Dirty, Dirtier, or Dirtiest?

Chas Rutledge

The Sixth Circuit recently explained that TripAdvisor did not defame the Grand Resort of Pigeon Forge by ranking the hotel Number One on a list of Dirtiest Hotels. TripAdvisor could not be liable because it used “loose, hyperbolic language.” The trial court ruled the same way but based its decision on a single theory: It is impossible to prove that a subjective statement is false. And, of course, proving defamation means proving a false statement. I think the trial court’s focus on “looseness” was the better way to go.

For one thing both courts thought everyone would understand that the statement was based on reviews, but let’s pretend that TripAdvisor thought its user reviews proved that the Grand Resort was factually the absolute dirtiest hotel in all of America. It appears the Grand Resort thought they could simply show up to court with a dirtier hotel and win $10 million. Well, as the court explained, that’s not how it works.

Could they prove their hotel was “cleaner?” Probably not beyond a reasonable doubt but that isn’t the standard in civil cases. Most of law and life is subjective, which is why we have experts, right? Are there not hotel dirt experts? OK I guess that might be a problem. But I’ve been looking for a way out of the legal profession so I might give it a try after school and report back. Until then let’s just say I can demonstrate how my next-door neighbor’s new “Bed and Breakfast” is dirtier than the Grand Resort. This court still probably wouldn’t allow the defamation claim to proceed because we should know that the word “dirtiest” is always an exaggeration. See Seaton v. TipAdvisor, at 4. In fact those “hyperbolic” properties the court talked so much about are exaggerated even further with the addition ofabsolute dirtiest in all of America.

The problem? Even if synthesized reviews of market goods aren’t meant to be factual they’re still the closest thing to facts that we have. How many billboards and commercials have told us about the WORLD’S BEST car, computer, chicken, or whatever. Ever want it? Well I know buyer’s remorse very well, so I try to stay away from ads (Do tell me when the new 6-blade Gillete razor is out, though; I’ve been shaving in the Dark Ages with 5 blades for far too long). Ads can be useless in part because courts have incentivized ad-makers to use hyperbolic language. They call it “puffery,” turning a blind eye to these white lies because they don’t think reasonable people should take such obvious exaggerations literally. Well what about me and the rest of the unreasonables? We might find it unreasonable to require the effort to factor out how much exaggeration might be legal and might not. And when we hear about the BEST EVER product from 10 competing companies, review sites are often our best and sometimes only way of verifying information. We tend to take synthesized or summarized reviews much more seriously than any company’s own advertisement, which makes review sites like TripAdvisor pretty powerful market players. The good news is that well-known review sites like TripAdvisor are usually not seen as biased and are surely less biased than ad-makers.

Knowing that hyperbolic language makes litigation less likely, however, I might advise review sites to use exaggerated language, making their reviews as useless as the “Got Chicken?” billboard I have to pass everyday. And that’s not the kind of advice we want idiots like me giving. I certainly don’t fault the court for trying to limit its ruling and minimize dicta, but the court seemed to be offering anybody who will listen free legal advice by simplistically explaining that vague terms with more meanings are “less actionable.”

TripAdvisor got away with their statement because they used “loose, hyperbolic language,” but what if it was only “loose” language? What if TripAdvisor had used non-hyperbolic language, such as saying that the Grand Resort was dirtier than the other nine hotels on the list? The trial court would still have dismissed the claim for defamation since the subjective idea of dirty is still at play, so there wouldn’t be a disincentive to making what probably amounts to a more accurate statement. But we don’t know what the Sixth Circuit would do, because it’s not “loose” and “hyperbolic” language. If I remember correctly free market economies like ours work best when the participants have perfect information and if we can’t have perfect information we should try to have the most accurate information we can, which means not incentivizing inaccuracy in our best sources of market information. Or was the “perfect” information part of the model another “hyperbole” that obviously wasn’t supposed to be taken seriously?