The Hon. Mr Justice Bell
SUMMARY OF THE JUDGEMENT
Both Ms Steel and Mr Morris counterclaimed damages for libel by the Second Plaintiff, McDonald's in this country, in the form of three documents which were first put out in March, April and May 1994, as the beginning of the trial of this action approached.
Two documents were published to prominent arms of the media, and one to customers of the Second Plaintiff.
The three documents clearly bore the meaning, defamatory of both Defendants, that by distributing the leaflet with which this case is concerned, knowing that its contents are untrue, both Ms Steel and Mr Morris had persistently spread lies and intentionally made numerous false statements about McDonald's, thereby deliberately deceiving the public and thereby harming McDonald's staff, customers, suppliers and franchisees; and that they have tried to avoid responsibility for what they have done by falsely claiming that they have not been involved in a London Greenpeace campaign against McDonald's and by ignoring several letters sent to them since 1984 by McDonald's solicitors, complaining about the leaflet in question.
The sting was that the Defendants had published a leaflet which they knew to be untrue and that they had tried to avoid responsibility for it.
The Second Defendant contended that the charge of publishing a leaflet which they knew to be untrue and of trying to avoid responsibility for it, was justified in the case of both Ms Steel and Mr Morris; true in substance and in fact. Ms Steel and Mr Morris contended, of course, that the contents of the leaflet were true, so there could be no question of them lying. In any event they believed them to be true. They said that the allegation of several ignored letters was false.
Although I have found the majority of the defamatory statements in the leaflet to be untrue, others were and are true. The same applies to inoffensive statements in the leaflet. Some are true: some are not.
Ms Steel gave evidence that she believed the leaflet to be true. Although she could not, in my JUDGEMENT, provide any support for the statements that McDonald's had bought vast tracts of farming land in poor countries or used lethal poisons to destroy rainforest, for instance, I take heed of Lord Diplock's advice in Horrocks v. Lowe, that one should be slow to find that a person publishing defamatory matter does so without honest belief in its truth. With this in mind, I believe Ms Steel's evidence to the effect that it did not come as a surprise to her to read what she found in the leaflet complained of, and that she trusted the author or authors to have checked what they were writing and that it was not contradicted by anything she personally knew about McDonald's. So she believed it.
This means that the Second Plaintiff's defamatory charge that she published a leaflet, the leaflet complained of, which she knew to be untrue, has not been justified.
Mr Morris did not give evidence, but I have concluded that the Second Plaintiff's charge of publishing a leaflet, the leaflet complained of, which he knew to be untrue, has not been justified so far as he is concerned either.
Although it was inaccurate to allege that the Defendants had ignored several letters sent to them since 1984 by McDonald's solicitors, the Second Plaintiff's charge, in early 1994, that the Defendants had tried to avoid responsibility for the leaflet complained of has been justified. It was true in substance and in fact. I regard the allegation of ignoring several letters as an inconsequential detail in all the circumstances.
The Second Plaintiff put forward a defence of qualified privilege to the counterclaim. It contended that the three documents of which the Defendants complained were published on occasions protected by qualified privilege in the form of the right of reply to an attack which had been made by the Plaintiffs with others in the form of material put out as part of a "McLibel Support Campaign" between the service of the writs in the action and the publication of the three documents which the Defendants complained about.
Where a person (including a company) is the subject of an attack upon his character or conduct, the law permits him to answer that attack to anyone who has an interest in receiving, or a duty to receive his reply, and any defamatory statements about the attacker contained in his reply to that attack are privileged and immune from a successful claim for libel, subject to certain qualification, one of which is that the privilege is lost if the reply is made with actual or express malice, that is with a sole or dominant motive which is improper.
The material which the Defendants put out as part of the McLibel Support Campaign contained strongly worded criticisms of the Plaintiffs, involving repetition of the allegations in the leaflet complained of, assertions that those allegations were true, criticism of the Plaintiffs for having instituted and continued libel proceedings against the Defendants to intimidate the Defendants and to suppress freedom of speech, and an allegation that the Second Plaintiff had suppressed material documents to cover up the truth contained in the leaflet complained of.
In my JUDGEMENT the three documents of which the Defendants complained in their counterclaim and which made the unjustified defamatory charge that the Defendants had published a leaflet which they knew to be untrue, were published on occasions of qualified privilege of reply to that attack.
I am not satisfied that the statements made in the three documents of which the Defendants complained were made in bad faith.
I consider that part of the motive for the three documents and the parts of them which were defamatory of the Defendants was to discredit the Defendants, although Mr Preston did not accept that, and I am satisfied that there was considerable ill will towards the Defendants by the time that the three documents were published. But all that was understandable in the light of the terms used in the material put out by the McLibel Support Campaign of which the Defendants were part, and I am not satisfied that there was an improper motive in all the circumstances. Even if there was an element of improper motive. I am satisfied that the predominant motive of the three documents, expressed as they were, was to refute the out-of-court public attack which the Defendants, with others, had made. That attack had been expressed in the strongest terms and the Defendants cannot complain that like was to some extent met with like.
In my JUDGEMENT the defamatory statements upon which Ms Steel and Mr Morris relied for their counterclaims were made by the Second Plaintiff on occasions of qualified privilege which was not vitiated by express malice, and it follows that the counterclaims must fail.