A recently concluded Australian case is a useful reminder for food reviewers not to fudge the facts or overcook the goose.

The case of Gacic v Fairfax began with a Serbian trio—as all good stories begin—who, in September 2003, opened Coco Roco, an A$3m two-in-one restaurant complex on Sydney’s waterfront.  The upstairs restaurant, Coco, served $50 main courses; Roco, downstairs, was more moderately priced.

The restaurant enjoyed initial success but, following a review by The Sydney Morning Herald’s chief restaurant reviewer, Matthew Evans—who visited upstairs Coco twice within a week—Coco Roco’s doors closed within 6 months.

The Serbian trio blamed Evans’ review for Coco Roco’s failure, suing him and the newspaper for defamation.

The review was clearly scathing, some memorable tidbits including: “flavours jangle like a car crash”; “it brings to mind the porcine equal of a parched Weetbix”; “jangles the mouth like a gamelon concert”; and “more than half the dishes I’ve tried at Coco Roco are simply unpalatable”.  (The full review is available here, though the original headline “Crash and Burn” has been removed.)

The plaintiffs contended that the review was understood by readers to mean, in its natural and ordinary meaning, that they:

• sold unpalatable food at Coco Roco;

• provided some bad service at Coco Roco; and

• incompetent as restaurant owners because they employed a chef at Coco Roco who made poor quality food.

Evans defended his review on the basis of truth and honest opinion.

However, while the review itself was rather caustic, the case actually turned on a fine point – whether Evans’ criticisms of Coco could fairly extend to Roco, the lower-priced downstairs restaurant at which Evans did not eat.  The plaintiffs argued that if the review was understood by readers to refer to both restaurants, the defences were crippled – i.e. Evans could not honestly express negative opinions about Roco if he never ate there.

The New South Wales Supreme Court (equivalent to New Zealand’s High Court) held that no distinction could be drawn between Coco upstairs, and Roco downstairs; that criticisms of Coco could also fairly be made of Roco.  The Judge stated:

Coco and Roco were no more individual, separate and distinct restaurants than the fifth and sixth floors of David Jones Market Street store are two individual, separate and distinct department stores.  A hypothetical review based upon the quality of the service on the fifth floor of that David Jones store would not fail to qualify as an opinion about the service at that David Jones store in general simply because it was written by someone who had not shopped, and so could not speak about the service, on the sixth floor.

The Judge stressed factors pointing to Coco and Roco being a single restaurant as including: their common wine menu, single executive chef, and promotional material depicting them as a single restaurant with flexible dining options.

However, the New South Wales Court of Appeal overturned the judgment, although on a technical point.  The appellate judges held that, because the plaintiffs had sued upon ‘natural and ordinary’ meanings and not ‘innuendo’ meanings, the trial judge had improperly considered extrinsic material—evidence outside the words complained of—to conclude that Coco Roco should ultimately be considered a single restaurant.

The Court of Appeal’s basis for overturning the decision, then, was that the review itself did not make a sufficient distinction between Coco and Roco, which meant that ordinary readers would have viewed Evans’s criticism of Coco as pertaining also to Roco.

The Court of Appeal, having overturned the judgment, sent the case back to the Supreme Court for assessment of damages.  In a judgment dated 6 June 2014, the Supreme Court assessed damages payable to the plaintiffs at a tick over A$620,000.  The judge also slapped the defendants with partial indemnity costs as punishment for unreasonably failing to make a settlement offer.

For John Fairfax Publications, dining at Coco Roco proved an expensive meal, indeed.

Comment

In this case, Evans did not himself write the headline “Crash and Burn”, yet he was penalised for its inclusion: the heading formed part of the context in which the words were to be assessed by readers.  This case then serves as a good reminder to journalists not to let let sub-editors mess with your copy, or at least ensure that you are happy with any changes before it goes print.  If it goes out under your name, as this case shows you may well be held liable for it.

The lessons from this case may extend to other review-type publications.  If reviewing a play with an alternating cast, ensure your criticisms of, say, Romeo on the Thursday night, do not also impinge on the different actor who plays Romeo on the Friday night.  The same goes for food reviews: Bald statements that “the chef at X is clueless” could unfairly and unnecessarily impinge upon chefs who work at the restaurant on other evenings.  Be sure, then, to include the times and dates to which your review pertains.

But reviewers should be reassured in that it was not the criticisms themselves in this case which led to Evans’s liability, but rather his failure to adequately distinguish between Coco and Roco.  Provided that your criticisms in a review are honestly held, you will have wide scope to present your opinions.  This is because reviews are the essence of honest opinion, and are inherently subjective; a point the law accommodates.

But in Gacic v Fairfax, Evans could not honestly hold negative opinions about Roco’s food and service: he never ate there.