Earlier we discussed the potential liability of Internet websites such as TripAdvisor that may post unfavorable travel reviews of hotels and other suppliers online [see Liability for Unfavorable Travel Reviews (eTN 1/31/2014)]. In addition to suing a website unhappy hotels and other businesses may seek to enforce a non-disparagement clause buried in its website’s terms and conditions by suing the individuals who wrote the review. In response to such lawsuits Governor Brown of California recently approved a bill making it unlawful to put a non-disparagement clause in a proposed contract for the sale or lease of consumer goods or services.
It is not surprising that a hotel or other supplier receiving an unfavorable review would sue TripAdvisor alleging defamation. In Seaton v. TripAdvisor, LLC, 2012 WL 3637394 (E.D. Tenn. 2012), aff’d 728 F. 3d 592 (6th Cir. 2013) the Court noted that TripAdvisor published its “‘2011 Dirtiest Hotels’ list report[ing] that (Hotel X) was ‘the dirtiest hotel in America’…The user quote for (Hotel X) was ‘There was dirt at least ½” thick in the bathtub which was filled with lots of dark hair’. The photograph for (Hotel X) was a ripped bedspread”. The “sole proprietor” of Hotel X sued TripAdvisor alleging that TripAdvisor was “liable for ‘maliciously and wrongfully contriving, designing and intending to cause respected customers to lose confidence in (Hotel X)…further alleges that (TripAdvisor) ‘defam[ed] the (Hotel X’s) business with unsubstantiated rumors and grossly distorted ratings and misleading statements to be used by consumers’”. In reviewing the trial court’s dismissal of Hotel X’s complaint, the 6th Circuit Court of Appeals (728 F.3d 592 (2013)) noted 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 (Hotel X) 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 to the ‘2011 Dirtiest Hotels’ list undermines any impression that TripAdvisor was seriously maintaining that (Hotel X) is, in fact, the dirtiest hotel in America. For these reasons, TripAdvisor’s placement of (Hotel X) on the ‘2011 Dirtiest Hotels’ list constitutes nonactionable opinion”.