Sunday, June 24, 2007

me, bush lawyering about free press?

Maybe we will all have to say something 'positive' when we review books in future in this country. A recent judgement of the High Court supported the idea that a restaurant review that was negative could harm a business. The Court overturned the decision of a jury which, obviously, held the opposite.

The majority in the High Court supported the reasoning of Beazley JA in the Court of Appeal, who said:

"The food served in any restaurant is its essential business. If the food is 'unpalatable' the restaurant fails on the very matter that is the essence of its existence. This is especially so of a purportedly high class restaurant. To say of a restaurateur of such an establishment that they sold 'unpalatable' food injures that person in their business or calling and because of that, is defamatory. In my opinion, no reasonable jury properly directed could reach any other verdict."

The one dissenting judgement, from Justice Michael Kirby, said:
"Citizens do not always share the faith of appellate judges in the judicial resolution of the central issues arising in defamation actions. Typically (and here) those issues require the determination of a clash between a claim to protection of reputation and honour and a claim to exercise the right of "free speech" and a "free press"."

Kirby goes on to say:
"We would reject that submission. Business capacity and reputation are different from personal reputation. Harm to the former can be, as here, inflicted more directly and narrowly than harm to a person's reputation. A person who does not have an admirable character may be a very good restaurateur. It might be possible to say things about him or her personally that are not defamatory, but not about that person as a restaurateur in relation to the conduct of the restaurant. Restaurant standards rather than community ones are the relevant standards in that situation. No community standard or value could obliterate or alter the defamatory meaning of the imputations in this case. It is unimaginable, in any event, that the estimation of the respondents in the mind of any adult person, let alone a reasonable reader, would not be lowered by a statement that they sold unpalatable food and provided bad service at their restaurant, and did so for considerable sums of money. The reinforcement, by the trial judge in her redirections, of the present appellants' submission to the jury that they should have regard to community values and standards in assessing the defamatory nature or otherwise of the imputations, was, as the Court of Appeal held, erroneous."

The High Court case was centrally concerned about the jury process in this matter, yet in all of the above, dissenting or majority judgments, is a disturbing implication: could a negative review of a book harm a publisher's 'business' or an author's 'business', as opposed or as well as 'personal reputation', and therefore be subject to litigation?

I wonder if it will ever be tested. It's not as though there's never been litigation around things literary in this country before.

N.B. There are a range of interesting comments on this case at legal soapbox.

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