Chips are down at McDonald's

Two giant American corporations are using Britain's libel laws to sue their critics

Clare Dyer

The Guardian, March 15, 1994

NEXT MONTH a blockbuster libel trial will get under way at the High Court in London. The plaintiff, the McDonald's burger empire, has hired a galaxy of barristers and solicitors for the case, expected to last up to three months and cost millions of pounds. More than 80 witnesses will give evidence for the company, including the UK president and seven corporate vice-presidents or heads of departments from the US.

Its opponents are two unemployed environmental campaigners, Helen Steel and Dave Morris. The pair are leading lights in London Greenpeace, an anarchist group unrelated to International Greenpeace which has been running a worldwide campaign against McDonald's since 1985.

McDonald's is suing Steel, 28, and Morris, 39, for distributing a leaflet accusing the fast-food giant of exploiting workers, animals and the environment and promoting unhealthy food. Today the pair will appeal against a High Court judge's ruling denying them a jury trial on the ground that the scientific evidence will be too complex for a jury to understand. The civil liberties group Liberty has found lawyers to represent them free of charge for the two-day appeal, when they will also seek disclosure of a huge number of company documents. But legal aid isn't available for libel cases, and they will probably be representing themselves at the trial, as they have done at 16 pre-trial hearings since writs were served three years ago.

In another court just down the corridor, another David and Goliath libel battle reaches its halfway point this week. Another huge American corporation, the Upjohn company, is suing a retired professor of psychiatry and longtime critic of one of its products, the banned sleeping pill Halcion. The BBC is a defendant too, over a Panorama documentary, The Halcion Nightmare. But the main defendant is Professor Oswald, who was quoted in the New York Times accusing the company of "one long fraud" in reporting the results of clinical trials to drug regulators. In the Upjohn case too there is no jury because the evidence was deemed too complicated.

It's tempting to conclude that Britain's draconian libel laws are becoming the latest public relations tool for huge corporations. Philip Leach, Liberty's legal officer, says the McDonald's case "concerns fundamental issues of access to justice, the right to a fair trial and freedom of speech."

In the Upjohn case, the article quoting Oswald was published in an American newspaper, but the constitutional guarantee of free speech means the company would stand much less chance of success if it sued in the US. The fact that copies of the New York Times are sold here - no matter how few - gives it the right to invoke our libel laws.

Oswald has been a thorn in Upjohn's flesh for years, carrying out studies which he claimed showed patients experiencing such side-effects as memory loss, paranoia, anxiety and hallucinations. In 1991 he was acting as an expert witness in a lawsuit brought against Upjohn by Ilo Grundberg, a Utah woman who claimed she was acting under the influence of Halcion when she shot her mother.

Among the sea of documents Upjohn had to disclose to Grundberg's lawyers were the raw data for a 1972 study called protocol 321 - case report forms for the 28 prisoners who took part. When Oswald compared these with the summary of the study the company submitted to drug regulators as part of its application for marketing approval, he found the prisoners had actually experienced significantly more side effects than were reported. The company blamed a "transcription error" for the discrepancy, but Oswald accused it of deliberately concealing the data.

Within days of the New York Times article, Upjohn's lawyers issued a libel writ. The thinking behind the decision to sue is re vealed in an internal company memo referred to in court during the libel case and quoted in US Newsweek magazine this month. Sales of Halcion, once the world's largest selling sleeping pill, had fallen by half. But though banned in Britain, it was (and is) still on the market in the US, where doctors write more than three million prescriptions a year, and many other countries. "We are not in the position to assess the legal ramifications of such action," said the memo, "but we can assess the business ramifications . . . Initiation of legal action would publicize our intent to defend Halcion against unjust action. This message would encourage . . . physicians to continue writing Halcion prescriptions."

But those who resort to the courts to defend their reputations take a considerable gamble, as Gillian Taylforth and a string of other libel plaintiffs can testify. Confidential company documents are coming to light through the Oswald case and US lawsuits over Halcion. A 1991 memo from a junior executive on an in-house inquiry into protocol 321 was read out to Upjohn's acting chief executive, Ley Smith, by Oswald's counsel, Geoffrey Shaw QC. It reads: "There are some real concerns because of some manipulation of data by one of our people and . . . the involvement of this individual in other product submission." Smith replied: "I think manipulation of data is a bad choice of words".

Question marks hang over other Halcion studies and some of the doctors who conducted them. A 1978 study done by one doctor, Samuel Fuerst of Mississippi, was described by an FDA scientific investigator as the most blatant case of fraud his department had ever seen. Upjohn agreed to take his findings off its database but - as Ley Smith admitted in evidence in the libel trial - it still submitted his data to British drug licensing authorities in 1991.

Upjohn is declining to comment until the libel action is over. McDonald's maintains it had no choice but to sue. Spokeswoman Eddie Bensilum said three other members of London Greenpeace had agreed to stop distributing the leaflet but Steel and Morris had persisted. "The libel action is very much a last resort for us. The leaflet has been distributed all over the world. Either we allowed it to be published and distributed and it would gain currency and people would assume it to be true, or we took the libel action - there was no middle road."

Upjohn and McDonald's may win their cases, but Michael Skrein, a City libel solicitor advising Steel and Morris, says: "I have experience of big companies that are concerned about their reputation. The big question any company has to ask itself before starting libel action is: is this going to help my reputation? One of the great dangers of libel cases is that people don't necessarily follow them very closely and don't necessarily pick up on the result. They pick up on things which come out during the action. The effect of that can be to damage the company's reputation even where the company wins."

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