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On 14 June 2007 the High Court of Australia ruled a restaurant review can be liable for defamation.
This is not new law, but it is a serious reminder of how risky speech is in Australia. "Freedom of speech" is not enshrined in Australian law. Speech is risky because of defamation law.
The High Court's decision deepens the risk for critics or for that matter
anyone who is brave enough to make negative comments online or off line.
- The case was John Fairfax Publications Pty Ltd and Matthew Evans v Aleksandra Gacic, Ljiljana Gacic and Branislav Ciric.
- The
restaurant was Coco. It opened at King Street Wharf at Darling Harbour
in Sydney in 2003 after a $3 million fitout. It's proprietors also had
a nearby Roco restaurant.
- On 30 September 2003 a restaurant critic had his review published in The Sydney Morning Herald.
- The Coco restaurant critic was Matthew Evans, a reviewer from 2001 to 2005 for The Sydney Morning Herald and its prominent book, The Sydney Morning Herald Good Food
Guide. He had two dinners at Coco, following which he scored what he
incorrectly described as "Coco Roco" nine out of 20. A score sheet in
the margin of the article put that result within the "stay at home"
category. Evans said it was expensive, with many unpalatable flavours,
a menu flawed in concept and execution, and good and bad service, and
that the best thing was the view.
- Coco closed a few months after the review was published in the Herald.
- Then followed one court case involving four separate court hearings:
- The former Coco restaurant proprietors sued and in a jury trial they lost
in 2005. Part of their argument picked on errors of fact made by the
reviewer and sought to impose on him various duties at law, in essence
to check alleged statements of fact in minute detail.
- The former Coco restaurant proprietors appealed to the NSW Supreme Court of Appeal and won.
- They won again when the defendants, Fairfax and Evans, appealed to the High Court.
- The
High Court has now sent the case back to the NSW Supreme Court of
Appeal giving Coco and opportunity to seek damages in another hearing.
There is a prior Australian defamation case involving review of a restaurant. The review was by Leo Schoefield,
a prominent Sydney arts impresario, administrator, commentator and critic. He was
sued by an Australian restaurant in 1984 after he reviewed a restaurant, again
in The Sydney Morning Herald, and included comments such as - that
he had been served a lobster that resembled "albino walrus". The
publisher reportedly paid out A$100,000.
As the Evans and Schoefield cases illustrate, the law can hold you liable if you defame a business. Defamation does not just apply to individuals.
Risk management footnote
A footnote is the fact that the 2007 edition of the Good Food
Guide contains a paragraph headed "Accuracy" in an introductory section. The paragraph describes the risk management procedure followed for the publication to check accuracy, including a requirement that restaurants complete a questionnaire.
Trouble for publishing, especially defamation on the Internet
As lawyers specialising in publishing law online and off line, all this is very troubling. Having said that, grin and bare it. Then treat caution as your touchstone in Australia if you are a critic, writer,
commentator, publisher or distributor. Do whatever you can to lobby for changes in defamation law and for freedom of speech rights.
Meanwhile, take special care with electronic messages. Check and recheck work. If you are unsure get advice. Don't be like Eatability or Sydney Pub Guide which I'm told contains highly critical (defamatory?) restaurant and pub reviews. OK what works to get eyeballs is user generated content, social media, Web 2.0, whatever. But do you really want exposure to defamation law? Get advice and take steps to lower legal risks. They could ruin you, your business or Web venture.
Before you upload, or allow people to upload, remember the unanimous decision in 2002 in
the High Court's Gutnick case. It held that the principles which apply
to determine the applicable law in Internet defamation cases are the
same as those that apply in relation to other types of media.
Hence it makes no difference to a defamation action if you publish defamatory material off line or online.
Given the Gutnick case, if you upload defamatory matter onto say a
US-based server or Website, you can be sued in the place of
publication, Australia. That exposes you, your assets and livelihood in
Australia.
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