Defending defamation: how these reviews would stack up in court

Two scathing restaurant reviews were published this past weekend, causing one venue to call the lawyers and the other to hit back via social media. Richard Edwards, hospitality lawyer, thinks one is defendable while the other is not.

Two former My Kitchen Rules contestants, Chloe James and Kelly Ramsay reviewed West End Deli in Western Australia for STM Magazine (Sunday Times/News Limited). It delivered a score of  nine out of 20, recommending potential diners to “consider takeaway pizza instead”. West End Deli politely responded via Facebook. 

Meanwhile, The Australian’s John Lethlean reviewed Hill of Grace restaurant at Adelaide Oval. His experience was fairly dismal, handing down zero out of five stars. “Hill of Disgrace occupies some kind of sad, ill-informed contemporary fine dining void; it’s like the restaurant world doesn’t exist. I’m trying hard to think of someone I’d recommend it to. I just can’t,” he wrote.

Andrew Daniels, CEO of Adelaide Oval invited Lethlean to return (an offer which will likely be declined) and says he’s seeking legal advice.

Despite Lethlean’s rating of Hill of Grace being worse than that given to West End Deli,  his  review is probably the more defendable.

A defamation lawsuit starts with defamatory imputations. These are things which come out of a review (even if it’s implied) which will make the reader think less of the person defamed. Negative restaurant reviews frequently convey that the owner and/or chef is incompetent because of the bad food and/or service.

Restaurant reviewers tend to rely on honest opinion and fair comment as a defence against defamation. They require the reviewer to state an opinion (which is that defamatory imputation), include the facts which are accurate and support that opinion, and honestly hold that opinion.

Lethlean talks about the food, service, menu, staff, uniforms, decor and price. Assuming the description of those things are true, the review looks fairly defendable.

West End Deli hit back at James and Ramsay via the duo’s Facebook page, claiming that the dining experience occurred almost two months prior to the review's publication, and revealed that the duo’s  credit card was declined, resulting in an arduous weeks-long payment process which resembled an attempted dine-and-dash.

The lynchpin is this. West End Deli’s owner claims that “Only Kelly Ramsay was in attendance on this evening. She dined with her fianc, seems like a nice bloke actually,…The scathing review reads “On the walk home, Chloe sighed, ‘Shall we head to Leedy for dinner, take 2?’ Not only was this a cheap shot but it's a fabrication. We would love to know how Chloe can fairly put her name to a review of a restaurant and food that she has not actually experienced?” James’ manager has since confirmed that she wasn’t there.

Because it's true that James did not have dinner that night with Ramsay, James will find it impossible to hold the opinion that the food was unpalatable and it deserves to be skipped and replaced with takeaway pizza based on the experience stated in the review. Her defence will fail. News Limited will go down with her.

Matthew Evans’ long running litigation over his 2003 CocoRoco restaurant review was lost for similar reasons. There were two restaurants at the one location, with two different offerings. Evans dined at one, but cast judgment on both. Evans could not hold an opinion about the other restaurant. That cost Evans and Fairfax newspapers around $600,000 and the operators of CocoRoco their restaurants.

Defamation is notoriously complicated, but less so for these two reviews. Lethlean’s is an example of carefully explaining the experience, giving an opinion and, ultimately, allowing the reader to make up their own mind. The MKR contestants’ review seems to be an example of a fictitious story creeping into  a factual review.

Richard Edwards is the founder of Whites Legal, a law firm specialising in looking after bars and restaurants.