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DAY 5 - 19th January 1999
The Appeal moved on to the Publication and Consent sections. The Defendants argued that McDonald's had acquiesced or consented to the publication of the London Greenpeace anti-McDonald's factsheet through the actions of their hired infiltrators, who, it was admitted in the witness box, had distributed it to the public. English law clearly states that anyone who participates in a libel is liable - and that 'it is a defence to an action for defamation that the Plaintiff consented to the publication of which he now complains, by participating in or authorising it.' [extract of Mr Justice Bell's judgment]. It is also a basic point of law that those who employ agents are responsible or liable for any action they take within the scope of their employment. The defendants argued that the issue was crystal clear, and that therefore the verdict of the trial judge should have been that the Plaintiffs had consented to publication and therefore the defendants had no case to answer. They called for the three Lord Justices of the Court of Appeal to now find the case in the defendants' favour, and cited previous cases to back their claim.

The unquestionable facts are these, they explained: McDonald's hired 7 agents to infiltrate London Greenpeace over about 18mths in 1989-91. 5 gave evidence during the trial (including one for the defence). McDonald's head of security instructed them to get fully involved in the group. They did not instruct them not to hand out the anti McDonald's factsheet, even after it was clear from the agents regular reports that they said they were doing so. Furthermore, the scale and frequency of their involvement in London Greenpeace between 1989 -1990 was much greater than that of the Defendants, and whilst the spies notes revealed that those spies had participated in distributing anti-McDonald's leaflets, there was no such evidence about Helen & Dave, despite the spies attending dozens of meetings specifically to obtain this evidence.

For some of the afternoon the defendants replied to points made by Richard Rampton for McDonald's at the end of last week about Libel laws.

DAY 6 - 20th January 1999
The defendants submitted that the fast food corporation had acquiesced or consented to the publication of the London Greenpeace factsheet even before their engagement of spies. In 1987 their solicitors wrote to Veggies of Nottingham (a small catering and information organisation) complaining that they had reprinted the London Greenpeace factsheet in full. They threatened legal action and demanded an apology, but only for the section about McDonald's involvement in the destruction of tropical forests for beef production. Negotiations were started with Veggies solicitors. Meanwhile the radical paper 'Peace News' published an article about this, explaining that Veggies thought it significant that McDonald's were making no complaint about the factsheet criticisms of non-union working conditions, ill-effects of junk food and cruelty to animals. This had then prompted further demands from McDonald's solicitors for a wider apology, but only over the heading of the cruelty to animals section of the factsheet. Eventually, Veggies made a watery 'apology' and agreed to make some minor amendments to the text of the section on tropical forests, plus changing the heading of the section on animal welfare. They then reproduced the entire factsheet, 90% unchanged, and have to this day been the main distributors of the document.

Richard Rampton QC had admitted during the McLibel trial that McDonald's could not sue Veggies over this document, virtually the same one as the subject of the present case, as there had been 'an accord of satisfactions' with Veggies.

The defendants submitted that McDonald's agreement with Veggies, especially their failure to object to the unchanged sections, effectively meant they had acquiesced or consented to the continued publication of the document by the main distributor, Veggies, for all time. They argued that, by their actions, McDonald's had given the green light to Veggies and others (including of course London Greenpeace) to continue to distribute the factsheet, either because McDonald's had conceded that the vast majority of the statements in it were true, or else that they did not consider it libellous.

And if that wasn't enough to give McDonald's representatives a bad day, the defendants further argued that the trial judge had in any case been wrong to find that Helen & Dave had even distributed the factsheet themselves. Despite an 18 month infiltration of London Greenpeace, there had not been one clear example of either of them ever doing this or advocating publication. Ms Steel challenged Mr Rampton to name any such occasion, since it was impossible for them to prove there was no evidence of responsibility for publication without taking the Appeal Court through the entire evidence on publication, which the Court had not allowed enough time to do. Mr Rampton responded by naming just one occasion when he claimed Mr Morris had made an admission to an infiltrator (see next day).

The defendants argued that the trial judge's ruling, that they were responsible due to their involvement in the group generally, directly contravened European law on 'freedom of association' [as fear of legal action would frighten the public from exercising their rights to join campaigning groups etc]. Further, the defendants explained that the trial judge had failed to apply the same standards when evaluating the infiltrators' involvement in London Greenpeace.

The Defendants also attacked the basis for the Judge's finding that Mr Morris had 'produced' the factsheet complained of. This was a phrase in an affidavit prepared by Solicitors for Mr Morris in 1995 for a completely separate case, which had included a 27 word summary of the whole McLibel case. This paragraph had stated that the McLibel case was about a leaflet 'we had produced'. The defendants explained that this phrase was a frequently made inaccuracy, used by the media virtually all the time about the case, and one used even by both the Court of Appeal and the European Commission on Human Rights in judgments they had made about issues in the case before the trial started. Lord Justice Pill commented that those courts must have been using 'shorthand'. Exactly.

When Ms Steel pointed out the error to Mr Morris 2 weeks after he had signed the affidavit (in a hurry and without being advised to read it carefully), he instructed his solicitor in that case to correct it by adding the word 'allegedly'. She did not do so, and some months later McDonald's somehow acquired a copy and grandly presented this so-called 'admission' as evidence in the McLibel trial. Mr Morris swore an affidavit explaining how the mistake had occurred, and a letter from the solicitor was placed in front of the Judge, stating that she had prepared the affidavit and then not corrected it when asked to, since it was not material to the other case, and would therefore be an unnecessary expenditure of Legal Aid. The Defendants submitted that Mr Justice Bell was wrong to ignore these documents, saying that they were not evidence, when he had not advised the Defendants that he was likely to do this and that therefore they should call evidence on this matter if they wanted to challenge it.

DAY 7 - 21st January 1999
The defendants finally had in-court access to their dozens of files of documents, statements and transcripts from the McLibel trial, which were delivered to the Appeal Court on day 7 by a volunteer. The Defendants were given 10 minutes to try to sort them into some semblance of order as they had been stored in someone's attic for over a year.

Mr Rampton spent the day attempting to counter the defence submissions of the previous two days.

He asserted that McDonald's, through the activities of their agents, couldn't have possibly consented to the factsheet's publication as the whole purpose of the infiltration had been to prepare a case to halt its distribution. However, he could find no case law which backed up this submission.

He claimed that there was ample evidence of the defendants' involvement in the anti-McDonald's campaign. But it was clear that this consisted of vague generalities, and the only examples of actual distribution he could cite were of Helen Steel handing it out once on a picket [the evidence of this was strongly disputed by the defendants & McDonald's had not preserved a single copy of the leaflet they claimed she was distributing], and of an 'admission' by Dave Morris to an infiltrator. The agent had written in his notes during 1990 that Mr Morris had 'apparently' helped produce the factsheet - but in the main trial Mr Justice Bell had ruled that the general 'evidence' of that infiltrator was discredited due to the defendants having exposed fabrication in his notes.

Regarding Mr Morris's disputed affidavit, Mr Rampton said it was a clear 'admission', and the written explanations were 'inadmissible'.

Mr Rampton argued that McDonald's agreement with Veggies didn't amount to acquiescence to anyone else giving out the same document. But, he seemed unsure of this and hence hoped to rely on a technicality - that the defendants hadn't properly brought this up as an issue during the evidence in the McLibel trial [although the Veggies representative during the negotiations with McDonald's had testified in the case, and Mr Rampton had declined to cross-examine him].

DAY 8 - 22nd January 1999
Mr Rampton finished off his submissions from the day before. He made a great play of some photos taken by McDonald's of a 1989 protest picket of their Head Office. However, they failed to show a single factsheet being handed out (as participants were distributing the 'A5' flyers as usual), or of Ms Steel distributing any leaflets at all. Also, photos of filing cabinets etc were examined which had been taken by an infiltrator who had broken into the London Greenpeace office.

The defendants responded to Mr Rampton's points of the last couple of days. They condemned the whole infiltration operation by McDonald's, who under the 'equitable doctrine' law could not claim to have come to court with 'clean hands'. This was due to the operation's length and scope, the abuse of trust of a small and open group of activists, the breaking in to their offices, the stealing of letters, the distribution of the factsheet, the sexual relations of one of the agents with an activist, and the fact that 2 spies remained in the group after the service of the writs asking questions about how the defendants were going to fight the case.

Due to insufficient time to complete their reply, the Court agreed the defendants could put further points in writing.

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