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Legal Eagle

Defamation

Q: Reviews: Can I sue an uninvited critic?

If a critic reviews my show uninvited and makes disparaging remarks about it, do I have grounds to sue?

A: Certainly not! Many disparaging reviews are written by critics 'uninvited'. Indeed, there is nothing to stop any journalist (or other person for that matter) setting himself up as a critic, buying a ticket like any other member of the public and writing a review. It is only as a matter of custom or convention that some critics are invited to an official press night of certain shows and there is no obligation on a producer to have a press night at all. If reviews could only be written by invitation, producers would be inclined to invite only those critics considered likely to give a good review.

As to disparaging remarks, disparagement is surely the essence of criticism, and is to be expected from time to time, more frequently from some critics than others. The only circumstances in which you might have grounds for legal action are if the disparaging remarks were published dishonestly and maliciously so as not to reflect the honest opinion of the critic concerned. In that case, you might have grounds to sue for malicious falsehood (or injurious falsehood as it is sometimes called). This applies where a false statement, which is not necessarily defamatory, is published maliciously about a person's goods or services or business, and either results in actual pecuniary loss to the injured party or was calculated to cause pecuniary loss to the business, even if actual loss cannot be proved.

There is obviously considerable evidential difficulty in establishing malice and intent to cause pecuniary loss, which involves the state of mind and motive of the critic concerned, in making the disparaging remarks. This is particularly the case when faced with a defence that, whether rightly or wrongly, in his opinion, the critic was only making fair and legitimate comments about a matter of public interest, and that it is contrary to the public interest for critics to be inhibited in the opinions they express by having to justify them in a court of law. After all, members of the public know that any particular theatrical review represents no more than the particular opinion of the particular critic who wrote it, and does not necessarily reflect the views of other critics or of the public in general. It is also difficult to see how, except in an extreme case, you could satisfy a jury that the critic's opinion was false, i.e. that no reasonable person could possibly agree with what was said. The critic concerned might well be able to find lots of others to support what he said. A false allegation of fact, e.g. that the theatre was half empty when it was nearly full, would obviously be easier to prove than a false expression of opinion.

Of course, one accepts that theatre critics do have a huge responsibility to 'get it right' because of the effect which their reviews can have on the public as a whole - many people are put off going to see a particular show by adverse reviews. Conversely, however, it will do a critic no good at all for him to be seen to make disparaging remarks about a show which other critics and many members of the public who nevertheless go to see it, consider to be wrong or, possibly even badly wrong. 1 seem to recall that one of the most successful musicals of all times received very mixed reviews when it first opened in the West End, although the public as a whole have been shown to love it.

Lots of shows get bad reviews and close early as a result. If the producers of those shows had grounds for legal action the courts would be very busy with cases such as yours, which they are not. This is probably because of the difficulties to which I have referred and the considerable legal costs involved. However, in an extreme case, e.g. if you were to have compelling evidence that a critic who could be shown to have a grudge against you was to admit that his bad review was not his honest opinion, and if it was not supported by most other reviews, then yes, you could possibly have a good cause of action. Similarly, you might conceivably have a cause of action if a critic were to publish a review, ostensibly his own, without having seen the show and in reliance on what he was told about it by an ignorant third party, although 1 am not aware of any such case having been reported. Even in such a case, the legal hurdles would be difficult to surmount.

First published April 1998