Don’t mention the hotel

Image of Basil Fawlty, from an episode of Fawlty Towers, via the BBC websiteLegal Eagle on SkepticLawyer writes:

Fawlty Towers fights back

My parents just came back from a holiday in Europe, and were telling me about one of the less salubrious hotel rooms they experienced. … [They] were contemplating writing a review for a travel website to warn other travellers that this purportedly “four star” hotel was not all it was cracked up to be.

Still, it seems that, as this piece suggests, it’s worth thinking hard before you write a review which is critical:

Travellers who post scathing reviews or comments about hotels or restaurants could be exposing themselves to long and costly legal battles …

You think this is far-fetched? Well, read my post about what happened when Sydney restaurant Coco Roco got an unfavourable review… A majority of the High Court found that the review was defamatory (and overturned the conclusion of the jury on that point).

I think this is a dangerous precedent. If you serve up food which is not to a reviewer’s taste, or your hotel was not to your guest’s liking, what you need to do is listen to the criticism, and see if there is any merit in it.

I think Legal Eagle is vastly overstating the problem here. First, in the High Court case to which she refers (John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291, [2007] HCA 28 (14 June 2007)), the Court held that the review could in principle bear a defamatory meaning, but the case turned on a matter of procedure by which the proceedings were being conducted ahead of any consideration of the newspaper’s defences. In such cases, even if reviews are in principle capable of being defamatory, they will almost always attract the benefit of the defence of fair comment. In Ireland, section 20(1) of the Defamation Act, 2009 has rebadged fair comment as honest opinion and defined it as follows:

It shall be a defence (to be known, and in this section referred to, as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.

So, if you honestly hold your opinion that the hotel was terrible, then you will be able to establish the defence. Just don’t mention the war.