First France’s appeal court, and now the European Court of Human Rights. Jefford investigates what is fair comment in tasting notes...
First Mauss, now Uj. First France, now Hungary. First France’s appeal court, and now the European Court of Human Rights. First 2005, now 2011. Wine writers in Europe can henceforth sleep sweetly at night, secure in the knowledge that if they chose to describe a wine as ‘shit’, they won’t find themselves at the wrong end of a libel conviction. Shit, the judiciary has decided, is fair comment.
Actually, it’s a little more complicated than that. In both cases, the initial conviction was upheld by the first court of appeal (the Lyons court of appeal in the Mauss case, and Hungary’s Supreme Court in the Uj case), suggesting that the prima facie case for defamation was a strong one.
In both cases, the final rulings took into account broader economic or political considerations. The French ruling decided that Mauss’s “severe criticism … cannot constitute a crime in the context of public debate on state subsidies given to winemakers and investigations into the causes of overproduction and falling consumption.” 
Much the same was true in the Uj case where (according to the summary by the Netherlands Institute of Human Rights), the journalist’s “primary aim was to raise awareness about the disadvantages of State ownership rather than to denigrate the quality of the wine company’s products. Indeed, Mr Uj’s opinion, dealing with government policies on the protection of national values and the role of private enterprise and foreign investment, was of public interest,” and was something “on which he, as a journalist, had a duty to impart information and ideas, even if somewhat exaggerated or provocative.” 
The Court of Human Rights also observed that “there was a difference between damaging a person’s reputation, with the repercussions that that could have on their dignity, and a company’s commercial reputation, which has no moral dimension”. 
It seems to me, though, that a libel conviction might still be possible if I was to describe as ‘shit’ a wine produced without recourse to subsidy by a private individual, or perhaps even by a privately owned company.
Perhaps that’s no bad thing. ‘Shit’ is a gratuitously offensive term (indeed the Engish word is probably more offensive than the French merde or the Hungarian szar). Any skilled writer should always be able to find more acceptable yet no less comprehensively critical language. Using ‘shit’ about any wine would be a gonzo excess for which I can see little or no justification. If Mauss or Uj had used words like ‘mediocre’, ‘dismal’ or ‘abysmal’, would these cases ever have come to court? I doubt it.
But I’m also bemused by these two causes célèbres since it seems to me that the real crime which most wine writers commit (myself included) is that of failing to be adequately critical. The world is full of wines which are indeed mediocre, dismal and abysmal. They should be fished out of the pond, held up and dangled before the public; this is a public service, and often a service to the producer, too, though it may not be perceived as such. Instead, most wine writers live on an unending diet of smiles and superlatives. That which is mediocre, dismal and abysmal is simply ignored.
The logic for this is that, in an oversupplied market, drawing attention to what may be a prevalent mediocrity or ordinariness is a waste of time. The greater service is to find the excellent among the mediocre or the ordinary.
Blind tasting, in fact, achieves both aims, which is why I am such a fan of this type of scrutiny. Providing that skilled tasters have enough time and silence in which to carry out their work effectively, both the excellent and the mediocre will stand revealed at the end of the exercise, and those judgements will be justified by reasoned tasting notes. No one can ever claim, moreover, that there is any personal animus in a blind tasting. They are the best place to give abject wines a drubbing since they are (in so far as anything ever is) lawyer-proof.
Written by Andrew Jefford