In 2011, TripAdvisor – the world's largest website company providing reviews of travel-related content – named The Grand Resort Hotel & Convention Center ("Grand Resort") in Pigeon Forge, Tennessee the "Dirtiest Hotel" in America. One customer posted an online review, stating, "If you are looking for a hotel with . . . chewing tobacco spit oozing down the halls and corridors; spiders actively making webs in every corner of your room; carpeting so greasy and dirty you wouldn't want to sit your luggage down - let alone walk around barefoot; dingy bedsheets and towels as rough and thin as sandpaper; and a room so putrid and smelly it causes a gag-reflex when you walk in . . . by all means, stay at The Grand Resort."[1] In addition to this and numerous other scathing reviews, the historic Smoky Mountains hotel was graded "terrible" by 161 of 224 reviewers on the site.
In response to the article, Kenneth Seaton, the sole proprietor of the Grand Resort, filed suit against TripAdvisor, alleging among other claims, defamation and false-light invasion of privacy.[2] The court dismissed Seaton's Complaint on the basis that the Grand Resort's placement on the list was protected under the First Amendment. The Sixth Circuit affirmed the dismissal on appeal, relying upon precedent from the United States Supreme Court. Specifically, the Sixth Circuit held that TripAdvisor's placement of the Grand Resort on the "Dirtiest Hotels" list was not capable of being understood as defamatory, as it was protected, nonactionable opinion, and the tenor of the list made clear that placement on the list could not reasonably be interpreted as stating actual facts about the hotel.[3]
The United States Supreme Court has refused to give blanket First Amendment protection for opinions. However, its precedents make clear that the First Amendment does protect "statements that cannot reasonably be interpreted as stating actual facts about an individual."[4] Indeed, the First Amendment protects statements that employ "loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining" an assertion of fact.[5] This impression can also be negated by "the general tenor of [an] article."[6] As such, the court in Seaton held that placement on the "2011 Dirtiest Hotels" list constituted protected opinion because the list employed loose, hyperbolic language and its general tenor undermined any assertion by Seaton that the list communicated anything more than the opinions of TripAdvisor's users.[7]
"Top ten" lists and the like appear with growing frequency on the web, and these lists generally consist of opinions by online users, not scientific, factual data of any kind. Indeed, the court in Seaton stated, "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."[8] Moreover, the host websites typically do not weigh-in on the users' comments; rather, they merely provide an open forum for users to express their opinions. Sometimes these opinions are positive, sometimes they are not. When the comments are negative – and even when they rise to the level of downright mean – it begs the question: can websites that post user comments be liable for the content of those comments? The Sixth Circuit, along with most other federal circuits, has answered that question with a resounding no.[9]
Section 230 of the Communications Decency Act of 1996 ("CDA") immunizes providers of interactive computer services against liability arising from content created by third parties.[10] Specifically, § 230(c)(1) provides that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Even if the users' opinions and hyperbolic statements on a website are defamatory, the site cannot be held liable for those statements under the CDA.[11] Despite this nearly twenty-year old legislation, those individuals who find themselves the target of negative opinions continue to seek retribution against the websites that provide the sounding board for the criticisms.
In Jones v. Dirty World Entm't Recordings LLC, Sarah Jones sued the website www.TheDirty.com – a user-generated tabloid primarily targeting non-public figures – for several defamatory statements anonymously posted about her. The posts stated that Jones – a former Cincinnati Bengals cheerleader – probably had sexually transmitted diseases and had sex with every football player on the Bengals. Although unkind and probably defamatory, the language used in the posts clearly negated the impression that the writers were seriously maintaining assertions of fact. Nevertheless, a jury returned a verdict in favor of Jones for $38,000 in compensatory damages and $300,000 in punitive damages.[12] On appeal, however, and as explained in a prior post, the Sixth Circuit overturned the verdict, holding that Dirty World could not be liable for statements by its third-party users because, under the CDA, plaintiffs cannot seek recovery from an online publisher where that publisher did not materially contribute to the tortious content.[13]
The facts of Seaton and Dirty World differ; one case deals with clear hyperbole aimed at a business, while the other deals with defamatory statements aimed at an individual. However, both cases stand for the same general concept – Internet service providers cannot be held liable for the comments of their online users. It is important to note, though, that neither Seaton nor Dirty World leave persons who are the objects of posted, online, defamatory content without a remedy. Victims of such tortious information can still seek to recover from those individuals who actually posted the content – assuming the posters are identifiable, but that is an issue best left for another post.
Congress enacted the CDA to preserve a free Internet and the courts have protected the online providers whose websites contain posts with loose, figurative, or hyperbolic language – even if defamatory – from liability, as long as that servicer did not provide or materially contribute to the content. "Absent § 230, a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory text, and, indeed, at least with regard to publishers, even if unaware of the statement."[14] The content may be hurtful, but the alternative – holding online service providers liable for the opinions of others – undermines the very nature of the First Amendment's freedom of speech protections.
[1] "TripAdvisor Lifts the Lid on America's Dirtiest Hotels." TripAdvisor. January 25, 2011; "Stay Away: Site Ranks America's Dirtiest Hotels." CBSNEWS. January 25, 2011.
[2] Seaton v. TripAdvisor, LLC, 2012 U.S. Dist. LEXIS 118584 (E.D. Tenn., Aug. 22, 2012).
[3] Seaton v. TripAdvisor LLC, 728 F.3d 592, 601 (6th Cir. 2013).
[4] Id. at 597, quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695 (1990).
[5] Id., quoting Milkovich, 497 U.S. at 21.
[6] Id.
[7] Id. at 596.
[8] Id. at 600.
[9] Id. at 599 n.8; Jones v. Dirty World Entm't Recordings LLC, 755 F.3d 398, 417 (6th Cir. 2014). Accord: Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) ("The majority of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.") (internal citations and quotations omitted); Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010); Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008); Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418-19 (1st Cir. 2007); Batzel v. Smith, 333 F.3d 1018, 1026-30 (9th Cir. 2003); Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003); Ben Ezra, Weinstein, & Co. v. AOL, 206 F.3d 980, 984-85 (10th Cir. 2000); Zeran v. AOL, 129 F.3d 327, 328 (4th Cir. 1997).
[10] 47 U.S.C. § 230.
[11] Seaton, 728 F.3d at 599 n.8.
[12] Jones, 755 F.3d at 402.
[13] Id. at 417.
[14] Batzel v. Smith, 333 F.3d 1018, 1026-27 (9th Cir. 2003).
