Calmer Cafe owner taking legal action against the VCAA

[Aaron]

https://www.theage.com.au/national/victoria/cafe-of-english-exam-fame-to-sue-education-body-20181101-p50de6.html

The students were referencing a review of a fictional hipster cafe called Calmer Coffee that featured in their three-hour exam.

In the fictional review,  Jonty Jenkins takes aim at the cafe’s “exhaustive list of frappes, soy and almond milks”, “tablet-wielding” employee with a man bun and its bland, burnt coffee.

Ms Conron told The Age that she had hired a lawyer and would be taking legal action against the Victorian Curriculum and Assessment Authority over the "uncanny" similarities.

She fears they have caused long-term damage to her cafe's reputation.

Discuss.

[Bri MT]

I'm interested in how VCAA "checked and confirmed" there wasn't a cafe with that name and why that failed. 

They wouldn't have intended any harm (obviously) but it's pretty foreseeable that there would be backlash so hopefully they weren't negligent with their checking process

[Aaron]

A spokesman said the authority had checked and confirmed there was no registered business name called Calmer Coffee prior to the exam.

This suggests they only did a lookup on the business register for a registered business.

I did a Google Search "calmer cafe" and obviously the dominant results are media-related articles, but two points:
1) The Calmer Cafe google profile comes up to the right (again, probably influenced by the high influx of reviews both +/-)
2) Second page of results is a "lunchtime.com.au" menu for a Calmer Cafe in Aberfeldie, in addition to a Yellow Pages entry.

Someone's obviously stuffed up somewhere....

[sarangiya]

I don't know if it will hold even if they do raise a case.
Wouldn't they need to provide evidence of harm? E.g. financial losses (I'd place my bets that they'd be making profit, not losing it)
Is the VCAA to blame? It wasn't the examiners or the exam writers that slandered the cafe through online reviews, it was the students. Shouldn't the students be culpable instead of the VCAA? It's not like Home and Away would be held responsible if someone trashed Palm Beach because they saw it on the show?

Damaging their reputation, sure... But i don't think that it was forseeable, nor the fault of the VCAA, and I don't think it would have inflicted enough damage to the business to deem them worthy of compensation.

My 2c (I'm not much of a law person so pls correct me if I'm wrong)

Edit: I reckon the right course of action is a request for the reviews to be taken down from wherever they were posted.
Also lol how embarrassing I didnt realise Ramsay st was fictional bahahah

[Poet]

https://www.theage.com.au/national/victoria/cafe-of-english-exam-fame-to-sue-education-body-20181101-p50de6.html

Discuss.

Haha, oh, how good is this. Suck on that, VCAA

In all seriousness, this'll be a hard fight to win for the cafe. Honestly, looking at this case from an impartial perspective, there's defamation involved, but this wasn't VCAA's doing. VCAA stuffed up badly by not doing their homework properly, and someone's probably going to get fired, but VCAA weren't the ones who posted those comments and damaged that cafe's reputation. That was the work of Victorian English students. The liability in this case, if I was the judge, rests on the shoulders of the teens who thought it would be funny to take out their frustrations on a coincidentally named business. I think VCAA will get out of it.

edit: Beaten by sarangiya, but I totally agree with everything she says. There's a loss in online rating, but an unprecedented increase in popularity. The damage is not worth much. I'd argue it's really not "damage" at all.

[Aaron]

Edit: I reckon the right course of action is a request for the reviews to be taken down from wherever they were posted.

How can you genuinely distinguish what is a valid or invalid review? If we made requests for reviews to be taken down, essentially this would set a very dangerous precedent allowing business owners to essentially request the removal of genuine reviews if they don't favour the business. A lot of the reviews posted from these Year 12 students would seem genuine if we remove the VCAA exam from the equation.

But i don't think that it was forseeable

Eh, I don't agree. I can recall years where students have made FB pages (for example) which takes the mickey out of characters, places, people etc. on the VCAA English Exam & other significant exams. Based on the previous issues the VCAA have had with exams and not checking properly, i'd say it was definitely a forseeable risk which should've been checked more thoroughly.

Shouldn't the students be culpable instead of the VCAA?

Theoretically, but you can post reviews.... whether they be positive or negative.

I'd place my bets that they'd be making profit, not losing it

Long term damage. Review systems have the potential to cause significant long term damage. Would you rather eat from a place that has 5-star glowing reviews or a cafe that has an average of 3-stars and has reviews such as "burnt crappy coffee" etc...?? I know which one i'd be picking, and it isn't the latter.

[clarke54321]

I agree that this is an interesting case. Under defamation, the cafe owners could have a successful cause of action against VCAA. Although they did not intentionally make reference to the cafe, an accidental identification can still fulfil the threshold requirement of 'identification'- one of the elements of a defamation action. So, the test isn't a subjective one. Given that the review is also 'published' by VCAA and capable of conveying a defamatory meaning, the cafe seems to have the upper hand.

[Poet]

Long term damage. Review systems have the potential to cause significant long term damage. Would you rather eat from a place that has 5-star glowing reviews or a cafe that has an average of 3-stars and has reviews such as "burnt crappy coffee" etc...?? I know which one i'd be picking, and it isn't the latter.

I beg to differ. Review systems have an impact on the workings of a business, but this is a well-known and publicised issue. If you look at the cafe's reviews and ratings now, they have been defended by regular customers and other VCE students, who have posted glowing reviews or explicitly referenced the "2018 English VCE Exam". Many of the bad reviews reference them too. It was at 3.2 last time I checked - now it's gone up to 4/5 on Google, and will continue to rise. Although this sort of case would be damaging in any other instance, this is a unique opportunity for the cafe, and I think they'll look at the positives, and will make the most of their 15 minutes of fame.

In the long run, this is a huge plus. There are only short-term negative effects.

[sarangiya]

How can you genuinely distinguish what is a valid or invalid review? If we made requests for reviews to be taken down, essentially this would set a very dangerous precedent allowing business owners to essentially request the removal of genuine reviews if they don't favour the business. A lot of the reviews posted from these Year 12 students would seem genuine if we remove the VCAA exam from the equation.

It could just be for like a day period. Remove reviews from the 31st of October to 1st of November (hope no-one else has been doing it since then).
I don't think it would be easy to do it, but if there is genuine reason (as there is, in this case) I think it is okay to risk your very dangerous precedent.
What about bots? What if 500 spam bots left bad reviews on a business? Surely that's another rare scenario in which removal of reviews are warranted.

Eh, I don't agree. I can recall years where students have made FB pages (for example) which takes the mickey out of characters, places, people etc. on the VCAA English Exam. Based on the previous issues the VCAA have had with exams and not checking properly, i'd say it was definitely a forseeable risk which should've been checked more thoroughly.

They should have checked more thoroughly, I don't disagree at all. But making a meme page on facebook taking the mickey, as you say, is different to students actively leaving bad reviews on a real business. I, for one, did not expect that to happen at all. But, I do agree that out of the whole thing, the negligence of the VCAA is probably the strongest and most upsetting part.

Theoretically, but you can post reviews.... whether they be positive or negative.

But they're fictitious. If we are talking about defamation, that's what it is. Spreading information that is not true in order to harm someone.

Long term damage. Review systems have the potential to cause significant long term damage. Would you rather eat from a place that has 5-star glowing reviews or a cafe that has an average of 3-stars and has reviews such as "burnt crappy coffee" etc...?? I know which one i'd be picking, and it isn't the latter.

That's true. They said in the article that they wouldn't know the true extent of the damage until later on, which is also true. But if the reviews were removed, it wouldn't be a problem.

I agree that this is an interesting case. Under defamation, the cafe owners could have a successful cause of action against VCAA. Although they did not intentionally make reference to the cafe, an accidental identification can still fulfil the threshold requirement of 'identification'- one of the elements of a defamation action. So, the test isn't a subjective one. Given that the review is also 'published' by VCAA and capable of conveying a defamatory meaning, the cafe seems to have the upper hand.

This is true. I didn't really think of the actual content of the piece published in the exam (though it wasn't intentionally directed at the business).

[Aaron]

I beg to differ. Review systems have an impact on the workings of a business, but this is a well-known and publicised issue. If you look at the cafe's reviews and ratings now, they have been defended by regular customers and other VCE students, who have posted glowing reviews or explicitly referenced the "2018 English VCE Exam". Many of the bad reviews reference them too. It was at 3.2 last time I checked - now it's gone up to 4/5 on Google, and will continue to rise. Although this sort of case would be damaging in any other instance, this is a unique opportunity for the cafe, and I think they'll look at the positives, and will make the most of their 15 minutes of fame.

In the long run, this is a huge plus. There are only short-term negative effects.

Hope you're right. I genuinely feel bad for this business, copping unwarranted crap and hope they receive the compensation they deserve. I also think its absolutely disgusting behaviour re: the Year 12s leaving reviews... clearly thought hasn't gone into the impact this would have from them. Trying to be funny has serious consequences for the other party.

[PhoenixxFire]

But making a meme page on facebook taking the mickey, as you say, is different to students actively leaving bad reviews on a real business. I, for one, did not expect that to happen at all.

There was a piece a few years ago that was an edited version of a real article that included the authors real first name and a fake last name and students tracked down the real author and sent her the same type of messages. So I think VCAA should have expected it.

[S200]

They should have checked more thoroughly, I don't disagree at all. But making a meme page on facebook taking the mickey, as you say, is different to students actively leaving bad reviews on a real business. I, for one, did not expect that to happen at all. But, I do agree that out of the whole thing, the negligence of the VCAA is probably the strongest and most upsetting part.

Entirely foreseeable. The shit that VCAA got in with Halen Razer after the tattoo thing in 2011...
And that did damage reputation.
Lol PF beat me...

I seriously hope that the Cafe wins a defamation suit.

[Aaron]

Reference for anybody who's after the mentioned situation above:

https://www.smh.com.au/education/sloppy-copy-in-exam-raises-ire-20111109-1n7eo.html

If anybody thinks it was unforseeable, just read the part of that article that begins:

After searching the internet, she discovered a number of Facebook pages with names like .....

[Lear]

How can you genuinely distinguish what is a valid or invalid review? If we made requests for reviews to be taken down, essentially this would set a very dangerous precedent allowing business owners to essentially request the removal of genuine reviews if they don't favour the business. A lot of the reviews posted from these Year 12 students would seem genuine if we remove the VCAA exam from the equation.

Just a note, TSFX recently got pummelled by more than 500 bad reviews on google following their involvement in shutting down Vce Discussion space. They managed to get google to remove all reviews within that time period and even those since. I noticed even genuine, negative reviews from before the saga were also removed.

[tomatosauce]

It was at 3.2 last time I checked - now it's gone up to 4/5 on Google, and will continue to rise. Although this sort of case would be damaging in any other instance, this is a unique opportunity for the cafe, and I think they'll look at the positives, and will make the most of their 15 minutes of fame.

Interesting views/comments! It seems to me like VCAA definitely stuffed up with their research but I agree... I can't see why the cafe would make a big fuss over something that is actually having positive effects for them! Also... is it worth what it costs to try and charge the VCAA?

They managed to get google to remove all reviews within that time period and even those since. I noticed even genuine, negative reviews from before the saga were also removed.

hmmm... how are they even allowed to do that??