NEWS: Restaurant critic sued by restaurant for defamation

[Jenise]

Here's a discouraging news item: an Australian high court has decided that a restaurant can sue a restaurant critic for defamation and financial damages after publication of a less-than-raving review.

Here's a link to the full article.

http://www.smh.com.au/news/national/curtain-lowered-on-age-of-fearless-food-critic/2007/06/14/1181414469662.html

I read that article as well. This is very chilling for any critic. Are critics going to need a lawyer to clear their reviews?!?!

In the US, unlikely. Europe and Australia are MUCH more restrictive about free speech than here; remember the Robert Parker lawsuit in Burgundy?

Of course, we have our own problem- the use of the legal system by lawyers, the rich, and the connected to silence opponents due to the sheer cost of defending against a suit with less than a microcrumb of merit. If the restaurant I were criticizing was owned by Peter Angelos or John Edwards, I'd sure think twice about panning it in print. They might not be able to prevail in court, but with their resources and track record, they'd have an ability to run a normal person or a small newspaper out of money long before a trial ever begins.

They might not be able to prevail in court, but with their resources and track record, they'd have an ability to run a normal person or a small newspaper out of money long before a trial ever begins.

What? You mean we don't have a justice system here in America?

No, we have a legal system. As poorly as a legal system works, I'd hate even more to have a justice system, where crime and punishment are purely a matter of the arbitrary whim of some superannuated lawyer.

Yah, yah, I know, you were joking. But I'm feeling cranky today and you're the closest target named Randy.

But I'm feeling cranky today and you're the closest target

Fire tubes one and two and then come about...

[James Roscoe]

But I'm feeling cranky today and you're the closest target

Fire tubes one and two and then come about...

Fire depth charges!

It's worth mentioning, Jenise, that this case is a bit of an oddity from a procedural perspective.

The case was brought pursuant to section 7A of the Defamation Act 1974 (New South Wales), in which the plaintiff puts on his best case, but the defense can't put in any facts -- for example, the critic hasn't yet been able to argue that his criticism was "fair comment" and thus protected speech.

This way of proceeding was repealed by the Defamation Act 2005 in New South Wales.

We have similar ways of deciding whether a case can proceed under the laws of most, if not all US states, and certainly under Federal law.

This Australian case has a long way to go.

[James Roscoe]

Why do they waste all this time Bob? It seems that the interests of judicial efficiency are not being served. Is it just this case?

Thanks for your research by the way. It puts the entire issue in a new light.

This is OF, thinking, James, but here's the basic idea.

It's very difficult and expensive to try factual cases. And, one or two factual variations can make an enormous difference in the result.

If you can determine beforehand that there is no case AS A LEGAL MATTER you don't have to litigate the factual issues; in the long run that will save time and money and judicial effort.

The test simply stated is this: assume EVERYTHING the plaintiff claims is true: can he or she win? If the answer is no, the case is over. If the answer is maybe, the case will go forward, and the defendant can put in a defense.

[Of course, like all procedural matters, this one can be abused; a defendant may throw a summary judgment motion at plaintiff, even though defendant has very little chance of winning -- the defendant's attorney may be running the clock or the defendant may be grinding down the plaintiff. A great judge will find a way to protect the plaintiff in those cases -- through Rule Eleven in the Federal system for example.]

The appellant court decided that under Australian [read New South Wales here] a judge should decide whether the action can go forward. Not a jury. The dissent is very clear; he believes the jury is better able to decide that issue than a judge is. But most of the appellate judges disagreed.

Regards, Bob

[James Roscoe]

So it seems to me that this may be something of an odd-ball case because it is being decided on a procedural issue? Now do they get to the regular trial at which they decide if any defamation took place?

Yes.

As I understand New South Wales law, James. I've worked on cases in Australia -- including a major trade libel case, but I'm not competent to give you a reliable answer.

But yes.

Regards, Bob

The chilling thing is that the courts even let this type of suit see the light of day, Bob.

As a free speech freak, I agree, Randy. There is a chilling effect just because the complaint will be heard.

But, as Stuart rightly points out, New South Wales law is different than ours -- and different than what I would like it to be even here.

Regards, Bob

[James Roscoe]

Of course the question is where is the line drawn? When does criticism become libel? I guess I don't have so much a problem with the suit as to what is the standard of proof. Did the critic intentionally libel the restaurant in an effort to hurt the business? At that point I think the owner might have a case. That would require some pretty hefty proof and most cases wouldn't see the light of day. I don't knowknow what the standard of proof is in the US or any of the 50 states, let alone NSW in Australia.

When does criticism become libel?

That depends on jurisdiction. From my understanding, in some places, truth isn't a defense, if what you say causes damage, you're on the hook.

Here in the US, you're just on the hook for enough legal charges to get to where you can try for the sort of summary judgment that Bob mentions- a deep-pockets plaintiff can really run you flat before it can be definitively determined that there's no argument over facts. A few depositions on faraway turf can run you 5 figures easy. You can win, but only in the sense that the piles of money you lose aren't handed to the plaintiff, they're handed to your lawyer.

The Australian critic ought to be glad he doesn't run a dry cleaning store in America!

[James Roscoe]

The Australian critic ought to be glad he doesn't run a dry cleaning store in America!

Only in DC!

It's worth mentioning, Jenise, that this case is a bit of an oddity from a procedural perspective.

The newspaper article seems to me to be a bit misleading. As Bob Ross points out, the High Court did not decide the case. It upheld the lower appeals court's overturn of the jury's decision in the first stage of the trial. It now proceeds to the second stage, where the defense can argue its case. So this is far from over.

-Paul W.

The chilling thing is that the courts even let this type of suit see the light of day, Bob.

Well you have to be careful about tossing out cases - you can't do it without at least a summary hearing - every dog has his day (in court) you know. Here in BC, we do have a procedure to deal with all the people that want to (repeatedly) sue God, the Prime Minister and everyone else in sight with no hope of winning the suit. The Supreme Court can make an order that the person may not commence any further actions without leave of the Court, but they don't do that lightly, and only after at least 2 or 3 time wasting actions show the person's propensity for frivolous litigation.

I don't do defamation law. I do deter clients when I get the chance as I feel that in 99% of the cases the only winner will be the lawyers. When I hear a client tell me those magic words "Money isn't an issue, I just want to clear my good name" I ask them to write me a cheque for $50,000 so I can hire them a real hotshot defamation lawyer, and that I'll get back to them when I need more money.

I've only needed to do that a couple of times and in both cases it quickly turned out that money was indeed an issue - they just hadn't realized it until someone asked them to pony up a big retainer.

The chilling thing is that the courts even let this type of suit see the light of day, Bob.

Well you have to be careful about tossing out cases - you can't do it without at least a summary hearing - every dog has his day (in court) you know. Here in BC, we do have a procedure to deal with all the people that want to (repeatedly) sue God, the Prime Minister and everyone else in sight with no hope of winning the suit. The Supreme Court can make an order that the person may not commence any further actions without leave of the Court, but they don't do that lightly, and only after at least 2 or 3 time wasting actions show the person's propensity for frivolous litigation.

Everyone should have the right to petition the courts of law at any time, and for any reason.

The courts, in turn, should have the right to say, "you have frivolously wasted our time on a matter that has no need to be brought here. We therefore bill you for the expense you've needlessly cost the taxpayers, and also we demand that you compensate the other party for the expenses they've been to in defending themselves against this action that should never have been brought in the first place."

In college I took a course in Law and Social Values, taught by an experienced trial lawyer. He said a good trial lawyer tries his best to keep cases out of court, and to get an agreed-on settlement. If for no other reason than that courts can be capricious, and they have the power to deprive the litigants of liberty and property, should they so choose. That a case comes to trial means that a lawyer has failed in his primary task.

-Paul W.


-Paul W.

The courts, in turn, should have the right to say, "you have frivolously wasted our time on a matter that has no need to be brought here. We therefore bill you for the expense you've needlessly cost the taxpayers, and also we demand that you compensate the other party for the expenses they've been to in defending themselves against this action that should never have been brought in the first place."

-Paul W.


-Paul W.

Isn't it done this way in Britain?

The courts, in turn, should have the right to say, "you have frivolously wasted our time on a matter that has no need to be brought here. We therefore bill you for the expense you've needlessly cost the taxpayers, and also we demand that you compensate the other party for the expenses they've been to in defending themselves against this action that should never have been brought in the first place."

-Paul W.

Isn't it done this way in Britain?

Yes. In the US, the defendant in a suit that's dismissed as being of no merit can petition the court to be awarded legal costs, but it's less commonly done than in Britain.

-Paul W.

Yes. In the US, the defendant in a suit that's dismissed as being of no merit can petition the court to be awarded legal costs, but it's less commonly done than in Britain.

It is done as a matter of course in Canada - I just had one where the losing party paid the winners' court costs, in this case $32,500

The problem comes when an indigent plaintiff (somehow a high percentage of the nut cases that start actions that are frivolous turn out to be indigent) starts up an action. The Rules of Court allow one to apply for security for costs, in other words an order that the plaintiff not be allowed to proceed until they post some sort of bond ensuring that if they lose they will be able to pay costs.

If the plaintiff is a regular person like you or me, the order will go as a matter of course if the applicant can show that there is any doubt that costs will be paid. In the case of the indigent nut case, however, judges often bend over backwards to allow the case to proceed as to do otherwise would in effect prevent the plaintiff from receiving theoretical justice, just because he is poor and that is perceived as a BAD THING, at least by the newspapers (I admit that I have qualms as well - there are some people with quite valid claims that would be prevented from pursuing them if they were ordered to pay security for costs).

The net effect is that the nut case usually gets one or two kicks at the can before it is apparent that he is not a serious litigant - that's when you need the order to prevent any further cases being started without a judge vetting them first.

I view litigation as a singularly poor pastime and would recommend just about any other form of amusement, but that's just me - some people seem to thrive on it.