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Can I be sued for my reviews?

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You remember recently when the news out of Italy was that some seismologists who had failed to adequately warn residents of an impending earthquake were threatened with lawsuits? According to published reports, some of them actually were sentenced to prison terms for manslaughter.

When I heard that, I thought it was insane. Then, somewhere in the back of my mind, I idly wondered if perhaps a wine critic, who was trying to be similarly objective in his reporting, could not someday be sued, for giving a wine a lousy review. The proprietor could argue something along the lines of slander, or defamation, or interference with his ability to run his business successfully, or monetary damages–something like that. And, in our litigious society, that proprietor might easily find a sympathetic jury. As this thought was mildly disturbing, I quickly got rid of it.

Then, there came this report, from just a few days ago, where a Minnesota doctor sued someone who had given him a bad review on a rate-your-doctor website. According to the report, the case has now reached the state’s Supreme Court.

Now we have Rob McMillan, the resident wine guy at Silicon Valley Bank, musing on the question, Can you sue a wine writer?” From Rob, we learn (I didn’t know it) that Parker had been sued back in the 1990s by Faiveley for libel, after Parker implied that the Burgundy producer might have been “cheating” [Rob’s word].

Rob also wondered about whether a bad Yelp review could result in a lawsuit, and about the culpability of bloggers. Speaking for myself, as both a published critic in Wine Enthusiast and as a blogger, I can’t imagine a winery proprietor coming after me legally for a poor review. He or she would be so attacked by the media (other bloggers, editorialists, critics, mainstream columnists, the ACLU and other free speech defenders) that it wouldn’t be worth his time or money to pursue such a case. Or would it?

Most of the wine I review–pretty much all of it, actually–is either sent to me by the proprietors, or submitted by them to large, regional blind tastings in places like Napa Valley and Santa Barbara County. If a proprietor elects to send his wine to a critic, he is rolling the dice and has to accept the consequences.

On Yelp’s Usage Language box, they write that posters “…may expose yourself to liability if, for example, your content contains material that is false, intentionally misleading, or defamatory…”. A review cannot be “false,” since it’s the writer’s opinion, not a statement of fact. Nor can it be “intentionally misleading,” unless someone can prove that the critic’s state of mind was such that he really liked the wine in question, but then deliberately wrote otherwise. The word “defamatory” is harder to parse, but “defamation” means the intentional slander or libel of someone or something, and that, too, would have to be proved in court. Of course, an angry proprietor could know he didn’t have a case and still wish to harass a critic, legally and financially, out of sheer pique.

I can see it happening one of these days, maybe not to me, but to someone else. It’s already happened to restaurant critics. The San Francisco Chronicle’s great reviewer, Michael Bauer, wrote a few years ago on his blog about how restaurant critics in both Australia and Philadelphia were sued for “liable for a defamatory review…These type of cases are nothing new,” Michael wrote, adding that “The next frontier will be when a restaurant decides to sue a Web site, community reviewer or a blogger about comments made on the Internet.” We’re perilously close to that frontier, if we haven’t already crossed it. I personally couldn’t afford to defend myself against a nuisance lawsuit from a rich winery owner, but I know that Wine Enthusiast would be there for me.

  1. Actually the late Daniel Rogov, who was the premier wine and food critic in Israel, told me many times that he was sued often by a few wineries and a restaurant or two. However, he never lost because the problem is not the notes or the review – it is libel, as you stated above.

    To prove libel – is a very hard task indeed. As long as you have your notes to prove what you noted and what you wrote were “the one the same” – then the base libel lawsuit is gone.

    However, the libel concerns around badmouthing a person and showing it is a lie and showing the cost you have caused – well that is a bit more complicated. Lawsuits around lies or ruining a name – is very hard to prove and you will lose that unless you can prove malice.

    The first amendment in combination with the need to prove real libel are a hard combination to beat.

  2. I am not so sure. Reading Mr. Heimoff’s reviews over the years, I would find it very difficult to prove libel (obviously, I have not read each of his reviews, but I am speaking more to his style and approach). Instead, I wonder if the more grandiose ‘reviews’ could open themselves up for litigation. I have read many a tasting note on Cellar Tracker that seems to be leaning more toward sensationalism than an actual ‘impression’ of the wine. I am not alone, I’m sure, in saying that reviews on CT have effected my purchasing decisions. What if a CT member (or blogger) were to state that a wine ‘tasted as if a family of rodents had obviously died in the fermenter’ or something along those lines?

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