ranking was protected by the 1st
Amendment, the Court of Appeals began its analysis by explaining that “Seaton's
claim for defamation turns on whether TripAdvisor's `2011 Dirtiest Hotels’ list
is capable of being understood as defamatory.” Seaton v. TripAdvisor LLC, supra. It also noted that
`To
establish a prima facie case of defamation in Tennessee, the plaintiff must
establish that: 1) a party published a statement; 2) with knowledge that the
statement is false and defaming to the other; or 3) with reckless disregard for
the truth of the statement or with negligence in failing to ascertain the truth
of the statement.’ Sullivan v. Baptist Mem'l Hosp., 995 S.W.2d
569 (Tennessee Supreme Court 1999).
`The question of whether [a writing] was
understood by its readers as defamatory is a question for the jury, but the
preliminary determination of whether the [writing] is “capable of
being so understood is a question of law to be determined by the court.”’ McWhorter
v. Barre, 132 S.W.3d 354 (Tennessee Court of Appeals
2003) (quoting Memphis Publ'g Co. v. Nichols, 569 S.W.2d
412 (Tennessee Supreme Court 1978)).
Seaton v. TripAdvisor LLC, supra.
With regard to the 1st Amendment, the court noted that although the U.S. Supreme Court
has
refused to give blanket 1st Amendment protection for opinions, its precedents
make clear that the 1st Amendment does protect `statements that cannot
reasonably be interpreted as stating actual facts about an individual.’ Milkovich
v. Lorain Journal Co., 497 U.S. 1
(1990). In so stating, 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. Milkovich
v. Lorain Journal Co., supra.
The Court noted further that this impression
could also be negated by `the general tenor of [an] article.’ Milkovich
v. Lorain Journal Co., supra.
Seaton v. TripAdvisor LLC, supra.
The Court of Appeals
then found that Seaton failed to state a
plausible
claim for defamation because TripAdvisor's `2011 Dirtiest Hotels’ list cannot
reasonably be interpreted as stating, as an assertion of fact, that Grand
Resort is the dirtiest hotel in America. We reach this conclusion for two
reasons. First, TripAdvisor's use of `dirtiest’ amounts to rhetorical
hyperbole.
Second, the general tenor of the `2011 Dirtiest Hotels list
undermines any impression that TripAdvisor was seriously maintaining that Grand
Resort is, in fact, the dirtiest hotel in America.
Seaton v. TripAdvisor LLC, supra.
It elaborated on this
conclusion by noting that the use of the word
`dirtiest’
negate[s] the impression that’ TripAdvisor is communicating assertions of
fact. Milkovich v. Lorain Journal Co., supra. `Dirtiest’ is a
loose, hyperbolic term because it is the superlative of an adjective that
conveys an inherently subjective concept. Here, 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. Instead,
`even the most careless reader must have perceived’ that `dirtiest’ is simply
an exaggeration and that Grand Resort is not, literally, the dirtiest hotel in
the United States. . . .
Thus, it is clear to us, as it would be to
any reader, that TripAdvisor is not stating Grand Resort is the dirtiest hotel
in America as an actual assertion of fact. . . .
The general tenor of the `2011 Dirtiest Hotels’
list buttresses the conclusion that readers would understand that by placing
Grand Resort on the list, TripAdvisor is not stating an actual fact about Grand
Resort. 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.
Also on the list, the entry for Grand Resort includes a photograph
of a ripped bedspread and a quotation from a TripAdvisor user: ‘”There was dirt
at least ½’ thick in the bathtub which was filled with lots of dark hair.”’ . . . No one reading the list would understand these two
examples to be the determinative factors in what constitutes the dirtiest hotel
in America.
Readers
would, instead, reasonably interpret these as entertaining examples of the
specific experiences of two of TripAdvisor's users. Thus, the immediate context
of Grand Resort's placement on the `2011 Dirtiest Hotels’ supports the
conclusion that the list cannot reasonably be understood as communicating that
Grand Resort is, in fact, the dirtiest hotel in America.
Seaton v. TripAdvisor LLC, supra.
The Court of Appeals
added one more observation on the issue of defamation:
TripAdvisor's
claim of trustworthiness relates to its conveyance of its individual users'
personal opinions. Further, `top ten’ lists and the like appear with growing
frequency on the web. It seems to us that a reasonable observer understands
that placement on and ranking within the bulk of such lists constitutes
opinion, not a provable fact.
Seaton v. TripAdvisor LLC, supra. It therefore affirmed the district court
judge’s granting TripAdvisor’s motion to dismiss Seaton’s lawsuit. Seaton
v. TripAdvisor LLC, supra.
The Court of Appeals
then took up Seaton’s argument that the judge erred in dismissing his claim for
false-light invasion of privacy. Seaton v. TripAdvisor LLC, supra.
It noted that under Tennessee law, an action for the tort of false-light
invasion of privacy requires
(1)
publicity, (2) that places the plaintiff in a false light, (3) that is `highly
offensive to a reasonable person,’ and (4) that the defendant knew of or acted
with reckless disregard to the `falsity of the publicized matter and the false
light in which the other would be placed.’ West v. Media Gen.
Convergence, Inc., 53 S.W.3d 640 (Tennessee Supreme Court 2001).
Seaton v. TripAdvisor LLC, supra.
It also noted that the
Tennessee Supreme Court held that the right to privacy is
a
personal right. As such, the right cannot attach to corporations or other
business entities, may not be assigned to another, nor may it be asserted by a
member of the individual's family, even if brought after the death of the
individual. Therefore, only those persons who have been placed in a false light
may recover for invasion of their privacy.
Seaton v. TripAdvisor LLC, supra
(quoting West v. Media Gen. Convergence, supra.)
The Court of Appeals
then explained that in his suit, Seaton did not allege that he was
named
personally in Trip Advisor's list, and our own review of the list confirms why:
Trip Advisor named only Grand Resort. Therefore, Seaton cannot recover under
his own theory of the case because he did not make plausible allegations that
he was placed personally in a false light. . . .
Further, Seaton cannot recover
on behalf of Grand Resort because it is a business and as such does not have
the right under Tennessee law to recover for a violation of its privacy.
Seaton v. TripAdvisor LLC, supra. So the court affirmed the district court
judge’s order dismissing Seaton’s false-light invasion of privacy claim. Seaton
v. TripAdvisor LLC, supra.
Since the court
affirmed the judge’s rulings, it affirmed his dismissal of the suit. Seaton
v. TripAdvisor LLC, supra. If Seaton can come up with alternative
theories and/or facts, he can presumably try again, with a different approach.
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