In January 2011, TripAdvisor, operator of the travel review website http://www.tripadvisor.com, published a list entitled "Dirtiest Hotels, as reported by travelers on TripAdvisor," which purported to be a list of the dirtiest hotels in the United States. Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee, topped the list. The feature included a user-provided picture of a ripped bedspread and a quote from a user report - "There was dirt at least ½" thick in the bathtub which was filled with lots of dark hair." It also noted that "87% of reviewers do not recommend this hotel."

In an accompanying press release, titled "TripAdvisor Lifts the Lid on America's Dirtiest Hotels: Top 10 U.S. Grime-Scenes Revealed, According to Traveler Cleanliness Ratings," TripAdvisor wrote, "true to its promise to share the whole truth about hotels to help travelers plan their trips, TripAdvisor names and shames the nation's most hair-raising hotels." The press release also contained the slogan "world's most trusted travel advice." The press release also stated, "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 ..... by all means stay at the Grand Resort."

The list and the accompanying press release stated that the list was based on traveler ratings for cleanliness posted on the site. According company policy, available on its website, while TripAdvisor "dedicate[s] significant time and resources" to detecting fraud, and screens reviews to ensure they meet posting guidelines, it does not verify or fact check reviews.

On Oct. 11, 2011, after TripAdvisor produced a list naming his hotel the dirtiest hotel in America, Kenneth M. Seaton sued the travel site for defamation and false light in Tennessee state court, asking for five million dollars in compensatory damages and five million dollars in punitive damages and demanding a jury trial.

In his complaint, the plaintiff alleged that TripAdvisor had defamed his business with "unsubstantiated rumors and grossly distorted ratings and misleading statements," and that TripAdvisor used a rating system that is "flawed and inconsistent" and "overstates the level of trust that can be placed in" TripAdvisor's review of the hotel.

TripAdvisor removed the case to the U.S. District Court for the Eastern District of Tennessee and filed a motion to dismiss for failure to state a claim on Jan. 6, 2012. Seaton filed a response to the motion on March 31, 2012. TripAdvisor filed a reply brief on May 14, 2012.

On August 22, 2012, the court granted the motion to dismiss. The court treated the plaintiff's complaint as raising claims for defamation and false light, but disposed of the claims together, focusing its discussion on the defamation claim. It did not address the parties' arguments under the Communications Decency Act.

According to the court, the central question the case presented was whether a reasonable person could understand the language in question as an assertion of fact or as a mere hyperbolic opinion or rhetorical exaggeration. It cited to Milkovich v. Lorain Journal Co. for the proposition that "expressions of ‘opinion' may often imply an assertion of objective fact," and therefore "can give rise to a defamation claim when they imply an assertion of fact or when the opinion is based upon erroneous information." 497 U.S. 1, 18 (1990).

However, the court ultimately concluded that TripAdvisor's "Dirtiest Hotels" list is "clearly unverifiable rhetorical hyperbole," and that a reasonable person "would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact."

According to the court, a reasonable person could not believe that TripAdvisor's list and press release reflected anything more than "the opinions of TripAdvisor's millions of online users, and the article was therefore not ... a statement of opinion that it intended readers to believe was based on facts."

Finally, the court noted that TripAdvisor's method of compiling the list based on unverified online user reviews "is a poor evaluative metric," but held that, "it is not a system sufficiently erroneous so as to be labeled ‘defamatory' under the legal meaning of the term."

On September 21, 2012, Seaton filed a notice of appeal in the U.S. Court of Appeals for the Sixth Circuit.

Update:

On January 4, 2013, Seaton filed his brief before the Sixth Circuit. Seaton argued that the stated reliability and accuracy of TripAdvisor's list made the statements objectively verifiable, and thus capable of being found to be actionable defamation. Seaton further argued that TripAdvisor used a flawed methodology to reach its conclusion, and that Section 230 did not shield TripAdvisor against liability because the alleged defamation comes from statements made by TripAdvisor directly.

On February 20, 2013, TripAdvisor filed its appellee brief urging affirmance of the district court's opinion. TripAdvisor argued that a top-10 list is inherently subjective, as it necessarily includes editorial judgments, and therefore cannot be objectively verified. TripAdvisor further noted that its own list was based on sliding-scale rankings by its users, which also include inherently subjective considerations.

On February 27, 2013, the Digital Media Law Project (DMLP, the operator of this website) filed a brief as an amicus curiae. The DMLP argued that TripAdvisor's statements were protected under Tennessee law and the First Amendment as an opinion based on disclosed facts. The DMLP also argued that finding liability for TripAdvisor could jeopardize the many crowdsourced research efforts conducted in both journalism and academia.

Oral argument before the Sixth Circuit was held on July 30, 2013, and on August 28, 2013, the Court of Appeals issued a decision affirming the district court's dismissal of the case and its denial of leave to amend the complaint. The Sixth Circuit ruled that TripAdvisor's description of the Grand Resort as the "dirtiest" hotel was rhetorical hyperbole, and could not be read as "an actual assertion of fact."

Dr. Aaron Filler filed a complaint against former patient Susan Walker in Los Angeles Superior Court on May 31, 2011. In his complaint, Filler alleged defamation and interference with prospective economic advantage in response to Walker's review of Dr. Filler on a physician rating site. 

On August 24, 2011, Walker filed a motion to strike based on California Code of Civil Procedure §§ 425.16 and 45, California's anti-SLAPP statute. Walker's motion argues that Walker is shielded from liability as the "dissemination of consumer information about medical care is a vital ‘public issue' and the internet is a ‘public forum,' and that Dr. Filler is a public figure subject to the burden of proving actual malice. Filler filed an opposition to this motion on September 16, 2011, also requesting leave to amend the complaint to plead more specific factual allegations to establish actual malice. Walker replied to Filler's opposition on September 22, 2011.

After a hearing on April 19, 2011, Walker's motion to strike was granted. In the order filed on May 8, 2012, Judge Elizabeth White held that Filler's claims arose from Walker's act of free speech in connection with a public issue under CCP § 425.16 and that Filler did not establish a probability of prevailing on these claims. In accordance with this order, Judge White later ordered Filler to pay $50,259.65 to Walker for attorneys' fees and costs. 

According to a police report, on December 8, 2011, Meredith Nilan, the 24-year-old daughter of the Chief of Probation at Berkshire Superior Court, was involved in a car accident. While driving home from a social gathering, Nilan allegedly hit a running pedestrian, Peter Moore. According to the police report, she claimed she stopped and looked around, but then left the scene of the accident. According to The Berkshire Eagle and the police report, Moore suffered serious injuries.

After further investigation by the Pittsfield Police Department, Nilan was charged with leaving the scene of a personal injury accident and negligent operation of a motor vehicle to endanger. Later, in a closed show cause hearing on January 12, 2012, Assistant Clerk-Magistrate Nathan A. Byrnes found insufficient evidence for the case to go to trial. 

Around this time, Valenti started blogging about the developments of the case on his blog PlanetValenti.com. Valenti's blog suggested that Nilan might be receiving favorable treatment because of her father's position. He also questioned Nilan's version of events as reflected in the police report about the scene of the accident. 

On February 13, 2012, Springfield District Court Judge William P. Hadley overturned the Clerk-Magistrate's determination, and held there was probable cause to charge Nilan with leaving the scene of an accident and negligent operation of a motor vehicle.  She was later arraigned and charged; on June 6, 2012, prosecutors dismissed the charge of leaving the scene of an accident, and continued the misdemeanor negligent operation charge for six months Throughout these proceedings, Valenti continued to blog about the case. 

On June 22, 2012, Meredith Nilan filed a complaint for a civil harassment prevention order and supporting affidavit against Valenti in the Central Berkshire (Pittsfield) District Court. Nilan claimed that Valenti's blog posts were "lies and innuendo" and a "regular and malicious attack" on her reputation. She asserted that because of Valenti's "sensational interpretations" and reader's "anonymous rants," she feared "vigilante justice," and that "Mr. Valenti's continued vitriol and his repeated inclination to print lies and sensationalize every aspect of my case has made me fear for my personal safety."

A few days later on June 27, 2012, after an ex parte hearing, District Court Judge Bethzaida Sanabria-Vega issued a harassment prevention order directing Valenti "to remove any and all information referring to the Plaintiff [Ms. Nilan] from any and all websites, blogs, etc." Also included was an order to stay 100 yards from the plaintiff and to stay away from the plaintiff's work and residence. 

On his blog, Valenti wrote that he complied with the order on June 28, 2012, after recivint the order the night before.

Valenti filed a responsive affidavit on July 5, 2012, in which he detailed how he became involved in the Nilan story and responded to Nilan's claims. In his affidavit, he asserted that he had "never met her, talked with her, been near her, contacted or attempted to contact her, or spoken to Meredith Nilan, let alone 'harass'[ed] her." Valenti claimed that he reported facts "honestly, fairly, diligently, and justly," and that while he invited readers to share their views, he did not enourage outrage.

On July 9, 2012, the court held a hearing on the prevention order. According to a news report on the hearing, Valenti read his affidavit aloud, and Nilan read a statement.

Valenti's lawyer, Rinaldo Del Gallo, III, also filed a brief in his defense. In the brief, Valenti argued that he did not "harass" Nilan, as defined in the statute, because he had never met her or had any contact with her.  Valenti also argued that the civil harassment statute, Mass. Gen. Laws c. 258E, does not authorize a court to proscribe or censure speech on the Internet, and that the statute would be unconstitutionally overbroad if applied to the blog. Citing O'Brien v. Borowski, 461 Mass. 415 (2012), in which the Supreme Judicial Court interpreted c. 258E to avoid overbreadth by limiting its reach to "fighting words" and "true threats," the brief further asserted that there was no "face-to-face" confrontation likely to provoke violence (as required by the "fighting words" doctrine) or "intent to commit an unlawful act" against Nilan (as required to prove a "true threat"). Rather, Valenti claimed that his blog posts were true speech on a matter of public concern, and that the the judge's previous order was an unconstitutional prior restraint under the First Amendment and Massachusetts Consitution. 

Nilan did not file a response, according to the Central Berkshire District Court clerk's office. 

Bill Newman, director of Western Massachusetts ACLU, submitted an amicus brief in the case, arguing that the order was an impermissible prior restraint and "sweeping censorship." The amicus argued that the order to remove previously published information is even worse than a typical prior restraint because "it does not merely 'freeze' the speaker; it requires him to bowdlerize prior speech." The amicus also argued that Nilan's affidavit did not allege "three acts of either 'fighting words' or 'true threat' by Valenti or his web site," as required by the statute. 

At the July 9, 2012 hearing, Judge Mark D. Mason overruled and vacated the harassment prevention order.

On Febraury 14, 2012, Republican presidential nominee Rick Santorum spoke at an event in Coeur d'Alene, Idaho. The Kootenai County Republican Chair, Tina Jacobson, was present at the event and appeared on the stage with Santorum.

The blog Huckleberries Online – which is operated by the Spokesman-Review, owned by the Cowles Publishing Company – covered the event through a blog post with gathered Twitter messages from reporters at the event. According an affidavit filed by the plaintiff, in the comments field following the blog post, a user by the name of "almostinnocentbystander" made the following comment:

Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina's blouse??? Let's not try to find out.

A user by the name of "Phaedrus" then replied, "[m]issing funds? Do tell." User "OutofStaterTater" posted. "Yes, do tell, Bystander. Tina's missing funds at the local GOP, Sheriff Mack, and John Birch Society are coming to town, things are getting interesting around here." Almostinnocentbystander replied:

@Phaed - the treasury has gone a little light and Mistress Tina is not allowing the treasurer report to go into the minutes (which seems common practice). Let me rephrase that ... a whole Boat load of money is missing and Tina won't let anyone see the books. Doesn't she make her living as a bookkeeper? Did you just see where Idaho is high on the list for embezzlement? Not that any of that is related or anything . . . 

The timestamps on the comments were between 3:31pm and 5:25pm. According to the affidavit of Daniel Olivera, manager of the Huckleberries Online blog, the posts by almostinnocentbystander, Phaedrus, and OutofStaterTater were removed around 6pm that day. Mr. Olivera posted the following two days later:

On Tuesday, Huck's online poster almostinnocentbystander made a baseless allegation against Tina Jacobson, Chairwoman of the Kootenai County Republican Central Committee. I deleted that post and three others that referred back to it as soon as I saw them. I also informed almostinnocentbystander that posting privileges at Huck's online have been revoked. In response today, almostinnocentbystander e-mailed this: 'I apologize for and retract my derogatory and unsubstantiated commentary regarding Tina Jacobson.' Huck's online commenters should feel free to flag posts they think are inappropriate -- DFO.

On April 23, 2012, Jacobson filed a complaint in the District Court of the First Judicial District of Idaho, Kootenai County, alleging libel based on the statement made by "almostinnocentbystander." On April 25, Jacobson issued a subpoena duces tecum to Cowles Publishing, seeking the identifying information for "almostinnocentbystander" as a defendant, and "Phaedrus" and "OutofStaterTater" as third-party witnesses. Cowles Publishing filed a motion to quash the subpoena on May 11, arguing that the plaintiff has failed to meet the anonymous speech disclosure standards set forth in Dendrite Int'l v. Does, Doe v. Cahill, and the U.S. District Court for the District of Idaho's S 103, Inc. v. Bodybuilding.com, LLC. Cowles also argued that disclosure in this case would violate Idaho's common law reporter's privilege.

On May 21, 2012, Jacobson responded to the motion to quash. Jacobson argued that Cowles could not take advantage of the state's reporter's privilege law because the company was acting as an Internet service provider, and not as a newspaper, with respect to the Huckleberries Online blog. Jacobson further argued that the commentators had waived their rights by violating the Huckleberries Online terms of service, which instruct users to not post defamatory material, and that the Dendrite test is met, because the comments were defamatory per se. 

On May 29, 2012, Cowles replied to Jacobson's response, asserting again that the statements at issue were protected opinion, that Jacobson is a public figure and thus must also show actual malice, and that Olivera's subsequent investigation into the comments made by "almostinnocentbystander" were subject to protection under the reporter's shield law.

On July 10, 2012, Judge Patrick Luster denied the motion to quash as to "almostinnocentbystander." The court opted to apply the standard for disclosure of anonymous commentators set forth in S 103, Inc., which requires that the plaintiff (1) make reasonable efforts to notify the defendant of a subpoena, (2) demonstrate that the plaintiff would survive a summary judgment motion, and (3) that the court balance the anonymous poster's First Amendment right of free speech against the strength of the plaintiff's case. The court found that Jacobson had made reasonable efforts to notify all three commentators. On the sufficiency of Jacobson's pleadings, the court found first that Jacobson was a public figure for purposes of the lawsuit. Second, the court found that the allegation of a missing $10,000, paired with the almostinnocentbystander''s retraction showed the requisite fault. The court further found that the balance of interests favored disclosure, because "the First Amendment does not protect defamatory speech."

In contrast, the court found that Jacobson had not met the burden for disclosure as to "Phaedrus" and "OutofStaterTater," and accordingly quashed the subpoena as to those parties.

The court ordered Cowles to comply with the subpoena as to "almostinnocentbystander" within fourteen days.

Substantive Proceedings

The Art of Living Foundation is an international nonprofit organization that, according to its website, is "engaged in stress-management and service initiatives." Two former followers, Skywalker and Klim, published anonymous blogs (entitled "Leaving the Art of Living" and "Beyond the Art of Living") criticizing the Art of Living's practices and their leader, Sri Sri Ravi Shankar. In addition to their critiques, they also provide excerpts from the Art of Living's teaching manuals and other materials (normally provided to members in courses for a fee).

On August 14, 2010, Skywalker and Klim received a demand from Art of Living (from its headquarters in India) to take down this material. The branch of Art of Living in the United States (based in California) also filed a complaint on November 5, 2010, in the U.S. District Court for the Northern District of California. Art of Living alleged copyright infringement under federal law for the blogs' publication of portions of the "Breath Water Sound Manual." In addition, Art of Living alleged misappropriation of trade secrets, defamation, and trade libel under California law, based on the aforementioned publication and the Does' critical statements about the organization.

On January 31, 2011, the Does filed a motion to dismiss the defamation and trade libel claims for failure to state a claim. They also filed a special motion to strike the defamation, trade libel, and trade secrets claims under California's anti-SLAPP statute. Art of Living filed both an opposition to the motion to dismiss and an opposition to the motion to strike on March 17, 2011, to which the Does replied (reply re: motion to dismiss; reply re: motion to strike) on April 6, 2011. After a hearing in May, on June 15, 2011, U.S. District Judge Koh dismissed the defamation and trade libel claims and denied (without prejudice) the motion to strike. Judge Koh found that the statements at issue were opinions rather than assertions of fact, resolving the defamation claim, and that Art of Living did not sufficiently allege harm or damages for the trade libel claim. Judge Koh also held that discovery on the trade secrets claim could not proceed until Art of Living identified the trade secrets with reasonable particularity.

On July 14, 2011, Art of Living proceeded to amend their complaint in accordance with the June 15th order, removing the dismissed claims from their complaint. Art of Living also provided further detail and content identification in regards to the remaining copyright infringement and trade secrets claims. The Does answered the amended complaint on July 28, 2011.

The Does then filed a second special motion to strike on September 12, 2011 (with the redacted version entering the docket on January 9, 2012), this time directed at the remaining trade secret claim. This motion was opposed by Art of Living on September 29, 2011. Additionally, on September 27, 2011, the Does filed a motion for summary judgment on the copyright infringement claims. Art of Living filed an opposition to this motion on October 11, 2011, which the Does replied to on October 24, 2011. 

In an order on May 1, 2012, Judge Koh granted summary judgment on the copyright infringement claim. Judge Koh found that Klim was entitled to summary judgment based on noninfringement, and that Art of Living did not provide enough support for its claim of authorship of the manual to pursue a copyright infringement claim against Skywalker because the copyright registration certificate was obtained after the litigation began). The district court also granted Klim's motion to strike the trade secrets misappropriation claim while denying the motion to strike in regards to Skywalker. While Skywalker conceded that there was at least some overlap between his blog postings and the materials Art of Living designated as trade secrets, Art of Living presented no evidence that Klim misappropriated any of these materials.

Anonymity in Art of Living v. Does

Throughout the proceedings described above, there was an ongoing issue with respect to the defendants' ability to proceed anonymously.

On November 9, 2010, Art of Living filed a motion for leave to take expedited discovery. Pursuant to an ex parte order by Magistrate Judge Beeler, on December 20, 2010, Art of Living subpoenaed Google and Wordpress to reveal the identities of bloggers Skywalker and Klim. Not long after being notified of this by Google, the Does filed a motion to quash the subpoena. In response, Art of Living filed an opposition on March 22, 2011, and the Does replied on April 28, 2011. On August 10, 2011, Magistrate Judge Lloyd denied the motion to quash in regards to Skywalker's claim while granting it for Klim, finding that the copyright claim was a sufficient basis for permitting identification of Skywalker.

In response, on August 24, 2011, Skywalker filed a motion for relief from the order of the Magistrate Judge regarding the motion to quash. On August 31, 2011, Public Citizen, joined by the Electronic Frontier Foundation and the ACLU, submitted an amicus brief. This brief urged the court to apply the balancing test adopted in Dendrite Int'l v. Does, despite the copyright claim being considered in the case. Art of Living's opposition to the motion for relief was filed on September 16, 2011, and Skywalker replied on September 30, 2011.

On November 9, 2011, Judge Koh granted the motion, finding that Skywalker's First Amendment right to anonymous speech outweighed Art of Living's need for discovery at this time. Judge Koh applied the Highfields Capital two-part test (which relied heavily on Dendrite) for determining whether to allow discovery seeking the identity of an anonymous defendant: "(1) The plaintiff must produce competent evidence supporting a finding of each fact that is essential to a given cause of action; and (2) if the plaintiff makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of the plaintiff and by a ruling in favor of the defendant."

In a case management conference and corresponding minute order on May 9, 2012, Judge Koh again denied all of Art of Living's motions to disclose Skywalker's identity. By also refusing to extend discovery a setting the trial date and length, these rulings potentially allowed Skywalker to defend at trial anonymously.

Related Case and Settlement

On June 8, 2012, Judge Koh granted Art of Living's motion to relate Art of Living Foundation v. Eng-An Chou (Docket no. 5:12-CV-02748-LHK) to this case. Chou involves Art of Living's claim that Eng-An Chou breached her contracts with Art of Living by disclosing some of the organization's confidential texts to Skywalker for posting on his blog.

The next week, the cases were referred to Judge Joseph C. Spero for a Magistrate Judge Settlement Conference. The conference was held on June 12, 2012 and a settlement was reportedly reached. As part of the settlement agreement, Skywalker and Klim published a joint statement informing readers of the settlement and would proceed to freeze their blogs on June 19, 2012. The joint statement noted that there are no restrictions on the Does to create new blogs, and that no identity had or would be disclosed in relation to this litigation and settlement. Art of Living also agreed to drop the lawsuit with prejudice (also dropping the separate suit against Chou) and to pay Skywalker and Klim's attorney's fees.