Paul Thomas: Hidden pitfalls in penalising critics' unkind words

Whining about dining is a process that can be cut two ways. Photo / Getty Images

Defamation case changes rules, but it might not be the win restaurateurs think it is

In whatever field of endeavour they operate, critics are regarded as the enemy.

As those on the receiving end see it, critics aren't qualified to sit in judgment on creators, but their flimsy opinions can have devastating effects.

As the shamefully underappreciated singer-songwriter Graham Parker put it: "Some people are in charge of pens that shouldn't be in charge of brooms/They have the nerve to rip up a man's life in a paragraph or two."

Chances are, therefore, that the plaintiffs' victory in a decade-long Australian defamation case over a savage restaurant review triggered unconfined joy among those who have felt the sting of an unfavourable evaluation.

In 2003 Sydney Morning Herald restaurant reviewer Matthew Evans, a qualified chef, checked out a ballyhooed new harbourside eatery, Coco Roco. On the whole, he'd rather have opened a packet of Whiskas. Beneath the headline "Crash and Burn: When dining on the view is the only recommendation", Evans found fault with pretty much everything.

He labelled Coco Roco a "black spot on the culinary landscape", awarded it nine out of 20 - which makes you wonder what sort of death-trap would get a five - and rather gratuitously advised readers to "stay at home".

One of the owners, a former Miss Adriatic beauty queen, promptly put on 57kg and attempted suicide, although it's not clear whether both were immediate consequences of Evans' review.

The restaurant, which cost A$3 million to set up, closed within six months. The owners were bankrupted.

Now SMH publisher Fairfax has been denied leave to take the matter any further. After a protracted and no doubt eye-wateringly expensive legal battle, Coco Roco's owners have been awarded damages of A$623,526 and costs while media outlets everywhere are left to absorb the implications.

Does this mean you now publish no-holds-barred reviews of books, films, plays, music or restaurants at your peril? The sketchy reports don't make it clear which aspects of Evans' review were deemed defamatory, although he was quite specific: "The pork belly was the porcine equivalent of parched Weet-Bix."

The main considerations for Justice Peter Hall seemed to be Evans' failure to clarify that Coco Roco was two restaurants on one site, which had the effect of tarring both with the same brush, and the fact the review remained accessible online, thereby exacerbating the damage.

Many would argue that if a review puts a restaurant out of business, reviewer and publisher have a lot to answer for. But restaurants come and mostly go; that's the nature of the industry.

Besides, how do you establish that the review caused the restaurant to fail? Maybe the restaurant was just in the wrong place at the wrong time. Maybe the reviewer was right and it was over-hyped, over-priced and underwhelming.

And if newspapers are going to be held financially liable for the consequences of negative reviews, shouldn't they be entitled to a share of the profits when restaurants thrive thanks to glowing reviews?

The fact that restaurants are commercial enterprises is neither here nor there. It costs much more to make a Hollywood blockbuster or develop a new car than open a restaurant; does that mean reviewers have to pretend Will Smith's next $200 million folly isn't a turkey, or Jeremy Clarkson mustn't be rude about Asian cars?

Justice Hall made much of the plaintiff's hurt feelings, but if defamation law exists to prevent someone, somewhere having their feelings hurt, reviewing as we know it faces a grim future.

Restaurateurs have probably welcomed this judgment, but they should be careful what they wish for.

They and their industry have done very well out of foodie culture which was created and is largely sustained by the media. Media coverage has made chefs into best-selling authors, TV stars and, in some cases, brands.

And who will be the winners and losers if unflinching criticism comes to be seen as unacceptably risky?

A.A. Gill is to restaurant reviewers what Clarkson is to motoring writers. Writing about a New York Chinese nouveau restaurant he asked, "Off the top of your head, what two attributes should hot and sour soup have? Take your time. It was neither. The memory of the rest has been elided into one long, bland, watery compost that could barely incite flatulence."

As Gill pointed out in the Sunday Times in 2007 when the Australian High Court first ruled Evans' review was defamatory, "the people who will suffer aren't critics - we'll just write about something else - but good restaurants: there will be no way to differentiate them from all the rest".