In my post on defamatory reviews a few days ago, I wrote that critics will usually be able to rely on the defence of ‘fair comment’. Now comes news (hat tip: Daithí) that the Court of Appeal for England and Wales thinks so too!

To be able to rely on this defence, the relevant statement must indeed have been a comment (and recognisably so, as opposed to an allegation of fact, for example); it must have been based on facts that are true (or protected by privilege); it must have been made on a matter of public interest (and the courts are now taking quite a broad view of what constitutes the public interest for this purpose); and it must have been one which could have been made by an honest person (that is to say: it must have been ‘fair’). In a relatively recent important case, Lord Nicholls said of this last requirement:

Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views. It must be germane to the subject matter criticised. Dislike of an artist’s style would not justify an attack upon his morals or manners.

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I’ve always quite fancied the idea of being a food critic: I like food, and I can be critical (just like the guy in the cartoon on the left ‘The Food Critic Orders Dinner’ – click on it to see it full size in its original context); so what’s not to like? Well, a flurry of litigation in various jurisdictions over the last few months has made me reconsider. The most recent is the decision of the High Court of Australia in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 (14 June 2007) (hat tips: Steve Hedley (off-blog) and the indefatigable Peter Black’s Freedom to Differ) which is making news in Australia for its holding that a restuarant critic can be liable for a defamatory review. There have been reactions of horror, but this is not a remarkable holding at all, either in principle or in practice. …

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