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Suing the Critic


zoramargolis
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Though our "common law," which means court-developed law rather than the statutes enacted by legislature, is derived from British common law, it differs on the issue of defamation. Which in the case of a printed restaurant review would actually be libel, not slander as (how the hell do I remember this garbage?) Slander is Spoken. But in any case, restaurateurs in the U.S. have sued critics, but not successfully. A critic for the Dallas Morning News gave Il Mulino 3.5 of 5 stars, saying that " the vodka sauce was 'finished with butter', and that the 'delicious' porcini ravioli 'whispered of gorgonzola'." (yeah, I would never go to an overpriced, mediocre restaurant because the delicious porcini ravioli had a hint of gorgonzola ... and butter in a sauce? HORRORS!). But there must be something awful here that I don't get, because the owner freaked, "'I don't have any gorgonzola in the whole kitchen,' fumed Romano, 'and there's no butter in that vodka sauce.'

Generally, in the United States, expressions of opinion are fully protected by the First Amendment. A critic would not be liable for saying, "the decor is funereal, and well-suited to the food, which was thoroughly cremated before it reached the table." However, if the critic said, "Diners were dropping like flies, gagging and wretching as they gasped their final, tortured breaths" - well that could be a problem because the critic is purporting to state a fact, and if that fact is not true, and if it was the proximate cause of injury to the establishment....

The doctrine is known as "fair comment" and it basically means that so long as the opinion is honestly held and based on the facts (as opposed, for instance, to personal animosity on the part of the critic), the reviewer's comments are immune from a libel action.

However, even statements of fact, in the context of reviews, are often considered by courts to be mere hyperbole or a description that is part of the opinion. So if you wrote "the curtains were a somber shade of pearl gray, lending a funereal air...." and in fact, they were dove grey...that is not actionable. The context is considered.

The basis of this principle, besides the general gestalt of the First Amendment (all speech is unfettered and unlimited unless there is a damned good reason to the contrary), is that an opinion is subjective, and can't be proved or disproved. If it can't be proved or disproved, it can't be false, and if it can't be false, it can't be defamatory.

You'll receive my bill in the morning, Don.

Oh, did I forget to mention that law degree and 10 yrs of litigation experience (before I decided to use my powers for good rather than evil)?

Ellen

A recent NYT article sums it up nicely, and I do wish our U.S. critics would adopt some of the acerbic prose that is so common across the pond - see comments in article about a dish that could be mistaken for a WMD if found buried in the Iraqi desert - but I suppose it's that old dilemma - with that charming accent, they can say anything and get away with it. Though how that works in written pieces, I'll never know.

March 7, 2007

Serving You Tonight Will Be Our Lawyer

By ADAM LIPTAK

(NOTE: the NYT articles are free for only a week or so - can't remember if it is 7 or 14 days. So I'm posting the link here, but be warned that this is pay-per-view:

http://select.nytimes.com/gst/abstract.htm...AA0894DF404482)

As requested by mktye, I've deleted the full text that I posted earlier this morning, and leave you with just a few pithy and tantalizing excerpts. If you want the rest, you'll have to shell out $4.95 OR google to see if you can find it posted elsewhere.

THE review, published last month in The Philadelphia Inquirer, was three sentences long. It praised the crab cake at Chops restaurant in Bala Cynwyd, Pa., but said the meal there over all ''was expensive and disappointing, from the soggy and sour chopped salad to a miserably tough and fatty strip steak.''

The resulting libel lawsuit was 16 pages long....

The suit joins a long line of court encounters between sharp reviews and the restaurateurial ego, and, if the earlier cases are a reliable guide, it is doomed....

But American judges have apparently never punished even tough, mean and wrongheaded restaurant reviews. As the federal appeals court in Manhattan put it in 1985, ''reviews, although they may be unkind, are not normally a breeding ground for successful libel actions.''.......

On his blog, Michael Bauer, the restaurant critic for The San Francisco Chronicle, also said he found the legal climate perilous. ''As a critic,'' he wrote, ''I figure I'm always one misplaced adjective away from getting slapped with legal action.''

Mr. Platt, the New York magazine critic, was more sanguine. ''I don't think about it,'' he said of the threat of a libel claim. ''Maybe I should.''

Or maybe he shouldn't. These rulings, from about a dozen over the past three decades, were all in favor of the reviewer.

''Trout à la green plague''? Ruling: ''An ordinarily informed person would not infer that these entrees were actually carriers of communicable diseases.''

''The fish on the Key West platter tasted like old ski boots''? Ruling: ''Obviously, that was hyperbole used to indicate that the reviewer found the fish to be dry and tough.''

Peking duck pancakes ''the size of a saucer and the thickness of a finger''? Ruling: ''An attempt to inject style into the review rather than an attempt to convey with technical precision literal facts about the restaurant.''

''Bring a can of Raid if you plan to eat here''? Ruling: ''The techniques of humor and ridicule were protected.''

...........

Ms. Workman's critique -- she said her cola was warm and flat, the restaurant smoky and the service poor -- was mild by the standards of English reviewing, where a lethal swagger seems to be prized.

People in London still quote phrases from Matthew Norman's review of Shepherds, a London restaurant, in The Sunday Telegraph Magazine in 2004. He said it was ''among the very worst restaurants in Christendom,'' serving ''meals of crescendoing monstrosity.''

In particular, Mr. Norman did not care for the crab and brandy soup. ''Were it found today in a canister buried in the Iraqi desert,'' he wrote, ''it would save Tony Blair's skin.''

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It seems that the interpretation of defamation under Australian law has quite a bit to do with this. The jury did not find the review defamatory but did agree that he said that the food was bad. The judge said that, since a restaurant's business is providing food, saying the food is unpalatable is necessarily defamatory.

from the Sydney morning herald

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Personally, I think any chef who puts a "sherry scented apricot white sauce" on steak deserves whatever opprobrium any reviewer chooses to hurl at him. Because damn, that sounds nasty.

(As an aside, y'all really shouldn't be pasting entire articles from the Grauniad and the Times. Whole articles are far outside what can be considered fair use for discussion purposes, and I think all of us would prefer if our fearless leader didn't get sued. A link and an example paragraph are generally enough for people to get the gist of what's being discussed.)

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Personally, I think any chef who puts a "sherry scented apricot white sauce" on steak deserves whatever opprobrium any reviewer chooses to hurl at him. Because damn, that sounds nasty.

(As an aside, y'all really shouldn't be pasting entire articles from the Grauniad and the Times. Whole articles are far outside what can be considered fair use for discussion purposes, and I think all of us would prefer if our fearless leader didn't get sued. A link and an example paragraph are generally enough for people to get the gist of what's being discussed.)

I know, I know, but you can't link to Times articles - it just takes you to a pay-per-view link...I'm guessing/hoping that newspapers don't bother going after this kind of thing because there's so darned much of it and just finding it, much less tracking everyone down, would cost more than it is worth to try to stop it. In fact, I usually just paste the headline into google and find that the article has already been posted on numerous websites and blogs by someone else...several to dozens or times, occasionally more than that.

Ellen

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This Times' article is in the pay-per-view section. Printing it in full here is almost certainly a copyright violation and I suspect that management would be displeased to have it pasted on his website.

Not to get preachy but swiping intellectual property in hopes that the big, bad MSM won't have the time to after you is a weak rationalization. Kind of like swiping chewing gum from the liquor store on the theory that they only worry about armed robbers.

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I don't think this is true. Maybe for "Times Select" articles, but you can link directly to recent unrestricted articles.
It's not a recent article. It was published at the beginning of March and is now only available through TimesSelect or for purchase as a single article. If you search the Times site, it brings up a few sentences from the article, plus a correction, and a link for a permissions form to reprint.

Some articles are reprinted in other publications and can be linked that way, but that does not appear to be the case with this one.

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It's not a recent article. It was published at the beginning of March and is now only available through TimesSelect or for purchase as a single article. If you search the Times site, it brings up a few sentences from the article, plus a correction, and a link for a permissions form to reprint.

Some articles are reprinted in other publications and can be linked that way, but that does not appear to be the case with this one.

The NYT places about maybe 1% of its stuff in the Times Select category. The other 99% is freely available. To get the select stuff you need to be a special person, or pay, which is its own sort of special I suppose. I've never figured out how they "select" that which they deem "select"--there is no rhyme or reason to it that I can figure out, and most of it doesn't look especially "select" to me. The subject story is one of the few I have noticed that I was sorry I couldn't get.

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The NYT places about maybe 1% of its stuff in the Times Select category. The other 99% is freely available. To get the select stuff you need to be a special person, or pay, which is its own sort of special I suppose. I've never figured out how they "select" that which they deem "select"--there is no rhyme or reason to it that I can figure out, and most of it doesn't look especially "select" to me. The subject story is one of the few I have noticed that I was sorry I couldn't get.

Actually, most of the Times news content goes to pay-to-retrieve after a certain amount of time (as does most content for the Wasington Post). On the other hand, food and travel articles usually stay free. I guess this one, because it was a about lawsuit, was filed under "news" and got expensive after 30 days or so.

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Actually, most of the Times news content goes to pay-to-retrieve after a certain amount of time (as does most content for the Wasington Post). On the other hand, food and travel articles usually stay free. I guess this one, because it was a about lawsuit, was filed under "news" and got expensive after 30 days or so.

I noticed that if you register for the Post's new "Points" program, and you are a weekly subscriber (platinum member) you will get free access to the archives of the Post.

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Actually I'm not sure if this is legal, but you can use a NY Times Link Generator to create permalinks used for blogs, etc. I'm not going to post that link up here though. But I don't get the impression that there are any legal issues with it, probably because it merely takes advantage of their RSS feeds through which you can legally store some of these articles.

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A Philadelphia restaurant owner is suing the food critic for The Philadlephia Inquirer, Craig LeBan. This beef over beef could expose his identity.

From the article: "If a restaurant knew Mr. LaBan was in its dining room, it might put on a show for him that would not be provided to the general dining public."

So when is this charade going to be debunked once and for all?

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I agree. If you live by the review, you must accept death by review. With one exception... If there is a mistake or mistruth printed and it is in fact an error. If that is the case, the critic has a responsiblilty to print a retraction. OR get slapped with a lawsuit if he (or she) doesn't step up and admit they messed up. In which case, every review they have ever written would be suspect, and that persons professional career might be over.

Tricky subject...

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