Peter Bartlett, Crikey’s lawyer and a partner at Minter Ellison, writes:

When
Australian lawyers and journalists think about bitchy restaurant
reviews, they tend to think about Leo Schofield being famously hammered
by a jury for $100,000-plus costs in the late 80s. The payout came
after Schofield in the Sydney Morning Herald criticised the
Blue Angel restaurant for the “culinary crime” of “appallingly”
overcooking lobsters to make them like an “albino walrus” – and it’s a
story that has played on the minds of reviewers and editors ever since.

But
now Leo’s Lobster has been replaced as the most recent example of how far
a reviewer can go in trashing an establishment. In a NSW case last
week, the owners of Coco Roco at King Street Wharf have refuted a
reviewer’s claim that it was “a bleak spot on the culinary landscape.”
Matthew Evans, in a Sydney Morning Herald review in September
2003, said the restaurant’s main courses were too expensive, the pork
belly was “dry” and even the raspberry and Shiraz sorbet at Coco Roco
wasn’t up to scratch. While the jury in the Leo Lobster case rejected
the Fairfax defences of fair comment and justification, Fairfax
succeeded in its “fair comment” defence in the Coco Roco case.

After
the Leo Lobster case, the media complained of a significant curtailing
of freedom of speech and “significant restrictions” on restaurant
reviewers and those who criticise books, films or theatre. Leo
Schofield noted that the decision had had the effect that “a certain
gentility has fallen on reviewing.” (Which might not be such a bad a
thing…)

But this alleged “chilling effect” was actually an
over-reaction. There are some fairly simple rules for a reviewer to
follow. To succeed in a fair comment defence, the words complained of
need to be an expression of opinion, rather than a statement of fact.
The comment needs to be based on proper material for comment. If the
comment is based on facts set out in the review, the facts need to be
true. The comment does not have to be rational. It can even be
exaggerated, but it must be the honestly held view of the reviewer, on
a matter of public interest.

The rationale is that readers
must be in a position to decide for themselves whether they agree with
the reviewer, based on the facts sets out in the review. And Evans
backed his claim that the restaurant was a dud with quite a bit of
detail. He claimed that more than half the dishes he tried at Coco Roco
were “simply unpalatable.” For example he said the limoncello had
“flavours that jangle like a car crash; all at once it’s sickly sweet,
overtly alcoholic, slippery, salty and bitter.” And here’s what he had
to say about the pork belly: “A generous square of pig’s paunch is
snuggled into a mass of starchy lentils. The meat is unevenly spiced
with Moorish flavours and the lentils are poor. Texturally, it brings to
mind the porcine equal of a parched Weetbix.” Yuk…

You can read the SMH report on the Coco Roco decision here.