Silencing the critic

The High Court of Australia handed down a decision on Thursday (John Fairfax Publications Pty Ltd v Gacic) which has been reported in the press as “lowering the curtain on age of the fearless restaurant critic”. See here and here.

The story is that Coco Roco, a now defunct Sydney CBD restaurant, sued Matthew Evans and the Sydney Morning Herald after they published a scathing review shortly after the restaurant opened. The restaurant promoted itself as “Sydney’s most glamorous restaurant”. The review is here.

A jury decided that the implications in the review that the “food was unpalatable” and that the “restaurant provided some bad service” were not defamatory.

The NSW Court of Appeal overruled this, saying that no reasonable jury properly directed would have come to this decision. The newspaper then appealed to the High Court.

If you read the judgment you will see that the High Court was more concerned with whether an appeal court could override a jury decision, although the Court accepted that Coco Roco was defamed by Matthew Evans’ review. It was also concerned with whether community standards should be imported into the decision whether something is defamatory (the answer was that community standards do not matter. So why have juries?)

So what is the consequence of all this?

Well, it does mean that a restauranteur who is unhappy with a review they have received can sue for defamation. If restaurant reviews are not able to be critical, then they merely become marketing tools for restauranteurs.

As the court proceeding’s head into the next stage, where the SMH will no doubt attempt to show that Evan’s review was based on the truth, one problem for the SMH (and restaurant reviewers in general) is that the evidence is consumed in the reviewing process. So to use the Chief Justice’s example, one can show that a leading surgeon has bad eyesight or shaky hands by testing them in Court. But how can the critic provide that the oysters were not fresh, or that the desserts were too sweet?

If I were setting up a fine-dining restaurant today, I would promote myself as being better than the best and worthy of every hat available (thereby building the business reputation). And as soon as someone said otherwise (that is, damaging the reputation I built), I would go hell for leather and sue.

I myself take no pleasure in criticising in general, and what I say in this blog always aims to be fair, not just to the prospective diner, but to owners and the floor and kitchen staff. So does this mean that blogs like this should be silenced? No it doesn’t. Otherwise the only source of information for consumers will come from the restaurants themselves. And who will then hold restaurants to the promises they make? Nobody – not even the courts.