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 lynchpins 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 is an illustration of the pressures critics can place on the restaurant industry. Because these reviews can have a noteworthy 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 most likely 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.

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[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 (7^th 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.