Day two of Closing Speech for the defence

22nd Oct 96 - Day 284 of the Trial

The second day of speeches was well attended by members of the public, probably due to the publicity the start of the closing speeches had attracted. The day started with a debate about the denial of access to the transcripts. Justice Bell said that his only concern was that if he had raised any legal matters during a previous day it might help everyone concerned and also save time, if they could ask for a particular page. He added that it might "help the expeditious, fair progress of the hearing."

Justice Bell stated, (as he had earlier in the case) that he did not consider it within his power to order McDonald's to provide the transcripts. He refused to continue the debate and suggested that the defendants write a letter to McDonald's representatives requesting the waiver. Helen Steel wrote a letter and immediately handed it to Sid Nicholson, Vice President of McDonald's UK. The letter stated :

McDonald's replied at the end of the afternoon, stating that they would not agree to the waiver unless the defendants agreed to give the written undertaking the company had demanded in July 1995. The undertaking would prevent the Defendants from showing or reading any part of the transcripts to any third party, including the media. The defendants have maintained that they are not prepared to accept any restriction on their right to inform others of what has been said in open court. (See press release July 1995 TRANSCRIPTS SCANDAL)

Discussion relating to the transcripts ended and Mr Morris started, "What I am going to deal with today and we are not really prepared, is to start off with the rainforests section of the case and we have not had any advice about meaning or facts and comment or indeed what is defamatory and what is not defamatory." He continued, "But most important thing to us is the sting of the allegation, is McDonald's responsible and in what way is McDonald's responsible for destruction of tropical forests by whatever means and methods, that destruction is carried out."

Mr Morris proceeded to talk about the context of the factsheet. He said "of course nobody reading this fact sheet would be surprised that it is critical of McDonald's because on the front page is says, 'everything they do not want you to know'." He continued, " is quite honestly on first glance going to be a critical fact sheet. Anybody that does not want to read criticism of McDonald's would not want to read the fact sheet if it was handed to them."

He went onto to say that its general context was clearly one of criticising a whole economic system based upon profits through exploitation of the environment, customers, workers and animals. He claimed that while McDonald's (as a high profile and influential corporation) is a focus of the fact sheet, it is made clear throughout the factsheet that what is wrong with McDonald's is also wrong with other corporations.

He continued, ".. my second contextual point, is that of the alternatives. That positive desire for a better world and better planet, you know, protection of the environment and a better life for people permeate the whole factsheet, and in fact the back page ,which was not considered defamatory by McDonald's, is a very important part of the fact sheet. Where it talks about alternatives and what people can do. It says what you can do, it suggests people think for themselves, begin to consider what they do in their lives, grow their own food, take part in campaigns, become educated. It does not say pick on McDonald's. It hardly mentions McDonald's at all, except for it says stop using McDonald's, Wimpy, etc."

Mr Morris continued to say that it was the defendants belief that the factsheet represented a coherent, responsible, balanced and encouraging, positive leaflet.

"Clearly the one aim of which is to try to encourage people to create a better world and live healthier , happier lives, and for that very reason McDonald's does not like it. Because they are on the other side (and I think that is the message), is when you are looking at the two sides of the equation, which side is McDonald's on in this fact sheet? It is clearly on the side of corporations, profit, and exploitation of people, animals and environment. And yet, and I think this is important in terms of the evidence in this case."

Mr Morris then reminded the court about McDonald's range of policies claiming concern about the environment and animals, and its so-called rainforest policy. He said that the evidence had shown that such policies were more a marketing tool used in public relations, than a force for change in their business practices.

He added, ".. such policies are in many ways quite obviously a response to the concerns raised by the organisations that we have heard and the views that we have heard were in existence before this leaflet was even written. So the historical context of this leaflet, ... is that it is not a leaflet that created any new or put down any new points about McDonald's corporation. It brought together already pre-existing information, views and opinions."

Justice Bell interupted to explain his understanding of the policy points made by Mr Morris to which Morris added, "It is partly that, even if it is indicative of a sudden genuine concern, that concern is only as a results of criticism that may be affecting the business or the image of the company."

Mr Morris continued at length on the meaning of what we might call the economic imperialism page of the factsheet. He said that the defence accepted that the meaning meant that McDonald's bear moral responsibility for the destruction or damage of such forests. He claimed that the moral responsibility meant that the plaintiffs have caused, have benefited from, have provided the incentive for or have been reckless as to the effects that are being alleged.

Justice Bell interrupted to ask if he could safely apply the same logic to the meaning of the section linking McDonald's to economic imperialism and the starvation of the poor in the third would, to which Mr Morris replied, "I think in general yes, we are talking about a system here, the economics page clearly talks about the affects of international trade and US corporations role in that and the effect that has on keeping people in the third world poor and hungry."

He continued, ".. these allegations, including the ecological catastrophe, clearly bear the meaning that, the burger and fast food industry as a whole is morally responsible for the affects of that industry because the appetite of such industry for raw materials at costs which would enable high profits to be made, leads to such environmental damage as described in the leaflets. And by promoting and contributing to that demand McDonald's is contributing to the resulting damage. In fact, as regarding the hamburger industry, McDonald's are by far and away the largest contributor to the environmental damage by the increasing demand for hamburgers globally and in particular in the USA."

Mr Morris then talked about the economics of the system, "The demand is created often through, for example, huge advertising campaigns promoting beef products and McDonald's advertising budget of course dwarfs the rest of the fast food industry put together. I think we have heard in this country they are responsible for 75 percent of all fast food advertising. I am sure we have not heard any evidence to the contrary that that is the same, that will be a similar position elsewhere. But certainly if there is one organisation in the world that can be identified for creating a demand for hamburgers world-wide, then McDonald's would be by far and away the number one, and obviously there is a chain between demand and supply."

Continuing he said, "..the economics page deals with some of the complexities of this demand and supply chain, but not in great detail, including the necessity of having to feed animals that are used in the food industry. Generally what you might call the cash crop economy, where the sting of meaning of the cash crop economy is that cash crops are replacing self sufficient farming and farming for local people's needs. And that is where the sting comes in, that instead of people being able to grow food for themselves or for their region, cash crops are instead creating raw material for large companies."

Mr Morris pointed out that this process applied later to the section on rainforests. He continued with the supply chain, "McDonald's responsibility as the main incentive and the most powerful component of the supply chain means that they are necessarily responsible for what happens lower down in the chain". He went on to say, ".. The fact that the cattle are sold to a slaughterhouse before being sold to a hamburger factory, before being sold to McDonald's, is we would say, immaterial as regards McDonald's responsibility for that supply chain."

He added, ".. we would argue that McDonald's have accepted that responsibility by claiming to have a policy where they accept that they control their supply chain... they proudly trumpet that round the world in their corporate rainforest policy."

Mr Morris went on to refer to a McDonald's advert about French Fries and potato supplies in which, he said, that they claimed to plant, wash, prepare and sell them to the customer. He claimed that, where it was to their advantage they proudly take credit for their responsible choice of suppliers. He gave the example of McDonald's claims that their paper packaging are produced from pulp from sustainable managed forests. Mr Morris finished by saying that they could not take credit when advantageous, while denying responsibility for other chains of supply in which they played significant roles but they considered would not be looked on favourably by their customers.

Justice Bell instructed the defendants on how he was expecting them to continue and the posible use of Section 5 of the Defamation Act as a defence. In particular he said, ".. because you might say, yes we agree with the McDonald's meaning but it also makes this defamatory statement and that defamatory statement and whether we can justify a defamatory statement about lethal poisons [for example] does not matter because we can justify these other defamatory statements." He concluded by suggesting that by justifing a major defamation, they would not need to prove minor allegations, because that would not lower McDonald's reputation any futher.

Morris proceeded to talk about the specific allegations and the meaning assigned by McDonald's. He pointed out that their stated meaning was clearly absurd. "They have said that we have said, not that McDonald's evicts farmers, but that McDonald's causes that to happen... nobody reading this fact sheet would think that McDonald's employees are engaged in chopping down trees or evicting small farmers."

Justice Bell again interrupted to hint that rather than trying to justify the specific charges complained about by McDonald's it would be better to look at the bits and give the defences opinion on the meanings that they consider can be justified. He said that by doing this they would be able to say that by justifying such a charge, whether a related specific charge could be proven would not matter since it would not make a jot of difference to McDonald's reputation. This relates to Section 5 of the Defamation Act.

There was a short adjournment before Dave Morris continued by listed probably defamatory points that have not been mentioned by the plaintiffs. For example; third world children being nourished while crops are exported as animal feed, the best land in poor countries being used for our benefit, and the allegation eating grain fed animals provides only a tenth of the protein compared to eating the original grains.

Justice Bell summed up, saying "McDonald's have used their power as a multi-national and as part of a particular economic system directly or indirectly to cause the eviction of small farmers to trap poor countries into producing more and more food for export, to cause the exportation of staple crops and to turn the use of the best farm land, meat production, whether as ranching or grain feed. I am not suggesting that that could not be tuned up so that it is rather more elegantly expressed. But you say .. that is all part of responsibility for starvation in the third world."

Justice Bell went on to prompt the defence to carry out the same task on the issue of the rainforest. Dave Morris referred to the phrase helping McDonald's empire wreck the planet and said that McDonald's had not in their meanings identified that as defamatory comment. He said that it is defamatory of McDonald's and that they would justify it as a statement of fact, relying on evidence in the case.

Mr Morris moved onto the complaint regarding the phrase in the factsheet referring that claims McDonald's and Burger King are two of the many US corporations using lethal poisons to destroy vast areas of central American rainforest. He said that it did not mean that each one of them used vast areas but only that they collectively destroy vast areas and it is clearly a collective responsibility.

He spoke of evidence given in witness statements by Dr. Nations and references to the book 'Hoof Prints in the Forest'. He said that it had not been challenged that that the use of lethal poisons (such as Agent Orange) is one of the methods used to clear forests. However, he stressed that the important point is that the forests are being cleared, not which method was used.

Justice Bell agreed and Mr Morris proceeded with another specific charge made about the rainforest section but was shortly interrupted when Mr Justice Bells took exception to a claim by Morris that the reference to packaging used by the fast food industry did not directly refer to McDonald's.

Court adjourned for lunch at 1pm and reconvened an hour later. On continuing Justice Bell addressed Mr. Rampton on the subject of interruptions. Mr Rampton took the opportunity to express his hope that he had not been shaking his head (which he had been doing throughout the morning session) because he considered it very bad manners. He then referred to the mornings discussion of the rainforest section and Justice Bells suggestion that a section five defence might be possible in relation to that allegation. He referred to a case called Polly Peck and the Observer, 1986. There was then a lengthy exchange between Mr Rampton and Justice Bell in regards to bad legal advice offered by Justice Bell to the defendants in relation to Section 5 and the desire by Justice Bell that Mr Rampton should alert him should a similar error again.

Mr Morris then began to talk about the terms 'rainforest' and tropical forest'. This is an important issue in the McLibel case since it appears that McDonald's claim that rainforest refers to only a relatively small part of what is the tropical forest regions, and not the sections of tropical forest that clear evidence of McDonald's involvement with exists. He referred to McDonald's letters that used the terms interchangeably as evidence that McDonald's current claim was an artificial construction and not the natural meaning which they have used in the past. He then referred to a statement by Mr Rampton in which reveals points about environmental policy 'ever since awareness of the importance of the world's rainforest became general, McDonald's has had a positive policy that no beef from any recently deforested rainforest anywhere in the world should find its way into their products.' Mr Morris claimed that this showed a recognition that McDonald's were forced into a policy due to public criticism.

Mr Morris referred the courts attention to the meaning of rainforest in relation to the factsheet as defined in rainforest section itself. It reads, Around the equator there is a lush Green Belt of incredibly beautiful tropical forest untouched by human development for one hundred million years supporting about half of all earth ease life forms including some thirty thousand plant species and producing a imagine part of the planet's crucial supply of oxygen.". He claimed that in the publics mind, the two terms were interchangeable and that any limitations claimed on the term 'rainforest' by McDonald's were intended to reduce the practical implication of their environmental policy. He pointed out that none of the expert witnesses had agreed with McDonald's definition.

Mr Morris then spoke for some time on the issue of eviction of tribal people, and starvation and poverty as a result of displacement. Justice Bell commented, "That is a third and separate sting, then. You have got responsibility or blame for starvation in the third world, destruction of the rainforest or tropical forest, you would say, which is ecological side, and then you have got this third sting, driving tribal peoples in the rainforest off their land - at this stage is that right? It seems to me at moment you can argue that with some strength."

Mr Morris went on to say that the defence does not accept McDonald's stated meaning, i.e. that McDonald's are to blame for starvation in the third world. Instead he insisted that the meaning was clearly that McDonald's have a connection with poverty and hunger and starvation through the chain of cause and effect outlined in the factsheet.

Dave Morris proceeded by returning to the issue of ex-rainforest land. He said, "..McDonald's have stated that they are being responsible by not using recently cleared ex-rainforest land." He continued, by referring to McDonald's letters to suppliers prior to 1989 which referred to 'recently cleared' as meaning within 10 years, and letters written after 1989 which defined it as within 25 years. He repeated that this showed McDonald's acceptance that using such land would be bad before pointing out that they were (on their own admission) prepared to use the land in Costa Rica deforested within ten years. He further added that the policy McDonald's had outlined within the court (which had not been seen before in any document) said that they were prepared to use land that was deforested as little as six months earlier. That apparently applied to Brazil where they arrived in 1979 and were prepared to use land deforested within the previous year.

Mr Morris concluded "..we would say the key is that forest should not be destroyed and that, because of the bio-diverse nature of tropical forest, any responsible organisation would want those forests to re generate." He added that it, ".. should be made completely crystal clear, so that the people that are destroying the forest know there is no prospect that companies are going to accept their beef supplies."

The court adjourned at 3:55pm

Note: Due to the unavailability of the official court transcripts at this time, this report has not been checked for accuracy against the transcripts but was complied from extensive notes taken during the day.

See also: The report for the previous day
The report for the following day
and, for summaries of all the evidence given during the trial;
Trial News 1, Trial News 2, and Trial New 3