The Top Ten Opinion: Potential Liability and Potential Immunity

Vol. 30 No. 2


Mark A. Flores is an associate at Frost Brown Todd LLC in Lexington, KY.

“Top Ten” lists. David Letterman made them famous. As with many other things, the Internet has made them ubiquitous. As the Internet continues to evolve, more online publications are generating creative ways to provide analysis and new and innovative content. Take, for example, the Irish start-up NewsWhip, which, according to a recent report from the Irish Times, “tracks the world’s news stories, showing which ones are spreading the fastest by social media.”1 By tracking more than 60,000 stories each day, NewsWhip creates its own list of the most-read stories from the United States based on social media views.2 In essence, NewsWhip creates a Top Ten list by ranking stories based on the opinion of third parties. This is only one of many lists that rely solely on third-party opinions.

Given the popularity of lists, the growth of new websites that use subjective statements from third parties to create online rankings will continue.3 Information produced in list format is not only practical, but it also fits with a world in which multitasking is the norm. Creative websites can make list formats memorable.4 As stated by Stuart Fischoff, a media psychology expert in a 2011 article published by, “if we can break things up into chunks of meaningful data, it’s much easier for us to store and remember them.”5 Of course, remembering the information and where you got it only further cements lists as a permanent fixture in online publications because publishers see them as an opportunity to lure new and repeat visitors to their websites. Thus, as the U.S. Court of Appeals for the Sixth Circuit put it, “‘top ten’ lists and the like appear with growing frequency on the web.”6 And as the Top Ten–type lists proliferate, so does the likelihood that they will become the subject of litigation.


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