CONSUMER REPORTS, the magazine that tests and rates products, is under attack in two federal courts by auto manufacturers. Isuzu Motors Ltd. and Suzuki Motors Corp. claim that the magazine -- published by an independent nonprofit group called Consumers Union -- defamed the Suzuki Samurai and the Isuzu Trooper by rigging tests that made them appear unsafe. In 1988 Consumer Reports declared the Samurai's safety "not acceptable" because of the vehicle's tendency to tip up on two wheels in tight turns. The magazine did the same for the Trooper in 1996. These suits are dangerous threats to the ability of an independent reviewer to design reasonable product tests and publicize the results.
That these cases are not simply efforts to redress defamatory coverage is evident: Suzuki's case was filed more than eight years after the Consumer Reports critique. The Samurai, in fact, was no longer on the market. And Consumer Reports had praised its successor product the year after it had deemed the Samurai unacceptably dangerous. Isuzu also is playing dirty. An internal company document contemplates a "lawsuit as a PR tool." Another memo suggests: "When attacked, CU will probably shut up."
Yet the Isuzu case has survived CU's motion for summary judgment and is headed to trial in February. U.S. District Judge Richard Paez held that a reasonable jury could find that CU had publicized false information with actual malice, because "CU knew that its short course maneuver, the course utilized to test the Trooper, was highly susceptible to driver influence" and that "its testing methods had been criticized by [government regulators] as unreliable." Trial could prove embarrassing for the organization, as its methodologies come under sustained attack. But CU must be permitted to have scientific disagreements with the government concerning what constitutes reliable testing without that disagreement being construed as reckless disregard for the truth.
The bottom line is that reviewers must have a lot of leeway -- assuming they are acting in good faith -- to give the public the benefit of their findings. Try as they might, the plaintiff companies are unconvincing in suggesting that CU was acting with some corrupt motive. If the Samurai and the Trooper performed badly in CU's tests, the organization was well within its rights to make that point loudly and clearly.