As the McDonald's defamation action in Britain amply demonstrates, present libel law no longer serves any social purpose and should be scrapped as a costly irrelevance, says CRISPIN HULL.
British justice and the British legal system have rarely looked so foolish as last week at the end of the McLibel case. And bear in mind Australian libel law is a virtual mirror. Do we really need 314 days and $20m in costs to know that McDonald's serves ill-nutritious muck and that its appalling advertising results in adults around the world to be pestered by children to feed them this stuff when there are much more nutritious alternatives? Do we need that sort of hearing to know that if you eat McDonald's you will not immediately fall stricken with food poisoning?
The background. The case began in 1986 when Dave Morris and Helen Steel were sued for libel by McDonald's for handing out leaflets at some McDonald's outlets in London. The leaflets asserted McDonald's food caused cancer, heart disease and food poisoning; that McDonald's caused destruction of Third World rainforest pays low wages thus depressing the wage levels as a whole; directs advertising at susceptible children who then pester their parents to go to McDonald's; is cruel to the animals it uses during slaughter; and lied about the use of recycled paper.
McDonald's won on the poisoning and disease counts and the recycling and rainforest counts and won $120,000 damages. The pamphleteers won on the wages, cruelty and advertising counts. No costs were awarded.
Most commentators have blamed McDonald's for allowing itself to be drawn into such a labyrinth. But the real fault lies with the labyrinth itself - the libel laws and the British system of justice.
The system failed on all counts.
The essential problem is that under our legal system, the judge does not take the case in hand. Cases are run by lawyers on each side; the theory being that to restrict or manage the way lawyers run cases would cause injustice. What sort of legal system allows a judge to sit for 314 days, letting lawyers for both sides call endless witnesses. Sure, this was an exceptionally long case, but too often cases seem to get out of hand and bear little relationship to consequences of the matter in hand.
It seems the court was giving McDonald's compensation for the court's own misdeeds in allowing the case to drag on and in allowing McDonald's to be slagged under court privilege for so long. If McDonald's suffered any damage, it was caused by the court, not the pamphlet.
There were long-winded arguments over the precise imputations of the words in the pamphlet. Does food poisoning mean dropping dead or being physically ill immediately after eating McDonald's, or did the words mean a gradual poisoning? And so on. And if you prove a gradual poisoning, is that enough to justify the hyperbole and exaggeration of saying McDonald's "causes" food poisoning? British and Australian libel laws are absurd in this respect. The plaintiffs argue that the words carry really dreadful imputations and the defence argues that they contain lesser ones or that no defamatory imputations arise at all. And then they argue over the imputations, not over what was actually said.
To run court cases about meanings of words and truth is asking for long and costly trials. These sorts of discussions consume philosophy departments for years without resolution. To put expensive lawyers to the task is asking for costly and unsatisfactory outcomes.
The other absurdity is that the courts are impotent in the face of a world communications explosion, particularly with the Internet.
Despite the $20m costs and 314 days of hearings, the court's judgment has been held in the contempt it deserves. People are thumbing their noses at it everywhere - on the Internet, in pamphlets and in personal opinion. The court's judgment is irrelevant; that is why it is so contemptuous. Not only is it irrelevant: In my view it is hopelessly wrong. The court focused attention on the exact meaning of the hyperbole, not the broad substance. We know McDonald's food is not especially nutritious; it is high in fat; rainforest is destroyed for cattle ranching which provides meat for the hamburger market in general at the expense of indigenous people; McDonald's does pay as low wages as it can get away with; and its advertising is an appalling con trick in depicting healthy, lively things for young people in a way that evokes peer pressure for them to pester their parents to take them to McDonald's when they would be better off eating more balanced fare.
The only benefit of the McLibel case is that it gives libel law the bad name it deserves.
Perhaps the case will serve the same purpose as Charles Dickens's portrayal of the absurdity of English succession law in Bleak House when he described the case of a fight over a will in Jardyne v Jardyne. The case enriched the lawyers until there was nothing left to fight over. Now succession cases are mercifully rare.
The McDonald's case throws up the question: Would we be better off without a libel law at all compared to the flawed mess illustrated in this case - in which costs invariably outweigh damages; where courts with better things to do are preoccupied with the trivial; where the time it takes to get a result nullifies any attempt to deal with reputation; where the technicalities and form of the law ensure that substance takes second place? While there is a libel law some people will be forced to resort to it for fear of the inferences drawn from not doing so, despite the horrors of cost and delay it poses.
Without a libel law we could make up our own minds after looking at the inevitably vigorous exchanges between the parties. And that, in any event, is what we do now, in this world of mass communications. Few people's opinion are likely to be changed by a libel action. And few plaintiffs get much change after costs. So libel no longer serves a social purpose.
Unless the courts and Parliament can set some limits on damages and length of trials and provide a cheaper venue than the higher courts, libel as a cause of action should be scrapped as a costly irrelevance because the courts have better things to do.