Saturday, 16 June 2007

A word of warning to aspring food critics...

Just when i thought I'd never be able to reconcile my passion for food with a career in the law it turns out they can be very much related. Who knew it was so risky to describe a few dishes as being unpalatable?

The original review can be found here.

The recent High Court decision against Fairfax Publications for Matthew Evans' review of Coco Roco will probably put a few professional reviewers on edge. At trial jurors did not make out defamation and I imagine food critics across the country let out a sigh of relief. Apparently the buck doesn't stop with the jury on defamation. The owners of Coco Roco argued the jury's finding was unreasonable and the Court of Appeal agreed. A majority (6:1) of the High Court last week upheld that ruling. Apparently judges are better able than a jury to determine these matters according to the majority of the High Court. No prizes for guessing who dissented but it's worth a read to find out why.

It's important to note that given the introduction of the uniform defamation laws it is unclear whether this case really provides much guidance as to what will happen in future litigation. Under the new laws either party can choose to have a jury or judge hear the case (except S.A and the ACT where there is no jury option). Juries won't determine damages but will decide if the publication is defamatory and if it is whether any defence is established.

Here is Fairfax's version, the remarkably similar story as told by the other paper and the story as covered by The Australian which Matthew pointed out to me. Others have already weighed into this debate but for those in search of an unbiased account with a bit of time on their hands, the actual decision. The case now goes back to the NSW Supreme Court to consider the imputation the owners were incompetent, defences available to Fairfax and damages.

20 comments:

Wendy said...

So critics can only review a restaurant if they're going to say something nice?

Truffle said...

It almost seems that's the implication, doesn't it Wendy? Although scathing by the standards of the particular publication, I've read a lot worse out there. Admittedly many critics don't have the sort of influence and readership that could bring about a restaurant's closure or justify commencing proceedings against them but the consequences are nevertheless worrying.

Matthew said...

As has been pointed out elsewhere, it's important to note that the newspaper hasn't lodged its defense yet. As Jamie at the breakfast blog neatly summarises it:

"All the High Court said was that it's OK for a bunch of judges to override the jury's opinion that these things were not defamatory (ie, damaging to somebody's reputation), and substitute their own opinion that they were."

This point is made quite clearly in the Australian's coverage of the decision; unsurprisingly less so in Fairfax's. (I'll be looking forward to seeing if Lethlean mentions it in this week's Espresso.)

Truffle said...

Matthew, you're absolutely correct and I've added in that link to the Australian article.

Nevertheless the HC finding worries me. I'm inclined to agree with Kirby J that in these cases jurors are better able to make that decision. I'm also concerned that at this point it would be difficult for Fairfax to make out the available defences but we shall see. I'm also curious as to how they're going to quantify damages.

It will indeed be interesting to see what Lethlean has to say and I think most of us food bloggers know we're quite safe from similar actions.

Nora B. said...

Interesting stuff, Truffle. As a wanna be food critic, I used to write my reviews of restaurants on eatbility... I wonder who the restaurants will go after next...

Little Foodie said...

I could really dumb down this discussion but I wont. I will however wait with interest to see the eventual outcome.
Amanda

Truffle said...

Nora B- they'd have to suffer some pretty serious damage before they could justify the cost of litigation so thankfully I think we're safe. I'll have to look out for your reviews on eatability :)

Little Foodie- Me too. I think the actual legal repercussions are quite large but boring for most so I didn't bother to go into them in the original post. Let's see what happens (although knowing how long these things take I don't think we should hold our breath!)

Anh said...

I tend to thin that this case set up an unfair precedent... I mean, what's now with freedom of speech and review? I actually appreciate honest reviews. But I guess all food critics outhere must be careful now!

The Gourmand said...

I understand this a complicated legal issue (or rather, dont understand). However, I am on the restaurants side. I worked in hospitality for many years, as a waiter for a high profile chef in Sydney and managing a popular cafe in Melbourne for 4 years. Working in a restaurant is bloody hard work. I find a lot of restaurant reviews to be just downright bitchy. A lot of work, dedication and financial investment goes into running a restaurant and it pains me to know a scathing review can destroy a business. Have reveiwers ever worked in a restaurant? Do they really know what it is like serving demanding people and cooking in a commercial kitchen during a busy service?
When I worked for such a famous chef in Sydney 10 years ago, we had photos of restaurant critcs in the staff area, so that all waiters could recognize those critcs. Its of no surprise to me that restaurants are banning reviewers...

Truffle said...

Anh- it will be interesting to see if this leads to similar litigation.

The Gourmand- I understand your perspective and have sometimes thought reviewers don't give sufficient thought to the effect of their words. I don't know what the correct balance is but (back to the boring legal issue) it does concern me that jurors aren't being left to determine whether statements are defamatory.

Susan said...

This is happening here in the U.S., too. Who knows how it'll shake out.

Here's one of many articles:

http://abcnews.go.com/US/story?
id=2938000&page=1

Matthew said...

David Marr has a nice op-ed article on the decision in today's SMH, which, like the report in the Australian, is a little more illuminating than the initial reports in the Herald.

Kristen said...

This seems really odd. One thing I like about critics is their ability to honestly judge and provide feedback for us. Now, I know there are some critics who are notoriously unhappy and with those I take it with a grain of salt and find out for myself. What a crock!

Truffle said...

Susan- Thanks for the link. The part I found particularly interesting (and different to the Australian position) was

"Almost none of them (defamation cases against critics) have succeeded.

Most lawsuits are thrown out or dropped -- and even when the restaurateurs prevail, the cases are tossed out on appeal, usually on First Amendment grounds."

Our constitution is inherently different and unless the paper makes out truth or fair comment, the outcome may be very different here.

Matthew- thanks again. I'm not sure I agree with him but great to see some analysis of the issue finally.

Kristen- I agree. Not that it is unusual for reviewers to be sued but it's interesting how the jury's decision was overruled. Thanks for reading and posting.

Ellie said...

This is such a delicate topic. On one hand, I value what a critic can do - it can warn people of a restaurant which has low quality or is overpriced (or both), particularly good when I hear from friends of mine again and again how a meal they had was unsatisfactory and when I ask them whether they left feedback or sent the meal back, the answer is nearly always 'no'.

On the other hand, I can understand how a reviewer could be seen as pretentious and full of himself, and not fairly reviewing the food or the experience.

However, I view food journalism in the same way that I view journalism in general - these days it seems to be an entertainment medium, sensationalizing the way it's message is portrayed in order to try and sway and win audiences rather than inform. But then again, that might be my bias against the media that I've gained from doing a media degree :P

thanh7580 said...

What an interesting topic indeed, and one I am particularly interested in now after Bar Lourinha's threats to sue me for a less than glowing review on their restaurant. Luckily in my case, I think it was just a bluff threat that they won't pursue.

Truffle, do you know where we can get the actual review that Evans' wrote, so that we can read it ourselves and judge whether its defamatory or not. If he is clearly stating what he see as facts, that can't be classified as defamatory can it?

As for the part where they think juries can't decide whether something is defamatory, that ludicrous. A jury can decide whether a man is guilty for murder and look at all the evidence, but is unable to decide on a piece of text (a restaurant review of all things, not exactly technical jargon) and whether that is defamatory?

If Evans' is found guilty, what would be the likely penalty?

Truffle said...

Ellie- you're spot on about the delicate nature of the topic and both sides have their merits. I think in relation to the general issue I may just be a fence sitter.

Thanh- you can read the original review here
http://www.smh.com.au/news/national/coco-roco/2007/06/14/1181414470329.html

I'm not an expert in defamation but I imagine they'll rely on the defences of truth or fair comment.

I understand the NSW Act which this case originally came under no longer applies due to the introduction of uniform laws so in a way the decision is not as significant as it originally appears.

I'm assuming if Fairfax is found liable the remedy will be damages. I'm unsure as to what the owners of Coco Roco are claiming as their loss (apart alleging it caused the restaurant to close) so couldn't speculate as to the amount.

Lucy said...

It will be interesting to see how this turns out. Think you've just found the link between food and the law you've been looking for Truffle.

I always thought Matthew Evans such a nice fellow...

Truffle said...

Thanks Lucy :)

Duncan said...

@ The Gourmand: I have sympathy for the insult a bad review might feel like, but at the same time, a dining establishment shouldn't claim to offer a product of a certain calibre which it can't maintain at an acceptable level at all (or any?) times. That's business. Reviewers can occasionally be bitingly harsh, but I don't think most are going to be so on a whimsy (one or two overseas exceptions spring to mind).

@ Truffle: I'd missed your original entry about this case in the post on my site, so have added a reference to it.