Last week, the Court of Appeal in Northern Ireland quashed the controversial findings of the High Court in a high-profile libel case concerning a critical restaurant review.
Ciarnan Convery, owner of Goodfellas pizza restaurant, sued The Irish News in respect of a scathing review it had published. The review claimed that the restaurant had a ‘joyless atmosphere”, used ‘the cheapest ingredients on the market”, and provided poor service.
- June 24, 2019
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Initially, the jury found the review to be defamatory and rejected the journalist’s defence of fair comment, awarding the restaurant owner £25,000 in damages. The judgment sent shockwaves through the industry, challenging the perception that honest reviews were immune from libel risk. Freedom of speech would be significantly curtailed if reviewers felt that every expression of personal opinion might result in that opinion being tested in court.
The reasoning behind the Court of Appeal’s rejection of the original judgment is technical, concentrating upon misdirections made by the judge to the jury at first instance. The principal criticism of the judge was that he had failed to explain clearly to the jury the distinction between factual statements and comments in the article. This distinction is critical to the operation of the fair comment defence, which protects honest comments based on truly stated facts.
Statements which were plainly comments, such as whether a glass of cola was flat and warm, were treated by the jury as facts, putting the journalist in a position where, many years later, she had to prove whether or not the statements were true. The Court of Appeal concluded that if the jury had been directed correctly, they would probably have found that an ‘elaborate factual substratum’was not required in order to support the comments made. In reality, the fact that the journalists went to the restaurant and were served food and drink was probably a sufficient factual basis for the comments made.
So, properly interpreted, the defence is very wide. As long as there is some factual basis for the opinion (in other words, that food was eaten at Goodfellas) the journalist is entitled to express any genuinely held view about its quality and the defence should be available.
Despite the findings in favour of The Irish News in the Court of Appeal, the Goodfellas case is yet to be resolved as a retrial was ordered. However, the Court of Appeal gave strong hints that The Irish News was likely to succeed second time around. While journalists should be reassured by this, they should not take the defence for granted when writing opinion pieces or reviews. The way in which the defence operates is relatively technical, but some simple principles can be set out which act as a guide:
Is the comment on a matter of public interest?
This is very-widely interpreted and certainly includes restaurant reviews.
Is the comment recognisable as comment?
Make it clear that you are expressing an opinion rather than a matter of fact. This will often be apparent from the context.
Is the comment based on facts which are true or protected by privilege?
As the Goodfellas case shows, a limited factual basis will often suffice.
Does the comment explicitly or implicitly indicate the facts on which the comment is being made or at least the general subject matter?
The more background facts that are already in the public domain, the easier it will be to avoid having to repeat them all.
Is the comment one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views?
If the answer to any of these questions is no, the defence of fair comment will not be available.
Phil Sherrell is an associate at law firm Eversheds