NBC Wants FCC To Force ISPs To Police Their Networks For Copyright Infringement

Australian Court Wipes Out Restaurant Reviewers

from the choose-your-words-carefully dept

Mon, Jun 18th 2007 12:42pm — Carlo Longino

A court in Australia has ruled that a critic's unflattering review of a restaurant in a Sydney newspaper constituted defamation (via The Grinder), and that the critic may now be responsible for damages. Writers in the US are afforded plenty of protection when writing reviews and criticisms since they're stating opinions, and decisions like these in other countries will have a chilling effect on all kinds of legitimate speech -- particularly as more and more people use the web to become critics. This isn't to say that no sort of speech should be regarded as defamation, or to say that operating under the guise of being a critic should give people free reign to commit libel or engage in other defamatory speech. However, most definitions of defamation hinge upon false claims being made, and opinions can't really be false. Given this decision, it's hard to see how any Australian writer, newspaper, web site or other outlet would publish any sort of review that's negative at all -- and it's similarly hard to see how that's in the public interest at all.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

27 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 18 Jun 2007 @ 12:15pm

Ben Affleck and J-Lo could make a fortune in defamation suits for "Gigli"...
[ link to this | view in chronology ]
Anonymous Coward, 18 Jun 2007 @ 1:13pm

Not all countries support truth being a defense against defamation.

From Wikipedia:

In some systems, however, notably the Philippines and the Canadian province of Quebec, truth alone is not a defense.[3] It is also necessary in these cases to show that there is a well-founded public interest in the specific information being widely known, and this may be the case even for public figures.

From this leads the question as to whether this is the case in Australia or not.

From the article it doesn't appear that truth or non-truth was the deciding factor in this case. It seems that it was an issue only because it "harmed" the businesses reputation.

Since it appears that the statement involved was an opinion (FTA "more than half the dishes I've tried at Coco Roco are simply unpalatable") it'll be interesting to see how this carries out onto other reviews such as movies. Considering the fact that more countries are trying to "extend" their borders by suing people in other countries because of something posted on the internet I'm wondering how long it will be before an Australian company sues someone from outside Australia because a poor review or comment is available through the internet.
[ link to this | view in chronology ]
- GoblinJuice, 18 Jun 2007 @ 1:31pm
  
  Re:
  Truth isn't a defense? o_O My head hurts.
  [ link to this | view in chronology ]
- AussieGeoff, 19 Jun 2007 @ 10:30am
  
  Re: Not all countries support truth being a defens
  It is a bit more complicated than that. It depends on which State you are considering as to whether the Truth is a complete defence or a partial defence.
  
  In New South Wales (I assume the case was there because of the "Sydney Restaurant") the truth is only a partial defence - reduces damages. You need to show that it was the "Truth" and "It is in the public's interest to know" to have a complete defence.
  [ link to this | view in chronology ]
Anonymous Coward, 18 Jun 2007 @ 1:14pm

(Darn, hit the wrong button)

Not all countries support truth being a defense against defamation.

From Wikipedia:

In some systems, however, notably the Philippines and the Canadian province of Quebec, truth alone is not a defense.[3] It is also necessary in these cases to show that there is a well-founded public interest in the specific information being widely known, and this may be the case even for public figures.

From this leads the question as to whether this is the case in Australia or not.

From the article it doesn't appear that truth or non-truth was the deciding factor in this case. It seems that it was an issue only because it "harmed" the businesses reputation.

Since it appears that the statement involved was an opinion (FTA "more than half the dishes I've tried at Coco Roco are simply unpalatable") it'll be interesting to see how this carries out onto other reviews such as movies. Considering the fact that more countries are trying to "extend" their borders by suing people in other countries because of something posted on the internet I'm wondering how long it will be before an Australian company sues someone from outside Australia because a poor review or comment is available through the internet.
[ link to this | view in chronology ]
jon, 18 Jun 2007 @ 1:25pm

If the paper is liable for the damages how will those be calculated? Now that this story is plastered on the web it is far more damaging, but those damages aren't solely based on the review, because now they also look like a bad restaurant that bullies reviewers which was the restaurant's choice.
[ link to this | view in chronology ]
Jim, 18 Jun 2007 @ 1:33pm

This is a surprise?
What do you expect from a country that took all guns away from its citizens. Freedom of speech is next and finally all other personal freedoms until they either become a complete Socialist/Communist dictatorship or the populace rebels.

Oh, wait - never mind they already took away all their guns.
[ link to this | view in chronology ]
- xANIUS, 18 Jun 2007 @ 3:18pm
  
  Re: This is a surprise?
  Taking the guns from the public wouldn't stop a rebellion. There's always the illegal gun trade if they truly want to rebel, and there's always out side aide, if another countries government thinks it's in their best interest to support the rebellion there'd be guns, rockets, tanks and anything else they could possibly need.
  [ link to this | view in chronology ]
- Raymond, 18 Jun 2007 @ 6:27pm
  
  Re: This is a surprise?
  No, Jim. We took away hand guns. We still have some big guns. They are heavily regulated and licensed. Think about this: what do you need a gun *for*? I have a few friends with guns. They are a hobby but there isn't really a need for them.
  
  I know 3 people who have guns. How many do you know? Do you feel safer knowing that any random person you look at might have a gun and could shoot you just for looking at you funny?
  [ link to this | view in chronology ]
  - Charles Griswold, 18 Jun 2007 @ 9:42pm
    
    Re: Re: This is a surprise?
    Do you feel safer knowing that any random person you look at might have a gun and could shoot you just for looking at you funny?
    The sort of person who would shoot someone for a funny look isn't likely to respect anti-gun laws. Having stable, law-abiding citizens carrying firearms does, in fact, make me feel safer.
    [ link to this | view in chronology ]
- Fred, 19 Jun 2007 @ 6:34am
  
  Re: This is a surprise?
  You would have to be one of those snivel libertarians, nitwits.
  [ link to this | view in chronology ]
- Ody, 22 Nov 2007 @ 3:07pm
  
  Re: This is a surprise?
  Hey Jim, look a little closer.
  
  There are no guarantees of freedom of speech, freedom of association, or any other rights Americans are accustomed to being protected by the Constitution in Austraonlia.
  None.
  
  The Australian Constitution is like the original Articles of Confederation the US disposed of over 200 years ago.
  
  Australians not only can't fight back, but they have no grounds to fight with legally. Australians assume they have these rights. They don't.
  The government doesn't educate the population that these rights aren't guaranteed. It's just not part of the curriculum...
  
  There have been a couple of notable shams perpetrated on Australians about rights, too. Last year, the (aussie) state of Victoria passed a 'Charter of Rights' which supposedly guaranteed basic civil rights.
  But the law explicitly was not enforceable by the courts and police. (What is the point of a law then??)
  If ... some Australian believes some act of the (only within the state of Victoria) government breaches this law, they can take the case to the Australian Supreme Court. Minimum cost: $100,000 aud.
  If ... they win the case, the federal court can advise the Victorian Parliament of their decision. -- No one in Victoria is required to do anything about it but place it in the circular file.
  
  Oh, you might say, what about international law and agreements signed with the UN?
  Australian law does not require that the Australian government honor the provisions of any treaty, agreement, or accord within the borders of Australia. The aussies, who are constantly demanding other countries protect the civil and human rights of their citizens outside Australia, are not required to protect the civil and human rights of anyone inside Australia! Nothing like a little national hypocrisy, eh?
  [ link to this | view in chronology ]
Sanguine Dream, 18 Jun 2007 @ 2:03pm

Huh?
It would seem the litigation happy mentality of America is spreading. Its all about control. Businesses have decided that the best way for them to stay in business and continue making money is to basically force consumers to blindly buy their product/service, limit what they can do with said product/service, and gag them from speaking in any tone that could be even remotely negative. And once they have people locked it they can treat customers as badly as they want as long as the customer still pays them. The days of customer service being top priority are long gone. The top priority is to make as much profit as possible regardless of how immoral or illegal your tactics may be.

Or it could be like elementary school where all these businessmen/women's egs (and wallets) are so fragile that they have to sue over every comment they don't like because it may hurt their bottom line.

Even this is in a foreign (to me at least) nation I thought in order to prove deformation you had to prove the offending party knowingly said false information. I don't understand how a critic's review can be deformative. If your food sucks then dammit learn how to cook or go home. Looks like this is just a case of a restaraunt crying foul because they got a bad score.
[ link to this | view in chronology ]
- Simon, 18 Jun 2007 @ 3:49pm
  
  Re: Huh?
  Dreamer awaken!!! At least learn to copy other people's words accurately - defAmation, not defORmation.
  [ link to this | view in chronology ]
Anonymous Coward, 18 Jun 2007 @ 2:45pm

Or simply, and quite possibly, this one review was biased and/or the critic and restrateur did not sit well together, etc, etc.. But who really cares, as the real critic is the guy who actually eats there.
[ link to this | view in chronology ]
Simon, 18 Jun 2007 @ 3:43pm

Keep It Simple
If the restaurants in Australia want to play that way, critics can fight back. Go to the restaurant. If you don't like it, the review reads - "Went to ABC Restaurant last night." If the readers have any brains, they'll figure out that omitted topics = bad experience. Comments on decor, service & prices, but not on food quality says it all.
[ link to this | view in chronology ]
thinlizzy151, 18 Jun 2007 @ 4:01pm

What are these people smoking down under?
How can people tolerate this kind of bullying behavior on the part of restaurants, or any other kind of business? The best way to straighten these jokers out would be for people to boycott this eatery and hit them where it hurts. Hopefully people there will decide to teach these bums a lesson.
[ link to this | view in chronology ]
An Aussie, 18 Jun 2007 @ 4:32pm

Re: This is a surprise?
Jim, if guns are a measure of a willingness to stand up to restrictions in freedom of speech, why hasn't there been a rebellion in the US?

I'm worried about the direction of the government over here, but terrified of the government over there...
[ link to this | view in chronology ]
Kim Weatherall, 18 Jun 2007 @ 4:36pm

No, you misunderstand Australian defamation law
You misunderstand how the (admittedly very complex) court procedures in defamation cases work in Australia.

The High Court in Gacic has held that saying the food of a particular restaurant is 'simply unpalatable' is a defamatory statement. (More specifically, the High Court has upheld an appeal from a finding of a jury that the claims were not defamatory). BUT defences have not yet been considered.

What that means is that the High Court has held that the matter has to go to the next stage of litigation, in which defences will be considered. There ARE defences in Australian defamation law, eg for fair comment. The newspaper may not be liable in the end. We won't know until that part of the case is heard.

For more information, I suggest this post: it has lots of links too.
[ link to this | view in chronology ]
- Paul, 22 Nov 2007 @ 3:12pm
  
  Re: No, you misunderstand Australian defamation la
  So the court simply passes the case on - at increasingly phenomenal costs to the litigants - to the next level of the court system.
  What is the purpose of this court in the first place?
  If truth is not a defense that the court can rule on, and the right to express an opinion is not protected, what sort of justice is offered?
  The phrase 'Kangaroo Court' is looming. One of the common aspects of a kangaroo court system is the churning of litigants to milk more money from them.
  Where is the bribery window on that courthouse? Maybe there is some sort of schedule? A ticket or fine, perhaps?
  [ link to this | view in chronology ]
mkvf, 18 Jun 2007 @ 5:12pm

What's more worrying than this innocuous court decision is the rapidity and lack of thought with which it's being presented here as some big issue. How many of the posters above noticed that both the court report, and the defamatory article, were published by the same company - in the same paper, in fact? Or that the court only ruled that two out of four statements are defamatory, and that the case is going back to a jury trial to consider the other statements, and arguments for the defence? There's a copy of the full ruling here. I found that on this forum thread, incidentally the sixth or seventh result on a Google search for 'NSW Court of Appeal restaurant critic', and one of the first ones that isn't clearly published by the defendant. There's also a good explanation of the Australian approach to defamation in that thread, about eight posts down, that says
I think that it is clear that Mr. Evans's review was defamatory, as are many negative reviews, whether of restaurants, wineries, theatre, film, art shows or novels. If bad reviews rarely result in lawsuits, it is partly because they are sometimes artfully worded, but also because whether a review is defamatory is far from the end of the matter. There are important defences, such as truth and fair comment. As two of the judges put it, at paragraph 13 of the decision:
"It may be difficult for jurors to appreciate that, in defamation practice, a decision that a publication is defamatory is not the end of the debate about liability; that often it is just the beginning. ... there may well be jurors who think that a decision that a publication conveys a defamatory imputation is tantamount to a decision that the defendant has committed an actionable wrong."
The next steps are that the newspaper and the critic will file a statement of defence and a judge will hold a hearing to decide whether the defences are valid. My personal view is that at that stage of the process, the owners of Coco Roco will have to prove that Mr. Evans was either grossly negligent or maliciously out to get the restaurant or the owners. If they can prove that, and there is not at the moment a shred of evidence that would support such assertions, the owners will win, and deservedly so. Short of that, I think that they will lose"
So, we've got a blogpost from a biased source. Neither the orginal poster or any of the commenters here made the single google search necessary to check the source, or find the original ruling, or find any other analysis. When you do, you see the story is pretty misleading. All the court has said is "Two of the statements would damage the restaurants reputation". The publisher and journalist can stil argue they were fair comment, or make other defences. Great to see the blogging community living up to its reputation for well-thought out, evidence-backed, debate.
[ link to this | view in chronology ]
- Anonymous Coward, 18 Jun 2007 @ 7:36pm
  
  Re:
  So, we've got a blogpost from a biased source. Neither the orginal poster or any of the commenters here made the single google search necessary to check the source, or find the original ruling, or find any other analysis. When you do, you see the story is pretty misleading. All the court has said is "Two of the statements would damage the restaurants reputation". The publisher and journalist can stil argue they were fair comment, or make other defences. Great to see the blogging community living up to its reputation for well-thought out, evidence-backed, debate.
  But Australian Court Wipes Out Restaurant Reviewers is so much more fun than Australian Court Makes Sane, Obvious, Unimportant Call: Defamation is Still Defamatory. More news at eleven. This is the nature of commercial "journalism". Its purpose is to the draw the eye into the ad-laden proximity of the article. Not to convey truth! It continues to disturb and appall me that many people have their minds constantly open to sources so obviously pushing hyperbole rather than content.
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 Jun 2007 @ 6:21am
    
    Re: Re:
    Ratings. That's what its all about. Decades ago the top priority of the news was tell the story. Now the top priority of the new is to get ratings for its network just like the lineup of tv shows it carries.
    [ link to this | view in chronology ]
Tony, 18 Jun 2007 @ 11:06pm

Jim got it right
Jim definitely hit the nail on the head. Australians have been losing their rights every few days. Take away the guns, take away the right to a lawyer, take away any right to free speech. The list goes on australia is no longer the free country its the most regulated country in the world.

I think the old say the rights of the community should never over ride the rights of the individual.
[ link to this | view in chronology ]
- Rob from Oz, 19 Jun 2007 @ 7:04am
  
  Re: Jim got it right - almost
  Australians are losing their rights - but they are being taken away by a conservative government. So we won't be a socialist dicatorship - instead, we'll be a fascist dicatorship. (and BTW, the trains don't run on time.) It is, however, offtopic from the issue of the review.
  [ link to this | view in chronology ]
  - Ody, 22 Nov 2007 @ 3:23pm
    
    Re: Re: Jim got it right - almost
    Take another look. The aussies never had the rights in the first place.
    Those rights are strictly arbitrary, depending on the political whims or the mood of the authorities on any given day.
    
    Yes, at times the truth is defamatory.
    Yes, any person should have the right to state their opinion.
    In Australia, truth is inconsequential. (The popular phrase is: "A fish rots from the head.") PM John Howard is one of the most talented and skilled liars the world has ever seen - a real standout in Australia even.
    
    "Honest John" would be better described as "Fishhead John". What the PM doesn't lie about, he just omits.
    Little children must have a hard time with this sort of role model. Or don't mothers teach children about lies of omission and commission any more? It's gotta be hard to make the lesson stick in Australia.
    
    The reality of government in Australia is government is a for-profit enterprise.
    [ link to this | view in chronology ]
darkbhudda, 18 Jun 2007 @ 11:16pm

Do you feel safer knowing that any random person you look at might have a gun and could shoot you just for looking at you funny?

Because that person stabbing you 180 times with a pair of scissors is so much better.
[ link to this | view in chronology ]