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  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.
In principle – the tort of defamation
If a newspaper publishes a falsehood, it is likely in principle to have committed the tort (legal wrong) of defamation, which protects against injuries to reputation, and all the more so if the falsehood results in injury to business reputation. Hence, if a critic says something entirely untrue of a restaurant, that would be defamatory and would injure the restaurant’s business reputation. That is the legal action at issue in Fairfax v Gacic. Of course, in many (one hopes, most) reviews, the critics’ retailing of the facts will be entirely accurate and thus unproblematic. But if reviews consisted simply of factual recitations (I ate the beef …) they would be entirely boring. So, critics offer their opinions (… and it was divine/inedible etc). And, so long as the opinions are honestly held and based upon fact, the critics will have the defence of ‘fair comment’. Again, in many (one hopes, most) reviews, opinions will amount to fair comment, and will thus also be unproblematic. As a consequences, as a US court put it in 1985, “reviews, although they may be unkind, are not normally a breeding ground for successful libel actions” (NYT; Joshua Cash “The Difficulty in Winning Restaurant Defamation Cases” (2006) bepress (pdf)).
In Fairfax v Gacic, the Sydney Morning Herald published a review of a newly-opened restaurant, Coco Roco, in trendy King Street Wharf on Darling Harbour, claiming that food was “unpalatable” and there had been “some bad service”. The High Court decided that the review could in principle bear a defamatory meaning. But this is only half the story. Because of the procedure adopted in the case itself (pursuant to section 7A of the Defamation Act 1974 (NSW) – since repealed by the Defamation Act 2005 (NSW)), the proceedings were being conducted ahead of any consideration of the newspaper’s defences. No defence had yet been filed. Doubtless, that will be the next stage in the proceedings. So, we are only at half-time. The second half of the case is still to come, in which the newspaper can seek to rely on various defences, including no doubt fair comment. If the newspaper loses at that stage, then there can be wailing and gnashing of teeth. But not yet.
Moreover, the decision that the review could bear a defamatory meaning was not even the main thrust of the High Court’s decision. That was whether the Court of Appeal had the power (in the light of general provisions of Australian law relating to practice and procedure in general (section 108(3) of the Supreme Court Act 1970), and of the (s7A) procedure adopted in the case itself in particular), to substitute their similar holding for the different decision reached by a misdirected jury at first instance. On that issue, the High Court decided that the power did exist, and that the Court of Appeal had properly exercised it.
Of course, such technical matters of procedure don’t make for eye-catching headlines, even if they are the bread and butter (or perhaps the bread and butter pudding) of lawyering. And eyecatching headlines there have been, both in Australia (see, eg, The Australian | BBC | The Guardian here (also here) and here | News.com.au | Sydney Morning Herald | The Daily Telegraph | thewest.com.au) and more generally online (David Jacobson’s External Insights | digital musings | esoteric rabbit | fortune grey | Nunc Scio | One Man’s Taste | reMARKable palatte) which, so far as I can see, have all proceeded as though this was the final decision, having missed the fact that this is only half-time in the case.
In practice – suing for defamatory restaurant reviews
Moreover, the Fairfax v Gacic litigation is hardly unique. For example, closer to home, earlier this year, Goodfellas in Belfast successfully sued the Irish News for a defamatory review (see, eg, BBC here and here | Belfast Telegraph | best of both worlds | blurred keys | calwineries.com | David Rosengarten | decanter.com | forkncork.com | hackflack | Greenslade | Guardian: story, Maev Kennedy, Matthew Fort | lawdit | Oliver Kamm | overlawyered | peripathetic | RTE | Russell Jones & Walker here and here | Salut here and here | Slugger O’Toole | yourfriendinthenorth | Writer’s Blog | see also the legal analysis in Matheson Ormsby Prentice “And as for the SoufflÃ©” (2007) (pdf)). This decision is currently under appeal, but lawyers for the restaurant will no doubt seek to take heart from the decision in Fairfax v Gacic even as those for the Irish News seek to confine it to its special procedural context.
Similarly, in the US, where everyone sues everyone else for everything, or so it would seem, restaurtanteur Phil Romano (interviewed here (2000) and here (2006)) settled a case against the Dallas Morning News for its review of the Dallas outpost of his Il Mulino restaurant empire (see, eg, Dallas Observer | New York Times (sub req’d) | overlawyered). A restaurant called Chops has taken a similar case against the Philadelphia Enquirer (see, eg, Feiler Faster | hungover gourmet | Kevin Allman | Metroblogging Philadelphia | Netscape | New York Times (sub req’d) | Overlawyered | Paul Stevens | PhilaFoodie here and here | Press Gazette | South East Texas Record). (Update (20 June 2007): Philafoodie and Philadelphia Weekly Online have news of some significant developments in the case; Update (7 July 2007): Media Law Prof Blog has news of further developments). Similarly, a Florida grill is suing a local media company (Greenslade | Hometown News), and a suit by Valenzano Winery “over a description [by New York Life] of wine as ‘dreadful plonk’ is pending in a New Jersey court” (NYT).
The most interesting perspectives on all of this are provided by Michael Bauer’s post on Suing a restaurant critic and by David Rosengarten’s post on The War…..Between Restaurants and Restaurant Critics, both written from the perspective of the critic; by Culinary Colorado’s overview The Perils of Restaurant Criticism and by Medlar Comfits’ Restaurants & critics & peppermills & bling; and by David at PhilaFoodie and by Ernie at Forkncork, both written from a legal perspective, but with foodie sensibilities.
So what was unpalatable in the various cases: the food, the review, the decision to sue, or the outcome? You decide. In the meantime, though I have quite an appetite, I don’t fancy eating my words, so I think I’ll send the restaurant critic idea back. In its stead, since I’ve always quite fancied the idea of being a movie critic too – I like movies, and I can be critical – that will have to be my fantasy alternative career for now, at least until actors, directors and studios follow the restauranteurs’ lead and start suing the critics too!
Further updates (17 & 19 June 2007): More news reports (The Age | IHT | ninemsn | shortnews | Vancouver Sun | World News Australia); more blogposts (Anne Jovi | chow | the entertaining in vivid colour | Techdirt | monsters and critics | the inevitable and pithy overlawyered | liberal blurblings (also here on the Irish News case) | reputation advisor | stoush); penultimately, a bonus: a link to a 2002 case in Nevada which upheld a critical review as protected opinion; and, finally, a rather hyperbolic question posed by emediaworx in The End of Customer Reviews and maybe Web 2.0!:
How will it affect the way you write your Blog?
Further update (23 June 2007): Medlar Comfits has returned to the fray (in a droll and engaging post which modesty forbids me from hyping here); and Australian Politics (scroll down to “Judicial arrogance attacks freedom of the press”), the Breakfast Blog, The Expat, Grumpy Old Journo, Infordurex, Syrup & Tang have all joined it. Indeed, almost as answer to the question posed above by emediawoorx, Syrup & Tang comment in passing:
A final negative outcome for the newspaper would have considerable implications for all who review â€” bloggers who review are of course open to litigation too.