How one restaurant has set the record straight
A libel verdict in the Northern Ireland High Court earlier this month may help to give reviewers pause for thought and affronted restaurateurs greater confidence in setting the record straight. In August 2000, Goodfellas Italian restaurant in west Belfast was reviewed by the Irish News' food critic, Caroline Workman, who awarded a final verdict of one star out of five to the eatery. Workman also delivered a damning assessment of the restaurant's food, atmosphere and service.
Goodfellas owner Ciaran Convery decided to fight back and sued the Irish News for libel.
The case came up for trial this month and the jury awarded Convery £25,000 in damages.
The media reaction suggests that reviewers find it harder to take adverse criticism than to dish it out. There has been talk of the end of restaurant reviews and a blow having been struck against freedom of expression.
So let's take a look at the facts: Restaurateurs can bring a claim for defamation if something is published about them which lowers them in the estimation of right-thinking members of society generally.
A scathing restaurant review will certainly do that. A company has a trading character which can be defamed. It can bring an action for libel for words calculated to injure its reputation in the way of its business and it is not generally necessary to prove financial loss (hence Goodfellas still being open).
A restaurateur considering legal action against a review needs to consider what defences the publication or critic being sued might be able to raise to defend such a claim.
The most fundamental defence is justification; in other words, that the words complained of are true. The burden is on the defamer to prove his or her case.
However, in the case of a claim brought over a review, a publication is most likely to rely on the defence of fair comment. Provided the review is recognisable as opinion (rather than factual assertion), is written about a matter of public interest and is honestly based on the true factual background the defence will apply. It can only then be defeated if the claimant can prove that the review was malicious. In defamation, that means showing that it was untrue (or published recklessly without considering whether it was true or not), or published with an ulterior motive.
The jury in the Goodfellas case clearly did not accept Workman's review was true or fair comment. It has not been clear from the coverage of the case what evidence was presented to the court which might have been decisive in persuading the jury to reach the conclusion that it did. The Irish News is now intending to appeal with the backing of the National Union of Journalists.
However, the jury verdict in one Northern Ireland action does not set any precedent.
There is no written judgment in a jury trial which can then be followed. The decision of one jury is irrelevant to the considerations of another, differently constituted jury in a later case. Each case turns on its own facts, and this result will have no bearing on the outcome next time a restaurant reviewer is sued by an outraged restaurant owner.
Potentially litigious restaurant owners should also note that it took some seven years for the Goodfellas case to reach trial.
That translates into a lot of cost, worry and time for the restaurant's owner before he reached his successful outcome.
The media can probably rest assured that the floodgates will not be opened by this one decision. Instead, it should simply be taken as a healthy reminder to critics that they are constrained by legal boundaries and that occasionally, their articles can have consequences for them as well as for the restaurants they review.
Considering making a defamation claim?
Do's: Act swiftly.
- There is a one-year limitation period from the date of publication in England and Wales (three years in Scotland) for issuing defamation proceedings at court.
- Obtain early specialist legal advice on the merits and prospects of the success of your claim. Libel actions are expensive and you should not start what you are not prepared to finish.
- If you lose or discontinue your case, then you will end up paying both your costs and your opponent's costs.
- Follow the preaction protocol. This requires the parties to outline the claim and the defence in correspondence before proceedings are issued. One can review one's position before embarking on court action.
Don'ts: Underestimate the time, cost and worry of pursuing a court action to trial.
- Forget that media defendants are generally experienced, well-resourced and well-advised litigants. The fact of libel proceedings will not frighten them, but a claim with good merits will.
- Overlook the advantages of a negotiated or a mediated settlement.
- One can negotiate a published apology, but one can only sue for damages, an injunction and costs.