Protecting your business reputation against defamation: the Coco Roco restaurant review

In John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 14 June 2007, the High Court of Australia rejected an appeal by the publishers of the Sydney Morning Herald against a finding by the NSW Court of Appeal that a review of the Coco Roco restaurant was defamatory by imputing that the restaurant sells unpalatable food  and that the restaurant provides some bad service. The original trial jury decided the review was not defamatory.

Paragraph 161 of the judgment sets out the review  in full (headed Crash and Burn: When dining on the view is the only recommendation).

After the review the restaurant closed and the owners suffered significant losses.

The point of this note is not that restaurant reviewers can be successfully sued but that defamation offers a source of redress for business owners (although an admittedly expensive one).

To quote Gleeson CJ And Crennan J:

The case concerns that form of defamation which involves injury to business reputation, that is, the publication of imputations that have a tendency to injure a person in his or her business, trade, or profession. That the law of defamation affords such protection is not surprising. Suppose someone says: "X is a thoroughly decent person, but he is showing signs of age; his eyesight is poor, and his hands tremble". That would not be a reflection on X's character. It would be likely to evoke sympathy rather than hatred, ridicule or contempt. If, however, X were a surgeon, the statement could be damaging. To say that someone is a good person, but a dangerously incompetent surgeon, is clearly likely to injure the person's professional reputation. That is an established form of defamation, and it was not called in question by the parties to the present appeal. 

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