About Me
I'm a Melbourne boy, hailing from St Kilda with one ex, one current wife and four kids. Love the outdoors and making new discoveries. I cook a lot at home (cheers from wife) and do some preserving, mostly jams, pickles and fruit liqueurs. This is the diary of a cooking journey.

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Saturday, October 14, 2006
Be Careful, Everyone's Watching
Amid all the controversy of Stephen Downes ejection from Fifteen, the new Jamie Oliver restaurant in Melbourne, another news item seems to have been largely ignored.

The Age yesterday reported that a Louisiana woman in America was ordered to pay $US11 million to the woman she accused on an internet forum of being a "con artist" and a "fraud". It would seem that blogging carries the same legal risk as traditional media. Dr David Rolph, a defamation law lecturer in Sydney is quoted as saying, "Bloggers do need to take care because liability can attach to what you write", though in Australia damages are capped at $250,000 with no punitive damages possible.

This lawsuit is not an isolated example either, with several other actions before the courts. All bloggers should be cognizant of this when writing and food bloggers are no exception. There are plenty doing restaurant reviews and such like and it would be a terrible thing to be hauled off before the courts with consequences that could ruin your life, for doing something that is a pleasurable hobby. Don't think 'only in America' either, I know of one wine reviewing blog here in Australia that was threatened with legal action after he reviewed a wine he simply thought terrible and said so.

The one piece of advice I can give you is - if in doubt, leave it out.
  posted at 2:53 pm

At 9:34 pm, Blogger pentacular said...

Neil, I was going to leave a post here, but after your comment I thought I had better think twice about it. Hmmmmm.

At 10:08 pm, Blogger Haalo said...

I think what's really interesting is that if you use "vulgar abuse" ala Penn and Teller and their BS show, you can't be sued for liable because using vulgar terms like a*hole is an opinion whereas con artist isn't. I can see people's writing becoming a lot more colourful.

At 12:57 am, Anonymous Anonymous said...

I'm right next door to Louisiana and hadn't heard about that, yet. Free speech does have its limits I suppose.

At 9:31 am, Anonymous Ellie said...

Dear me. Haalo's response was interesting (I love Penn & Teller but can't recall seeing that) and this is a strange topic. I think I recall seeing an article in the age a few weeks ago about the dangers of the reviewing world here in Australia, with a number of reviewers having been taken to court over their reviews.

I can understand that restaurants see negative reviews as loss of income, but frankly, if their food is bad enough to warrant a bad review, then I think they should either swallow the criticism and make their food better, or just ignore their critics and continue doing things craptacularly.

And there's my two cents ;)

At 3:58 pm, Blogger neil said...

Hi pentacular, don't be shy now, I could be making pots of money!

Hi haalo, the law is a strange beast, I imagine there is a very fine line between opinion and statement of fact. Crossing that line unknowingly could ruin your life and for what? It's not like we are professional reviewers who have the backing of a large media organization. No doubt there are shonks who use the law for protection, but there are also good people who might have had a bad night at the wrong time and pay for it through a bad review. I remember Brett from In Praise of Sardines once gave a poor review to a new restaurant and he didn't feel too happy about what he said later on. However I think it is the public's right to know about a restaurant, the trick is to do it fairly.

Hi laurie, your eyes on the other side of the world!

Hi ellie, I think that is what good reviewing is about - letting the restaurant know what people think of them, then it's up to the restaurant to respond or not. But good reviewers have been sued and lost the case. I would hate to see that happen to anyone I know through blogging.

At 6:14 pm, Anonymous kitchen hand said...

Haalo is right in the sense that the writers have to write differently. But abuse will never be the answer. Suggestion, humour, irony and a host of other techniques will see great writing past the legal hacks and still convey the sense of a place adequately to the intelligent reader.

There are not enough good writers.

One of the reasons Downes is one of the few critics to be banned is that he's a very good writer. He's not often sued and the restaurateur knows he has to strike first.

At 7:40 am, Blogger Reb said...

A few points on what is a really interesting topic. First, on Jan 1 this year the defamation laws were made uniform across Aus. Previously in NSW the ONLY defence against defamation was that the comment was in the public interest. (Truth was not a defence. Now it is, hence the legals will go over reviews to make sure 'in my opinion' or something like it is included in a review. It's a true opinion as opposed to a fact.) Consequently the public interest defence was hard to prove in cases of restaurant review, which is why the famous Leo Schofield case is still discussed, as are the many cases against Matthew Evans from the SMH. His case v Coco Rocco resulted in a win for Fairfax and a few weeks ago the decision was overturned on appeal ordering damages to be paid by Fairfax. But that's under the old laws. Second, traditionally people only sue someone who has money so you can get a damages award (hence, for example, you get lots of doctors being sued but rarely nurses). That leads to 'threats' against people but in reality an expensive legal proceeding against someone who has no chance of paying damamges is vexatious at best. Ironically that means that only those who work for employers like rich media outlets are the ones who attract most legal attention. Third, what is it with restaurants? Have you ever heard of Margaret Pomerantz being turned away from a cinema? Or being sued by Spielberg? I think that's more than 2 cents worth from me, but you're right Neil - err on the side of caution.

At 9:41 am, Blogger Ed Charles said...

Reb's point is correct. I actually nearly was responsible for a defamation case against The Oz earlier this year and it is true that people pursue newspapers because they have the big money. The exception was the radio host Steve Price (who I also accidentally defamed costing my employer $50,000) who pursued Crikey's Stephen Maine for $50,000. It cost Maine his home but the case also helped build Crikey's readership and the happy ending was that Maine sold the company for $1 million.
However, whatever the theory is the law is essentially a negotiation. Bullying lawyers are meant to intimidate people. personally, I can't wait until I receive some threatening letters/phone calls and publishing the lot.
thisw whole turning critics away from restaurants thing part of this worrying trend generally for companies to try and shut down any comment that doesn't fit their particular version of the truth. No wonder a recent report found that most people don't trust big business. As far as the Fifteen saga goes, it took several phone calls into Friday evening, a "no comment" before the words "transparency", "public interest" and a few other well chosen phrases got a result. Watch this space.

At 2:50 pm, Blogger neil said...

Hi kitchen hand, I think i like your approach. The reason there are not enough good writers is that we are all blogging ;-)

Hi reb, I think this was one time the pollies got it right in making uniform defamation laws, it's so strange that truth wasn't a defence. Nice anology with the movies.

Hi ed, how can you accidently defame Steve Price? It's not possible or he would have to sue every breathing Australian. I was very happy for Stephen Maine when it all worked out for him. Will be watching with interest.


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