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IN THE EUROPEAN COURT OF HUMAN RIGHTS
B E T W E E N:
(1) HELEN MARIE STEEL
(2) DAVID MORRIS
Applicants
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UNITED KINGDOM
Respondent
APPLICATION PURSUANT TO ARTICLE 34 OF THE EUROPEAN
CONVENTION ON HUMAN RIGHTS AND RULES 45 AND 47
OF THE COURT
I.
THE PARTIES
A:
The Applicants
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1st Applicant
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2nd Applicant
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- Surname:
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STEEL
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MORRIS
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First name(s):
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HELEN
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DAVID
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Nationality:
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BRITISH
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BRITISH
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Occupation:
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UNWAGED
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UNWAGED
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B:
The High Contracting Party
- UNITED KINGDOM.
- Preferred Language: ENGLISH
PREAMBLE
- This case relates to the proceedings brought by McDonald’s against
the Applicants because, McDonald’s claimed, the Applicants had damaged
their reputation by campaigning and protesting against them. McDonald’s
pursued the Applicants to a full hearing and the ensuing trial was the
longest in English legal history. Throughout the Applicants were representing
themselves, there being no legal aid for defamation proceedings in England
and Wales. Inevitably this 'David and Goliath' battle attracted widespread
attention and much criticism was made of the archaic libel laws in play.
Books were written about the trial; and it has become the subject of
intense legal debate. For example, Professor Marlene Nicholson of DePaul
University, has written a widely respected article in the Wisconsin
International Law Journal (2000, Vol.18, no.1), which concluded that
in several important respects the proceedings brought by McDonald’s
against the Applicants breach the European Convention on Human Rights.
Also David Pannick ‘Exposing the flaws in Britain’s libel laws [see
appx 6].
- This application details the Applicants’ complaints that their Convention
rights have been breached and sets out the facts and matters relied
upon in support of this. It thus amplifies the brief description of
the Applicants’ complaints set out in the letter to the Court of 20
September 2000 and acknowledged by the Court. All extensions of time
for the drafting of this amplification of the Applicants’ complaints
have been specifically discussed and agreed with the Court staff.
II
STATEMENT OF FACTS
A: Introduction
- On 20 September 1990 McDonald’s Corporation ("US McDonald’s")
and McDonald’s Restaurants Limited ("UK McDonald’s") (collectively
"McDonald’s") issued a writ against the Applicants claiming
damages for alleged libel for the alleged publication by the Applicants
of a leaflet entitled "What’s wrong with McDonald’s?" [Appendix
1].
- McDonald’s pursued the Applicants to trial, the details of which are
set out below. Before the trial was heard there were approximately 28
interim applications, involving numerous issues of law and fact, some
lasting as long as five days.
- Prior to trial the Applicants applied for legal aid. It was refused
on 3 June 1992, because legal aid is not available for defamation proceedings
in any circumstances. On 2 December 1992, the Applicants applied to
the European Commission complaining of a breach of their rights under
articles 6, 10, 13 and 14 of the Convention (application number 21325/93).
On 5 May 1993, that application was declared inadmissible. That application
has little (if any) relevance to the Applicants’ present application
and is dealt with fully in para 400 below. It is significant that even
as late as December 1993, the estimate for trial was only '3 to 4 weeks'.
[Richard Rampton QC, 21.12.1993 - see court transcript 21.12.1993 p27D,
Appx 7].
- In March 1994, UK McDonald’s produced and published a press release
about the case, and a leaflet for distribution to customers in their
stores entitled "Why McDonald’s is going to Court". In May
1994 they also produced a document entitled ‘Libel Action – Background
Briefing’ for distribution to the media and others. [Documents at Appx
2]. The leaflet and the Background Briefing were published throughout
the duration of the trial. The publications accused the Applicants of
lying and made other defamatory statements about their conduct (for
example stating that the applicants had ignored several letters sent
by the company, when in fact no such letters had been sent). They therefore
counterclaimed for damages for libel from UK McDonald’s, since they
believed this might require McDonald’s to provide evidence that the
allegations in the ‘What’s Wrong with McDonald’s?’ factsheet were false.
- The trial of the libel action against the Applicants took place between
28 June 1994 and 13 December 1996. The trial judge was the Mr Justice
Bell ("Bell J"). The action was, unusually for a claim for
libel, heard without a jury.
- The trial was the longest in English legal history (either civil
or criminal), lasting 313 court days. Bell J delivered his 762 page
judgment on 19 June 1997 [Appx 3]. Bell J found for McDonald’s on a
number of issues and for the applicants on other issues. As a result
of his findings in favour of McDonalds, Bell J awarded McDonald’s Corporation
£30,000 damages and McDonald’s Restaurants Ltd a further £30,000 damages.
Mr Morris was severally liable for the whole amount. Mr Morris and Ms
Steel were held jointly and severally liable to each claimant in respect
of £27,500 of that amount. Ms Steel’s total liability was therefore
£55,000. Mr Morris’ total liability was therefore £60,000.
- In relation to the Counterclaim, although Bell J found McDonald’s
had published false defamatory statements about the Applicants, he ruled
these were protected by qualified privilege and so also entered judgment
for McDonald’s on the Applicants’ counter-claims.
- The Applicants appealed to the Court of Appeal. The hearing of the
Applicants’ appeal before the Court of Appeal (Pill LJ, May LJ, and
Keene J) began on 12 January 1999. It lasted 23 days, an unusually long
period for a libel appeal. On 31 March 1999, the Court of Appeal delivered
its 301 page judgment allowing, in part, the Applicants’ appeal [Appx
4].
- The Court of Appeal allowed the Applicants’ appeal against the order
of Bell J, dated 6 August 1997, with two further findings in the Applicants’
favour, to the extent that:
13.1 the sum of £18,000 was substituted in place
of each sum of £27,500 in respect of Ms Steel (her overall liability
was accordingly reduced to £36,000);
13.2 the sum of £20,000 was substituted in place
of £30,000 in respect of Mr Morris (his overall liability was accordingly
reduced to £40,000).
- The Court of Appeal refused the Applicants’ application for permission
to present a Petition of Appeal to the House of Lords.
- The Applicants applied for permission to appeal from the decision
of the Court of Appeal to the House of Lords. On 21 March 2000 the Appeal
Committee of the House of Lords refused permission to appeal [Appx 5].
B: Summary of issues
- The Applicants complain that their rights under articles 6, 8, 10,
11, 13 and 14 of the European Convention ("the Convention")
have been violated.
- This application raises for the first time the important issue, in
the context of English libel law, of the applicable principles under
the Convention where an organisation or group of protesters publishes
statements critical of the business practices. In that respect, it goes
to the heart of the right to disseminate ideas and information under
Article 10 and the right to engage in protest activities under Article
11 of the Convention.
- It also raises the vital question of the extent to which the operation
of the rules of English libel law in protecting the right to reputation
of such corporations are necessary in a democratic society.
- In particular, it raises the question of the extent to which organisations
and individuals can put forward in public, views which have their place
in public debate and concern matters of considerable importance, and
in which they have a genuine and reasonable belief without being stifled
by fear of costly and time-consuming libel litigation.
- The significance of the Court of Appeal’s judgment in the applicants’
case for those participating in public debate through peaceful protest
and campaigning, which includes handing out leaflets is enormous: unless
each and every person participating in such activity is in a position
– without legal aid, advice and/or assistance (see below) – to prove
the truth of the contents, s/he will be vulnerable to defamation proceedings.
The Applicants submit that the chilling or inhibiting effect of this
on the free expression of ideas through public debate should not be
underestimated.
- This application also raises the question of whether it is necessary
in a democratic society for distributors, who are not the authors, of
a leaflet, to prove more than that they had a reasonable belief in the
truth of the contents of the leaflet.
- In summary, it is submitted that the Applicants’ Convention rights
have been breached in the following respects:
- Article 10: the Applicants’ rights under article 10 were violated
by (a) the requirement that they prove the truth of allegations concerning
matters of public interest and /or complex or scientific issues; (b)
the absence of a defence of reasonable belief; (c) coupled with the
absence of legal aid.
- The applicants also contend that their rights under Article 10 were
violated in that (a) the matters complained about by McDonalds in the
libel proceedings and which were found by the trial judge to be defamatory
were already in the public domain including in circumstances in which
McDonalds had consented to their publication; (b) the categorisation
of many of the statements contained in the leaflet and complained about
by McDonalds as statements of fact, rather than comment, is too rigid
in domestic law and, in the applicants case, inconsistent with the protection
afforded to free speech under Article 10 of the Convention – the effect
of such categorisation being to deprive the applicants of a ‘fair comment’
defence; and (c) neither Bell J nor the Court of Appeal took any (or
sufficient/appropriate) account of the nature and character of the leaflet
complained of when attributing meanings to the words and cartoons used
in it – the leaflet was a campaigning document, and its style reflected
this fact by the inclusion, among other things, of satirical images.
- Further the applicants maintain that there is a fundamental incompatibility
between the strong protection afforded to trading corporations such
as McDonalds and the requirements of Article 10 of the Convention. Although
such corporations only have a trading reputation, damage to this reputation
is presumed without proof of trading loss and, in McDonalds’ case, in
the teeth of trading success.
- The applicants also raise under Article 10 the question of damages.
The total awards against the applicants are so excessive that neither
of them has any prospect whatsoever of being able to pay them. Even
after reduction by the Court of Appeal the remaining liability of £36,000
and £40,000 for each of the applicants respectively is far beyond their
means and bears no relation whatsoever to any injury alleged by McDonalds,
particularly in the light of the findings made against the company.
In this respect it is noteworthy that McDonalds did not claim to have
suffered any loss in trade at all as a result of the distribution of
the leaflet complained of; on the contrary, their profits soared before,
during and after the libel proceedings. The chilling effect of such
a high award of damages is obvious: most campaigners with no resources
simply cannot afford to expose themselves to the risk of such an award
and are likely to shy away from any expression of their genuinely held
beliefs.
- Article 6: the litigation against the Applicants for defamation
breached their right to a fair trial under article 6 of the Convention
as follows: the Applicants had only minimal financial resources with
which to defend the claim brought against them. They could not afford
legal representation. Under English law the burden of proving the truth
of the allegations in the leaflets complained of was on the Applicants.
They were unable properly to investigate and prepare their defence.
The Applicants were refused legal aid. This was a blanket ban, made
without reference to the applicants’ means, the complexity of the case
they faced and without any regard to the merits of their defence or
the effect of the proceedings on their Convention rights under Articles
6, 10 or 11. The Courts failed to ensure the Applicants were protected
by the equality of arms principle in that McDonald’s were allowed to
withold documents and blank out parts of pages which may very well have
assisted the Applicants in their defence of the case. Further, McDonald’s
were permitted to make major changes to their claim against the Applicants
on three substantial issues (publication, animals and nutrition) after
the trial was already underway and much of the evidence had been heard,
and this was compounded by a refusal to grant an adjourment of the trial
to allow the Applicants time to prepare to meet the new case.
- Article 8: the failure by the trial judge and the Court of
Appeal to rule that the use by McDonald’s of inquiry agents, both before
and after proceedings had been issued against the Applicants, to infiltrate
London Greenpeace, follow people home and break into the group’s office,
amounted to an abuse of process and constituted a violation of the Applicants’
right to privacy. In particular, McDonalds agents gained access to confidential
and private information both before and after proceedings were issued,
the full extent of which has never been revealed.
- Article 11: the decision of the trial judge and the Court of
Appeal constituted a violation of the Applicants’ right to freedom of
assembly and protest. In particular, the finding that mere support for,
or involvement in a campaigning group can give rise to liability in
libel proceedings for each and every publication of the group operates
to inhibit, and ultimately to destroy, the rights of individuals to
freely associate to discuss and further their common beliefs and ideals.
- Article 6 together with article 13: the proceedings before
the trial judge and the Court of Appeal, and the decision of, the Appeal
Committee of the House of Lords, amounted to breaches for which there
was no effective remedy in domestic law as required by article 13 of
the Convention.
- Article 14: The Applicants complain that their rights under
Article 14 have also been breached. They were unable to defend themselves
properly in court because they were impecunious and, without legal aid,
they were simply unable to prepare and present the case properly. Others
in a comparable position, but with means, have an unjustifiable advantage
over the Applicants. While, inevitably, there will always be some difference
in the means of those before the courts to defend themselves, the blanket
refusal of legal aid cannot be justified as proportionate, particularly
where the legal proceedings complained of were the longest, and amongst
the most complex, in English legal history.
C: Detailed description of parties and
history of domestic civil proceedings
(a)
McDonald's.
- McDonald’s Corporation is a company incorporated
in the State of Illinois in the United States of America. It has its
headquarters at Oakbrook near Chicago. It is responsible for a vast
chain of McDonald’s quick service restaurants throughout the world.
The restaurants are owned and run by subsidiaries of McDonald’s Corporation,
or by franchisees or owner operators, or by joint ventures of McDonald’s
Corporation or its subsidiaries and outside partners.
- At the end of 1990, there were about 11,800 McDonald’s
restaurants in a total of 53 countries. About 8,600 of the restaurants
were in the United States. Total systemwide sales were about US$18.75
billion. By the end of 1995, there were about 18,400 restaurants in
a total of 89 countries. About 11,400 restaurants were in the United
States. Total systemwide sales had grown to nearly US$30 billion. McDonalds
worldwide was (rightly) described by the Court of Appeal as ‘a gigantic
enterprise with immense economic strength’ (CA p.17).
- The first McDonald’s restaurant in Britain was
opened in 1974 in Woolwich, south east London. At the end of 1990 there
were about 380 McDonald’s restaurants in Britain. There were about 650
by the end of 1995.
- In the UK McDonalds had a policy of vigorously
pursuing those critical of its practices. During the mid-1980’s, McDonald’s
forced apologies or retractions from the BBC, The Guardian, and the
Scottish TUC and many other bodies [Appx 8]. It also effectively closed
down the Transnational Information Centre, stopped the transmission
of at least one [T.V.] film and silenced a play.1
(b)
London Greenpeace
- London Greenpeace was formed in 1971. Since that
time it has campaigned on a variety of social and environmental issues.
At the time of the alleged libel the group ran a number of different
campaigns, of which the campaign against McDonald’s was just one. The
practices of huge, powerful and influential corporations, such as McDonalds,
have inevitably attracted criticism, particularly from those concerned
to preserve the environment worldwide. London Greenpeace is one of a
number of campaigning groups which have, from time to time, sought to
draw attention to the practices of McDonalds. The group’s activities
have included meetings, demonstrations and the production and distribution
of leaflets, including the leaflet complained of by McDonalds in the
libel proceedings against the Applicants. The Applicants submit that
such activities are essential to the notion of a democratic society,
which is integral to the proper construction of the Convention as a
whole and Article 10 and 11 in particular.
(c)
The Applicants
- The contrast between the economic power and influence
of McDonalds and the applicants could not be more stark.
- During the relevant period, Ms Steel was at times
employed as a part-time bar worker earning approximately £65 per week.
At other times she was unwaged and wholly dependent on income support.
- Mr Morris, a former postal worker, was unwaged
and entirely dependent on income support. He was also a single parent,
with day to day responsibility of his son, Charlie, aged 4 when the
trial began.
(d) The leaflet
complained of
- In the mid 1980s London Greenpeace began an anti-McDonald’s
campaign. In 1986 a six page leaflet (also referred to as ‘the factsheet’)
– "What’s wrong with McDonald’s? Everything they don’t want you
to know." – was produced and distributed as part of that campaign.
This leaflet was last reprinted in early 1987. At this time London Greenpeace
produced a shorter 2 sided A5 leaflet also entitled "What’s wrong
with McDonald’s?". In this case, McDonald’s only complained about
the 6 page leaflet.
- The applicants case was that at the time the leaflet
complained of was reprinted in 1987, a decision was made that it was
too costly to distribute on the street, and would instead be saved for
persons requesting more information. The shorter leaflet was produced
for widespread distribution. Further that by the time McDonald’s initiated
legal action against the applicants, the leaflet complained of was out
of print.
- The leaflet [Appx 1] concerned certain of McDonald’s
business practices and those of the food industry, or US multinationals,
or capitalism in general and the effects of those business practices
in the context of the international cash crop economy and hunger in
the ‘Third World’; the destruction of tropical forests; diet, nutrition
and heart disease and cancer; advertising and exploitation of children;
rearing and slaughter of animals; food safety; staff working conditions;
and McDonald’s attitude to trade unions. The leaflet stated that the
criticisms also applied to McDonald’s high street competitors.
- Bell J accepted that "the leaflet was published
at a time when there was growing public awareness of issues affecting
the environment and the relationship of diet to health. Animal welfare
and mass media advertising attracted campaigners. Working conditions
have always been the subject of debate. A "multinational" like McDonald's
has an influence for good or ill in all those areas. That influence
grows and spreads as the number of McDonald's restaurants increases
and the system opens up in new countries."2
- The Applicants were not the authors of the leaflet
complained of. Originally McDonald’s had not asserted that they were,
but part way through the trial, in 1996, McDonald’s amended their Statement
of Claim to allege that the Applicants had produced the leaflet in question
for publication and distribution. However, that allegation was later
dropped against Ms Steel. The trial judge found that "Mr Morris
participated in the production of the leaflet complained of in 1986,
although the precise part which he played in its production cannot be
identified".3 This
is fiercely disputed, and Bell J himself in fact stated he was not satisified
that Mr Morris played any part in writing it [Appx 3 p732]. The judge
found that Ms Steel did not participate in that initial production.
Her responsibility, according to the trial judge, began in early 1988
and took the form of "participation in the group's activities,
sharing its anti-McDonald's aims" which included distribution of
the leaflet. Mr Morris was also found to be responsible on that basis
as well because of the finding of his involvement in the initial production.4
It now transpires that McDonalds held back vital documents [Appendix
9] at trial which demonstrated that, far from being actively involved
in any campaign against McDonalds at the relevant times, Mr. Morris,
in fact, played little or no part in the campaign.
- It should be noted that this was a very thin basis
indeed for a libel action. As is well known, libel actions are normally
brought against the authors, journalists and/or constituted bodies responsible
for generating and publishing (in the strict sense) allegedly defamatory
statements. So far as the applicants are aware, proceedings have never
previously been based on the fact that an individual or individuals
supported a campaign and/or handed out leaflets to members of the public
as an act of support for that campaign.
- Neither the trial judge nor the Court of Appeal
made a finding that the leaflet had any impact on the sale of McDonald’s
meals, or had actually damaged its trading reputation. As noted
above, McDonalds’ profits have remained unaffected by the leaflet.
- The circulation of the leaflet was very limited.
The trial judge found that the Applicants were both responsible for
the publication of "several thousand copies" of the leaflet.
The finding was derived from the evidence of one of the witnesses that
2,000 or 3,000 copies of the leaflet had been printed in 1987, sometime
prior to the first alleged date of publication by the Applicants, and
from the judge’s inference that there must have been consequential publication
as a result of the direct publication.5
However, there was never any evidence of publication on this scale.
(e) Legal Aid
- After the proceedings were served on the applicants
they applied for legal aid to defend themselves. This was refused on
3 June 1992. The applicants lodged a complaint to the (then) European
Commission on Human Rights in relation to this refusal of legal aid
on 2 December 1992. That complaint was declared inadmissible on 5 May
1993 (see HS and DM v United Kingdom Appln No. 21325/93). The applicants
make it clear that the present complaint is wholly different to the
previous complaint. For that reason, a section has been added at the
end of this document distinguishing the two applications. See para 400.
(f) The trial.
- Libel trials are one of the few remaining civil
actions which are usually tried by a jury. Section 69 of the Supreme
Court Act 1981 provides that:
"69. – (1) Where,
on the application of any party to an action to be tried in the
Queen’s Bench Division, the court is satisfied that there is in
issue –
a claim in respect
of libel, slander, …
the action shall be
tried with a jury, unless the court is of opinion that the trial
requires any prolonged examination of documents or accounts or any
scientific or local investigation which cannot conveniently be made
with a jury."
- However, Bell J ruled that the action should be
tried by a judge sitting alone because it involved prolonged examination
of documents and scientific investigation. His decision was upheld by
the Court of Appeal. This ruling confirmed that Bell J and the Court
of Appeal considered the trial to be too complex for a jury composed
of lay people [Appx 10].
- This is of considerable significance. The applicants
were themselves effectively ‘lay people’ in the sense that they had
no knowledge of libel law and no prior access to, or familiarity with
the voluminous and scientific documentation relied upon at trial, and
thought to be too complicated for a jury. In the circumstances, it is
submitted, there should have been a review – either when Bell J ruled
on mode of trial – or shortly thereafter whereby the domestic authorities
considered whether it was appropriate for legal proceedings to continue
against private individuals with no legal representation and no money.
No such review took place.
- The trial took place over 313 court days. 130 witnesses
gave oral evidence, 59 for the Applicants, 71 for McDonald’s and there
were also many additional written witness statements under the Civil
Evidence Act. [See Appx 11, analysis of the proceedings]. There were
about 40,000 pages of documents. As noted above, this made it the longest,
most detailed, trial in English legal history. Transcripts of the trial
itself ran to approx 20,000 pages.
(g)
Transcript of proceedings.
- A party to proceedings is required to pay a fee
(approx £750 per day, or split £375 each for two parties) to obtain
an immediate transcript of the proceedings. McDonald’s paid the fee
and had the benefit of a daily transcript. McDonald’s initially provided
the Applicants with copies of the daily transcript, stating that it
would be fair to do so [See Appx 12]. But on 3 July 1995, McDonald’s
stated that they would no longer provide the Applicants with daily transcripts
unless they undertook not to use them for any purpose other than the
conduct of their case i.e. not to use them to publicise what had been
said in court [See Appx 12] (no such restriction was placed on the availability
of the transcripts to McDonald’s). This was not a legal requirement,
but a requirement imposed by McDonalds purely because they had the means
to pay for the transcripts and hence the power to demand undertakings.
- The trial judge refused to order McDonald’s to
supply transcripts in the absence of such an undertaking. The Applicants
declined to give such an undertaking. The Court also refused to order
McDonald’s to allow the Applicants to purchase the transcripts immediately
at reduced cost, something the transcribers were willing to do, providing
McDonald’s would agree to it. The Applicants appealed but the Court
of Appeal ruled that Bell J had no power to supply the transcripts or
to order McDonald’s to do so. McDonald’s thereafter no longer provided
the Applicants with daily copies. The Applicants could not afford to
obtain their own daily transcript at the full cost. The Applicants were
only able to purchase the transcripts, using donations from the public,
at a reduced cost (£25 per day) 21 days after the evidence had been
given.6 This substantially
reduced their ability to prepare their case by reference to the transcripts
and their ability to cross-examine witnesses many of whom gave evidence
over more than one day eg McDonald’s Corporation Director of Global
Trade and Purchasing, Ray Cesca (7 days) and McDonald’s UK President
Paul Preston (4 days) [See Appx 13]. [It is common practice in England
and Wales to review transcripts overnight when cross-examining a witness
who gives evidence for more than a day.] Further the unavailability
of transcripts posed a particular difficulty to the Applicants because
they were unrepresented and therefore did not have solicitors available
to take notes of the proceedings whilst they cross-examined witnesses
or advanced legal argument. Normally counsel would concentrate on cross
examination whilst the solicitors took notes, it is difficult to do
both at the same time effectively.
(h)
The Plaintiff’s change of claim in relation to the issue of publication
of the leaflet
- On 20th September 1990 McDonald’s served the originating
writ and statement of claim on the applicants. The Statement of Claim
alleged (para 3) that ;
"On divers occasions
in 1989 and 1990 including 2nd October 1989, 16th October 1989,
21st October 1989, 25th January 1990, 22nd February 1990 and 26th
April 1990 the Defendants and each of them have published or caused
to be published and/or been party to or procured the distribution
and publication within the jurisdiction of this Honourable Court
of a leaflet entitled: "What's wrong with McDonald's?" containing
the following words defamatory of the plaintiffs" etc.
- On 3rd May 1991, in response to the Applicants
request for further details, McDonald’s served further and better particulars
of their case. These included the following points:
Under Paragraph 3
Of "On diverse occasions in
1989 and 1990"
Request
18. Specify each and every such occasion that the Plaintiffs seek
to rely upon at trial of this matter.
Answer
18 and 19. The Plaintiffs will only rely upon the specific dates
which have been pleaded. In relation to the Second Defendant (Steel)
it is the Plaintiff’s case that she published the leaflet containing
the said words on 16th October 1989, 26th January 1990 and 22nd
February 1990, and that through her membership or involvement in
the activities of Greenpeace, was a party to or procured the distribution
and publication of the said leaflet on the other specified dates.
In relation to the Fourth Defendant (Morris) it is the Plaintiff’s
case that he published the said leaflet on the 26th January 1990
and 26th April 1990, and that he was a party to or procured the
distribution and publication of the said leaflet on the other specified
dates.
Request
22. State whether it is the Plaintiffs’ case that the Defendants
or any of them were the authors of the said leaflet. If so specify
which Defendant was allegedly the author and where and when it is
alleged the said leaflet was written.
23. State whether it is the Plaintiffs’
case that the Defendants or any of them were the printers of the
said leaflet. If so specify which Defendant was allegedly the printer
and where and when it is alleged the said leaflet was printed.
Answer
22. It is not the Plaintiffs’ case that these Defendants were the
authors of the said leaflet. The author of the said leaflet is at
present unknown to the Plaintiffs.
23. It is not the
Plaintiffs’ case that these Defendants or either of them were the
printers of the said leaflet.
- On 26th April 1996, despite strenuous opposition
from the Applicants, McDonald’s were given leave by Bell J to amend
their Statement of Claim to:
3(a) "At some time
before October 1989 (as to which the Plaintiffs cannot be specific),
the Defendants and each of them produced for publication and distribution
within the jurisdiction of this Honourable Court a leaflet entitled
"What's Wrong with McDonald's?" containing the following words defamatory
of the Plaintiffs: (Words complained of here set out)"
3(b) "By 'produced'
is meant that the Defendants and each of them prepared and/or compiled
and/or wrote and/or edited and/or printed or arranged to be printed
the said leaflet for the purposes of distribution and publication
or caused or were party to or procured or assisted in or authorised
the same. Accordingly, the Defendants and each of them have caused
the publication of the said leaflet wheresoever and whensoever it
has been distributed and published within the jurisdiction since
21st September 1987 and up to the date of the writ herein"
3(c) Further or
alternatively, the Defendants and each of them by virtue of their
involvement in the anti-McDonald's activities of Greenpeace (London)
(particulars of which have already been given) have caused or procured
or been party to or authorised the distribution and publication
of the said leaflet wheresoever and whensoever it has been distributed
and published since the 21st day of September 1987 and up to the
date of the Writ herein.
3(d) In any event,
on divers occasions in 1989 and 1990 (particulars of which have
already been pleaded), the Defendants and each of them published
or caused to be published and/or were party to or procured the distribution
and/or publication of the said leaflet.
- This amendment occurred after
the Plaintiffs had begun calling their witnesses on the publication
issue [See Appx 13], but the Applicants were refused an adjournment
of the trial in order to prepare their case to meet the new allegations.
The Applicants appealed against the trial Judge’s decision to allow
the Plaintiff’s to amend their claim at this late stage. On 27th June
1996, after all the Plaintiff’s publication evidence had been heard
in the main action, the Court of Appeal upheld the trial Judge’s decision.
- The Applicants unsuccessfully raised this as an
issue during the final Appeal.
(i) The interim appeal
to the Court of Appeal in relation to the Nutrition meaning.
- The Plaintiffs original Statement of Claim alleged
in relation to nutrition, that the meaning of the leaflet was that McDonald’s;
"Are deliberately
misleading the public as to the nutritional value of the food they
sell when they know full well that the contents of an average McDonald's
meal are linked with cancers of the breast and bowel, and heart
disease".
- On 15th December 1993, McDonald’s served a formal
notice of Admission of the following fact;
"That there is a considerable
amount of evidence of a relationship between a diet high in saturated
fat and sodium, and obesity, high blood pressure and heart disease."
- On 14th December 1994 (after all their intended
experts on the nutrition issue had been called and cross-examined, and
most of the Applicants experts had given evidence), McDonald’s were
given leave to amend the nutrition paragraph of their Statement of Claim
to;
McDonald’s;
1. Sell meals which cause cancer of the breast and bowel and heart
disease in their customers
2. Despite knowing that that is
an accepted medical fact, deliberately and dishonestly conceal
that fact from the public by publishing nutritional guides which
a) suppress that fact; and b) falsely claim that their meals are
a useful and nutritious part of any diet."
- Following this change to the Statement of Claim
by McDonald’s on 20 November 1995, Bell J ruled on the meaning of the
paragraph entitled "What’s so unhealthy about McDonald’s food".
He concluded that that part of the leaflet bore the meaning:
"… that McDonald’s food
is very unhealthy because it is high in fat, sugar, animal products
and salt (sodium), and low in fibre, vitamins and minerals, and
because eating it may well make your diet high in fat, sugar, animal
products and salt (sodium), and low in fibre, vitamins and minerals,
with the very real risk that you will suffer cancer of the breast
or bowel or heart disease as a result; that McDonald’s know this
but they do not make it clear; that they still sell the food, and
they deceive customers by claiming that their food is a useful and
nutritious part of any diet".7
- The Applicants appealed against his order by Notice
of Appeal dated 12 February 1996. The grounds of appeal were expressed
in 7 paragraphs.
- The appeal was heard by the Court of Appeal (presided
over by Hirst LJ) on 2 April 1996. By letter dated 1st April
1996, Ms Steel had written on behalf of both Applicants to the Listing
Officer of the Civil Appeals Office giving notice that the Applicants
were withdrawing the first 6 grounds of their appeal and saying that
the sole question which they now asked the Court of Appeal to consider
was the seventh ground viz., whether the trial judge was wrong in that
he determined a meaning which was more serious than that pleaded by
McDonald’s in the Statement of Claim.
- The Applicants withdrew the other 6 grounds because
they had no real opportunity to pursue those grounds of appeal as a
result of constraints of time and lack of legal advice [See Appx 14].
It was their understanding that it would remain open to them to raise
those matters at a full appeal after the conclusion of the trial.
- The Court of Appeal heard the appeal on this limited
basis (ie., the seventh ground only) and decided the one remaining issue
against the Applicants, holding that the meaning determined was significantly
less severe than that pleaded by McDonald’s. Hirst LJ concluded his
judgment as follows: "From now on the case will, as I understand
it, proceed on the basis of the meaning as upheld by the judge".
- In his final judgment, when all the evidence had
been adduced and the parties had made their submissions, Bell J said
(at the suggestion of McDonalds) that the meaning which he had found
needed elaboration in two respects. First, the words "eating it
[McDonald’s food] …" should be read as meaning "eating it
more than just occasionally", since the reader of the leaflet would
not expect to be adversely affected by the occasional McDonald’s meal.
Secondly, the words "very real risk" were meant in the sense
of "a serious or substantial risk, although falling short of probability;
a risk which the ordinary, sensible reader of averagely robust temperament
would worry about; not a minimal or bare risk which is there, but which
one can get through life without undue concern for".
(j)
Meanings generally.
- The trial judge held that the Applicants had published
the leaflet. In the main, he also held that the words complained of
had the meanings contended for by McDonald’s, or in some instances lesser
meanings within the compass of the meanings alleged by McDonald’s, and
that they were defamatory of McDonald’s. With one exception, he held
that the defamatory meanings were statements of fact, not comment, and
that accordingly the Applicants had to rely on the defence of justification.
This is highly significant because the Applicants contend that, had
they been represented, they would have been able to advance more powerful
arguments as to meanings generally and thus reduce the scope of their
task in proving justification. This also applies to other aspects of
meaning – the generalisations in the text, its overall context and the
rather traditional use of satire and/or exaggeration.
- Bell J found that;
the leaflet accused McDonald’s of
being responsible for starvation in the Third World, of destroying
vast areas of Central American rainforest, of serving unhealthy food
with a very real risk of cancer of the breast or bowel and heart disease
and food poisoning, of lying when it claimed to use recycled paper,
of exploiting children with its advertising and marketing, of cruelty
to animals, and of treating its employees badly; all the while deceiving
the public and hiding its true nature behind a clean, bright image".8
- The applicants contend that most of these findings
stretched the meanings of the various passages in the leaflet complained
of by McDonalds, sometimes to the point of absurdity. This point is
developed in the submissions on Article 10 below, but in brief, the
applicants submit that:
- most of the meanings found by Bell J were hard
to reconcile with the words published;
- Bell J took little or no account of the nature
of the leaflet complained of; in particular, the fact that the leaflet
was a campaigning document. Inasmuch as he did, it was to characterise
and influence his view of the meanings complained of in a more defamatory
light.;
- Bell J’s findings reflect an over-strict approach
to meanings in domestic law;
- Bell J’s findings would have been more favourable
to the applicants had they had the benefit of legal advice, assistance
and representation.
(k)
The breadth of issues.
- In order to defend the libel claim brought by McDonald’s
the unrepresented Applicants therefore had to obtain and adduce evidence
on all of the matters listed above. The sheer size of this task was
overwhelming and, it is submitted, was impossible to discharge without
legal advice and assistance, including some provision of resources for
the investigation and preparation of witnesses. It is submitted that,
had legal aid been granted, such resources would have been made available
under the legal aid scheme then in operation in England and Wales.
- This is of considerable importance. Under the then
legal aid scheme the applicants would have had the benefit of lawyers
to help identify important evidential issues, to assist in locating
and properly preparing the evidence of relevant witnesses and drafting
the necessary witness statements. The problems caused by the lack of
such assistance were cumulative. Without legal assistance and/or resources,
the applicants were simply unable to locate all relevant witnesses.
Where witnesses did come forward it was impossible to prepare all relevant
matters with them; and the resulting witness statements were often handwritten
and incomplete. When half-way through the trial, Bell J ordered that
witnesses would no longer be allowed to expand on their witness statements,
the applicants were effectively shut out from presenting key aspects
of their case.
(l)
The trial judge’s conclusions.
- Bell J summarised his main findings on McDonald’s
claims as follows:
"In summary,
comparing my findings with the defamatory messages in the leaflet,
of which the Plaintiffs actually complained, it was and is untrue
to say that either Plaintiff has been to blame for starvation in
the Third World. It was and is untrue to say that they have bought
vast tracts of land or any farming land in the Third World, or that
they have caused the eviction of small farmers or anyone else from
their land.
It was and is untrue
to say that either Plaintiff has been guilty of destruction of rainforest,
thereby causing wanton damage to the environment.
It was and is untrue
to say that either of the Plaintiffs have used lethal poisons to
destroy vast areas or any areas of Central American rainforest,
or that they have forced tribal people in the rainforest off their
ancestral territories.
It was and is untrue
to say that either Plaintiff has lied when it has claimed to have
used recycled paper.
The charge that McDonald’s
food is very unhealthy because it is high in fat, sugar, animal
products and salt (sodium), and low in fibre, vitamins and minerals,
and because eating it more than just occasionally may well make
your diet high in fat, sugar, animal products and salt (sodium),
and low in fibre, vitamins and minerals, with the very real, that
is to say serious or substantial risk that you will suffer cancer
of the breast or bowel or heart disease as a result, and that McDonald’s
know this but they do not make it clear, is untrue. However, various
of the First and Second Plaintiffs’ advertisements, promotions and
booklets have pretended to a positive nutritional benefit which
McDonald’s food, high in fat and saturated fat and animal products
and sodium, and at one time low in fibre, did not match.
It was true to say
that the Plaintiffs exploit children by using them as more susceptible
subjects of advertising, to pressurise their parents into going
into McDonald’s. Although it was true to say that they use gimmicks
and promote the consumption of meals at McDonald’s as a fun event,
it was not true to say that they use the gimmicks to cover up the
true quality of their food or that they promote them as a fun event
when they know that the contents of their meals could poison the
children who eat them.
Although some of the
particular allegations made about the rearing and slaughter of animals
are not true it was true to say, overall, that the Plaintiffs are
culpably responsible for cruel practices in the rearing and slaughter
of some of the animals which are used to produce their food.
It was and is untrue
to say that the Plaintiffs sell meat products which, as they must
know, expose their customers to a serious risk of food poisoning.
The charge that the
Plaintiffs provide bad working conditions has not been justified,
although some of the Plaintiffs’ working conditions are unsatisfactory.
The charge that the Plaintiffs are only interested in recruiting
cheap labour and that they exploit disadvantaged groups, women and
black people especially as a result, has not been justified. It
was true to say that they Second Plaintiff [UK McDonald’s] pays
its workers low wages and thereby helps to depress wages for workers
in the catering trade in Britain, but it has not been proved that
the First Plaintiff [US McDonald’s] pays its workers low wages.
The overall sting of low wages for bad working conditions has not
been justified.
It was and is untrue
to say that the Plaintiffs have a policy of preventing unionisation
by getting rid of pro-union workers".9
(m)
The Issues - what was proven for each issue
- These main findings have to be put into proper
context. There were, inevitably, numerous detailed findings under each
main issue. And, the Applicants submit:
- These detailed findings demonstrate that there
was, in truth, a reasonable foundation for all of the allegations complained
about by McDonalds in relation to the leaflet: this is crucial to the
Applicants' Article 10 argument on the burden of proof.
- Because Bell J adopted a wrong approach to meanings
generally, in most instances the main findings did not reflect the detailed
findings set out below.
- In any event, the Applicants say, the main findings
fail properly to reflect the detailed findings of fact.
- It should be noted that McDonald’s formally accepted
Mr Justice Bell’s findings against them (extracts below), stating in
writing on 5.01.1999 that the judge was ‘correct in his conclusions’.
[See Appx 15].
- For this section the Applicants rely solely on
the detailed Judgment of Bell J. A schedule of findings and subfindings
of Bell J. has been prepared and set out at Appendix 16. Using this
schedule the applicants rely on the following extracts to show that
the findings of Bell J. supported each of the sections of the leaflet
. It should be noted that there was a great deal of additional evidence
which, it is contended, proved further facts and sub-facts, although
not to the satisfaction of the judge. They are not referred to in this
submission.
Economic
Imperialism And Hunger
- The Applicants rely on the extracts in the Findings
and Sub-Findings of Fact From Justice Bell’s Judgement [Schedule Appx
16]. Including in particular: Nos 1, 4-7, 9, 10, 12, 13, 20, 27, 28,
30, 32, 34, 35, 37, 43, 45, 46, 50, 59, 60, 63, 69, 71, 72, 77, 78-83,
85-88.
The applicants submit that it was
clearly established and proven that:
- International cash crop supply chains are developed
for benefit of multinationals and for exports, in particular for the
beef industry. (Extract nos: 1, 4, 7, 9, 12, 13, 20, 28-30, 32, 34,
35, 37, 45, 50, 60, 71, 72, 78-83, 85-89.)
- Consequently there is displacement of subsistance
farmers. (Extract nos: 4-9, 32, 34-7, 43, 59, 60, 63, 69, 71, 72, 77-80)
- The international trade in animal feed (for example
Brazilian soya used for McDonald’s cattle in Germany) is part of the
cash crop supply chains. (Extract nos: 60, 78-83, 85-88)
- McDonald's beef usage in poor countries, and international
movement of exported beef too, including to UK) was established. [It
should be noted that Bell J's mathematical calculations underestimated
% of Brazilian cattle used by a factor of x7-10 - see Appx 17]. (Extract
nos: Almost all the extracts, especially 50-1, 87)
Tropical
Forests & Beef Supplies
- The applicants rely on the extracts in the Findings
and Sub-Findings of Fact From Justice Bell’s Judgement [See Appx 16].
Including in particular: Nos 1-13, 20-29, 30, 32-41, 43-52, 56, 57,
59, 60, 62-72, 74-77, 78-89.
The applicants submit that it was
clearly established and proven that:
- US Corporations and the beef industry in general
are contributing to an ecological catastrophe by their responsibility
for tropical forest deforestation for cattle ranching in their pursuit
of profits. (Extract nos: 3-9, 11-13, 28-30, 32, 34-7, 43-45, 50-1,
57, 59, 60-8, 70-6, 79, 86, 89)
- McDonald's is probably the world's largest user
[see nos 85 & 86] and promoter of beef products (This was not contested).
- The ever-increasing global and/or US demand for
beef is a main cause of tropical forest clearance. (Extract nos: especially
3-9, 13, 28, 30, 80, 89)
- McDonald's uses beef reared in countries with tropical
forest clearances, (Almost all extracts).
- McDonald’s has used beef from regions in which
cattle ranching has caused the displacement of small farmers and indigenous
people. (Extract nos: 4-9, 32, 34-7, 47-9, 59, 60, 63-66, 69, 72, 74,
77)
- McDonald's substantial usage of beef in poor countries
(and some exported beef too for McDonald's use, including to UK) was
established. [It should be noted that Bell J's mathematical calculations
underestimated % of Brazilian cattle used by a factor of x7-10 - see
Appx 17]. (Extract nos: 10, 27, 46)
Packaging,
Recycling And Waste
- The Applicants rely on the extracts in the Findings
and Sub-Findings of Fact From Justice Bell’s Judgement [See Appx 16].
Including in particular: Nos 90, 91, 93-103, 104, 109, 112.
The applicants submit that it was
clearly established and proven:
- McDonald’s only use a small proportion of recycled
fibre in their packaging (Extract nos: 90-92). [When this is closely
analysed with reference to other extracts, its clear that the true percentage
of genuinely post-consumer recycled fibre is tiny : [See Bell J p185,
chart showing post-consumer waste recycled volume per store only an
eighth of total recycled volume in 1990].
- McDonald’s does not recycle any customer packaging.
(Extract nos: 94, 101, 102)
- McDonald’s has used deceptive promotions to give
a false impression of commitment to recycling. (Extract nos: 93-103)
- A great deal of McDonald’s packaging ends up as
litter. (Extract nos: 104, 109, 112).
Nutrition
- The applicants rely on the extracts in the Findings
and Sub-Findings of Fact From Justice Bell’s Judgement [See Appx 16].
Including in particular: Nos 114, 118, 120-124, 126-130, 133-7, 141
The applicants submit that it was
clearly established and proven that:
- McDonald’s deceptively promote their food as a
useful and nutritious part of any diet. (Extract nos: 137, 141)
- McDonald’s food is high in fat, salt, and animal
products, and low in fibre [at the relevant times]. (Extract nos: 114,
141)
- A diet of this kind is linked by a substantial
body of medical and scientific opinion to cancer of the breast and bowel
and heart disease. (Extract nos: 122-3, 126, 128, 130 - and see CoA
p188-193)
- People who eat several McDonald’s meals a week
are likely to make their diet high in fat (including saturated fat)
and salt, and low in fibre. (Extract nos: 120)
- - ‘In my judgment a diet high in fat (including
saturated fat) and animal products, and Low in fibre, sustained over
very many years, probably does lead to a very real, that is serious,
risk of heart disease in due course’. And that McDonald’s customers
who eat there several times a week ‘take the very real risk of of heart
disease if they continue to do so throughout their lives, encouraged
by the Plaintiffs’ advertising.’ (Extract nos: 122-3)
- The Court of Appeal further ruled that: 'If one
eats enough McDonald's food, one's diet may well become high in fat
etc., with the very real risk of heart disease.' [CoA p258F]
Advertising
- SECTION PROVEN OVERALL: "The sting of the leaflet
to the effect that the Plaintiffs exploit children by using them, as
more susceptible subjects of advertising, to pressurise their parents
into going to McDonald's is justified. It is true" [Bell J p399 para
7]
ANIMALS
- SECTION PROVEN OVERALL: "The sting of this part
of the leaflet to the effect that the First and Second Plaintiffs are
culpably responsible for cruel practices in the rearing and slaughter
of some of the animals which are used to produce their food is justified,
true in substance and in fact." [Bell J p468 para 3]
Food Safety
- The applicants rely on the extracts in the Findings
and Sub-Findings of Fact From Justice Bell’s Judgement [See Appx 16].
Including in particular nos: 197-8, 200-3, 207, 213-218, 224, 226-231.
The applicants submit that it was
clearly established and proven that:
- Meat for human consumption is prone to carry pathogenic
organisms [Extract nos 197, 207]
- Poor slaughterhouse and boning room practices (including
at those supplying McDonald’s) increase the risk of contamination [Extract
nos 198], and are a matter of serious concern [Extract nos 203].
- The mincing of meat for burgers etc spreads food
poisoning organisms throughout a batch. [Extract nos 200]
- McDonald’s suppliers magnify the spread of contamination
[Extract nos 207]
- McDonald’s have been responsible for food poisoning
incidents, including serious outbreaks which McDonald’s refused to accept
liability for [Extract nos 201-202, 217-218].
- McDonald’s UK customers have been served undercooked
meat products for which they have been prosecuted [Extract nos 213],
and there must be many more incidents [214], including in the USA [224]
mostly because of pressure to produce large quantities of meat quickly
at busy times. [215]. ‘The risk of this is endemic in the fast food
system’.[Extract nos 216, 224]
- Some routine practices used in the rearing, slaughter
and processing of meat can result in damage to the health of those on
a meat-based diet. This includes pesticide residues [226,231], antibiotics
and growth promotors [Extract nos 227, 228, 229, 230]
Employment
- The Applicants rely on the extracts in the Findings
and Sub-Findings of Fact From Justice Bell’s Judgement [See Appx 16].
The applicants submit that it was
clearly established and proven that:
- It is fair comment to say McDonald’s employees
worldwide do badly in terms of pay and conditions [See CoA p234B and
p241A]
- McDonald’s have an active anti-union policy and
practice. Their employee contract discriminates against staff rights
to engage in union activities, including getting rid of pro-union workers.
(Extract nos: 339-40, 396, 398-400, 403, 409, 413, 418-425, 428, 431-439,
442-485, 511)
Summary
of findings
- Overall, for the reasons set out below, the applicants
submit that the main findings of Bell J reflect:
- the fact that the burden of proof was (wrongly
and in breach of Article 10 of the Convention) on the applicants to
prove the truth of each and every matter determined by Bell J to be
a matter of fact; this was an impossible burden for two unwaged and
unassisted individuals facing the longest and most complex case in legal
history and led directly to the findings of Bell J;
- the main findings were conditioned by Bell J.’s
approach to the meanings, including the distinction between fact and
comment; by treating comment as fact, Bell J made the applicant’s task
in defending the claim brought against them almost impossible;
- in any event, Bell J’s main findings did not reflect
the sub-findings or indeed the tenor of the evidence adduced at trial.
Each of these points is developed below in the submissions
on Article 10.
(m) Publication
- In relation to the issue of publication, the Judge
found that Ms Steel was liable for publication of the leaflet between
early 1988 and 20th September 1990, and Mr Morris was liable for all
publications between 21st September 1987 and 20th September 1990 and
that he participated in the production of the leaflet complained of
in 1986, although the precise part which he played in its production
could not be identified. Liability for publication was predominantly
on the basis of involvement in London Greenpeace and/or the anti-McDonald’s
campaign, and the applicants deal with this in their submission under
Article 11 later. The Court of Appeal did not overturn these findings.
(n)
Counterclaim.
- In relation to the Applicants’ counterclaim the
judge held that the sting of the words complained of in the material
published by McDonald’s was that the Applicants had published a leaflet
which they knew to be untrue and that they had tried to avoid responsibility
for it [note that the applicants did not accept that ‘trying to avoid
responsibility’ was the real meaning]. He held that the charges of lying
in the leaflet, and trying to avoid responsibility for it, were clearly
defamatory. The judge held that it was true that the Applicants had
wrongly denied responsibility for the leaflet. But he held that the
charges that the appellants had told lies in the leaflet were not justified,
since McDonald’s did not establish that the Applicants knew that the
contents of the leaflet were untrue. He held however that the relevant
publications were made on occasions of qualified privilege as the Plaintiffs,
he ruled, were acting to defend themselves from attack from statements
made by the defendants (an argument vigorously resisted by the defendants)
which was not vitiated by express malice. Accordingly he held that the
counterclaim failed.10
It may be felt this protection for McDonald’s freedom of expression
reflects double standards.
(o)
Damages.
- From the date upon which the writ was issued, until
damages were finally resolved, the applicants were exposed to a claim
running into hundreds of thousands of pounds. Bell J stated that his
starting point, had none of the allegations been proved, was £50,000
per claimant. And the Court of Appeal considered this figure to be ‘relatively
modest’.11
- In the event Bell J awarded McDonald’s US £30,000
and McDonald’s UK £30,000 as set out above.
(p)
Costs.
- The basic rule in English law is that the losing
party to litigation pays its own costs and the costs of the successful
party. Libel trials are notoriously expensive. It is estimated that
McDonald’s trial costs were substantial, and could even have been as
high as £10 million, including over £6,500 per day of trial for their
lawyers.12
- This is a significant figure. The applicants invite
the European Court of Human Rights to approach this figure on the basis
that this was a sum that McDonalds genuinely considered that it needed
to spend to properly bring libel proceedings and to defend itself against
the applicants’ counter-claim. In such circumstances, it is submitted,
any suggestion that there was, or could realistically have been, equality
of arms between the applicants and McDonalds is absurd – as would any
suggestion that the applicants could adequately defend themselves without
resources.
- Although at the conclusion of the trial McDonald’s
did not ask for an order for their costs they had included a claim for
costs in the originating writ, and so the Applicants were always at
risk of such an order. The risk of being liable to pay a claimant’s
costs has a powerful chilling effect on freedom of expression in England.
Of the 5 individuals originally sued by McDonald’s, 3 were forced to
apologise for the content of the leaflet as they could not face a long
and costly court case. [See Appendix 18].
(q)
The Court of Appeal.
- The Applicants’ appeal to the Court of Appeal lasted
23 days. It was preceded by a number of pre-trial hearings/applications,
and by an Order, vigorously resisted by the Applicants, who unsuccessfully
petitioned the House of Lords for leave to appeal on this, that all
submissions must be put in writing before the Appeal hearing started.
- At the full appeal to the Court of Appeal, the
Applicants contended that on the issue of nutrition the words complained
of, in their natural and ordinary meaning, did "not mean that McDonald’s
food cause cancer and heart disease as a surely established fact, but
that there is a respectable (not cranky) body of medical opinion which
links a junk food diet with a risk of cancer and heart disease. Changes
in medical opinion over the years are such that there can be no final
medical fact and the words "accepted medical fact" include
views expressed in responsible medical opinions which were not merely
cranky theory. The appellants’ case on the facts then was that this
link was accepted both in literature published by McDonald’s themselves
and by one or more of McDonald’s own experts and in medical publications
of high repute. That should have been the end of this part of the case
which, say the appellants, should not have been extended evidentially
in that way that it was" (CoA transcript of judgment, p.164B-D).
- The Court of Appeal said it had "considerable
sympathy with these submissions, given the wide range of medical opinions"
to which it had been referred (ibid, p.164D). This included the views
of the World Health Organisation – outlined below.
- However, the Court of Appeal stated that the issues
about the meaning of this part of the leaflet (nutrition) which the
Applicants wished to raise on appeal were substantially the same as
the issues raised in their 1996 grounds of appeal which they withdrew
(see below). The Court of Appeal held that it was bound by the court’s
previous indistinguishable decision and the circumstances in which the
earlier appeal was made did not permit the Court of Appeal to consider
the withdrawn grounds even though they were not in the event argued
before the Court of Appeal in 1996.13
- The Court of Appeal stated that:
"The judge’s
findings, in our judgment, went some way to justifying for cancer
of the breast and bowel the defamatory meaning upheld by the Court
of Appeal. "Very real risk" was not established. A possibly
increased risk was established for breast cancer and a strongly
possibly increased risk for cancer of the bowel. For cancer of the
bowel, the appellants submit that "strongly possible"
should be enough to justify the publication, especially in a scientific
area such as this. … On questions whether particular kinds of food
cause cancer, there is a substantial difference between a possibility,
even a strong one, that they may and a very real risk that they
do. The "very real risk" sting was not justified. Accordingly
the defence of justification for the cancer part of the defamatory
meaning should fail …"14
- The applicants had made it clear during the trial
(both before and after the interim appeal to the Court of Appeal, that
they strenuously challenged the Plaintiffs’ meaning, and the Judge’s
meaning.
- It is submitted that had the Applicants been represented,
the six grounds withdrawn prior to the hearing of the appeal by the
Court of Appeal on Bell J’s ruling on meaning of 20 November 1995 would
not have been withdrawn. It is highly likely that the Court of Appeal
in April 1996 would have held, as it is clear that the Court of Appeal
in January 1999 would have done had it not ruled that it was not permitted
to consider the issue, that the words complained of did not mean that
there was a "very real risk" of cancer of the breast and bowel
but that there was a ‘possibly increased risk’ of breast cancer and
cancer of the bowel.
- In those circumstances the Applicants’ defence
of justification as to the link between McDonald’s food and cancer of
the breast and bowel would have succeeded.
- This is a point of considerable importance because
it provides one of a number of examples where the arguments of McDonalds
were preferred to those of the applicants, not because they were right,
but because, by reason of inexperience and the sheer overwhelming nature
of the case, the unrepresented applicants were unable to advance the
points that they wished to make as powerfully as they would have liked,
or in some cases, at all.
- In fact the Court of Appeal in 1999 overturned
Justice Bell's later qualification and ‘clarification’ of the meaning
which they ruled had been established at the Appeal Court hearing part
way through the trial, on the grounds that, although his meaning may
have benefitted from clarification, he was not open to amend it as he
was bound by the previous Court of Appeal Judgment in 1996 on the meaning,
as indeed the Court of Appeal itself was in 1999.
- In summary, overall the Court of Appeal held, amongst
other things, that:
"We agree with
the judge that certain charges have not been shown to be justified.
These are: that the respondents [McDonald’s] (or either of them)
have been to blame for starvation in the Third World; that they
have bought vast tracts of land in poor countries and caused the
eviction of small farmers from their land; that they have been guilty
of the destruction of rainforest, directly or indirectly, thereby
causing wanton damage to the environment; that they have used lethal
poisons to destroy vast areas of rainforest and forced tribal people
there off their ancestral territories; that either of them has lied
when it has claimed to have used recycled paper; that they sell
food which, as they must know, exposes their customers to a serious
risk of food poisoning; and that they have a policy of preventing
unionisation by getting rid of pro-union workers. We have not arrived
at the same conclusion as the judge on some other matters, under
the general headings of nutrition and employment pay and conditions.
"On the topic
of nutrition, the allegation that eating McDonald’s food would lead
to a very real risk of cancer of the breast and of the bowel was
not proved. On pay and conditions we have found that the defamatory
allegations in the leaflet were comment."
"In addition
to the charges found to be true by the judge – the exploiting of
children by advertising, the pretence by the respondents that their
food had a positive nutritional benefit, and McDonald’s responsibility
for cruel practices in the rearing and slaughtering of some of the
animals used for their products – the further allegation that, if
one eats enough McDonald’s food, one’s diet may well become high
in fat, etc., with the very real risk of heart disease, was justified.
…".15
- They went on to add that this last finding ‘must
have a serious effect on their trading reputation since it goes to the
very business in which they are engaged. In our judgment, it must have
a greater impact on McDonald’s reputation than any other of the charges
that the trial judge had found to be true.’ [CoA p258F].
- They also ruled that it was ‘fair comment to say
that McDonald’s employees worldwide ‘do badly in terms of pay and conditions’
[See CoA p234B, and p241A].
III: DOMESTIC
LAW AND PRACTICE
- It is well established that English libel law is
amongst the strictest in the world. The presumption of falsity according
to which defendants must prove the truth any allegation of fact is highly
restrictive, so much so that claimants/plaintiffs frequently choose
to sue in England rather than in any other jurisdiction because their
chances of success are so much higher under English libel law (so called
forum shopping). Moreover, the domestic authorities have never had to
determine the extent to which English libel law corresponds with the
requirements of the European Convention on Human Rights because, until
the Human Rights Act 1998 was passed (after the Applicants' case was
finished), there was no obligation that the domestic authorities act
compatibly with the Convention.
(a)
Libel proceedings.
- Under English law the actions of libel and slander
are private legal remedies, the object of which is to vindicate the
claimant’s reputation and make reparation for the injury done by the
wrongful publication to a third person or persons of defamatory statements
concerning the claimant.
- A strict liability rule applies to the tort of
libel:
"A man in good
faith may publish a libel believing it to be true, and it may be
found by the jury that he acted in good faith believing it to be
true, but that in fact the statement was false. Under those circumstances
he has no defence to the action, however excellent his intention".16
- The law presumes in the claimant’s favour that
the words are false, unless and until the defendant proves the contrary.
If the defendant attempts unsuccessfully to prove that the words are
true, this is likely to increase the damages.17
- Once the claimant has proved (a) publication to
a third party; (b) reference; and (c) defamatory meaning the tort is
complete. Damage is presumed. The claimant (whether an individual or
a corporation) is not required to show any actual damage to reputation.18
- The claimant is not required to prove that the
allegations are false or that s/he is of good reputation. The claimant
is not even required to state on oath that the allegations are untrue.
The Applicants comment that either of these strictures would provide
some protection for defendants, and hence for protection of freedom
of speech.
- It is generally accepted that libel proceedings
are amongst the most complex and costly types of civil litigation in
English law. Libel claims must be issued in the High Court. In 1966
Diplock LJ observed:
"This is an ordinary
simple case of libel. It took fifteen days to try, the summing-up
lasted for a day; the jury returned thirteen special verdicts. The
notice of appeal sets out seven separate grounds why the appeal
should be allowed and ten more why a new trial should be granted,
the latter being split up into over forty sub-grounds. The respondent’s
notice contained fifteen separate grounds. The costs must be enormous.
Lawyers should be ashamed that they have allowed the law of defamation
to have become bogged down in such a mass of technicalities that
this should be possible".19
- The Applicants invite the court to compare the
above with the substantially greater burden resulting from the current
case.
(b)
Limitation period
- The limitation period for defamation proceedings
when McDonalds issued proceedings against the Applicants was 3 years.
This was reduced to 1 year by the Defamation Act 1996 on the basis that
since the main purpose of defamation proceedings is to repair damage
to reputation, they should be concluded speedily. It is against this
background that the Applicants complain that McDonalds was allowed to
amend its case very late in the proceedings to include allegation of
defamation which, they claimed, had taken place over 7-9 years before
trial.
(c) Publication.
- It is for the claimant/plaintiff in defamation
proceedings to prove that the defendant published or participated in
the publication of a defamatory statement. Each communication is deemed
to be a separate tort (Duke of Brunswick v Harmer (1849) 14 QB 185).
And publication can be by any means, including merely handing out a
leaflet or document as in the Applicants' case.
(d)
Meanings
- In most defamation actions the court (normally
a jury) will only be concerned with the natural or ordinary meaning
of the words complained of. This is the meaning that an ordinary, reasonable
person would derive from the words, without any special knowledge beyond
that which is known to ordinary people generally. However, the natural
and ordinary meaning can include innuendo, i.e. something that is not
stated directly and literally (see, e.g. Prager v Times Newspapers Limited
[1988] 1 WLR 77).
- There is no rule in English libel law that gives
speech special protection. Unlike the position in other countries such
as the United States, there is no rule that a court should choose an
interpretation of challenged statements that will result in protection
of free expression if such interpretation is possible (the so called
"innocent construction" rule): see further below.
(e)
Burden of proof.
- In English law a defamatory allegation is presumed
to be false until the contrary is shown. A defendant is required to
prove that the allegation is true in substance and in fact: Belt
v. Lawes (1882) 51 LJQB 359 at 361, per Field J:
"… a libel prima
facie imports a wrong, which it could not do if the alleged libellous
matter were true, and therefore the onus of proving the proving
the truth thereof is cast on the defendant."
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