CHAPTER 5: McDonald’s Love Affair with Libel Law
The original restaurant was by all accounts making a good profit and the McDonald brothers were resistant to the advances made to them by Kroc. However, the aspirant businessman was certain of his assessment of the potential of the burger bar and was therefore not willing to give up easily. He continued to pressure the brothers until they finally accepted an agreement to start a franchising system. Thus it was that in the mid-1950s Kroc acquired the rights to give others the licences to open ‘McDonald’s’ restaurants in the USA. The beginning of the franchised chain came in 1955 when Kroc himself opened a new restaurant in Des Plaines, Illinois and moved to Chicago establishing the McDonald’s corporation. Within four years 100 McDonald’s restaurants had been opened in the USA.
In the franchising deal struck with the McDonald brothers Kroc had not managed to acquire the rights to the image and formula of the McDonald’s magic. It was only in 1961 that Kroc paid the brothers $2.7 million in order to obtain the full rights to the McDonald’s formula including the golden arches and the name although even that amount did not get him the original restaurant in San Bernardino. However, in an act that embodied Kroc’s attitude towards business and competition he insisted on having the last word in the battle between himself and the brothers - he opened his own McDonald’s across the road from theirs eventually forcing them out of business.
During the early 1960s the McDonald’s business boomed in the USA. By 1963 there were 500 American outlets giving Kroc’s corporation a net income at that time exceeding $1 million. Kroc had been right about the potential of the simple and efficient formula for selling food. The growth continued and by 1987 three years after Kroc died, McDonald’s was serving 20 million people a day in nearly 10,000 restaurants in 47 countries. The simple formula of low-cost and basic food production had created a world-wide empire.
However, as with many companies that manage to grow to such a large extent, dominating the world market, the McDonald’s empire was based upon business practices which have exposed it to serious and widespread criticism. The grounds for such attacks are wide-ranging including the treatment of employees; exploitation of children; environmentally harmful ingredient sourcing and the promotion of an unhealthy diet.
|McDonald’s have sought to deal with these attacks by way of an aggressive policy of self-protection. Instead of adopting an approach which seeks to make a reasonable response to criticism, accepting fair comment and ignoring and/or rebutting the more extreme challenges, the corporation has responded in a manner that appears to seek to silence its critics. Whilst the corporation spends upwards of $1,800 million a year on advertising and marketing its products throughout the world, those who would speak out against McDonald’s claim that they are threatened, intimidated and litigated into silence.||
McDonald’s have sought to deal with these attacks by way of an aggressive policy of self-protection.
"Working for BIG MAC"In 1987 the Transnationals Information Centre (TIC) published a report which considered the working conditions in McDonald’s restaurants. The report, entitled ‘McStart - Working for BigMac’, critically examined the corporation’s employment practices and its relations with unions and local authorities in the UK. McDonald’s immediate response was to start legal action against the Centre. Without the adequate resources to take on the case brought by McDonald’s the litigation had disastrous results for the TIC. 1
The publication of the report, however, was followed by an article in The Guardian newspaper. The column - ‘The Squalor Behind the Bright Fast Food Lights’ - written by Steven Percy and Harriet Lamb was based upon the report of the Transnational Information Centre. The article suggested that McDonald’s were operating an employment policy which exploited young people because they were employed in McDonald’s restaurants for low wages and in working conditions that were degrading. It was alleged that the company’s employees were not allowed to take adequate meal breaks, that they were made to work for excessively long hours and that they were not given satisfactory time off from their jobs. The journalists also claimed that the company operated an employment policy which resulted in restaurants operating at "unreasonably low" staffing levels.
McDonald’s instigated legal action against the authors of the article and The Guardian newspaper alleging that the claims made in the article were defamatory. The defendants chose not to fight the court case and made a statement in the High Court in which they apologised to the business and agreed to indemnify their legal costs. The statement accepted "that the allegations against McDonald’s in their article were misconceived" and that rather than operating poor employment practices McDonald’s was in reality "very concerned to ensure that its workers are well treated". The corporation also required the journalists to donate a sum of money to Save The Children charity as a form of damages - reinforcing the idea that the business would never exploit children and young people. 2
NATURE Libels McDonald’s
In rejecting the allegation made in the programme the burger company informed the BBC that McDonald’s had already had to correct the mistaken belief that they as a company were responsible in some way for rainforest destruction. The alleged incident had involved the World Wildlife Fund3 and in particular its President - the Duke of Edinburgh. Upon meeting the President of McDonald’s Restaurants in Canada, George A. Cohen, in 1983 Prince Phillip had made a comment about the role played by McDonald’s in relation to the rain forests of South and Central America.
After a complaint by the corporation Prince Phillip wrote accepting that the WWF "were satisfied" that McDonald’s were in fact not implicated in the destruction of the rain forest.
Given that the WWF and Prince Phillip had accepted that allegations about McDonald’s involvement in harming the rainforests were untrue the firm pointed out that it was being utterly reasonable in taking "such exception to the defamation" repeated on the BBC2 programme. The BBC was therefore required to "acknowledge" their mistake by broadcasting a statement of apology and correction. As a result the channel broadcast the following statement before the broadcast of Nature on 17th May 1984:
‘Viewers who saw the 26th April edition of Nature, on the destruction of rain forests in Central America, and their replacement with cattle ranches, may have been given the impression that McDonald’s hamburgers are made with beef originating from these ranches. McDonald’s have informed us that they do not use such beef. We accept this, and apologise to McDonald’s for any embarrassment our programme may have caused them.’
"What’s Wrong with McDonald’s"
The London Greenpeace ‘factsheet’ - "What’s Wrong with McDonald’s" - which was to become the focus of the McLibel case was reprinted and distributed by the Nottingham based Veggies Ltd in 1987. It contained the same information that London Greenpeace were circulating although in addition it included a page highlighting the conditions in which cattle are slaughtered, along with information about the work of Veggies.
The organisation is in fact a co-operative whose aims are to provide a range of food products using no animal ingredients as well as informing the general public about issues of health, their relationship with animals and the environment, and the role that diet plays in the distribution of food world-wide. A significant part of Veggies Ltd approach to these matters is the provision of support to groups and individuals who are "working for human and animal rights, on environmental issues, and for peace and co-operation world-wide".
In particular, Veggies had given support since 1985, and in their words "drawn inspiration from" London Greenpeace. Given that the ‘business’ element of Veggies work which has involved the promotion of soya-based Veggies Burgers as a "healthy, humane and economic" alternative to beef burgers it is hardly surprising that they supported the information campaign undertaken by London Greenpeace against McDonald’s.
On 5th October 1987, after the publication of the pamphlet, Veggies received a letter from McDonald’s solicitors, Barlow Lyde and Gilbert. It informed the organisation that McDonald’s considered that they had been libelled by the allegations in the fact-sheet and that in order to avoid litigation Veggies should publish a correction and apology, in particular making reference to the claim that McDonald’s Restaurants were "implicated in the destruction of rainforests". Although the allegations made about the harm done to the rainforests were contained in a section of the pamphlet that was entitled ‘In what way are McDonald’s responsible for the Torture and Murder of Animals?’ the lawyers seemed unconcerned about any other allegations made in the fact-sheet.
The co-operative sought advice on the issues raised by the solicitor’s letter. However, at the same time the details of McDonald’s demands of Veggies were relayed to the journal Peace News which published an article pointing out that the solicitor’s letter had only asked for a retraction of the allegations concerning the destruction of tropical rainforests. Thus criticisms of the non unionised working conditions at McDonald’s, claims that fast food was harmful to health, and that animals were "tortured and murdered" did not appear to be causing the corporation any concern.
However, it appears that McDonald’s had simply over looked these other allegations. Soon after the article had been published in Peace News a second letter was sent to Veggies which extended the request for a correction and apology to include any suggestion that McDonald’s were responsible for the torture and murder of animals. No reference to the criticism of non-union working conditions, ill effects of junk food, or other issues raised in the fact-sheet was made by the lawyers.
An exchange of lawyers’ letters ensued which resulted in Veggies accepting that there was no "specific evidence concerning the connection with McDonald’s and the raising of beef on former Rainforests". Veggies further agreed to make a statement that "by common usage, the words ‘murder’ and ‘torture’ are not yet used in connection with the killing of animals". However, the declaration agreed between the two parties did accept the fact that such language was normally used by the co-operative in this context.
|However, as we shall see in the discussion of the McLibel case it is now clear that McDonald’s later changed their position on this issue resulting in their admission that at the time of the alleged libel they had in fact been using beef from ex-rainforest areas. The corporation claims that they had no part in the clearance of the land which had taken place prior to their involvement in the area. It is therefore the case that Veggies Ltd, along with many others who have made similar claims, were required to make a statement that was not true because of threatened legal action by McDonald’s.||
. . . it is now clear that McDonald’s later changed their position on this issue resulting in their admission that at the time of the alleged libel they had in fact been using beef from ex-rainforest areas.
|After making the necessary alterations to the
pamphlet in order to coincide with the correction and apology made to McDonald’s
Veggies once again published and distributed the fact-sheet. They also
provided advice to other groups and individuals on the agreement that was
made between themselves and McDonald’s in the light of the threatened legal
action. Veggies felt confident in assuming that the issues that had not
been covered by the agreement were in fact not considered defamatory by
McDonald’s. Indeed, since the time of the agreement in 1986 Veggies have
heard nothing more from McDonald’s or their lawyers. As a result there
had been no suggestion that any of the other matters dealt with in the
fact-sheet might also be causing McDonald’s any concern. As we shall see
later on in Chapter 6 this assumption was to prove false.
Morrissey ‘Libels’ McDonald’sIn 1990, the Vegetarian Society published an interview with Morrissey, former lead singer with the group The Smiths in their magazine Greenscene. In the interview the singer made reference to links between McDonald’s and the destruction of the rainforest - an issue of particular concern at the time. In particular Morrissey was quoted as saying that if someone wanted to do something to help the situation they should "Tell … the truth behind the façade of Ronald McDonald …about the destruction of rainforests for burgers".
McDonald’s responded by threatening to take legal action for libel against the magazine. The company claimed that the idea put forward by singer was wholly without foundation, and … a defamation of … McDonald’s, whose support for the conservation of wildlife and natural resources throughout the world is a major part of their business philosophy.
In a letter addressed to the Vegetarian Society, McDonald’s solicitors once again relied upon the example of the WWF - which itself was forced to apologise to the corporation acknowledging its alleged error in suggesting McDonald’s involvement in damaging the rainforests. The solicitor’s letter also referred to others who had published similar allegations and later retracted. They included the BBC2 broadcast of Nature discussed above, and articles printed in the Independent magazine in 1988 and The Sunday Correspondent in 1989. The newspapers had both apologised, and copies of those apologies were helpfully forwarded to the Vegetarian Society, presumably to encourage them to "do the right thing" in relation to McDonald’s complaint.
The immediate response of the Society was to point out that Greenscene, the publication concerned, had a low circulation produced as it was by an organisation of limited resources and charitable status. The society therefore suggested that McDonald’s behaviour was "ill-considered and vastly disproportionate to the alleged defamation" and that a "less aggressive approach would have been more productive".
Despite the concern expressed by the Vegetarian Society it clearly regarded it as necessary to "resolve the matter to the satisfaction of all parties". This did not mean, however, an immediate apology. Instead they offered an "open public debate" in their magazine in order to ensure that the readers were able to have access to the truth behind the conflict. Thus they made a request for information from McDonald’s stating that as the business was "confident of its case" in threatening legal action it would therefore welcome the opportunity to engage in such an open form of discussion.
McDonald’s response was to re-emphasise that the allegations in the Greenscene magazine were "serious and grossly offensive" to the point that the threat of libel action was in fact not an over-reaction. Although some of the questions raised by the magazine in their response were answered, the level of information from the corporation was largely superficial and the tone somewhat hostile. It was re-emphasised that if the Society wanted to avoid ending up in court then they should (1) "publish an apology retracting the defamatory allegations and apologising unreservedly to our Clients", (2) that the magazine confirm that they would not make similar remarks in the future, and (3) that McDonald’s legal costs would be met.
Following this response from McDonald’s the Vegetarian Society considered it had no real choice other than to provide the apology demanded by the corporation. Although that apology was published the society is now able to make clear that it only agreed to do as McDonald’s were demanding "because there was not the money to fight the case".
Today Newspaper and Rain Forest Destruction
In April 1989 the Today newspaper published an article which contained allegations that McDonald’s bought beef from cows reared on recently cleared rainforest land. Predictably the corporation sent a solicitor’s letter complaining that the article contained defamatory remarks and demanding an apology.
The newspaper accepted McDonald’s assertion that there was no basis for the allegation to be made. As a result an apology was made in the High Court, and the newspaper agreed to pay the corporation’s costs and provided McDonald’s with free advertising space in the paper. Today also printed a written apology on 17 April 1990 in the newspaper which stated:
‘In August 1989 we reported allegations that McDonald’s in America was involved in buying beef from cattle raised on land cleared from rain forests in South America. McDonald’s has in fact been exonerated from cutting down rain forests for the purpose of making hamburgers. We unreservedly apologise to McDonald’s for any embarrassment our article may have caused them.’
Channel 4 and McDonald’s
On 12th March 1989 Channel 4 broadcast an award winning documentary made by the German film-maker Peter Heller. The program had been made in 1983 and had been broadcast on many occasions in different countries. Shown in the Fragile Earth series on Channel 4 the documentary, entitled ‘Jungleburger’, contained interviews with those who were involved in McDonald’s activities. The result was an ‘expose’ of how Central and South American tropical forests were being affected by cattle production for export to the USA and other industrialised countries.
McDonald’s were concerned about the allegations made against it and took legal action against the UK television company. In particular the corporation complained that the documentary suggested that the burger company bought beef from Costa Rica for use in their restaurants outside Costa Rica. Thus McDonald’s protested that the documentary was implying that they were to blame for the destruction of Costa Rica’s rainforest along with the resulting damage to its environment, economy and social stability.
It was further objected that an impression was being given that McDonald’s was "being dishonest when it denied purchasing beef from Costa Rica for consumption in the United States of America and was thereby seeking to avoid its responsibility for the damage caused by its activities there".
In response, Channel 4 apologised in court accepting the claims made by McDonald’s. A lawyer for the television station stated that Channel 4:
‘welcomes this opportunity to apologise to McDonald’s and to acknowledge publicly that McDonald’s does care to ensure that it does not use beef in Costa Rica which comes from rain forest areas which have recently been deforested and not to import Costa Rican beef to, for instance, North America or the United Kingdom.’
However, despite this apology and the libel litigation undertaken after the transmission of the documentary programme in 1989, it remains the case that Jungleburger continues to be shown around the world, although it has not been shown again on UK television. It was used as evidence in the McLibel trial in order to support the allegations made by the McLibel defendants with regard to McDonald’s alleged culpability in the depletion of rainforests.
"MACBURGERS - Real Neat Scotch Fare"
The play "Real Neat Scotch Fare" was written as a satire on the fast food industry and was meant mainly to be performed by and for schoolchildren. However, McDonald’s was to be a savage critic of the play and sought to force the authors, Steve Brown and Jenny Fraser, to make changes to the script. Following the complaints by McDonald’s the play was allowed to be performed once and once only with no further performances and no publication.
Although a number of performances had taken place in Scotland, to positive critical reviews, a letter from McDonald’s’ lawyers only arrived after a review of the play had appeared in the Glasgow Evening News. The paper had reported that the play "MacBurgers - Real Neat Scotch Fare" was critical of the ‘hamburger industry’ generally but the corporation’s lawyers were concerned that by using the term ‘MacBurgers’ attention was being drawn to McDonald’s in particular. This problem was compounded by the fact that the ‘golden arches’ logo - the trademark symbol of the corporation - was reportedly displayed in the foyer of the theatre. McDonald’s based its concerns solely on the newspaper report which stated that the play would attack "low wages and poor working conditions".
It was conceded that McDonald’s did not actually know if particular allegations were made in the play, they simply had one newspaper article upon which to base their concerns. However, that report had moved them to ensure that no such criticism of the company would be present in a play that was to be largely performed by and for children - their core market. To this end they requested that they should be able to see a copy of the script. They were also keen to remind the authors that any use of the golden arches logo was in fact a breach of McDonald’s copyright.
An inspection of the play led to a response from the lawyers that "…[it] is riddled with political and defamatory propaganda". The only response available to McDonald’s was the initiation of legal action should the authors refuse to agree to their demands. Before any performance could take place in East Kilbride four script changes were demanded by the lawyers who said that the alterations were necessary to avoid defamatory statements being made against the corporation. However, when a further performance was attempted in Maryhill the authors were forced to sign an undertaking that the play would never be performed again.
Without the resources to fight the legal threats there was nothing else for the authors other than to accept the terms laid down by McDonald’s. Many in the artistic community in Scotland reacted angrily at the tactics used by the business against small theatre groups through legal intimidation. In particular there was concern that the play did not even mention McDonald’s by name once. The way it dealt with affairs suggests a fair high degree of paranoia. In Scotland ‘The Scottish Arts Legal Fund’ was set up to help combat alleged big business censorship.
McDonald’s and ‘Home Ecology’
In 1989, Karen Christensen wrote an environmental handbook called Home Ecology: Making the World a Better Place for Arlington Books - a small London publisher. It was sufficiently uncontroversial for the very conservative Daily Express newspaper and mainstream Women’s Realm magazine both of which printed serialisations from the book. However, one chapter of the handbook dealt with ecological eating and in fact considered alternatives to buying fast foods - a discussion that used the name ‘McDonald’s’ as a generic label for hamburger restaurants.
The book was successful and well received being chosen for a national book promotion called the Green Book Fortnight in 1989. (In 1990 Karen Christensen was asked to be one of the judges.) However, in March 1990 Christensen was to hear from McDonald’s’ solicitors - Barlow Lyde and Gilbert - in a letter they informed her that they had been instructed by McDonald’s who required her and her publishers to make a statement in open court acknowledging that certain statements in the book were defamatory. They also demanded that she provide an unreserved apology to McDonald’s along with an undertaking that the allegations would not be repeated in the future either in the UK or anywhere else in the world. She was further informed that the company required that the book should be withdrawn and any future edition of the book should appear without the ‘offending section’.
The section of the book which was causing so many problems for the corporation was to be found on pages 45 and 46 and read as follows:
‘Fast Food Why do people to go McDonald’s? They want something NOW, are in a hurry and don’t want to spend much. Yet fast food restaurants contribute to the destruction of tropical rain forests (destroy forever in order to raise beef for a couple of seasons, until the soil is utterly depleted), contribute huge amounts of plastic and paper waste to the "disposal stream" and our streets, and give us proverbially unhealthy food to boot. International hamburger chains also tend to homogenise cultures (why on earth should we be able to eat the same American hamburger and french fries in Tokyo and Peking and Paris?) ‘
Although McDonald’s rejected the overall approach of the passage, it was particularly concerned about the specific allegation that through its business it contributed towards the destruction of tropical rain forests. Through the solicitor’s letter McDonald’s objected that such a claim amounted to "a gross defamation" particularly as it argued that its "support for the conservation of wildlife and natural resources round the World" amounted to a "major part of their business philosophy".
In support of their position on the matter of deforestation McDonald’s made reference to their corporate policy statement which states that the company has "never purchased meat from cattle reared in former rain forest areas anywhere in the world". And to reinforce that policy it was stressed that it was "closely monitored and rigorously enforced".
Interestingly, the solicitor’s letter made reference to the fact that such allegations had been made previously and that McDonald’s had received apologies from the BBC, The Independent and The Sunday Correspondent. Such a statement may lead to a conclusion that there is therefore no evidence upon which claims of McDonald’s culpability in deforestation can be based. However, as we have already seen, the fact that apologies have been provided to the corporation simply means that other writers and publishers have been subject to threats of legal action and rather than force McDonald’s to take them to court for the law to assess the potential defamatory nature of such a statement, they have found it easier to provide an apology as McDonald’s requests. As if to stress the point that Christensen was not alone in her misguidedness the solicitor’s letter went on to point out that McDonald’s had managed to get similar allegations removed from the Green Consumer Guide written by John Elkington and Julia Hailes.
To show McDonald’s good faith and reasonableness the solicitor’s communication made it clear that although the company could claim damages through the courts, it had chosen not to do so on the understanding that a positive response would be forthcoming within seven days. The corporation was demanding that Christensen should agreed that (1) ‘Home Ecology’ would be immediately withdrawn from sale; (2) the offending passage would be revised to McDonald’s satisfaction before the book was put back on sale; and (3) Karen Cristensen and the publishers would make a statement in open court. The statement should acknowledge that "the defamatory allegation complained of was misconceived", should provide an unreserved apology to the corporation and include an undertaking not to repeat the allegation in the future.
The publishers, Arlington Books responded by saying that the book did not, in fact, make any "specific allegation that they [McDonald’s] contribute to the destruction of tropical rain forests". However, despite rejecting the validity of the claims of defamation made by the company’s solicitors the publishers went on to state that "we have no desire to place ourselves in the position of a David to your client’s Goliath and, in the interests of goodwill, and to settle the matter amiably". Thus distribution of the book was suspended and the firm undertook to delete McDonald’s name from the relevant page. In denying the defamatory nature of the contents of the book the publishers refused to make a statement in open court that would suggest that they accepted the claims made by McDonald’s.
After the suspension of the book and minor changes there was no further communication from McDonald’s solicitors and no legal action followed from the refusal to provide an apology in open court. In a later edition of the book McDonald’s was not mentioned by the author. To this extent the corporation had succeeded in removing a minor remark from a small circulation book. But it had also contributed to the climate of fear and intimidation that operate around those who publish on a subject that might include criticism of McDonald’s and its type of business.
McDonald’s Other Litigation
In 1986 various Australian groups published leaflets, the main message of which was that people should protest against McDonald’s. The leaflet made a series of wide-ranging criticisms against McDonald’s business practices. Indeed, it amounted to a scathing attack on McDonald’s and its perceived "corporate invasion" of Australia.
McDonald’s instigated legal action for slander of goods and defamation in the Supreme Court in Victoria. It also issued a statement emphasising that it "would not tolerate the publication by individuals of what it considered to be defamatory and slanderous statements about it and its food"(Financial Review 18/07/86). In particular the announcement stated that:
‘Such statements not only damage the company but also harm the owners of individual McDonald’s restaurants, suppliers of raw products and the thousands of people employed in McDonald’s restaurants. Therefore McDonald’s has no alternative but to take action to seek redress against those individuals.’
The end result was that the leaflet was withdrawn from circulation.
In 1994 Out Publishing House published in Poland a book by B. Klimuszko entitled Biology 4 Man And Environment. The book was a handbook for primary school fourth grade students and made reference to McDonald’s in relation to the issue of the disappearance of tropical rainforest.
Predictably, the publishers received a letter from McDonald’s lawyers objecting to the allegations being made against the corporation. The publishers duly apologised for any untrue allegations and accepted the harm that could be done to the corporation’s reputation by such statements being made. They therefore apologised, in a form that was written by McDonald’s, and all further editions of the book were published without reference to McDonald’s.
In 1990 statements were made on New Zealand television concerning McDonald’s. The predictable result was a retraction on TV3 Nightline by Belinda Todd to the effect that:
‘Last night I implied that by not eating at McDonald’s,
Brazilian rainforests are saved. McDonald’s has proved the claim to be
inaccurate and Nightline apologises to McDonald’s for any embarrassment.’
As the cases highlighted in the chapter illustrate McDonald’s as a corporation has a long history of threatening to take legal action against those who dare to criticise and question its business practices. To the company, it is a matter of protecting their business reputation. To McDonald’s critics it is about attempting to silence and censor.
Whatever the motivation, and whatever the legitimacy of such action, it is clear that for a long period the strategy was successful. With journalists, publishers, writers and activists unwilling to take on the costs of a libel action, especially in the UK where the law does not operate to the advantage of those without resources, the most common response to a letter from McDonald’s lawyers has been to capitulate to their demands. As we have seen this has involved providing an apology and making corrections, or even ceasing to perform a play or write about the company. This, of course, does not necessarily mean that those who have been threatened with legal action have changed their mind about the corporation, nor that they are always accepting that the offending comments they made were in fact of a defamatory nature. However, it is clear that McDonald’s has relied upon previous apologies to support their ever increasing demands for more retractions, despite the fact that the motivations for providing an apology are many and varied.
However, by invoking the law in support of its reputation, McDonald’s has been able to create an impression that any criticism that is withdrawn as a result of the threat of a libel action must in some way have been "unlawful", and in particular must have amounted to a defamation of the character of McDonald’s. This legitimisation of threatened litigation by the acquisition of numerous apologies and retractions is a self-fulfilling process which leaves an extremely powerful impression on those who receive the dreaded lawyer’s letters. Although people may well be sceptical of the motivations of "big business", seeing their emphasis resting upon the creation of large profits, they are likely to see the use of the legal process as a legitimising tactic when used in this way. The author of the alleged libel is therefore "vindictive", "politically motivated", and "extremist" or just "misguided". But in the end their claims are deemed false and the corporation is able to carry on business as usual without having to worry about adverse criticism.
Of course all of this relies upon the critic capitulating
at an early stage in the legal process. And the cases described in this
chapter illustrate that libel is a powerful weapon which offers little
comfort for someone alleged to have committed the act. The fear of legal
costs and high damages should the allegation of defamation be proven has
meant that even large media businesses such as Channel 4 have preferred
to offer the simple apology rather than face McDonald’s in the court room.
However, in the next chapter we will see what happens when the recipients
of the solicitor’s letter from McDonald’s choose not to give in quickly
and quietly but instead embrace the opportunity to examine the long list
of allegations made against the corporation in a court of law.
Chapter 6 McLibel: McDonald’s goes to Court
A clear example of this can be found in the story of Mrs Mary Blair who found herself the subject of a McDonald’s legal letter. She owned a small shop in a Buckinghamshire village in the heart of the English countryside. It is hard to imagine that she might pose any competition to McDonald’s, particularly as her shop did not sell beef burgers. However, in 1996 Mrs Blair decided to rename the shop McMunchies - a name she liked, especially as she was in fact Scottish. Unfortunately, McDonald’s was not impressed by the use of the McMunchie name; in particular they were concerned about a breach of their trademark on the word "Mc". Predictably McDonald’s threatened legal action if the sign was not removed.
|From Mrs Blair’s perspective
it was clear that she did not pose a serious competitive threat to the
large corporation. McDonald’s however, did not see the situation in that
way. The business considered that it had "… made significant investment
over the years to build up its reputation of restaurant services and food
items associated…" the trademark. A McDonald’s spokesperson was therefore
in a position to conclude that ‘If anyone either deliberately or unintentionally
uses the corporation’s trademarks in their own food or restaurant-related
businesses, they are effectively using something that does not belong to
Now it probably comes as news to the people of Scotland, given that Mc is Gaelic for ‘son of’, that McDonald’s regards Mc as belonging to them. The effect of the legal position maintained by the corporation is not only rather insulting to the people of Scotland, it also means that the term can not be used in relation to any other restaurant. However, the corporation’s ownership of identity goes further to include an assortment of words from ‘Royal’ and ‘You’ to ‘Twoallbeefpattiesspecialsaucelettucecheesepicklesonion-onasesameseedbun’.
Now it probably comes as news to the people of Scotland, given that Mc is Gaelic for ‘son of’, that McDonald’s regards Mc as belonging to them.
|The battle over trademarks has in fact affected
the ability of the corporation to extend its business to Jamaica. Since
1971 a restaurant on the island had been openly using the name McDonald’s.
However, this restaurant was not operated by the McDonald’s. Given the
extent of the corporation’s business it is not surprising that they eventually
decided that they also wanted to open their own McDonald’s restaurant in
Montego Bay Jamaica in 1994.
The corporation, concerned about the pre-existing restaurant which served both traditional Jamaican food and fast food, began legal action a month after opening their outlet. Their lawyers argued that the owners of the Jamaican McDonald’s Corporation had made a deliberate attempt to pass the restaurant off as an affiliate of the corporation’s business. Lawyers also sought a restraining order against the Jamaican company which prevented it trading under the name. Victor Chang, the manager of the Jamaican restaurant responded by seeking an injunction to prevent McDonald’s opening any restaurants in Kingston under the name McDonald’s.
In a landmark ruling the Supreme Court of Jamaica decided that information accessed via the Internet was in fact admissible in court proceedings.
|McDonald’s did not endear themselves to the people of Jamaica when, in the court proceedings, they made claims that their food was of a better standard than the Jamaican company’s. In response, lawyers for Chang produced evidence drawn from the web site which had been set up in support of the McLibel trial - the McSpotlight Web Site - which raised claims that some customers of the American company had suffered food poisoning after eating hamburgers, and that the American company did not cook its hamburgers at the proper temperature. In a landmark ruling the Supreme Court of Jamaica decided that information accessed via the Internet was in fact admissible in court proceedings.|
|In March 1996 McDonald’s agreed that it would
not open the Kingston outlet before the case had been decided. In return
for this undertaking, lawyers representing the Jamaican restaurant withdrew
their court action for an injunction to prevent the opening of the new
outlet which the corporation had already begun to be build. The case continues.
The Jamaican case illustrates that not every one who is threatened with legal action will necessarily give in quickly and quietly. Indeed, in the UK we find a very high profile example of people threatened with litigation by McDonald’s refusing to apologise and end their criticism in the form of the McLibel case. The litigation has ironically exposed McDonald’s to the very criticism that it has been trying to silence, and no doubt started life as just yet another solicitor’s letter which the corporation thought would dispose of the irritation that was operating under the name of London Greenpeace.
McLibel - What Was So Bad?In October 1985 London Greenpeace, a group which had existed since the early 1970s predating the better known environmental organisation Greenpeace International, launched an International Day against McDonald’s - an event that has taken place every year since then. The group, which rejects the idea of ‘membership’ meets to share concerns and involvement in a variety of opposition movements and issues including ecology, anti-war, animal liberation and anarchist-libertarian.
London Greenpeace saw opposition to the ever growing
McDonald’s business as an important and valuable campaign and so in 1986
they produced a fact sheet entitled ‘What’s Wrong With McDonald’s? - Everything
they don’t want you to know’. The pamphlet attacked nearly every aspect
of McDonald’s business. It accused them of exploiting children via their
advertising, of promoting an unhealthy diet, of exploiting their staff
and of being responsible for environmental damage and ill treatment of
During the late 1980s McDonald’s took no apparent interest in the activities of London Greenpeace. However, as the campaign against it grew in London the corporation began to take steps aimed at protecting its reputation from London Greenpeace’s pamphleting activities. To this end McDonald’s engaged two separate private investigation agencies to infiltrate the group so that the corporation could discover how they operated and in particular which individuals were responsible for the production and distribution of the offending fact sheet.
It was particularly important for McDonald’s to discover who might be individually responsible for the leaflet as London Greenpeace was in fact an unincorporated association. As a result of their status, if, as was likely, the business wanted to take legal action in order to silence the campaign it would need to proceed against named individuals rather than ‘London Greenpeace’ as a group.
|In order to discover detailed information about those involved in the McDonald’s campaign the group was infiltrated by seven undercover agents! Their investigative approach was dubious: activists were followed home, letters sent to the group were stolen and one of the investigators broke into the group’s office in order to take a series of photographs. The spies in fact became actively involved in the campaigns organised by London Greenpeace even handing out anti-McDonald’s leaflets.||
In order to discover detailed information about those involved in the McDonald’s campaign the group was infiltrated by seven undercover agents!
|The undercover operations investigating London
Greenpeace become almost comical given that at some meetings there were
as many spies in attendance as there were campaigners. It is also amusing
to note that McDonald’s had not told each investigative agency that another
had been hired with the result that the spies soon found themselves spying
on each other. Indeed, the court was later told that one investigator had
noted that the behaviour of another investigator, was ‘suspicious’.
In 1990 the investigative work undertaken for McDonald’s finally resulted in five people being served with a writ by lawyers working for the corporation. The activists were confronted with the choice that had been forced upon many others who had criticised the McDonald’s way of doing business. They had to chose between withdrawing the allegations made in the leaflet and apologise to McDonald’s, or fighting the legal challenge and therefore going to court.
Libel Law and the ActivistsThe five London Greenpeace activists found themselves threatened by McDonald’s with an action for libel in the courts. This, despite the fact that the fact sheet had been produced even before at least one of them - Helen Steele - had become involved in London Greenpeace. The five were clearly in need of good quality legal advice but soon discovered that legal aid is not available in relation to the law of libel. However, they were able to receive two hours of free legal advice and approached Birnbergs Solicitors, a firm which is well known for acting in the area of civil liberties.
However, the lawyers pulled no punches in describing the predicament the campaigners were faced with informing them that the law of libel in England and Wales is in fact one of the most difficult. This meant that if they decided to fight the action they would need the help of lawyers which they would have to pay for themselves. The cost of legal representation for a libel trial was well beyond the resources of people committed to political activism rather than the pursuit of individual wealth. They were also warned that any case of this kind would last a significant period of time - possibly up to two or three years.
The type of legal claim being made against the five by McDonald’s also heightened their difficulties. In the law of libel it is up to the defendants - in this case the activists - to establish that what they said is in fact accurate. McDonald’s was alleging that everything in the leaflet amounted to a libel against the corporation. This covered the full range of issues such as working conditions, environmental and animal harm and even the claim that McDonald’s food could be linked to poor diet and as a result ill health. These allegations had to be proved by the defendants using what are known as ‘primary sources’. This would mean that they had to have official documents and evidence from those with first hand accounts of the issues. A costly and time consuming process in any legal action but even more difficult given the wide range of subjects to be considered in any court action dealing with the fact sheet.
To make matters even worse, the lawyers warned that the campaigners might not even get past the early stages of the legal process. It was suggested that given their limited resources there was a distinct possibility that some mistake would be made in the pre-trial process which would result in them losing on a technicality. The result would be that they would lose without ever having any of the issues examined in a court and be left with the prospect of paying a significant amount in costs to McDonald’s. Such a result would achieve nothing but offer the corporation a public relations victory and leave the defendants in a position where they faced bankruptcy and years of making payments to the very business they despised. The only advantage the activists would gain in fighting the case would be that they had not been forced into offering an apology they did not believe in.
John Vidal sums up the position of the London Greenpeace campaigners very clearly in his book McLibel - Burger Culture on Trial:
‘The five got the message: don’t bang your heads against a brick wall, be pragmatic, just say sorry. No one will think that you really mean it, you will save yourselves time, energy and money and be able to get on with campaigning elsewhere. You can comfort yourself with the fact that a trial would hardly be fair if you defended yourselves. Leave while you can.’ (Vidal 1997: 75)
The reality of the threats of legal action made by McDonald’s is that this advice, which is certainly sound and ‘in the best interests of the activists’, has probably been repeated many times, and for the most part it is advice that has been taken by campaigners. The dangers inherent in taking on a large corporation in the courts in relation to a libel action are too great for most people to endure.
Further legal advice was offered by barrister Keir Starmer who was equally sombre about the possible outcome of any legal action. However, he did offer to work for them on a ‘pro bono’ basis if they did chose to fight. Perhaps crucial to this decision was the fact that Starmer considered that the case was about more that the actual allegations of libel. He considered that the case raised issues of free speech. At the heart of the problem within the law of England and Wales was the issue of money which overshadowed any idea of the search for truth and honesty within a libel action. Thus Starmer has said that
‘If you have the money you can hire a good legal team. If you have no money you can’t hire a legal team and you run huge risks because if you lose you could pay the costs of the person that’s suing you. Now that is a huge incentive by those that can afford to pay lawyers to suppress information and opinions of those that they know can’t - and many people will withdraw from cases or settle cases because they fear the costs. The costs of most libel cases would be in excess of fifty thousand pounds.’ (McSpotlight Web Site: www.mcspotlight.org)
|To the campaigners the motivations
of McDonald’s in threatening them with legal action had become all too
clear - to suppress their views and silence voices which dared to question
the company’s approach to business. However, the decision as to how to
respond to such threats was not necessarily made easier by this understanding.
In the end three of the five considered that they could not face the battle given the terrible odds they were facing. However, Helen Steele, was incensed by McDonald’s tactics:
‘It was really offensive. It really stuck in my throat to apologize for something that didn’t deserve an apology, and I just thought "Well, I’m going to fight this case come what may, whether or not I comply with all the legal obligations and actually get as far as a trial.’ (Vidal 1997: 77)
‘It was really offensive. It really stuck in my throat to apologize for something that didn’t deserve an apology, and I just thought "Well, I’m going to fight this case come what may, whether or not I comply with all the legal obligations and actually get as far as a trial.’
|With Steel deciding to fight on, Dave Morris,
who had been considering backing out with the others, decided to join the
fight. His decision can be explained by his general approach to life:
‘Politics is not a luxury. It’s an essential. It doesn’t matter what else is happening in your life, you’ve still got to go to the toilet, you’ve still got to eat and you’ve still got to fight the system.’ (Vidal 1997: 77)
As a result of these decisions an apology to McDonald’s from three of the activists was read out in court. Although they were unhappy they certainly took the view that it was meaningless to them and further intensified their contempt for the company. The three subsequently issued a statement denouncing the law of libel in England and Wales.
Before the Trial Takes PlaceThe process that was to take place before the case could actually come to trial was to be a long drawn out affair. For the defendants, acting for themselves as litigants in person, the affair was transformed from political campaigning to a situation where the case became virtually a full time occupation. The pre-trial process itself took eighteen months.
Steel and Morris needed to respond to the statement of claim made by McDonald’s which had accompanied the initial writ delivered to them. In their response they had to counter each of the sixteen different elements that the company had claimed were libellous. Thus they had to prepare an outline of their defence for the case. Not a quick job, nor an easy one for two non-lawyers. This was followed by a process whereby each side attempted to obtain information from each other before the case could begin, known as ‘further and better’ particulars. Then disclosure was to take place which required both parties to make available all documents that were thought to be relevant to the case. The difficulty Steel and Morris faced in this process was that McDonald’s continually claimed that they had little or no documentation. The defendants began to think that McDonald’s was engaging in a ‘cover up’ and seeking to make their ability to put together a defence as difficult as possible for them.
Along with all of these elements there was also the requirement to exchange witness statements, attend hearings and meet assorted deadlines. In fact the process of providing witness statements was to be a good example of the difficulties faced by the defendants. They were given three weeks in which to produce a full set of sworn statements from witnesses supporting all aspects of the case. In practice this meant that experts from around the world had to be contacted and persuaded to provide written statements. In all 65 witnesses were found, within the three week period, and both the court and McDonald’s were clearly amazed by both the exceptional amount of work and perseverance shown by the defendants.
The whole legal process was already becoming long, complex and at times exceedingly irritating. Steel and Morris had to become, with Starmer’s help, experts not only in the law of libel but also in legal procedure. As they persevered, McDonald’s began to realise that they were faced with a couple of determined activists.
The campaigners began to feel as if McDonald’s were attempting to win the case by wearing them down - physically, emotionally and especially financially. The reality of the case was probably that the corporation had not even expected to find themselves in this position. No one else had decided to fight them when threatened with libel. Instead they had achieved a large number of retractions and apologies for the cost of a few lawyer’s letters.
Judge and Jury?In 1993 things began to get more serious in the build up to the McLibel case. McDonald’s were by now clear that Steele and Morris were not going to chose the easy option and apologise, and in fact were doing a very capable job of putting their defence together despite their lack of legal representation. As the trial approached the corporation engaged one of Britain’s leading libel barristers - Richard Rampton QC. Indeed, it is worth noting that his involvement in the case came before the end of the pre-trial process - an unusual development given the estimated £2000 a day cost of such legal heavyweight. McDonald’s were determined to win their case in court and so it was important to assemble the best legal team that money could buy.
At this time McDonald’s applied to Mr Justice Bell for a ruling that the case should be heard without a jury. The Defendants were left to conclude that the corporation feared a jury would be too unpredictable; they might identify with two ‘ordinary people’ fighting the might of a large American business. At the court hearing in December 1993 Rampton QC argued that the case was clearly too complex for a jury of ordinary citizens to follow. In particular the issues the health effect of McDonald’s food would raise complex scientific and methodological issues that a jury would find difficult to follow. On the other hand, a judge could "understand properly the …refined criticisms a jury cannot".
McDonald’s further stressed the administrative and legal advantages of a hearing before a judge alone. The public interest would be served by the case being decided with a reasoned decision rather than a verdict. Rampton QC stressed that less time would be taken if the case was to heard by a judge alone - perhaps as little as three or four weeks rather than six or seven that would be needed with a jury.
|The Defendants were astonished when the judge accepted the arguments about the complexity of nutritional evidence and denied them a hearing before a jury. A case in which a giant multinational corporation was fighting a gardener and a postman was found to be too complex for ‘ordinary people’ to understand. Yet the defendants had no expert knowledge or training, but none the less were being expected to mount their own defence on all of these highly technical, complex issues and that was not considered to be in any way unfair.||
The Defendants were astonished when the judge accepted the arguments about the complexity of nutritional evidence and denied them a hearing before a jury.
|Although Steel and Morris already had a low opinion
of the legal process this decision of Mr Justice Bell was the final proof
that the legal system was stacked against normal ordinary members of the
public. However, if the decision depressed them it also strengthened their
political convictions. In their view the British legal process was in effect
being used to protect the interests of a major American corporation. The
result was that the courtroom was to become a battleground for political
action at the instigation of McDonald’s. The fact that the judge appeared
to be on the side of the company over the interests of two unrepresented
individuals merely confirmed the need to carry on the fight. That conclusion
was reinforced by the belief that the legal process offered a method of
public examination of the very issues McDonald’s wanted to suppress, albeit
not directly in front of the public who were the target audience.
In seeking to reinstate the jury in their case Steel and Morris took an appeal to the Court of Appeal in March 1994. They were provided with free representation by the civil liberties group Liberty which had became involved in response to its concern about the issues of free speech that the case raised. Indeed, it regarded the role of a jury, reflecting the thoughts of the public, as an essential requirement for the protection of freedom of speech and justice.
The Court of Appeal, however, confirmed the decision of the High Court finding that, although a jury trial was the preferred approach, in this case the idea that the scientific evidence was too complex for a jury was compelling. An application to appeal to the House of Lords was denied.
Although the loss on the matter of a jury trial was particularly disappointing for the defendants there was to be some success for them in the Court of Appeal. At the same set of hearings another issue had been in dispute between the two sides. The High Court had accepted McDonald’s claim that the defendants had been unable to provide enough primary evidence to support a defence of certain sections of the pamphlet. This had the effect of striking out issues dealing with the rainforests and McDonald’s international employment practices on the basis that they did not disclose ‘clear and sufficient evidence’ to support a claim of justification of fair comment. The ruling would have had the effect of preventing the defendants from using the statements at trial. The Court of Appeal, however, concluded that the practice of requiring ‘clear and sufficient evidence’ to support pleas of justification of fair comment was inappropriate as, if adopted too literally, it would place an unfair and unrealistic burden on the defendant.
The ruling is significant for the way in which libel cases should be conducted resulting in a variety of forms of evidence being able to be used by defendants in order to prove allegations at trial. The lawyer acting for Steel and Morris was clearly delighted with the decision of the Court of Appeal and emphasised the overall significance of it beyond the McLibel case: "It is a landmark decision which has particular importance to media defendants and investigative journalism. It may well serve as a bulwark of free speech" (Solicitors Journal: 1994).
Following these early legal skirmishes McDonald’s took the interesting step in March 1994 of producing 300,000 copies of its own leaflet that were to be distributed through their restaurants. The McDonald’s handout informed its customers that it was involved in a legal action to prevent the publication of the "What’s Wrong with McDonald’s" leaflet. The corporation claimed that the contents of the offending leaflet were "untrue" and the litigation "is not about freedom of speech; it is about the right to stop people telling lies". At the same time McDonald’s also issued press releases to the same effect.
In response Steel and Morris issued a counter-claim against McDonald’s over its allegation that critics of the corporation, which included them, were liars. The aim of the counter-action, as well as providing some good publicity for the activists, was to require McDonald’s to prove that the claims in the London Greenpeace leaflet were false and that the defendants knew that they were false.
A Settlement?The McLibel hearing finally began on June 28th 1994, presided over by Mr Justice Bell who had only recently been appointed and had virtually no experience of the law of libel. At the same time mainstream political interest in the case was increasing. The McLibel Support Campaign had been set up shortly after writs were served on activists in September 1990 and had been working to raise badly needed resources, organise actions in support of the defendants and generally help to publicise the case. However as the libel action finally made it to court the case came to the attention of Parliament. Two Early Day Motions were sponsored by the Labour MP Jeremy Corbyn who attacked McDonald’s for its "routine use of libel writs as a form of censorship" and claimed that in the past "apologies and damages have been obtained under false pretences after McDonald’s lied about their practices".
As public interest in the case began to grow the defendants achieved an early victory over McDonald’s in the courtroom. The issue of nutrition was the opening part of the case and Steel and Morris cross-examined Dr Sydney Arnott, McDonald’s expert on cancer, as to his opinion of the following 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.’
His response was significant: "If it is being directed to the public then I would say it is a very reasonable thing to say". But the defendants had laid a highly embarrassing trap which was revealed when they told the court that the statement was in fact an extract from the London Greenpeace Factsheet. Indeed, it was this issue that had been described by McDonald’s lawyer at pre-trial hearings as the crucial and most ‘defamatory’ allegation. It was thought that if it were to be proved it would be the "kiss of death" for a fast-food company like McDonald’s.
The defendants were not surprisingly unhappy with this negative start to the case; it was embarrassing to be faced with the central issue of diet and illness being established by one of its own experts. However, McDonald’s were quick to repair the damage when it made an application to the court to alter the case. The original statement of claim had read: McDonald’s "are deliberately misleading the public as to the nutritional value of the goods 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" and that this is untrue and damaging to McDonald’s’ reputation.
Through the legal move the statement of claim was altered to read as follows:
McDonald’s "1. Sell meals which cause cancer of the breast and bowel and heart disease in their customers. 2. Despite knowing that this 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 nutritional part of any diet" and that this is untrue and damaging to the reputation of McDonald’s.
In consequence, although McDonald’s experts had accepted in court that their products might be "linked" to ill health the claim was changed to say that the defendants were in fact alleging that they "caused" ill health. An important difference making the job of the defendants significantly more difficult.
Two months after the start of the hearing McDonald’s informed the defendants that they wanted to meet them in order to discuss a settlement. They were willing to meet them at short notice and in any place stated by Steel and Morris. The ‘McLibel 2’ (as they had become known) were surprised but concluded that they must have had some serious success with the case, and that McDonald’s at last wanted to put an end to the litigation. They decided to have the meeting - to "Go along, see what they’ve got to say, and put our demand".
Two senior Vice-Presidents of McDonald’s flew into the UK from the company’s headquarters in Chicago in order meet with Steel and Morris. They offered to drop the libel action and pay a substantial sum to a third party if the defendants agreed never to publicly criticise McDonald’s again. Importantly, the agreement would be covered by a confidentiality clause which would prevent public discussion by the defendants of the deal. Steel and Morris told the executives that their demands were that McDonald’s provide an undertaking not to sue anyone else in the future for making similar criticisms to those produced by London Greenpeace. They also wanted the corporation to apologise to those who had been forced into providing apologies and retractions to the company.
Given the political motivations of the activists it is not surprising to find that the requirement of silence was unacceptable to the defendants - their actions throughout the case had been governed by their fundamental belief in political action and free speech. To accept a deal that prevented them from speaking and acting freely would go against their fundamental principles - however attractive it might be to finally escape from the clutches of the case.
‘The whole reason we were fighting the case was to defend the right to criticize them and other multinationals, so we’re hardly going to agree to gag ourselves.’
|For McDonald’s an undertaking that they never
engage in litigation against their critics was equally unacceptable. They
continued to deny that the company used the law of libel in order to stifle
criticism. Nor did they accept that the confidentiality requirement limited
the defendant’s right to free speech. The activists were free to speak
about the matter to whomever they liked so long as such conversations took
place in private or via personal conversations.
The answer from both sides to the attempt to reach an agreement was therefore "no" and the litigation would continue. The strangeness of the settlement attempts by McDonald’s can be summed up by Steel:
‘The whole reason we were fighting the case was to defend the right to criticize them and other multinationals, so we’re hardly going to agree to gag ourselves.’ (Vidal 1997: 126)
The Case Continues
If the media was tracking the case closely, so were McDonald’s shareholders, and they were not happy with the negative publicity the case was attracting. At the Annual General Meeting in Chicago, Michael Quinlan, Chair and Chief Executive, said the case would be "coming to a wrap soon". As it turned out this was another over optimistic assessment of the situation and the case was in fact to last for two more years.
As the trial continued the allegations made against McDonald’s by the defendants were finally given a public airing. This was to lead to some embarrassing revelations which could not be suppressed because they had been exposed to the cold light of day in a courtroom. An ironic situation given McDonald’s history of using libel law.
Although many people had been threatened with litigation for alleging that McDonald’s were partially responsible for the destruction of tropical rainforests and despite its many denials in the past, it emerged during the hearing that during the 1980s some of its beef had indeed been sourced from ex-rainforest land. Whilst claims that McDonald’s food was ‘nutritious’ turned out to amount to the rather different claim that the food contained ‘nutrients’. The corporation was also forced to admit that although much of its rubbish was placed in recycling bins, that material was in fact treated in exactly the same way as its other rubbish and dumped. These issues were key concerns, not just for the defendants, but also for many others who had in the past expressed concern about the growth of McDonald’s. It was therefore becoming apparent to both parties and observers that the PR side of the business had been very effective at limiting any attempt to question and challenge the corporation’s business methods.
|The case dragged on growing in its potential to cause significant PR problems for a company that had previously been so effective in managing its reputation. Ironically, protests against McDonald’s were increasing around the world as the case attracted international publicity and the very leaflets that were at issue in the court battle were being widely distributed. The McSpotlight Web Site allowed global access to the mass of information McDonald’s had worked so hard over the years to suppress.||
The McSpotlight Web Site allowed global access to the mass of information McDonald’s had worked so hard over the years to suppress.
|In June 1995, as the case was ‘celebrating’ its
first year, McDonald’s requested that the two sides meet once again in
order to undertake further settlement negotiations. Another meeting was
therefore arranged, this time in a pub in Central London. Once again, McDonald’s
stated that they could not agree to the demand that they undertake never
to sue anyone for criticising them. Equally, the two defendants make it
clear that they would not agree to the demand that they stop criticising
McDonald’s. It is not surprising that the talks failed and the trial continued
on its slow progress.
On December 11th 1995 the McLibel case become the longest civil case in British history. It then passed its second year in the summer of 1996. Finally, on July 17th 1996 the last submissions in the case were concluded and the argument ended in the court. The two sides were left with three months in which to write their closing speeches. This task required an analysis of 40,000 pages of documentary evidence, 20,000 pages of court transcript testimony and consideration of complex legal arguments and submissions.
Closing SpeechesThe case resumed in October 1996 when the two sides were back in court in order to make their final submissions in the form of closing speeches. Steel and Morris requested that the judge give them more time in which the prepare the complex task, or at the very least have McDonald’s deliver their closing argument first to allow them that little extra in order to take account of their lack of legal expertise. McDonald’s was after all represented by some of the finest libel lawyers in the country. The judge refused, a decision that was not to be challenged in the Court of Appeal which refused the defendants leave to appeal against the ruling.
Instead of making an oral closing speech, Richard Rampton QC, McDonald’s barrister chose to submit his final submissions in written form presenting the judge with a five-volume document. After some final legal arguments which took up a handful of days of the courts time the case was finally over. However, these legal arguments were crucial to the overall understanding of the dynamics of the McLibel case and its content. Steel and Morris argued before the judge that law of libel in the UK is oppressive and that the laws operated in an unfair way. In particular in their case they claimed that there were specific incidences of unfairness in the denial of legal aid to them as defendants and by the court decision to deny them a jury trial. The case also pointed out, they claimed, a fundamental imbalance in a system that allowed a multinational corporation to sue its critics for libel in a way that attempted to silence them.
With the final legal arguments made, the case finally came to an end on December 13th 1996. Mr Justice Bell made it clear that he was not going to make a quick decision, hardly surprising given the length and complexity of the case. He could offer no indication of when the decision might be made leaving the parties to contemplate yet another year in which the McLibel case would dominate their lives.
Whilst the parties awaited the judgment, media
attention continued to focus on the case. Channel 4 television news, in
considering the case, felt able to comment that McLibel had to be seen
as "the biggest Corporate PR disaster in history". John Vidal’s book McLibel
was published in February 1997 and Channel 4 broadcast a three and a half
hour reconstruction of the case in May 1997 which brought the issues raised
by the defendants in handing out their leaflets directly into viewers homes.
It was patently obvious that McDonald’s had disastrously failed in their
attempt to suppress the discussion of criticism via the McLibel case. This
is not to suggest that McDonald’s business was being seriously affected
by the poor publicity.2
JudgementThe day of the court judgment came out of the blue on 19th June 1997. The defendants made their way to the court accompanied by three television camera crews and supporters gathered outside the court along with a growing band of reporters.
The judge took two hours in total to deliver his judgment to the court. At the heart of the decision Mr Justice Bell ruled that Steel and Morris had not proved their allegations against McDonald’s on the issues of rainforest destruction, heart disease and cancer, food poisoning, starvation in the Third World and bad working conditions. This did not mean that the defendants had being making false allegations against the corporation. Rather in legal terms it meant that Steel and Morris had not brought before the court sufficient evidence to prove the allegations, as interpreted by the court, that had been contained in the leaflet.
Despite a partial victory for McDonald’s there were other allegations to consider and in this matter the judge ruled that Steel and Morris had proved a number of claims. In particular, that McDonald’s "exploit children" with their advertising, falsely advertise their food as nutritious, risk the health of their most regular, long-term customers, are "culpably responsible" for cruelty to animals, are "strongly antipathetic" to unions and pay their workers low wages.
Given the size of the case it is not altogether surprising to find that the case ended in partial victories (and vindication) for both sides. The court had ruled that the defendants had libelled McDonald’s. But they had also been able to prove, to the satisfaction of the court many of the allegations made in the fact sheet. The decision meant that the court made an order that they should pay half of the damaged claimed by the corporation amounting to £60,000.
However, with a substantial sense of victory on their part, and the political and ideological beliefs that had got them so far, the defendants were not surprisingly reluctant to offer any payment of damages to the corporation. Their position was made clear by Helen Steel who stated that after the case that "McDonald’s don’t deserve a penny and in any event we haven’t got any money".
Whether the decision of the court was to be the final chapter of the long running McLibel saga was largely in the hands of McDonald’s. The business had four weeks in which to decide whether they were going to pursue their costs and injunction which they had originally set out to obtain from the defendants in September 1990. There was also the question of an appeal. McDonald’s were less than happy with the judgment. After all, allegations that the corporation exploited children, workers and animals had been proved in an English court. Such findings were serious in nature for a business that aimed much of its sales at children and their parents.
The future political commitment of the defendants was made clear two days after the court decision when they were once again leafleting outside McDonald’s in defiance of any injunction McDonald’s may serve on them. The impact of the case however, also meant that many others were also leafleting. According to the McLibel support group "over 400,000 leaflets were distributed outside 500 of McDonald’s 750 UK stores, and solidarity protests were held in over a dozen countries".
In the end McDonald’s decided not to make matters worse for itself by trying to enforce the damages award. Interestingly, they also decided not to pursue an injunction against Steel and Morris, the legal process that initiated the whole process. It is assumed that the decision was made on the grounds of damage limitation in PR terms. The case, which had been dragging on since 1990 had attracted more than enough bad publicity for the business. However, the decision was interpreted by activists as an "admission of defeat".
AppealsTwo months after the decision of Mr Justice Bell the defendants lodged an appeal with the Court of Appeal which was heard at the beginning of 1999. The case was rooted in the "oppressive nature" of libel law in the UK, although the specific handling of the case by the Judge was also challenged.
Throughout the court proceedings Steel and Morris have been concerned at the way the law is currently interpreted to allow a multinational corporation to claim the protection of libel law. The activists pointed out to the court that this provides business with significant protection from criticism which they argue is contrary to public policy in a democratic country. In particular they point out that there is no certainty that the law should offer such protection to corporations, particularly as it has been removed from public authorities following the House of Lords decision in Derbyshire County Council v. Times Newspapers (1992).
Having heard the arguments on this point the Court of Appeal concluded that public authorities and commercial corporations were in constitutionally different categories. The difficulty is that although reform of the law of libel is needed in order to protect individuals who seek to engage in political debate about the behaviour of government and business it is difficult to justify a complete exclusion of the protection against outright defamation. What activists need is the ability to claim a defence of ‘fair comment’ combined with legal aid and a more sophisticated understanding by the court of the way defamation is being used in the UK. The Court of Appeal was unwilling to offer any small improvement in the state of the law, however, concluding that it could not alter the law to prevent corporations using the law of libel, only Parliament could make such a change if it so desired.
Steel and Morris also pointed to a fundamental deficiency in the libel law of England and Wales, that being the lack of available defences which protect critical comment. As a result there exists no defence which would allow for the defendants having a "reasonable belief in the truth of the words complained of". Nor is there a defence of "qualified privilege" which they claim should be available to publications such as the London Greenpeace fact sheet which they argued amounts to a "reasonable and legitimate response to an actual or perceived attack on the rights of others, in particular vulnerable sections of society who generally lack the means to adequately defend themselves". In the McLibel case those are identified as children, workers, animals and the environment.
The Court of Appeal also rejected this ground concluding that the balance between freedom of expression on the one hand and protection of reputation on the other did not generally "require protection for those who publish indiscriminately unverified facts irrespective of their truth". Indeed, the court felt that the offending fact sheet was not prepared in a careful enough way to entitle the activists the protection of qualified privilege.
Significantly Steel and Morris argued that the judge should have put a stop the case before it ever got to the point of trial as the litigation amounted to an "abuse of process". However, the Court of Appeal rejected their claim that the denial of legal aid meant that the case, raising significant factors of public importance, resulted in the defendants being unable to be adequately represented both on the factual matters of the case and on issues of legal interpretation. As a result it could not accept that the disparity of legal representation meant that they were unable to get a fair trial in an adversarial system operated in the courts of England and Wales. The court was not prepared to accept that the case had amounted to an abuse of process of the court, nor that the trial had been conducted in an unfair manner.
However, on the more substantive issues dealt with by the original libel trial the Court of Appeal did conclude that it was fair comment to say that McDonald’s employees throughout the world "do badly in terms of pay and conditions" and that for the most part Steel and Morris could claim the defence of justification in relation to the statements on the negative nutritional impact of McDonald’s food. The result of these finding was a reduction of £20,000 in the award of damages to McDonald’s.
Steel and Morris have now lodged a Petition with the House of Lords in an attempt to further argue their claim that libel law in England and Wales should not be available to corporations, and that publishing material on issues of public importance should be protected by qualified privilege. If their application is denied they intend to take their case to the European Court Human Rights.
What Can We Conclude From the McLibel Case?Although to those looking at the case from the outside the McLibel action might have appeared to be an issue of free speech and intimidation by a large corporations against two economically poor activists, McDonald’s characterised the case as follows:
‘So far as McDonald’s are concerned, anybody is free to express his criticism in whatever terms he wishes. McDonald’s may not like it, but it would never try to prevent it. They cannot and do not object to fair and reasonable criticism of their business or their products.
What, however, they will always seek to prevent … always have sought to prevent … is dissemination of false factual information about the company, its business and its products.
[The factsheet] is … a wholesale attack on almost every aspect of the plaintiffs’ business which, if it were accepted as being true, would necessarily cause McDonald’s an enormous amount of damage…. It is … completely false in every material respect.’ (Vidal 1997: 99-100)
The alternative view, clearly encapsulated in the activists who found themselves fighting for their political lives was that the legal action brought by McDonald’s against them, and brought successfully in the past against many others, was that the case was ultimately about ‘censorship’. As Helen Steel expressed it in her submission to the court on 29th June 1994:
We feel there is one word that can sum up what this case is about, and that word is "censorship". ‘McDonald’s are using the libel laws of this country to censor and silence their critics. During this trial we intend to show that the public face of McDonald’s is a fraud…. As Mr Rampton has admitted, their aim in taking this case to its conclusion is to gain a legal seal of approval for their business practices. This is a show trial against unwaged unrepresented defendants. McDonald’s hope that because of our lack of resources and legal experience they will gain an easy victory and a detailed judgment in their favour which they can then use to say to all their critics that they have proven, to the satisfaction of the court, they are squeaky clean.’ (Vidal 1997: 100)
A significant aspect of the whole case revolved around this clash of cultures and political beliefs. It was an early window on the ongoing battles about globalisation of culture and belief systems with the case providing a very public dramatisation of the conflict between the mainstream culture of globalised profit and economic power on the one hand, and the "alternative" culture of "DIY" politics on the other. McDonald’s was never going to achieve an easy victory over this type of committed activist.
The negative censoring intent, which gave rise to the initiation of the McLibel case, was in fact transformed by the commitment, energy and ability of the McLibel 2. Very practical results arose out of the litigation as Steel and Morris used the discovery process of document disclosure to force McDonald’s to hand over documents that most activists could only dream of seeing. While the opportunity to cross-examine McDonald’s executives and experts in the courtroom resulted in a series of damaging admissions. The result was that the case offered the defendants an opportunity to make public their criticisms of the corporation with the very dramatic support of expert witnesses. International media attention was quickly drawn to the case and the well-organised campaign set up to support the activists.
The positive political opportunities that came out of the litigation need to be set against the more negative experience of Steel and Morris. Their lives were overtaken by an exhausting trial that was to become in effect a full-time job. No space was left for other political activism, although the case did become the focus for a much wider continuing campaign against McDonald’s.
The outcome of the case was both victory and defeat for both sides. Yet it was McDonald’s who had most to lose with the weight of the court now behind activists who campaigned against the corporation on issues such as advertising to children, working conditions, cruelty to animals, and the quality of McDonald’s food. Indeed, the campaign group People for the Ethical Treatment of Animals (PETA) have now launched a national poster campaign in the USA entitled "McCruelty to go" which uses the court decision on animal cruelty to justify their criticism.
What the use of libel law by McDonald’s has shown is that where critics have "too much to lose", in facing a future of unfunded legal action which can drag on for more than a decade, the threats work. And the more apologies that can be obtained by a business, the more pressure is brought to bear on the critics to submit to bullying. However, the McLibel case illustrates to dramatic effect that the activist with nothing to lose and a strong enough level of political commitment can transform a lawsuit into a political opportunity. McDonald’s will not be put out of business by the negative publicity created by the McLibel trial, but the outcome of the case, and the ongoing legal proceedings, have strengthened their critics rather than silenced their voices.
Notes for Chapter 5
Notes for Chapter 6
1 The fact sheet can be found on the McSpotlight Web Pagewww.mcspotlight.org/case/pretrial/factsheet.html
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