“Best of” and “worst of” rankings are perennially popular fodder for publications. They are great for grabbing headlines, stirring up controversy and baiting hyperlinks. Their sensationalism means rankings–especially “worst of” rankings–also can be litigation-bait. Fortunately, a recent court ruling found that publishing a “best of”/”worst of” ranking didn’t create defamation liability. Surely, this opinion will appear on several “best of 2012″ lists itself.
TripAdvisor ($TRIP) compiles its user ratings into an annual ranking of the top 10 “dirtiest hotels.” Not surprisingly, hotels ranked on this list don’t feel very honored. The 2011 loser, the Grand Resort in Pigeon Forge, Tennessee, sued TripAdvisor for defamation and related claims. Concluding that the “dirtiest hotels” ranking constituted non-actionable opinion, the court dismissed Grand Resort’s case.
The user ratings–the source material for TripAdvisor’s ranking–clearly are the users’ legally protected opinions. Some of the users’ reviews made objective statements that could be legally actionable (the court references an example where a user says the hotel’s bathtub was caked with a half-inch of dirt). Grand Resort apparently didn’t challenge either the users’ opinions or objective assertions.
Instead, the lawsuit focuses on TripAdvisor’s compilation of user ratings about hotel cleanliness. The compilation implicitly communicates an objective statement that, of all of the hotels in TripAdvisor’s database, Grand Resort had the lowest numerical score for cleanliness. Grand Hotel doesn’t appear to contest TripAdvisor’s number-crunching. Instead, Grand Hotel apparently contested TripAdvisor’s characterization using the word “dirtiest” in conjunction with numerical rankings that lend a superficial veneer of objective precision to users’ subjective opinions. The court does not agree, saying “neither the fact that Defendant numbers its opinions one through ten, nor that it supports its opinions with data, converts its opinions to objective statements of fact.”
The court then says that reasonable consumers would not interpret these types of rankings as facts (emphasis added):
"TripAdvisor’s list is of the genre of hyperbole that is omnipresent. From law schools to restaurants, from judges to hospitals, everything is ranked, graded, ordered and critiqued. Undoubtedly, some will accept the array of “Best” and “Worst” rankings as impenetrable maxims. Certainly, some attempt to obfuscate the distinction between fact and opinion as part of their course of business. For those that read “eat here,” “sleep there” or “go to this law school” and are unable to distinguish measured analysis of objective facts from sensational “carnival barking,” compliance will be both steadfast and assured. Nevertheless, the standard, fortunately, is what a “reasonable person” would believe. A reasonable person would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact. 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."
For more thoughts about the legal differences between objective and subjective rankings, see this recent paper by Prof. James Grimmelmann.
This is a helpful ruling for user-generated content (UGC) sites that compile various rankings of users’ subjective views. So long as the websites makes it clear that user opinions are the source material, this opinion provides some hope that UGC sites can publish “best of”/”worst of” rankings without fearing defamation liability.
In particular, this ruling complements 47 USC 230, the law that eliminates website liability for user content. Typically, Section 230 should apply to a website’s compilation of its users’ ratings (see, e.g., Levitt v. Yelp). However, in 2007, the Ninth Circuit issued a troubling ruling in the Roommates.com case, suggesting that UGC websites that gathered and published structured data from users would lose the Section 230 immunity. The Ninth Circuit subsequently wiped away that opinion, but plaintiffs continue to sue websites for their characterizations of user content. Even if Section 230′s immunity isn’t available for publishing structured data from users, this opinion suggests that the website should avoid defamation liability because the ranking isn’t a “fact.”