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Please don’t sue me for a bad review!


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. 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 winery 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.

Besides, 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 may be perilously closer to that frontier than we think, if in fact we haven’t already crossed it.

  1. Thanks for mentioning the SVB on Wine blog Steve.

    I’d love some more legal types to weigh in on the developing case law regarding bloggers right to flame (slander), versus Freedom of the Press. Its been a while since I checked, but I thought there were some cases where Bloggers were not given the same protections as traditional media?

    I doubt we see a great increase in litigating bad professional reviews, if for no other reason than it just draws more attention to a bad review. I agree however that the area of developing legal interest will be on-line consumer reviews. Ignoring the litigation aspect for the moment, there are things winery owners should do with those flaming on-line reviews and I discussed some in the blog.

    Last… because I don’t want to become a test case for what can and can’t be litigated, I didn’t author the word “cheating” in my blog. I highligited a small section on the subject from the repository of all truth: Wikipedia as instructional of the topic. ( …. don’t get me in trouble!!)

  2. “Trying to be similarly objective in his reporting”? Come now, Steve. You can’t be referring to yourself as you have renounced, wholesale, the possibility of objective wine assessment (and admitted to being able to correctly identify a variety 50% of the time.)

    Even in this piece you say “A review cannot be “false,” since it’s the writer’s opinion, not a statement of fact”.

    Examples of facts are: “This man is 6 feet, 1 inch tall”. “The Sky is blue”. “He has red, curly hair”

    Examples of opinion are: “I don’t like short men”. “I like blue shirts, but not blue pants”. “I find men with red curly hair to be silly-looking”

    When you report actual facts in a review, you are being objective. When you write metaphors similes, it’s an exercise in creative writing, but it is not objective analysis.

    So, yes, Steve, a review can not only be “false” but “incorrect”. Like a doctor failing to identify/diagnose a disease, a lawyer failing to identify a line of defense/prosecution or a contractor improperly installing electric wiring, plumbing or ceiling joists.

    A wine’s make up does not change with the observer. So, the observer must be astute and have acute senses and the wit to understand what those are telling him.

    When a wine evaluator fails to a) correctly identify and, b) acknowledge the meaning of the organoleptic components of a wine, they are not demonstrating competence in sensory wine evaluation

    If that is not the case, the evaluator is not qualified for the job and *should* be sued for every review they write – positive or negative,
    because in either case, those mislead the public/reader.

    Every so often, this subject comes up and everybody who likes to publicly opine about wine likes to chime in how it’s impossible to objectively identify wine’s sensory components (when they have neither training in wine chemistry nor human sensory neurophysiology).
    Funny that this is not a tenet in the perfume industry.

    Admitting that there are hard, fast absolutes to wine’s organoleptics would discredit a lot of wine writers, piss off a lot of producers whose wine’s don’t reflect the character of the fruit and region listed on the label and hurt the fragile sensibilities of consumers who will spent three digits on a bottle of wine but don’t want to hear that they have chose a lousy wine.

  3. Let’s get down to facts here, and not some imagined line of argument.

    Libel is libel and it is a legal defintion that has little to do with identifying chemical components directly. It has to do with two things. The first is unbiased opinion based on perception. The second is not knowingly misleading statements such as ” the sound was bouncing all over the place”.

    If one says that a highly oaked wine has an oxidative character, that is an opinion. It may be right or wrong according to someone else, but it an opinion based on perception. If someone says that a wine smells like cherries, that is clearly an analogy. If one says that there is cherry in the flavors, that might be, at first glance, a knowingly misleading statement. But then there is the question of damages.

    Now, to real life and why I know that statements of opinion based on perception and not knowingly misleading cannot be the subject of successful lawsuits.

    Case One: Our panel had a Sauvignon Blanc in a blind tasting. Its unusual character was variously described by our tasters as pinto bean, peanut butter and peat bog. When we wrote those words in a tasting note, the winery owner, a litigious lawyer, threaten to sue. I told him to go ahead. I had those views on the tasting notes of our panel. He went away angry, but he went away.

    Then there was the time we were threatened by the lawyers for Matanzas Creek when we tasted a particularly flawed Pinot of theirs and commented that the winery had recognized the flaw and had poored it out. Turns out the winery had rebottled the wine they had in inventory and thought they corrected the flaw. So, we were wrong technically. I explained that our comments were meant as a compliment to the winery for doing the right thing, and that we would happily correct the oversight complete with the original review and an explanation that the winery had not done the right thing after all.

    The threat to sue responsible reviewers is nothing more than that. It is an act of bullying in which the winery has its lawyer draw his gun and wave it in your face (figuratively, of course).

    Now, if you describe a wine as being made with maple syrup, you may be in trouble. But not if you describe it as smelling like maple syrup–even when you are the only person in the world who has that perception.

  4. Rob McMillan: “Its been a while since I checked, but I thought there were some cases where Bloggers were not given the same protections as traditional media?”

    There are some statutes, often called “journalist shield laws” that give journalists the right to refuse to testify as to their sources — depending on how the particular state has drafted its statute, courts have had to struggle with figuring out who qualifies for that protection. But that has nothing to do with libel law.

    For First Amendment purposes, a blogger has every bit as much protection as a professional journalist for Big Media Inc.

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