‘No stars’ for this unpalatable judgement

Five years ago, Sydney restaurant critic Matthew Evans had a meal at Coco Roco, one of the new breed of upmarket harbourside restaurants which had undergone a $3million AUD refit. According to Evans, Coco Roco served ‘unpalatable food’ with flavours that ‘jangled like a car crash’ and the pork belly tasted like ‘parched Weetabix’. The restaurant closed three months later and its owners – convinced that the review played a crucial role in its demise – sued for libel. The restaurant lost, but appealed, and that’s why this small matter hit world headlines last week: the High Court of Australia decided that the restaurant had been defamed, and sent the case back to the lower court so that the Sydney Morning Herald could put forward its defence and the court could decide on whether or not Coco Roco is entitled to damages.

The court’s honours decided that it was illogical for the jury in the initial case to have concluded that accusing a restaurant of serving unpalatable food is not defamatory. ‘The food served in any restaurant is its essential business’, Justice Margaret Beazley said. ‘If the food is “unpalatable” the restaurant fails on the very matter that is the essence of its existence…because of that [it] is defamatory. In my opinion, no reasonable jury properly directed could reach any other verdict.’

The initial reaction in Australia and across the world was one of mixed amusement and panic. Restaurant owners always throw entertaining fits when they get bad reviews, but the Coco Roco case seemed to have thrown the whole business of reviewing into a danger zone. What if a film critic writes that a particular Hollywood flick is a piece of bad, lazy filmmaking: can the Hollywood studio that produced it – whose essential business is filmmaking – sue for defamation? Ditto theatres, publishers, galleries and so on. Though the precedent has only been established in Australia, this will surely give the go-ahead to every libel-chasing lawyer in the world?

The reality is more complicated, but scarcely of much comfort. As the Australian journalist/lawyer David Marr noted, defamation and libel are not the same things – libel is a defamation without a defence, and the mere establishment that someone has been defamed does not mean that libel has been proved. In the Coco Roco case the jury simply didn’t understand the distinction, leaving the restaurant’s lawyers an opening to make years of more trouble for the newspaper. Marr concluded that the decision leaves the protection of criticism ‘much as it was’. From a legal point of view, he may be right, but the wider implications for the practice of criticism are more ominous.

For a long time the issue of whether a scathing review of a book, film or play was defamatory has been left substantially untested. While the occasional author would sue in cases where a reviewer had crossed a line from text-assessment to personal attacks (from ‘X’s new book is a toss’ to ‘X is a tosser in every aspect of his life’), the practice of criticism itself has been left unchallenged. This is because, though activities such as publishing or filmmaking have, historically, often been conducted through commercial means, they were not defined by it. Cultural activity was an exchange within the public sphere to be contested at that level.

In recent decades this relationship has shifted, as cultural production has started to come to the centre of the economy. This has prompted, and been prompted by, a shift in the understanding of what cultural creation is – it is now the creation of cultural capital (in the literal economic sense) with a market value far and beyond that of old-style industrial capital. A musical or film that gets bad reviews and fails early has a value approaching zero; one that succeeds can generate business worth billions of pounds. A successful thriller can generate tens of millions of dollars, when rights are factored in and so on. For the most part, cultural creators in this new economy have clenched their teeth and resorted to minor delaying tactics – denying reviewers an opening night seat, releasing a film on 2,000 screens at once, or in the case of David Merrick, the American theatrical producer, paying people with the same name as well-known reviewers to rave about the show.

It is not too surprising that a restaurant ended up testing the public consensus for reviewing, since they have gone from being places that serve food, good or bad, to being temples of foodie art that are also day-by-day businesses. Coco Roco’s menu included saffron-infused gin oysters, almond paste under carpaccio of beef and Guinness mustard – exactly the sort of unsurprisingly surprising recipes that are the hallmark of today’s cutting-edge dining experience. Reviewers thus tend to marshal the same sort of language they would apply to, say, a kabuki version of King Lear performed in an abandoned meat factory, and thus the practice of criticism comes to be judged by the rights accruing to business.

Thus there is no point blaming this whole affair on ‘silly out-of-touch’ judges – it is a problem of cultural drift that has not yet been fully thought through. The shift in the relationship between cultural activity, producer and critic comes in the context of a wider shift whereby the notion of ‘intellectual property’ has become central to productive life. Increasingly, things that would once have been left as common property – a wide range of scientific discoveries, advertising slogans and so on – are now subject to the notion that they can be owned, and their use considered as the licensing of a property. The vast expansion of this over the past three decades has comprehensively shifted our notion of what cultural activity is.

Before the rise of Silicon Valley, and Boston’s Route 128 in the US and other commercial areas close to universities, the academic scientist who developed ideas commercially was a rarity; now the one who doesn’t is the odd one out. In the early years, this process was confined to hi-tech products whose development was in the established domain of mechanical invention. As biotechnology started to become big business, courts and governments were persuaded to extend the notion of ‘intellectual property’ from inventions to discovered natural objects, such as common cell mutations and genes. There was nothing automatic about crossing this boundary from the ownership rights to something that had not previously existed to that over something that had always existed and was, by definition, prior to human culture.

This process, which effectively combined notions of patenting and copyright, began to play back into the cultural field. Major cultural producers have successfully pushed for the extension of copyright protection from 50 to 70 to 90 years after the creators’ death, while also seeking to use trademark law to ‘own’ every smaller bit of text. Thus Fox News Network tried to sue critical satirist Al Franken for using the phrase ‘fair and balanced’ on the cover of one of his books attacking right-wing pundits, with Fox arguing that it essentially owned the phrase. KFC attempted to sue a pub in rural Scotland for displaying a hand-written sign advertising its Sunday ‘Family Feast’, with Colonel Sanders’ people arguing that the phrase could only apply to their assorted buckets. Use words like ‘Oscar’, ‘Academy Award’, ‘Menopause the Musical’ and you are required to add all sorts of ‘registered’ and ‘trademark’ signs.

In reaction to this comprehensive attempt to own discourse, an ‘open source’ movement has arisen, initially in software and spreading outwards to other cultural disciplines. This movement draws on both American right-wing libertarian notions of a new frontier to be protected from enclosure, and a cyber-Marxism seeing intellectual production as a commanding height from which to wage a war on commodification. Since the unbounded expansion of open source in current conditions would give us no way of valuing intellectual work for the purposes of salarying it – and thus of specialising in it – its advancement has always had a utopian dimension. Thus the only critique of the indefinite expansion of notions of intellectual property has the effect of making current practices seem the only ‘real’ option.

As the whole terrain of cultural life comes to be patchworked with branding and ownership it is inevitable that this attitude comes to be applied to areas previously interpreted as governed by free exchange. Nor is there any guarantee that this would come to be the understanding of media proprietors or their editors. In the long run a comprehensive review of the whole notion of defamation and libel law is required. In the short term writers and critics have to reaffirm their refusal to be dominated by commercial considerations, or the subtle internal censor of intellectual property and the fall of the writ.

Guy Rundle is European editor of Australian political magazine Arena.