WHEN does a critic overstep the mark? The issue has been thrown into sharp focus by the recent scathing review by Matthew Norman, The Sunday Telegraph’s restaurant critic, of Shepherds, one of Westminster’s favoured eating holes.

Norman’s criticism was especially explosive on the crab and brandy soup — he likened it to one of Saddam’s missing weapons of mass destruction (presumably jokingly). The restaurant owner was not amused and his lawyers have responded with the threat of a libel claim.

One can look to the poet Hilaire Belloc to illustrate the fine line that the food critic treads. Belloc once wrote of a lately deceased fictional character: “That evening he had been to dine/ At Gressingtons, an act unwise/ But not the cause of his demise.”

Is this a libel? The first test is whether the words are actually defamatory or just vulgar abuse. If the words are defamatory, then are they statement or comment? If comment then what matters is the genuineness of the belief expressed by the reviewer and the fairness of the language in the context. Imagine that Belloc had instead written “. . . an act unwise/Which was the cause of his demise”. This is a statement of fact, and clearly defamatory as the words lower the establishment (and perhaps its owners) in the opinion of the readership. As a statement of fact, the reviewer would need to prove this claim to be true.

A modern poetic reviewer might write that Gressingtons’ moules au sauce curry “lay like exploded cartridge shells/Amidst abandoned oil wells”. Here the analogy is comment and is unlikely to be taken seriously. If a reviewer stated that the moules “were” exploded shells, the line might be crossed.

If the reviewer had gone on a personal attack to write: “Gressington, whose impure life/ And faithlessness towards his wife . . .” this is a clear invasion of character and the opening of a new front. The libel is heavily seasoned with evidence of personal malice and cannot be justified within the realms of fair criticism of either food or restaurant. The malice would also poison the defence of fair comment and might be enough to turn the earlier review of the curried moules into libel.

The reviewer’s menu of spirited criticism should first not misrepresent what is being reviewed; secondly, not attack the character of the performer or producer; thirdly, work within the understood confines of what can fairly be described as criticism (not necessarily what may be fair criticism); fourthly, express the opinion honestly. Finally, provide the reader with some factual basis for the comment.

Of course, businesses cannot complain of hurt feelings and, to recover damages, would have to prove that loss was caused by the negative comments and not, for example, by poor food or service. This process could be full of potholes. Likewise, any complaint of malicious falsehood, a separate action, would require the comments to be shown to be false and malicious.

There are those who believe that, whereas there can be bad food, there is no such thing as bad publicity. Lawyers might question the truth of that statement, but it was also Belloc who said: “When I am dead/ I hope it may be said/ His sins were scarlet/But his books were read.”

If armies can march on their stomachs, perhaps the gut may be mightier than both pen and sword. In any case, restaurant critics should take care to keep their comments to the food, venue and service.

The author is a partner at Fladgate Fielder

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