APPLICATION NO. 68416/01
STEEL and MORRIS
- v -
the UNITED KINGDOM
SUMMARY OF APPLICANTS’ SUBMISSIONS
18th August 2004
- This case is about the rights of two ordinary people without power or wealth to engage in a public campaign on matters of public interest and importance. The campaign in question was a campaign to draw attention to a number of unattractive features of the fast food industry. It was instigated by a campaigning group called London Greenpeace and it involved the distribution of leaflets including a six-page leaflet called: What’s wrong with McDonalds? Everything they don’t want you to know. McDonalds alleged that, in supporting the campaign the applicants were guilty of defaming their good name and so in 1990 they sued the applicants in libel for damages. This was despite McDonald’s making an agreement in 1988 with the main distributors of the 6 page leaflet, Veggies Ltd, that they could continue distributing an almost identical version.
- McDonalds did not allege that the applicants wrote the leaflet complained of. They merely alleged that in supporting the campaign and, in the case of the first applicant, in handing out the leaflet and, in the case of the second applicant, in taking some unspecified role in its production, they were to be held responsible for any defamatory remarks in the leaflet. The domestic law in England and Wales does not distinguish between the authors of a document and those who merely support the campaign which the leaflet was intended to promote and/or distribute it by handing it out. Therefore the full burden of domestic libel law fell on the applicants to prove the truth of each and every allegation complained of in the leaflet. That would be a difficult task even for the author of a campaigning leaflet; but for individuals such as the applicants who merely supported the ethos of the campaign that the leaflet was intended to promote, in the genuine belief that its contents were true, it was an impossible task - made worse by the fact that a blanket denial of any legal aid whatsoever was applied to the applicants’ case, such that they had to prepare and present their case without any effective legal assistance.
- Unable to prove the truth to the satisfaction of the domestic courts of each and every allegation in the leaflet complained of, the courts entered judgment against the applicants and awarded McDonalds many thousands of pounds in damages, even though those damages were far beyond the means of the applicants and even though McDonalds had not adduced any evidence whatsoever to show that they had lost one penny as a result of the applicants’ support for the London Greenpeace campaign against the fast food industry. Indeed, the only evidence before the domestic courts suggested that McDonalds’ profits continued to soar throughout the period in question.
- For the reasons set out in their Application dated 2nd April 2001, their Reply to the Observations of the Respondent, their Letter regarding the McVicar case dated 26.07.2002, the Letter of Mark Stephens dated 28.08.2002, their Reply to the Further Observations of the Respondent and their Just Satisfaction Claim dated 5.7.04, the applicants submit that their rights under Articles 6 and 10 of the ECHR have been breached. They rely on all of those submissions, along with the supporting documentation submitted with them. Here they simply summarise some aspects of their case in ten pages.
The London Greenpeace Campaign
- The London Greenpeace Group has existed since 1971 as a small, independent and loose group of activists with no allegiance to any political party, who campaign for social change on a broad range of issues. There have never been any ‘members’ of the group as such. But individuals have always been free to attend the weekly meetings of the group. Most did so because they shared concerns about the environment. At any given time the group would have leaflets and campaigns about a variety of issues and not everyone in the group would be involved with each campaign.
- In the mid 1980s, London Greenpeace began a campaign against the fast food industry. It chose McDonald’s as the symbolic target of its campaign and produced the six-page leaflet called, What’s wrong with McDonald’s ? Everything they don’t want you to know. That leaflet suggested that (i) there was a connection between multinationals such as McDonald’s, cash crops and hunger in the ‘Third World’, (ii) that multinationals such as McDonald’s are responsible for the destruction of vast areas of tropical forest in Central America to support their supply of meat for burgers etc., (iii) that the fast food served by McDonald’s is unhealthy, and that there is a link between a diet high in fat, sugar, animal products and salt and low in fibre, vitamins and minerals, and cancer and heart disease, (iv) that although McDonald’s claim to use recycled paper, in fact only a tiny percent of its paper is recycled and packaging often ends up as litter, (v) that McDonald’s exploits children with its advertising and marketing, (vi) that the rearing and slaughtering of animals to supply the meat industry, including McDonald’s, is cruel, and (vii) that McDonald’s has a policy of not allowing trade unions, and like the whole catering industry subjects its employees to low pay and bad working conditions.
- This leaflet was published at a time when there was growing public awareness and concern about issues affecting the environment, the relationship of diet to health, animal welfare, mass media advertising and working conditions. It was written in a campaigning style, using humour, irony and exaggeration for effect; for example it had a cartoon of a cow and a human being in the middle of a burger bun saying (respectively) in cartoon-style bubble speak, If the slaughterhouse doesn’t get you …The junk food will.
- The leaflet was handed out to interested members of the public, or posted to those who wrote to London Greenpeace asking for a copy. It was essentially a contribution by campaigning activists to an ongoing public debate on issues of public interest and importance. Since neither London Greenpeace nor the activists involved in its campaigns had wealth or power, it was the only contribution they could realistically make. The leaflet itself declared that it was produced in support of world-wide anti-McDonald’s protests on United Nations ‘World Food Day’, 16th October 1986. It followed in the long tradition in the UK and in Europe of the expression of social protest through pamphleteering. The leaflet was last reprinted by London Greenpeace in early 1987.
- Although it had the wealth and power to join the public debate on these matters of public importance and to rebut the claims made in the leaflet, McDonald’s chose instead to adopt a strategy of identifying anyone supporting the anti-McDonald’s campaign so that it could launch libel proceedings against them. To that end, in September and October 1989 McDonald’s UK instructed two firms of enquiry agents to infiltrate London Greenpeace. Seven private investigators in all were used by the two firms, attending meetings of London Greenpeace posing as sympathisers, and secretly taking notes and photographs of the meetings and events. Ironically and significantly some of the private investigators actually helped promote the anti-McDonald’s campaign when the factsheet was virtually out-of-print. Equally ironically and significantly, the covert activities of the private investigators within London Greenpeace included distributing the very leaflet that McDonald’s objected to.
The Legal Proceedings
- On 20th September 1990, McDonald’s Corporation (a US company incorporated in Illinois) and McDonald’s UK (one of its subsidiaries) issued legal proceedings against the applicants claiming damages for defamation caused by the publication of the leaflet. It was a cause of considerable concern to the applicants that some of these private investigators instructed by McDonald’s UK to infiltrate London Greenpeace remained as infiltrators after the service of the writs, one even remained until May 1991, during which period the applicants were discussing how best to conduct their defence.
- At the time these proceedings were issued against the applicants, there were about 11,800 McDonald’s restaurants in a total of 53 countries. Total sales amounted to about US $18.75 billion. By the end of 1995, one year into the court hearing, there were about 18,400 McDonald’s restaurants in a total of 89 countries. Total sales by then amounted to about US $30 billion. McDonald’s worldwide was rightly described by the Court of Appeal in this case as "a gigantic enterprise with immense economic strength".
- By way of contrast, during the same period, the first applicant’s maximum income was £65 per week, when she was employed as a part-time bar worker, and the second applicant, a single parent, was unwaged and entirely dependent on income support. The inequality of arms could not have been starker.
- The applicants applied for legal aid to support their defence to the proceedings. However, this was refused on 3rd June 1992 because, at the time, legal aid was not available for defamation proceedings in any circumstances whatsoever. Legal aid was automatically refused without any consideration of the strength of the applicants’ case on the merits, the difficulties they faced in defending the proceedings and without regard to their lack of resources. As a result the applicants, an ex-gardener and an ex-postman without any legal training whatsoever, were forced to defend themselves throughout the proceedings.
- The scale of the proceedings that the applicants had to endure is hard to exaggerate. Before the trial started on 28th June 1994, there were 28 pre-trial hearings, some of which lasted up to five days. The trial itself lasted 313 days from 28th June 1994 until 13th December 1996, a period of two years and six months, the longest trial ever in English legal history (civil or criminal). The appeal lasted 23 days in the Court of Appeal. And the entire length of the proceedings, from the issue of the writ on 20th September 1990 to the refusal by the House of Lords for leave to appeal on 21st March 2000, was nine years and six months. 130 witnesses gave evidence at trial, and there were many additional written witness statements relied upon under the Civil Evidence Act. Trial documents ran to 40,000 pages, and the transcripts to 20,000 pages. The judgment of Mr Justice Bell was 762 pages, and the judgment of the Court of Appeal was 301 pages.
The Role Of The Applicants
- It has never been suggested that the applicants were the authors of the leaflet in question. The undisputed evidence, accepted by Mr Justice Bell in this case was that the first applicant, Ms Steel, did not even attend meetings of London Greenpeace until 1987, one year after the leaflet in question was first produced, and that she did not attend meetings regularly until 1988, two years after the leaflet in question was first produced. Nonetheless, Mr Justice Bell found the first applicant responsible for publication of the leaflet in question "by her participation in the group’s activities, sharing its anti-McDonald’s aims" which included distribution of the leaflet to those willing to read it. This was mainly at a protest outside McDonald’s headquarters in London on 16th October 1989, and by her assumed attendance at a fayre on 16th October 1988 at which the leaflet was available on a London Greenpeace stall for anyone who chose to pick it up. On that basis Mr Justice Bell ordered the first applicant personally to pay damages to McDonald’s in the sum of £55,000, a sum reduced to £36,000 by the Court of Appeal. Assuming she paid all of her weekly income of £65 (being the income she received when the damages were awarded) towards the reduced sum of £36,000 it would take the first applicant over ten years to pay off that sum.
- There was evidence that the second applicant, Mr Morris, had attended meetings of London Greenpeace "on and off" in the 1980’s, but had largely dropped out by 1989/90. There was no evidence he had ever distributed a single copy of the leaflet. Mr Justice Bell found that he had participated in the "production" of the leaflet in question on the basis of an affidavit sworn by the second applicant in other proceedings (an unrelated housing issue). Unfortunately that affidavit contained an error in that it suggested that the second applicant was being sued in respect of a leaflet that he "produced" where the words "allegedly produced" should have appeared. The solicitor responsible for drafting the affidavit wrote a letter to Mr Justice Bell confirming that she had received instructions from the second applicant (well before it came to the attention of McDonald’s), to correct this error, but that she had not done so because the error was immaterial to the proceedings for which the affidavit was sworn. The second applicant, lacking legal expertise, advice and representation (see below), thought that the letter from the solicitor responsible for drafting the affidavit would suffice as evidence before Mr Justice Bell of the error, but he was wrong. It was only at the end of the proceedings that the applicants discovered that Mr Justice Bell refused to accept the letter as evidence because the solicitor was not called as a witness and then treated the uncorrected affidavit as a basis for finding that the second applicant assisted in producing the leaflet in question. He also found that the second applicant was responsible for publication of the leaflet in question by his participation in the general activities of London Greenpeace. On that basis Mr Justice Bell ordered the second applicant personally to pay damages to McDonald’s in the sum of £60,000, a sum reduced to £40,000 by the Court of Appeal. Still without any income, and still a single parent, the second applicant has no prospect of paying off the reduced sum of £40,000.
- Furthermore, there was no evidence that the applicants harboured any malice against McDonalds, nor that they simply did not care whether the contents of the leaflet complained of were true or false. On the contrary, Mr Justice Bell expressly found that the applicants genuinely believed the contents of the leaflet to be true and had not knowingly lied. That finding arose as a result of the applicants’ counterclaim against McDonalds, which related to 300,000 leaflets and press releases issued by McDonalds’ from March 1994 onwards. These documents suggested that the libel case between McDonalds and the applicants was not about free speech, but was about the applicants’ "lies" - an assertion that Mr Justice Bell found to be unjustified.
- Two points arise from this. First, it serves to emphasise just how unfair domestic law is in respect of individuals such as the applicants who merely involve themselves in groups campaigning on matters of public interest and importance. Even where it is established that such individuals reasonably and honestly believed the contents of a leaflet written by others to promote a campaign to be true, they can be ordered to pay many thousands of pounds in damages unless they can actually prove in court the absolute truth of each and every allegation complained of in such a leaflet. Second, it shows that McDonalds clearly had other means of effectively protecting their reputation without the need for restrictive libel laws. McDonalds printed over 300,000 leaflets of its own for distribution to refute the allegations being made in the London Greenpeace campaign. It had the resources to print and distribute many many more. In addition, of course, McDonalds is one of the world’s largest advertisers and has extensive public relations machinery.
The Domestic Law In Issue In This Case
- The domestic law applicable in this case put the applicants in an acutely difficult position in defending the proceedings. That is because a strict liability rule applies in domestic law:
"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."
In addition, domestic law presumes that a publication is false, unless and until a defendant proves that it is true. A genuine and reasonable belief in the truth of an allegation provides no defence. The defence of justification will only be made out where a defendant can strictly prove the absolute truth of the allegation complained of.
A defence of fair comment exists, but is very narrow. It can only be made out in respect of opinions expressed as opinions and not mixed with facts. Moreover, a defendant must strictly prove the absolute truth of the sub-facts in the document said to support the opinion in question. And damage is presumed, even where there is no evidence of any loss (as in this case).
The general effect of these rules of domestic law has long been thought to stifle free speech in the UK. The particular effect in the applicants’ case was profound for four reasons. First because the applicants faced the task of proving the truth of each and every allegation of fact without any effective legal advice, assistance and/or representation. Second because Mr Justice Bell categorised almost all the leaflet complained about by McDonald’s as fact not opinion, thus requiring the applicants to prove the absolute truth of the contents. Third because many of the allegations related to issues such as science, diet and the environment, which were not only very wide-ranging (requiring evidence from all over the world) but were also singularly unsuitable for hard and fast categorisation as "true" or "false". Fourth because, as noted above, the applicants were not the authors of the leaflet and thus faced an especially difficult task in proving the truth of its contents. All these factors contributed heavily to the inordinate and oppressive length of the trial.
Central to the applicants’ complaint is that the combination of these rules of domestic law inhibited their free speech under Article 10 ECHR and made it impossible for them to have a fair trial under Article 6 ECHR. The domestic law of defamation applied in the applicants’ case is impossible to reconcile with any developed concept of free speech. After a trial without any legal assistance, advice or representation, the applicants were found liable for many thousands of pounds in damages despite the fact that Mr Justice Bell found that they reasonably believed the contents of the leaflet to be true, and he had significantly made many sub-findings of fact in the applicants’ favour. Further that the matters were of public interest and importance, and McDonald’s had agreed to the distribution of these criticisms by Veggies Ltd. McDonalds received substantial damages without any proof of any loss. The net effect is to deter those who have something of value to add to a public debate on matters of public interest and importance from participating in that debate. It should be recalled that the applicants were only two out of the original five campaigners from London Greenpeace sued by McDonalds. The other three buckled when they realised the enormous task they faced in trying to defend themselves against such a wealthy and powerful adversary without legal aid and given the nature of domestic libel laws. They were thereby forced to publicly apologise, including for matters found by the trial judge to be true, and promised not to repeat the criticisms only to retract later, one of them while in court when giving evidence of the real reason for his capitulation.
The Article 6 Issues Raised In This Case
The applicants accept that Article 6 ECHR does not guarantee legal aid or legal representation in civil proceedings. But they submit that a blanket ban on legal aid requires very close scrutiny. That is because a blanket ban makes it impossible for the relevant authorities to respond to real examples of injustice brought about by a lack of legal representation. And in this context, the applicants make clear that their complaint is not just about formal representation, but extends to the lack of any assistance at all with administration, photocopying, note-taking, advice and preparation.
The argument of the Applicants is not just that without legal assistance they did not fully understand what was required of them in relation to witnesses etc., but much more fundamentally that, without legal assistance, they were simply unable properly to trace, proof and prepare written witness statements from the witnesses they called, and those they would have liked to have called. They faced a particularly heavy burden considering the international nature of the case, and the huge scope and detail of the evidence required, including expert evidence. For most of the witnesses whom they did call, including the many defence experts required, the applicants had the nigh on impossible burden on their own of analysing, sifting, and managing the huge volume of relevant documentation in order to provide the witnesses with the reference material they needed.
For the duration of the trial, all the applicants could hope to do was to keep going: on several occasions the applicants had to seek adjournments because of their physical exhaustion and when, in March 1996, the first applicant was certified as suffering from stress and exhaustion by her doctor, the trial continued in her absence. The result was that, without legal assistance, the case was under-prepared, unready for trial and was advanced by two inexperienced, untrained and exhausted individuals who were pushed to their physical and mental limits. In short it was patently unfair.
Although the applicants did receive some occasional and very limited assistance on discrete issues from sympathetic but often inexperienced lawyers, in reality the size of the case and the length for which it lasted, prevented any ad hoc voluntary lawyer, with a few hours to spare - however sympathetic - from providing effective assistance. The applicants could not hope adequately to brief such lawyers or show them any more than a fraction of the relevant documentation they needed to see.
The contrast and inequality between the parties' legal assistance could not have been greater. McDonald’s were represented at all hearings - and in particular by a Queens Counsel specialising in libel law for the final eight months of the pre-trial hearings, throughout the whole trial, and until the end of the final appeal. He was supported in court by a junior barrister (also a defamation specialist), at least two or three solicitors, and many administrative staff - as well as the full resources of a large firm of solicitors (again also defamation specialists). In addition, they had access to daily transcripts to assist with their on-going preparation throughout the trial, whereas, for the majority of the trial, the applicants could not afford to pay for this service and had to wait 25 days for the transcripts, by which time they were of limited use to them.
The lack of legal assistance further led to the failure, on a legal technicality, of the domestic courts to find for the applicants on the nutrition issue because the applicants had withdrawn certain points at a mid-trial appeal believing they would be able to raise them at the final appeal . The Court of Appeal indicated that it considered it’s hands tied by it's earlier decision even though it said it had "considerable sympathy with [the applicants’] submissions, given the wide range of medical opinions" to which it had been referred (including the views of the World Health Organisation). Had the applicants been legally represented, this turn of events, which had profound implications for the case, would not have happened. In any event it is submitted that it cannot be considered fair, necessary or proportionate for the court to stick with a decision it considers to be wrong in such circumstances.
The whole process of "disclosure" - which continued right up to the end of the trial was a farce because the applicants were unable, without legal guidance and assistance, to properly assess and convince the judge what documents they were entitled to. Additionally, although the applicants served interrogatories on McDonalds long before the trial started, the courts ordered that they did not have to answer them as they were not formulated properly. If these had been answered, the length of the trial might have been substantially shortened.
The issues the applicants complain about under Article 6 are set out mainly in paragraphs 336 to 385 of the main application and in addition to the matters outlined above include;
- the decision of Mr Justice Bell to accept the ‘Haringey Affidavit’ to be used as evidence, notwithstanding that the solicitor who drafted it had informed the court that it contained the vital error,, (see para 16 above).
- the oppression suffered by the applicants as a result of the enormity of the case they faced in defending themselves against a powerful multinational on such a wide range of issues, and the failure of the domestic courts to allow adequate adjournments . The applicants do not accept the respondent’s assertion that because there were two of them fighting the case it was not unduly prejudical for the case to be continued when only one of them was present.
- the decision of Mr Justice Bell to allow McDonalds to change its Statement of Claim part way through the trial on three substantial issues, animals, nutrition and publication (particularly considering the delay between these new allegations and the facts relied upon to support them – 9 years), compounded by not allowing an adjournment for the applicants to prepare their defence to the amended claim,
- the delay between the matters complained of and the trial,
- the failure of the domestic courts to rely on an acceptable assessment of the relevant facts,
- the failure of the court to require proper labelling of exhibits central to the claim,
- the fact that McDonalds’ agents remained in London Greenpeace for many months after the proceedings were issued against the applicants,
- the applicants also complain about the failure of the domestic courts to ensure equality of arms by requiring McDonald’s to disclose all of the notes of its infiltrators promptly and by not allowing parts to be blanked out or withheld - the effect was to deny the applicants a fair opportunity to rebut the case against them, both by finding witnesses to challenge matters outlined in the notes, and also by using those parts of the notes that may have aided their case. See for example the note at Appdx 9 ‘Morris has attended Greenpeace meetings but is not an active organiser’ - this was not disclosed to the applicants in these proceedings, only coming to light in a later court case. Crucially, it could have led Mr Justice Bell to a different conclusion on the responsibility of the second applicant for the publication of the leaflet.
The Article 10 ECHR Issues Raised In This Case
The mode of publication: the applicants were not the authors of the leaflet complained of.
The ease of proof: despite the fact that McDonalds were uniquely well-placed to put evidence of their practices and policies before the court they were under no obligation so to do.
The nature of the statements complained about: it was unnecessary and disproportionate for the domestic courts to apply a strict test of proof to matters of public debate and/or scientific conjecture, such as the link between diet and disease. By their very nature, the ‘truth’ of such matters changes over time and is never fixed.
The means of the parties: the domestic courts took no account of the fact that the applicants had no resources to defend the claim in contrast to the enormous resources of McDonalds.
The reasonableness of any belief in the truth of the words complained of: although the domestic courts found that the applicants genuinely and not unreasonably believed the truth of the assertions they sought to defend they were unable to rely on this in their defence of McDonald’s claim.
- The applicants submit that the matters complained about, both individually and cumulatively, also disclose an unjustifiable interference with their Article 10 ECHR rights that cannot be shown to be necessary and proportionate. In summary: (i) the applicants were required to prove the absolute truth of each and every assertion deemed to be fact by the trial judge; (ii) the domestic courts adopted too strict a distinction between fact and comment, with the result that the applicants had to prove the absolute truth of matters which were impossible for them to prove; (iii) the domestic courts adopted meanings of the words complained of which were strained, some to the point of absurdity; (iv) the domestic courts did not rely on an acceptable assessment of the relevant facts; (v) the matters complained of by McDonalds were already substantially in the public domain; (vi) Existing reputation (vii) McDonalds were not required to show any actual damage to its reputation or prove any financial loss; and (viii) the damages awarded were excessive and disproportionate.
(i) The strict burden of proof
- The requirement to prove the truth of each and every assertion deemed to be fact by the trial judge contravenes the principle of free speech. The imposition of this burden on a defendant combined with the presumption of damage enjoyed by a claimant constitutes a serious interference with the Article 10 rights of the Applicants which is neither necessary nor proportionate to protect the rights of McDonalds.
- The rule, as it was applied in the applicants’ case, was unnecessary and/or disproportionate as it did not take into account the following important matters:
- The public interest in public discussion of the practices of ‘a gigantic enterprise with immense economic strength’, which is an essential characteristic of an effective democracy. Large multinationals are often more powerful and influential than public authorities, which cannot bring defamation proceedings under domestic laws for free speech reasons
(ii) Over strict distinction between fact and opinion
In a legal system that requires strict proof of the absolute truth of factual allegations, the categorisation of words as either fact or opinion is extremely important and, it is submitted, too strict an approach raises serious Article 10 ECHR issues.
The applicants’ complaint is that Mr Justice Bell categorised as factual allegations, words and phrases which were either opinion or, at the very least, mixed fact and opinion. In doing so he made it impossible for the applicants to defend themselves. Many of the facts and matters which they had to prove were simply not susceptible to absolute proof: matters of science, diet and the environment are prime examples.
The effect of this on free speech has been set out and carefully analysed by Professor Nicholson in an in-depth article in the Wisconsin International Law Journal. The applicants rely on the argument made there concerning the wrongful categorisation by Mr Justice Bell as fact not opinion the words or phrases dealing with the following matters they were required to prove: (i) McDonalds are to blame for starvation and exploitation in the Third World [see pp.52-59 of Appdx 6]; (ii) McDonalds used only a tiny amount of recycled material [pp.67-70]; (iii) McDonalds are to blame for litter [pp.70-72]; (iv) McDonalds cause a serious risk of food poisoning [pp.80-84]; (v) McDonalds cover up the poor quality of their food [pp.87-89]; (vi) Antibiotics, hormones and pesticides seriously endanger health [p,84-87]; (vi) McDonalds treat animals cruelly.
As Professor Nicholson observes: ‘If the statements in the section addressing starvation are read as a whole, a much more general accusation emerges than the bald conclusion that "McDonald’s is to blame for starvation in the Third World". The relevant section of the pamphlet would much more reasonably be interpreted to state the proposition that McDonald’s, as a rich First World multinational, is a participant in the exploitation of the Third World by the First World. The part McDonald’s plays in this exploitation involves the inefficient and unfair use of Third World food resources and the displacement of small farmers caused by its purchase of cattle, all of which contribute to starvation. Whether or not the activities of multinationals in Third World countries are actually helpful to those countries is an issue that even economists cannot agree upon. To expect the defendants to reach an accurate conclusion on this issue is to place upon them an impossible task. Indeed, such a conclusion should be considered an ‘opinion’ and the question should have been whether the defence of "fair comment" was applicable".
(iii) Strained meanings
The meanings attributed to the words complained of amounted to a disproportionate interference with the applicants’ Article 10 rights. In particular Mr Justice Bell’s incorporation of graphics and polemic so as to change the natural meanings of key passages in the text. Unless the least defamatory meaning is selected then there will be an unnecessary and/or disproportionate interference with the Article 10 rights of the defendant. For example in relation to the food safety issue, Mr Justice Bell acknowledged that, the text "taken literally and on its own, without regard to its context, was certainly capable of bearing the inoffensive meaning" contended for by the Applicants, yet he then chose a far more extreme meaning, and thus found the applicants had failed to prove this area of the case.
(iv) No acceptable assessment of the relevant facts.
The main findings of the domestic courts did not reflect the detailed facts and sub-facts established in the trial. As a result the domestic courts violated the fundamental principle that courts determining defamation proceedings must proceed on an acceptable assessment of the facts.
(v) The allegations were already in the public domain
The finding against the Applicants was in breach of their Art.10 rights because English libel law does not permit any account to be taken of the fact that most, if not all, of the allegedly defamatory statements attributed to the applicants were already in the public domain, including from authoritative sources.
Further, it cannot be considered necessary or proportionate for the courts to allow McDonald’s to pursue this case or award them damages when an agreement had been made between McDonald’s and Veggies Ltd to allow the continued distribution of a virtually identical document.
These important factors in assessing the necessity and proportionality of the interference with the Applicants Article 10 rights were excluded from consideration by the domestic courts.
(vi) Existing reputation
In any event it is submitted that McDonald’s reputation should be seen as somewhat nebulous and artificial because it is largely based on its advertising, much of which was found by Mr Justice Bell to be exploitative and/or misleading.
(vii) Presumption of damage/loss
McDonald’s were able to take advantage of the rule in domestic law that damage is presumed and need not be proven. Thus McDonald’s were awarded substantial damages without adducing any evidence that their trade had been affected in any way by the actions of the applicants. As has already been noted in paragraph 11 above, between 1990 when proceedings were issued and 1995, one year into the hearing before Mr Justice Bell, the numbers of McDonald’s restaurants worldwide increased from 11,800 to 18,400 and sales rose from US $18.75 billion to US $ 30 billion. ] Or just add: ‘See para 11 above’.
The necessity for a presumption of damage in relation to trading corporations has never been fully analysed, still less established, by the domestic courts.
The Court of Appeal in the applicants’ case rejected any challenge to domestic law on this point on the basis that "Damage to a trading reputation or goodwill may be as difficult to prove as damage to the reputation of an individual". It is submitted, even if it were clearly established (which it is not) that in some cases damage to a trading reputation or goodwill may be as difficult to prove as damage to the reputation of an individual, that is not enough to establish that a blanket presumption of damage in all cases is both necessary or proportionate.
Damages for injury to the narrower notion of a trading corporation’s reputation are measurable in money. Loss of profit, credit difficulties and a slump in recruitment are easily capable of proof. Thus any purported justification for the common law presumption of damage falls away.
By definition, the common law of presumed damage is not proportionate - there being no relationship between the actual loss suffered by a complainant and the award of damages made. This is inconsistent with the approach taken by the European Court of Human Rights in Tolstoy v UK where it emphasised the general principle that: "… under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered."
(vii) Damages excessive/disproportionate
Given that the only evidence on the numbers of the factsheet published by London Greenpeace was given by Mr Gravett who thought that 2,000 or 3,000 copies of the leaflet complained of were printed in early 1987 (the 1986 print run, and indeed this one, occurring before the relevant period of liability began in Sept 1987), the award of such a large sum of damages is clearly disproportionate, particularly in light of Mr Justice Bell’s findings about the minimal responsibility of the applicants in distributing it. Further, there was nothing to show that McDonalds US had a distinct reputation from McDonalds UK, yet they were awarded £30,000 each.
The damages awarded to McDonalds were a wholly disproportionate interference with the Article 10 rights of the applicants. The applicants were ordered to pay damages of £36,000 and £40,000. Neither of them has any prospect of being able to meet such awards.
1 Appendix 60 (Vol C to Reply to the Observations)
2 Appendix 1 last page (Vol A to Main Application)
3 Main Application: para 40
4 Appendix 1 (Vol A)
5 Judgment of Bell J: page 2 (last para)
6 Main Application: para 40; Judgement of Bell J: p13 (last line) – p14 (first para)
7 Judgment of Bell J: p30 (para 2)
8 Judgment of Bell J: p38 (para 9)
9 Judgment of Bell J: p50-52
10 Judgment of Bell J: p45 (para 2)
11 Judgment of Bell J: p80 (para 6) – p81
12 Main application: paras 376 - 378
13 Main Application: para 33; Judgement of Bell J: p1 (para 3)
14 Court of Appeal p17,G (Appendices Vol A3)
15 Main Application: paras 38 and 39
16 Main Application para 7 and 400
17 Appendix 11
18 Main Application: para 44; Judgement of Bell J: p732 (para 5)
19 Judgement of Bell J: p16 (para 2)
20 Bell J p78 last para; Main Application: paras 390 – 395 (Although these paras are under the heading of Article 11, they are also relevant to Art. 10 issues in terms of responsibility for publication and the level of proof required)
21 Despite the fact that numerous photographs taken by McDonalds of this protest failed to identify the first applicant handing out the leaflet at all: Bell Judgment p.36 (para 3)
22 Judgment of Bell J: p761 paras 4-6
23 Court of Appeal p301, B-D
24 Appendix 50; Main Application: 347-355; Reply to Observations: paras 60-67
25 Appendix 63; Judgment of Bell J: p16
26 Main Application: paras 390-395 (see endnote 20 above)
27 Judgment of Bell J: p761 paras 4-6
28 Court of Appeal p301, B-D
29 Judgment of Bell J: p716
30 Judgement of Bell J; p 732 (para 6)
31 Hulton v Jones  AC 20, per Lord Loreburn LC at opp.23-24; Main Application: paras138-139
32 e.g. see Appendices 6 and 8
33 Appendix 16; Main Application: paras 74-114
34 Appendix 18; Main Application: para 220 (and detail on each issue 221-222)
35 Reply to Observations: paras 17-25; Appendix 60
36 Reply to Observations: paras 26-27
37 Main Application para 357; Reply to Observations: para 51
38 Reply to Observations: paras 68-73
39 Reply to Observations: paras 7, 8, 17-25
40 Main Application: paras 53-54
41 Main Application: paras 60-68; please note that the Government’s Observations on this matter are inaccurate (see Reply to Observations: para 55 & transcript 2/4/96).
42 Main Application: paras 124-132
43 Reply to Observations: para 4
44 Main Application: paras 347-355; Reply to Observations: paras 60-67; Appendices 50 and 63
45 Main Application: paras 356-359; Reply to Observations: paras 68-73
46 Reply to Observations: para 70
47 Main Application: para 27
48 Main Application: paras 60-68
49 Main Application: paras 55-59 and 360-367; Reply to Observations: paras 74-77
50 Main Application: paras 368-373; Reply to Observations: paras 78-83
51 Main Application: paras 374; Reply to Observations 84 -86
52 Main Application: para 375; Reply to Observations: paras 87-91
53 Main Application: paras 376-378; Reply to Observations: paras 92-95
54 Main Application: paras 379-385; Reply to Observations: paras 96-99;
55 Reply to Observations of the Government: paras 100-123
56 Court of Appeal p17 G
57 Main Application: para 193
58 Main Application: paras 225-229; Reply to Observations: paras 110, 124-130
59 Main Application: para 194
60 Main Application: paras 195-196
61 Main Application: paras 197-198 + 203-208, see also 277
62 Main Application: para 199
63 Main Application paras 200-202
64 Main Application: paras 67 –91, 244-249 (continued in relation to each issue from 249-315); Reply to Observations: paras 137-146
65 Vol 18, No.1, Winter 2000, pp.2 to 144. In Appendix 6
66 Apx 6 p53 (para 3) to p54 (para 1)
67 Main Application paras 69-71; Reply to Observations paras 142-146
68 Main Application: paras 281-288;
69 Appendix 16; Main Application: paras 75-77 (continued in relation to each issue from 78-115)
70 Main Application: paras 316-317; Reply to Observations: paras 84-86
71 Main Application: paras 240-241, (continued in relation to each issue from 242-243)
72 Main Application: paras 236-239; Bell J p12-13, Appdx 24-26
73 Main Application: para 326; Bell J p365 para 5 and p399 paras 7-8
74 Main Application: paras 318-320
75 Court of Appeal p28 G
76 (1995) 20 EHRR 447
77 Judgment of Bell J: p78 para 4
78 Main Application para 320
79 Main Application: paras 321-327