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TripAdvisor didn't defame hotel by putting it on 'top 10 dirtiest' list

Unverified user review ranking: It's a diss, but it's not defamatory – judge

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Website operators that base their rankings of goods or services on the "unverified" views of online users cannot be sued for defamation, a US judge has said.

US district court judge Thomas Phillips said that although such systems may contain errors and not provide for good evaluation, they could not be labelled as defamatory.

The judge was ruling in a case involving travel review website TripAdvisor. The website had been sued by hotel owner Kenneth Seaton, who had claimed that TripAdvisor had "damaged and destroyed" the "excellent reputation, goodwill, confidence, and business advantage" of his Grand Resort Hotel and Convention Center in Tennessee when it had listed the building on its list of the top 10 "dirtiest" hotels.

TripAdvisor published an annual list of the "dirtiest" hotels based "solely" on the reviews published by users of its website, the judge said. This ranking system, though it makes for imperfect "evaluation", is not defamatory, the judge ruled (PDF).

"A reasonable person would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact; the reasonable person, in other words, knows the difference between a statement that is 'inherently subjective' and one that is 'objectively verifiable'," Judge Philips said. "It does not appear to the Court that a reasonable person could believe that TripAdvisor’s article reflected anything more than the opinions of TripAdvisor’s millions of online users."

"[Seaton] has failed to plead any facts that would lead this Court to find that TripAdvisor made a statement of fact, or a statement of opinion that it intended readers to believe was based on facts. Finally, though TripAdvisor’s method of arriving at its conclusions, unverified online user reviews, is a poor evaluative metric, it is not a system sufficiently erroneous so as to be labelled 'defamatory' under the legal meaning of the term," he added.

Under Tennessee state law, those claiming to have been defamed must show that statements have been published by those who know that the information is false and defamatory, or that it has been published "with reckless disregard for the truth", or that it was published with "negligence" because the publishers failed to "ascertain the truth of the statement".

In addition the state's law requires those allegedly defamed to show the "publicity" of the statement, that the information places them in a "false light" and is "highly offensive to a reasonable person" and that it was made "with the knowledge that the statement was false or with recklessness as to the falsity of the statement."

The judge said that Seaton had failed to "proffer enough facts to state a claim to relief that is plausible on its face", rejecting the proprietor's bid for compensation and damages from TripAdvisor totalling $10m. He described TripAdvisor's dirtiest hotel list as "clearly unverifiable rhethorical hyperbole".

"It is true that [TripAdvisor] published an article with a numerical ranking, and that [TripAdvisor] suggests reasons to support its opinions, including that '87 per cent of those who reviewed [Grand Resort] recommended against staying there,' but neither the fact that [TripAdvisor] numbers its opinions one through ten, nor that it supports its opinions with data, converts its opinions to objective statements of fact," the judge said.

"Any reasonable person can distinguish opinions based on reasons from facts based on reasons - just because TripAdvisor states its reasons for including Grand Resort on its list does not make the assertion one of objective fact," he added.

Judge Philips noted the findings of the UK's advertising watchdog in his ruling. Earlier this year the Advertising Standards Authority (ASA) banned TripAdvisor from claiming or implying that the reviews posted on its website come from genuine travellers or are honest, real or trusted. It made such a ruling after determining that TripAdvisor did not verify whether user reviews were genuine.

The judge said it was "irrelevant" whether user reviews were real or not for the purposes of evaluating whether the review site had defamed Seaton and his hotel.

"While the ASA prohibited TripAdvisor from claiming that all of its reviews were trustworthy, its study only affirms TripAdvisor’s assertion that it is clear from their website that the reviews are just that: users’ opinions," he said. "Whether or not the reviews are from genuine travellers is irrelevant to the question of whether TripAdvisor insinuated that its '2011 Dirtiest Hotels' list was based on anything other than opinion evidence."

Under the UK's Consumer Protection from Unfair Trading Regulations, pretending to be a consumer and giving yourself a positive review is 'an unfair commercial practice'. This is a criminal offence and business proprietors are potentially liable for an unlimited fine and a prison sentence of two years.

The practice, known as 'astroturfing', as it fakes grass-roots support for a product or service, is also contrary to the UK advertising rules. Astroturfing breaches the rules as the marketing is not fair, legal, decent, honest and truthful – the key principles of the self-regulatory CAP Code.

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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