Worst. Journal Article. Ever.

I. It's All in Good Taste

Recently,
Northern Island’s Court of Appeal overturned a jury’s decision to award £25,000
to a pizzeria in Belfast in a defamation suit.[1] In this particular case, Irish News restaurant
critic Caroline Workman wrote a highly critical article of Goodfellas pizzeria,
which resulted in the pizzeria filing a defamation suit against Irish News,[2] While a jury found in favor of Goodfellas,
awarding the pizzeria £25,000, Northern Ireland’s Court of Appeal ordered a
retrial after finding the instructions to the jury were confusing regarding the
distinction between fact and comment.[3]

Cases like this have happened in the
United States and continue to happen today. While the differences between law in the United States and law in
Northern Ireland are multifarious, both nations have been faced with the
complicated legal issue of how to deal with restaurants bringing defamation
suits against their critics. U.S. courts
must delicately balance considerations ranging from the First Amendment to the
legitimate harm defamatory reviews can have on innocent restaurants. This article will examine how United States
courts have dealt with this problem. It
will also weigh both sides of this issue while commenting on the importance of free speech for critics.

II. Food Fight!

A
quick overview of the restaurant industry reveals that it is one of the largest
and most profitable industries in the United States. Current projections estimate that the
restaurant industry in the United States will post sales numbers of $558
billion in 2008 alone.[4] On a typical day in 2008, the restaurant
industry will have roughly $1.5 billion in sales.[5] With roughly 945,000 locations and an
estimated 13.1 million employees,[6] the restaurant industry
is one of the linchpins of the economy. While these numbers are impressive and growth is likely to continue in
this sector, the success of the restaurant industry is not without its
consequences.

Basically, one of the greatest issues facing any
restaurant is competition. Considering the large number of restaurants
across the United States, consumers have a large number of choices at
their
disposal. Different occasions also call
for different restaurants. While a
couple on a date may opt for somewhere with an intimate setting, a
large
birthday party would likely be ill-suited to that setting. Restaurants
vastly differ in terms of
location, price, cuisine, atmosphere, and many other qualities.  For
these reasons, restaurants are constantly in competition with one
another for customers.  With the continuing growth of the restaurant
industry, consumers often resort to gathering information about these
restaurants before making a choice.  Gathering this information can be
costly,
difficult, and, at times, vaguely horrifying. Most consumers would
prefer to avoid restaurants where the food looks
and tastes like vulcanized rubber.  Negative information can really
hurt a restaurant.  On the other hand, positive information casting the
restaurant in a good like can result in more customers and increased
sales for a restaurant. 

Thus,
restaurant critics can serve an important function for consumers by
providing them with this information. Through publications in
newspapers,
magazines, books, television shows, and the internet, these critics are
able to
reach numerous restaurant consumers. Their
reviews can be a serious matter for restaurateurs.  Costs such as rent,
utilities, equipment, wages
and benefits for employees, and many other matters make owning and
managing
restaurants an expensive endeavor.

For example, in late 2006, noted British
chef Gordon Ramsay opened his first restaurant in the United States, Gordon
Ramsay at the London, after investing nearly $7.2 million in it.[7] Prior to the restaurant’s opening in New York
City, there was much consternation over New York Times food critic Frank Bruni’s
eventual write-up of the restaurant prior to its opening.[8] While Gordon Ramsay at the London in New York
City managed to survive Bruni’s eventual review of two stars out of four,[9] this example illustrates the pressure critics can place on the restaurant industry. Because these reviews can have a strong
negative impact on restaurants, some restaurateurs resort to defamation suits
as a solution to this impact.

III. Defamation: The Word Responsible for the
Spread of the Bubonic Plague

Generally
speaking, defamation is defined as the act of one person harming another by
making a false statement to a third person.[10] While this general definition is relevant to
this discussion, defamation cases involving restaurants require a history of
some barriers that they must overcome in a defamation suit. The most practical starting point for this
historical analysis is the celebrated case New
York Times Co. v. Sullivan
. In
tangling with issues relating to whether the First Amendment can apply to
libel, the Court ruled that public officials may not recover damages for defamation
relating to their conduct unless the statement in question was made with “actual
malice”.[11] The court defined “actual malice” as whether
there was knowledge or reckless disregard on the part of the writer regarding
whether the statement in question was false.[12]

While
Sullivan seemed to deal only with
government officials in establishing that standard, the definition of “public
official” covers more than just those who work in government. While the Supreme Court in Gertz v. Robert Welch, Inc. recognized
private individuals are more vulnerable to injury than public officials,
especially considering public officials have larger channels of communication
than private individuals, the Court recognized that many private individuals
attract attention and comment.[13] Following the Supreme Court’s lead, a number
of other courts have recognized restaurants as public figures.[14] Thus, a restaurant bringing a defamation suit
against a critic would have to prove actual malice on the critic’s part.

The
next critical legal hurdle is the distinction between fact and opinion. The Supreme Court in Gertz laid out the foundation for this distinction. The Court determined that, under the First
Amendment, opinions are protected, whereas false statements of fact are not
protected.[15] However, it is worth noting that not all statements
couched as opinions are protected. In a
case where someone states an opinion that appears to be based on knowledge of
facts, such as the statement, “In my opinion, John Jones is a liar,” can have
just as much of a damaging effect as the statement, “John Jones is a liar.”[16]

Given that it can be difficult to
separate fact from opinion, the D.C. Circuit Court in Ollman v. Evans devised a four factor test to clarify this
distinction. These four factors are:
determining whether the statement was precise or indefinite, determining whether
the statement can be considered true or false, evaluating the general context in
which the statement appears, and evaluating the broader social context in which
the statement appears.[17] While the first two statements are
self-explanatory, the second two statements need further explanation. In talking about the general context, the
plurality was discussing an evaluation of the column or article as a whole,
such as determining if it was written in a hyperbolic manner.[18]  As for the broader social context, the
plurality was referring to distinctions that the public is likely to make based
on the circumstances surrounding the statement.[19] For example, while someone standing on a
soapbox criticizing a politician as corrupt may be perceived as spouting her
own opinion, a research monograph which lists the politician as corrupt in
discussing the causes and cures of political corruption is more likely to be as
fact.[20]

There is one final thing worth noting
about defamation actions. Truth is an absolute
defense to a defamation action.[21]  Even a statement which is substantially true,
but has smaller errors in the details, can defeat a defamation claim.[22]

IV. Warning: Handle Litigation with Care

With
these factors laid out, it is clear that restaurants will most likely have a
difficult time effectively asserting a defamation claim. In getting to the heart of whether something can
be construed as fact or opinion, the first barrier facing restaurants is the
fact that taste can be enormously subjective. While some people may delight in eating exotic delicacies such as frogs’
legs, durian, or reindeer, other people may shudder at the very thought of
being in the same room as those foods. In
other words, people have differing opinions of food. These opinions are not actionable under a
defamation claim.[23]

Moreover,
as Mashburn illustrated, a fair
number of restaurant critics resort to hyperbole in expressing their
opinions. Many reviews often use
hyperbole in a humorous fashion.[24] Given that authors use hyperbole and
overstatement in their reviews, it seems extraordinarily unlikely that their
statements can be construed as factual. These
statements might be enormously critical of the restaurant, but someone
describing the food they were served as looking and tasting like vulcanized
rubber is probably not going to be taken literally. Given the context of these reviews,
reasonable readers can understand that these statements are opinions and not
facts.

Restaurants
also face another potential problem in these reviews. If they were to sue a critic for defamation
and it turned out that the statements the critic made were in fact true, that
would be even more destructive to the restaurant than anything the writer may
put in the publication. While truth and
substantial truth can be difficult defenses to prove, given the need for
investigation and evidence-gathering, a restaurant may want to think twice
about filing a defamation suit against a critic who claims he saw a cockroach
in their bathroom.

One
final issue facing restaurateurs in filing these lawsuits is their likelihood
of success is low. As one justice put
it, “[restaurant] reviews, although they may be unkind, are not normally a
breeding ground for successful lawsuits.”[25] Skepticism towards these claims is
understandable, especially given their subjective nature as reviews. While these reviews might be damaging for
restaurants, the fact of the matter is these reviewers are entitled to their
own opinions.

V. Never Let Facts Get in the Way of a Good
Argument

However,
in spite of these issues, restaurants can still use defamation suits to their
advantage. For example, in Terillo v. New York Newsday, a dining
column published the recipe of a dish at a Manhattan restaurant, only it listed
the incorrect ingredients.<[26] The Terillo
court found in favor of the plaintiff on the issue of establishing libel and
actual malice, as the defendants had an actual menu from their restaurant and
printed an inadequate addendum to the article after being informed of their
mistakes.[27] Had the defendants printed an adequate
retraction, this case may have had a different outcome.[28] Despite establishing a prima facie case, the
suit was ultimately dismissed since the plaintiff could not prove monetary damages.[29]

Considering
Terillo was a case that dealt with an
easily verifiable list and a defendant clearly acting recklessly (satisfying
the actual malice standard), its facts might not carry over effectively into
future defamation suits. Why should
restaurants even bother with defamation claims in the first place if they face
all of these barriers? Two reasons can
provide a satisfying explanation for why restaurants continue this practice
today.

The
first reason is a pessimistic one. Restaurants can use lawsuits to bully critics and reviewers into
withdrawing or amending their reviews. While
people such as Frank Bruni have the backing of the New York Times and other major
media organizations, critics who post their reviews on blogs and smaller forms
of publication do not have that luxury. While
a lawsuit against a restaurant critic blogger could be frivolous, the potential
cost of legal fees and a protracted legal battle could cause that person to
simply remove or amend the review to avoid the hassle.

The
second reason is optimistic. Many critics
have attracted a public following. Consumers
rely on these critics because they trust their opinions and reviews. As previously mentioned, these critics wield
a lot of power. If they abuse this power
and make defamatory statements, innocent restaurants will be harmed and
consumers will receive false information. There needs to be an incentive for reviewers to conform their behavior
so that they stick to opinions and true statements of fact.

VI. Always Leave Room for Dessert

While
defamation may not be an effective tool for restaurants to attack critics, it
provides an effective shield to protect themselves. Critics need to be able to express their
opinions and inform the public. They are
entitled to strong freedoms and protections under the First Amendment. However, at the same time, critics can occupy
powerful positions. A scathing review of
a restaurant could spell that restaurant’s demise. While many of these reviews may be justified,
these critics must show due regard for facts. In that respect, defamation can be an effective tool in shaping their
behavior.

However,
at the same time, restaurants smarting from negative reviews may wrongfully
turn to the court system in order to take down a harsh opinion piece from a
critic. That is not an effective use of
resources, given the incredibly low likelihood of success. If countless consumers respect a food critic’s
reviews, there is likely an incredibly good reason for it. Those consumers agree with the critic’s
tastes. They will most likely agree with
the critic’s assessment of that restaurant. Rather than lash out at the media, restaurants contemplating the use of
the court system as a bully should instead focus their resources and energy on
putting forth a better product. The
Northern Ireland Court of Appeal sent the right message in ordering a retrial
in the Goodfellas pizzeria case. Even critics
have the inherent right to express their opinions through free speech.


[1] Judge Quashes Libel Ruling against
Restaurant Critic
, BreitBart.com, Mar. 11, 2008.

[2] Id.

[3] Id.

[4]
National Restaurant Association 2008 Restaurant Industry Pocket Factbook, http://www.restaurant.org/pdfs/research/2008forecast_factbook.pdf
(last visited Mar. 13, 2008).

[5] Id.

[6] Id.

[7] Jay
Rayner, Meet Mr. Bruni, the Man Who Can
Spoil Gordon’s NY Party
, THE OBSERVER, Nov. 12, 2006,  at 19, available
at
http://www.guardian.co.uk/uk/2006/nov/12/usa.foodanddrink.

[8] Id.

[9] Frank
Bruni, For a Bad Boy Chef, He’s Certainly
Polite
¸ N.Y. TIMES, Jan. 31, 2007, at F8, available at http://events.nytimes.com/2007/01/31/dining/reviews/31rest.html?ref=dining. Frank Bruni did not seem to like the fact
that the restaurant was so low-key and mellow, despite the fact that Gordon
Ramsay has often been portrayed as a fiery and excitable man. Bruni shared further thoughts on Gordon
Ramsay at the London in New York City in his blog. Posting of Frank Bruni to Diner’s Journal, Flushes and Flashes at Ramsay, http://dinersjournal.blogs.nytimes.com/2007/01/31/flushes-and-flashes-at-ramsay/
(Jan. 31, 2007, 4:23 PM EST).

[10]
BLACK’S LAW DICTIONARY (Bryan Garner ed., 2004).

[11] New
York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964).

[12] Id.

[13] Gertz
v. Robert Welch, Inc., 418 U.S. 323, 344-345 (1974).

[14] See Pegasus v. Reno Newspapers, Inc., 57
P.3d 82 (Nev. 2002). However, compare Steak Bit of Westbury v.
Newsday, Inc., 334 N.Y.S.2d 325 (N.Y. Sup. Ct. 1972) (finding a restaurant to
be a public official because it serves the public and is of public interest) with Havalunch v. Mazza, 170 W.Va. 268
(1981) (declining to hold a restaurant to be a public official because it did
not hold itself out to the public for reviews and interest, thereby requiring
the restaurant to a negligence standard).

[15] Gertz, 418 U.S. at 339-440 (footnote
omitted).

[16] Milkovich
v. Lorain Journal Co., 497 U.S. 1, 18-19, (1990).

[17]
Ollman v. Evans, 750 F.2d 970, 979 (1984).

[18] Id. at 982.

[19] Id. at 983.

[20] Id.

[21] Thomas
Daly, 19 AM. JURISPRUDENCE TRIALS 499, § 20(2007).

[22] Haynes
v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993).

[23]
Mashburn v. Collin, 355 So.2d 879, 888-889 (La. 1977) (“[a]ccording to the author, the sauces could be described as ‘hideous’
and ‘glop,’ the Oysters Bienville were a ‘ghastly concoction’ of ‘strange,’ and ‘weird’ flavors, the
escargots left ‘a bad taste in one's mouth,’ the duck was served with ‘horrible
multiflavored rice,’ the stuffed eggplant looked and tasted like ‘bad
overcooked broiled fish,’ and most of the food tasted’“as if the conceptions
were wrong to begin with,’ or as if the sauces came from ‘bad cook books.’
Although these remarks were sharply critical, they undoubtedly amounted to no
more than expression of an opinion that the preparation of the food was ill
conceived and unskillful
,”).

[24] See Havalunch v. Mazza, 170 W.Va. 268
(where the author of the restaurant review recommended bringing a can of Raid
to patrons of the restaurant).

[25]
Adam Liptak, Serving You Tonight Will Be
Our Lawyer
, N.Y. TIMES, Mar. 7, 2007, at F1, available at http://www.nytimes.com/2007/03/07/dining/07lega.html.

[26]
Terillo v. New York Newsday, 519 N.Y.S.2d 914 (N.Y. Civ. Ct. 1971).

[27] Id. at 916-917.

[28] Id.

[29] Id.

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