McLibel case--partial victory for free speech against megacorps

McLibel case--partial victory for free speech against megacorps
John Jack
March 2005

In the mid-80s London Greenpeace--not affiliated with Greenpeace International--started a campaign against fast food giant McDonald's, printing and distributing leaflets entitled "What's wrong with McDonald's: Everything They Don't Want You to Know." The leaflet argued that McDonald's was guilty of economic imperialism, destroying rainforests, exploiting workers with their wages and children with their advertising, and producing food that could cause cancer and heart disease. McDonald's infiltrated the group with private detectives; London Greenpeace claimed that they knew of the infiltrators but paid them little heed.

The group-anarchists, libertarians, environmental activists, most of them poor--must have seemed easy enough to intimidate. McDonald's threatened to sue five of them; three of them apologized and agreed to cease distributing the pamphlets. Helen Steel, a vegan anarchist working as a barmaid and active in protests against nuclear energy and the IMF, and Dave Morris, a single parent working as a postman and active in housing campaigns and union advocacy, both refused.¹

McDonald's filed suit, leading to 28 pre-trial hearings and the start of the trial in 1994. Libel trials are typically by jury in the UK, yet during the pre-trials it was decided that the information would be too "technical" for a jury and that a trial without jury would be quicker (McDonald's lawyer predicted the case would last 3 weeks without a jury and another four with one).

UK law did not require legal assistance for people accused of libel. During the trial McDonald's spent over £6,500/day on legal representation; Steel and Morris had occasional pro bono support and public donations. But McDonald's hadn't counted on their firm commitment to principle and stubborn resourcefulness.

Early in the trial, McDonald's provided Steel and Morris daily transcripts, but it stopped once they began using the documents to brief the media. The defendants gathered about £40,000 in public donations--still not enough to afford them the daily transcripts.² So the two would buy each day's transcripts three weeks afterwards, once the price had gone down about 80% (this approach led to difficulties in asking questions in a timely and pointed fashion and keeping a thread of questioning alive).

British libel laws require a defendant to prove the truth of each statement; a single false statement will result in a conviction. (In the U.S. the burden of proof is on the prosecution, who must prove that not only are the claims false, but also that the defendant spread those false statements knowingly. In some European countries, even the truth of every statement is not an absolute defense against a libel conviction). Against both the UK libel laws and a case with tens of thousands of legal documents with information considered too "technical" for the average citizen to understand, Steel and Morris, representing themselves, had little chance to win.

In his testimony, McDonald's own expert witness on cancer agreed with the statement: "a diet high in fat, sugar, animal products and salt and low in fibre, vitamins and minerals is linked with cancer of the breast and bowel and heart disease." The statement was one that McDonald's had strenuously objected to; the defense revealed that it had come from the London Greenpeace leaflet, yet the court still found the statement libelous. Furthermore, the court agreed that McDonald's routinely paid its workers low wages, but found that McDonald's work conditions were not "generally 'bad,' for its restaurant workforce." McDonalds' UK president Paul Preston said, regarding wastefulness, "if a million people go into McDonald's, I would not expect more than 150 items of packaging to end up as litter." Edward Oakley, McDonald's UK senior VP, said, "I can see the dumping of waste to be a benefit. Otherwise you will end up with lots of vast empty gravel pits all over the country." Yet, regardless of the occasional ridiculous and inept testimony, Steel and Morris still had to prove each statement with first-hand evidence.

The McLibel trial was widely referred to as a "David and Goliath" case, and finally ended in 1997. At 199 days in court, it had already broken the previous record for longest English trial, set in a case brought by Rechem; it went on to last 313 days.

Steel and Morris managed to prove that McDonald's did cause cruelty to animals in slaughterhouses and did exploit children with its ad campaigns. Yet since they did not convince the courts that every statement in their leaflet was true, they were found guilty of libel and the court entered a £60,000 judgment against them. In 1999 Steel and Morris appealed, more of their statements were found true (that, for example, a McDonald's diet can lead to heart disease), and they were found guilty again. The judgment against them was reduced to £40,000. McDonald's, which had spent £10 million on the first trial and suffered incalculable negative PR as a result, did not move to collect. Steel and Harris refused to pay anyway. In 2000 they appealed to the European Court of Human Rights (ECHR), arguing that their lack of representation and the requirement to prove every single statement on a leaflet that they had not written were both violations of their human rights.

In February 2005 The ECHR determined that it was acceptable to require a defendant to prove the truth of every statement, yet that there was "a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate." The court also found that "the denial of legal aid to the applicants had deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms with McDonald's."³ The court found unanimously that Britain had violated Article 6 § 1 of the European Convention on Human Rights, denying the pair the right to a fair hearing, and that it had also violated Article 10 of the Convention, denying them freedom of expression. The court ordered Britain to allow the pair a retrial, to pay the pair's court costs, and to award £13,750 to Steel and £10,300 to Morris.⁴

Though Britain has not yet adopted legal code establishing the decisions of the ECHR as binding precedent, such legal code has been proposed. Britain's Human Rights Act of 1988 requires UK judges to attempt to interpret all legislation in a way compatible with the convention. Judges must declare any incompatible legislation; Parliament then acts to address the incompatibility. One appeal taken to the ECHR resulted in a finding against Britain and sections added to the UK's 2003 Criminal Justice Act requiring compliance with the ECHR findings; others have resulted in findings against Britain that have not yet resulted in changes to British law. Britain has until mid-May to appeal the ECHR ruling; a spokesman for the Department of Constitutional Affairs stated that the office was "studying the judgment very carefully."

McDonald's released a statement that "the case taken to the European Court of Human Rights relates to a claim made against the UK government in respect of the legal framework of England and Wales. As McDonald's was not a party to this case, it is inappropriate for us to comment on the case or its outcome," adding that the world has "moved on" since the 1980s, and that McDonald's has as well.⁵ One can only hope that it is, however gradually, becoming more fair.

Steel and Morris were more direct: "Having largely beaten McDonald's and won some damning judgments against them in our trial we have now exposed notoriously oppressive and unfair UK laws. ... As a result of the European court ruling today, the Government may be forced to amend or scrap some of the existing UK laws. We hope that this will result in greater public scrutiny and criticism of powerful organisations whose practices have a detrimental effect on society and the environment."⁶

A documentary about the McLibel debacle has, since the ECHR verdict, been picked up for North American distribution by Cinema Libre Studio, which also released Outfoxed, Uncovered, and Unprecedented. Earlier Iguana coverage of the McLibel trial is available in the March 1997 issue. The health effects of a fast food diet have been compellingly documented in Eric Schlosser's book Fast Food Nation and in the 2004 film Super Size Me.

Citations

[1]. "You and I against McWorld," John Vidal, March 9, 1996. http://www.guardian.co.uk/uk_news/story/0,3604,1299153,00.html

[2]. "McDonald's clash sets record," Maggie O'Kane, December 9, 1995. http://www.guardian.co.uk/uk_news/story/0,3604,1299145,00.html

[3]. European Court of Human Rights press release in regards to Chamber Judgement regarding Steel and Morris v. The United Kingdom, February 15, 2005. http://www.echr.coe.int/Eng/Press/2005/Feb/ChamberjudgmentSteel&Morrisv UnitedKingdom150205.htm

[4]. "European Court Vindicates McLibel Pair." Published on the International Freedom of Expression eXchange, February 15, 2005. http://www.ifex.org/en/content/view/full/64823/

[5]. "'McLibel' pair wins rights case," February 15, 2005. http://edition.cnn.com/2005/WORLD/europe/02/15/mclibel/

[6]. "New victory for 'McLibel' campaigners," Paul Cheston, February 15, 2005. http://www.thisislondon.co.uk/news/articles/16619558?source=PA