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Legal battle over restaurant review leaves bitter taste

A nine-year High Court battle over a restaurant review in The Sydney Morning Herald finally came to a close this week but the result left food writers with a bitter taste in their mouths.

In 2003, then SMH restaurant writer Matthew Evans gave a damning review of the food at Sydney’s Coco Roco restaurant. The limoncello oysters (sounds appetising, doesn’t it?) were described as “sickly sweet, overtly alcoholic, slippery, salty and bitter”. Evans deemed the Coco Roco pork belly as “the porcine equal of a parched Weetbix”.

Within six months of the review being published, the restaurant was closed. Shortly afterwards owners Aleksandra Gacic, Ljiljana Gacic and Branislav Ciric began a defamation case against Fairfax that has involved a full hearing of the High Court and two trips to the Court of Appeal. Fairfax finally lost and the damages hearing will shortly decide how much it has to cough up in compensation.

Food and restaurant writer at The Australian, John Lethlean, tells Crikey he feels sorry for Fairfax and  Evans over the case. ”I have no doubt that Matthew Evans did his job thoroughly and with the right motivation, which was informing readers.”

Lethlean says he’s constantly wary of the possibility of defamation in his weekly restaurant reviews. “It’s a constant sort of push and pull between editorial and legal,” said Lethlean. “You’ll write something colourful, they’ll [The Australian’s lawyers] try and take it out, sometimes for sound reasons, sometimes you wonder why because it’s just emasculating the piece.

If you get a feeling from the start that there are some hard words that need to be said, you spend the next whatever hours in the restaurant making sure that you have evidence to support the kind of comments you are going to make,” said Lethlean.

He has his own method of trying to protect himself and provide evidence. “I always make sure if something contentious is going in, I have photographs of it. I started photographing in restaurants before blogs had even been heard of. If I want to say something is oily, I make sure I’ve got a photograph of oily. If I’m going to say the tablecloths were stained and tatty, I take photographs of stained and tatty tablecloths.”

Lethlean estimates he has thousands of photos of restaurants he’s reviewed. But since photos can’t accurately describe the taste of something, there are other methods he employs to cover himself legally.

If you’re convinced that someone’s used commercially produced mayonnaise, you don’t say it was commercial mayonnaise because you can’t prove it, you say ‘the taste and texture reminded me of a commercially made product’,” explained Lethlean. He notes that he can’t say something tastes like Harpic Toilet Cleaner, even if he’d eaten Harpic Toilet Cleaner and the food tasted just like it because “you just know that it won’t get through the lawyers. You just don’t bother writing it.”

Cases such as Fairfax v Coco Roco are dulling the food reviewing culture in Australia, notes freelance wine, food and travel writer Winsor Dobbin. “If a reviewer has to rein in their opinions, it’s a disservice to readers,” said Dobbin. ”It limits … how critical you can be in print or for that matter on social media.”

Dobbin says there’s a tendency for smaller publishers to prefer positive stories on food and wine over more critical takedowns. “There’s a shift away from brutal criticism,” said Dobbin. “In the wine reviewing sphere, you very rarely see brutal reviews because newspaper and magazine editors are looking for wines the readers would want to drink rather than wines the readers want to avoid.”

Australia has much stricter defamation laws than the UK. “Some of the stuff that AA Gill and Jay Rayner [The Guardian’s restaurant critic] write in Britain would certainly land them in court in Australia,” Dobbin said.

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  • 1
    Sancho
    Posted Friday, 29 June 2012 at 1:23 pm | Permalink

    Surely restaurant reviews are redundant when there are so many website devoted to customer reviews.

    I trust aggregate consumer reviews over the ostensibly superior judgements of a newspaper reviewer, even though both can be influenced by fashion.

  • 2
    paddy
    Posted Friday, 29 June 2012 at 2:25 pm | Permalink

    Thank goodness for the food bloggers and social media.
    The days of the “big name” food critics are in steep decline.
    (A bit like the mastheads they work for.)
    I agree with Sancho. Aggregate consumer reviews are the way to go.
    Not perfect, but much more robust and reliable than a single (paid) reviewer.

  • 3
    alisonrixon
    Posted Friday, 29 June 2012 at 3:04 pm | Permalink

    People reviewing on the web can be caught by these laws - if someone thinks you have deep pockets and can identify you, they will sue you about a web post. This issue isn’t about who writes the best review, it’s that Australian law has no protection of free speech.

  • 4
    Posted Friday, 29 June 2012 at 3:21 pm | Permalink

    @AlisonRixon That’s a good point, which I should have also mentioned. Bloggers and so forth are still bound by defamation laws. And I still believe it’s important to have reviews written by knowledge experts who spend their life eating out around the world as well as bloggers and social media foodies who blog and tweet their food opinions.

  • 5
    Terzon Emilia
    Posted Friday, 29 June 2012 at 3:42 pm | Permalink

    Completely agree with Dobbin that the review market has skewed away from actual “reviews” towards just posting nice things about nice places. As a writer, I have encountered this numerous times of late with pitching to websites and publications. One Editor even told me to only ever pitch and then write positive reviews about places that I personally like.

    Of course, that’s all well and good, but consider two things: A) writers need to pay $$ to go eat/drink first to make an assessment (to be reimbursed if the review goes ahead) and B) being commissioned is a tough market. Upon visiting somewhere bad/average, why on earth would a struggling writer write a truthful review, when it would mean they’re out of pocket and probably not get published? Potential insincerity ends up being rewarded.

    I do understand the place of “nice” sites: some readers just want a portal of all things good and recommended. But the trend overall towards this is damaging, especially for paid work. I’m not sure if it’s due to advertising concerns, the precarious nature of print media, or this defamation trend: most likely a combination of all.

  • 6
    Margo
    Posted Friday, 29 June 2012 at 4:18 pm | Permalink

    What, exactly, is the point of writing a ‘review’ of anything if you can’t be honest when a negative assessment is warranted? What about book reviews? Reviews of films and tv programs? Hotel accommodation? The value of reviews is that they tell it like it is. If a patron’s restaurant experience was sub-standard, the value of the review is in sharing that experience — doesn’t matter if it’s a professional reviewer or an ordinary customer.

  • 7
    Hamis Hill
    Posted Friday, 29 June 2012 at 4:51 pm | Permalink

    Re defamation and freedom of speech, it is a civil matter and if reviewers or bloggers do not cause damage they cannot be sued for damage, it is that simple. Do not cause damage and you will not be sued for damages.
    The let out ploy is to cause damage and have no assets to cover the damage.
    Now who says poor people have no power. Wealthy individuals sometimes have little say because they have much to lose.
    A lot of the more intelligent and more erudite citizens, though all others might benefit from their input, do not contribute to public debate for fear of litigation.
    Perhaps they employ other more indirect means to get their influence across.

  • 8
    Elworthy Brent
    Posted Friday, 29 June 2012 at 5:49 pm | Permalink

    Hamis - you obviously don’t understand the law on defamation. It’s not necessary that you actually cause damage - that comes into assessment of the penalty (the law calls that “damages”).
    It is only necessary that what the word published tend to adversely affect the plaintiff’s reputation “in the eyes of right-thinking people generally” - that’s the assessment the jury must come to.
    One more point: There are recognised defences to defamation (truth, justification, fair criticism) but - and here’s the rub - the onus of proof is on the defendant.
    I sympathise with reviewers at large publishing houses. In-house lawyers are typically concerned with whether a passage is defamatory - not with whether the defamation is defendable.
    All the talk lately about editorial independence and freedom of speech is just that - talk.
    What is the point in employing reviewers who are expert in their area (e.g. food) if the publisher is not prepared to stand by them when a critical review is called for.
    The case of the SMH will doubtless serve as a reminder to scribes that they can defame someone when it’s called for, but only when they can prove it.
    By the way, anyone for a wager: Will the restaurateurs get more in damages than they forked out for lawyers - or less?

  • 9
    Hamis Hill
    Posted Saturday, 30 June 2012 at 12:02 am | Permalink

    Elworthy Brent, for the benefit of other posters, “obviously” from his above post, does not know what a “tort” is. It is a “wrong” El, and that wrong is the cause of the damages for which the civil courts provide relief.
    And no amount of petifogging obsfucation will eliminate that legal fact.
    If you do not committ a tort or wrong then you have not damaged anything and no damages can be assessed.
    Your exceptions are secondary to the fact that defamation is a tort and comes under the law of tort.
    If a reputation is already damaged then it is not a “wrong” to mention that fact publically.
    In criminal cases there may be differences. But the salient point remains, do not set out to create damage and you will not be sued for damages.
    There is a moral as well as legal aspect to defamation and knowing the fundamental difference between right and wrong is a good defence.
    By the way, will the newspaper footing the bill for damages care who gets the money?
    Just as long as they feel the sting of punishment El. I think it involves something called justice.
    Perhaps you can inform posters what they do not “obviously” know about that?

  • 10
    zut alors
    Posted Saturday, 30 June 2012 at 5:44 pm | Permalink

    Truth and plain speak appear to be a casualty of our society.

    A friend is in charge of a boarding house at a ‘name’ college - the staff are not permitted to write anything negative about even the most recalcitrant boarders in the end of term reports. Hence, many parents are deluding themselves in thinking their offspring are well behaved and house-trained. The reports are a waste of time. Just like Oz restaurant reviews, apparently.

  • 11
    V V
    Posted Friday, 6 July 2012 at 5:21 pm | Permalink

    Finny thing, I just looked at the clock it appeared it was showing “19:84”. Sure, I quickly realized this must be wrong because of 84. Right?

    Here is an excerpt from what seems to be an ancient rumor that came to us through millenia:
    “… Aesop once was invited to a dinner at a famous restaurant of that time. Some believe its name might look like “CX RX of Athens” but whether such beliefs have any sensible grounds cannot be reliably established.
    Being a simple man he was literally stunned by taste, consistency, color, look, and flavor of almost everything he tried. Most amazing, though, was his experience with oysters. Lacking familiarity with sophisticated dishes he could not even properly describe their taste. When asked, he could not confirm they were sickly sweet or overtly alcoholic. He could not also say they were slippery salty or bitterly oily, or acidly eye-popping, or stingingly burning. ‘No, it is different’, - he said, ‘they are just beyond compare’ “.

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