case is the trial of the century - it concerns the most important issues
that any of us have to face, living our ordinary lives.'
I am a 45 year old single parent and ex-postal worker, living in North London. I have been a social and political activist for over 25 years. I was one of the two defendants in the recent ‘McLibel’ case brought by the McDonald’s Corporation, which resulted in the longest trial, and one of the most controversial, in English history. I am going to try to explain what happened in the case from my perspective, and what it was like to be one of the defendants. I will also look at and question the role of libel laws and the legal system, and how effective opposition to oppressive laws can develop around specific cases.
We believe that we and other campaigners were defending the public interest up against the power and propaganda of a highly influential multinational corporation and an oppressive and unjust legal system.
Myself and co-defendant Helen Steel (a 33-yr old barworker) were sued for libel by the $30 billion-a-year Corporation in 1990 for distributing London Greenpeace leaflets criticising McDonald’s, the food industry and multinationals in general for promoting unhealthy food, damaging the environment, monopolising resources, exploiting workers, targeting and exploiting children and causing animal suffering. [Note: London Greenpeace was the first Greenpeace group in Europe, founded in 1971, and has always been separate from Greenpeace International (founded in 1977). It is an open, anarchist, ecological group which has always supported a wide range of radical, social and environmental issues, networking with other activists and initiatives.]
None of these views were new, having already been widely publicly expressed by trades unionists, environmentalists and nutritionists etc for years. Positive alternatives were advocated. These are vitally important concerns central to our everyday lives and urgently requiring the greatest possible open public debate. Transnational Corporations are now the most powerful institutions on our planet, dominating our lives and the environment. McDonald’s alone spend over $2 billion annually advertising and promoting themselves and their view of these issues world-wide. In our view it is an outrage that any such bodies should be able to try to suppress the public’s right to express and consider alternative points of view.
The UK Libel Laws
The UK Libel Laws
Libel laws are notorious. A defendant is guilty until proven innocent, despite facing having to pay huge potential damages and the draconian threat to freedom of speech. Cases are massively expensive, complex and completely stacked in favour of the prosecution. There is no legal aid. Right to jury trial can be denied. Every published book, programme, newspaper etc. is subjected to ‘legalling’ by lawyers - generally almost all material which is critical of any institution or individual who it is believed might sue is secretly removed. The public have barely any idea of all this. Most libel suits result in a pre-trial climbdown by the defence and a grovelling and false ‘apology’ which is then paraded around in Stalinist fashion by the victor as an example of how squeaky clean they supposedly are. This constitutes a form of mass censorship, carried out in secret. Its only beneficiaries are rich and powerful institutions and individuals. It has to be asked why such censorship has never been successfully challenged or defied before. If not now, when?
It seems that libel developed as a means of settling disputes between the wealthy without resorting to duelling. But this century has seen a major shift as big business and other powerful institutions and individuals have taken full advantage of the legal machinery (including libel) to suppress criticism. But the public, and the many diverse social and protest movements which have grown during this century, place great store in their freedom to express their views. In the USA, as a result of the 18th century victory of the american revolution against British rule, freedom of speech was established as a constitutional right. There have been extensive but largely unsuccessful attempts by US corporations and others to undermine this tradition (most recently in the Oprah Winfrey case in which one of our McLibel expert witnesses, having just returned from testifying in London, appeared on her programme and condemned BSE-related modern cattle-rearing practices). US corporations are increasingly making use of other more amenable areas of the law, bringing what are known as ‘slapps’ suits, to try to harrass and disable their critics. International companies are now capable of ‘window shopping’ around the world for the most favourable arena for obtaining public legal rulings in their favour - like the UK for example.
The whole legal system is dominated by professionals, and is viewed by most ordinary people as an alienating, bizarre and oppressive edifice of jargon, proceedures and hierarchy generally set up to defend the status quo (ie those with power or money). With current government attacks here on the right to Legal Aid and assistance, this perception can only grow and ensure a climate where the public’s expectations and resistance to legal injustice continue to fall.
But there are developments. Recently, as the media has expanded and public criticism (especially of politicians) has become increasingly hard to stifle in the modern age, the courts have had to recognise that governmental bodies can no longer bring defamation actions. In 1993 [Derbyshire vs Sunday Times] it was ruled that the public should be able to subject such bodies to ‘uninhibited public criticism’ without the fear of libel writs due to the ‘chilling effect on freedom of speech’ that inevitably involves. This was a crack in the legal door as far as we were concerned - after all, transnational corporations are often more powerful and even less accountable than local and national governments, and hence should also have no right to suppress free public debate over their activities.
Meanwhile, the European Convention on Human Rights (which is at least strong on idealistic rhetoric, if not necessarily publicly beneficial in reality) is currently being integrated into UK law - a law which has up till now refused to recognise any concept of constitutional rights. Also, as I write, the House of Lords has just ruled in the case of former Irish PM Albert Reynold’s vs The Sunday Times that the media has a right (which should, by extention, apply also to campaigners) to a defence of ‘qualified priviledge’ of protection from defamation actions over responsible material reasonably believed to be true. We cited this case at our own appeal - but let’s not jump the gun...
Back in 1990, the McDonald’s Corporation, as the first Plaintiff in our case, would have been rightly advised that the English courts were likely to be highly attractive...
In Court - The Legal Battle
In Court - The Legal Battle
We got 2 hours free legal aid - the advice amounted to: ‘Libel is a nightmare for any defendant - with no legal aid you’ve probably not got a cat in hell’s chance of even getting to trial, let alone winning.’ We decided to fight, representing ourselves through 28 pre-trial hearings, some lasting up to 5 days. We were given occasional pro- bono advice by a barrister, Keir Starmer, involved with the Haldane Society of Socialist Lawyers. It was a nightmare being litigants in person, and we had to learn quickly on our feet. We argued furiously, to little avail, for full disclosure by McDonald’s of all relevant company documents. England’s top libel judge (Justice Drake - who presided over the libel case brought by PM John Major) was in charge of our case. As we became more experienced and assertive our arguments with McDonald’s and the judge increased. A new Judge, Mr Justice Bell, who had only been appointed the year before and had never tried a libel case, was brought in instead. At the same time McDonald’s replaced their barrister with top silk, Richard Rampton QC. Firstly, he succeeded in having major chunks of our defence struck out. for lack of witnesses. Secondly, to our further disbelief and shock, he successfully applied for our right to a jury trial to be denied us on the grounds that the issue of links between diet and disease would be too complex for members of the public - in reality, the public are increasingly concerned over such issues, and furthermore it was clear to us that McDonald’s did not want to be tried by the very public they so vacuously claim to serve. We strongly believe that a jury would have been outraged that such a trial was ever allowed to have been brought at all, being clearly oppressive and contrary to the public interest. Mr Rampton confidently predicted a trial lasting ‘3-4 weeks’. We went to appeal on both points, losing the jury issue.
But in a decision significant for all future libel cases we succeeded in getting our full defence restored pending full disclosure of McDonald’s documents and the coming cross examination of witnesses. Support and publicity began to grow, as did our own confidence. On the eve of trial McDonald’s issued 300,000 leaflets through their UK stores, and press releases, attacking Helen, myself and other campaigners for spreading ‘lies’. Surely this was a breathtakingly hypocritical act by a company having cried ‘libel!’, calculated to undermine our public support when we needed it most, and a much more extensive and serious defamation that the one we were accused of. We countersued for libel in order to put McDonald’s under the burden of proving that the London Greenpeace criticisms were untrue.
The trial finally started in June 1994, and lasted 314 court days over 3 years (the previous longest ever libel hearing lasting 101 days) in which we ourselves were grilling US and UK corporate executives and officials, dozens of experts and witness of fact, fielding our own witnesses (none of whom were paid), and also having constant legal disputes including 4 more trips to the Court of Appeal. McDonald’s pulled out all the stops and spent an estimated 10 million pounds as against our total of 35,000 pounds raised from public donations. The Corporation’s plan for a ‘3-4 week’ show trial had turned into a comprehensive public tribunal in which ‘McWorld’ was on trial.
The administrative and advocacy workload was huge and the proceedings alienating, exhausting and highly stressful. We continued to get some sporadic advice on specific legal points, but 99% was down to us, working from our cramped homes and having a brief daily ‘conference’ on the underground to the court. On top of that Helen had her job each weekend, and I was a single parent of a young child. But conversely at the same time it was greatly empowering to be members of the public uniquely able to challenge the might and sophistication of the corporate world face to face in the witness box - they could not hide behind the usual slick PR department. We felt a responsibility to ensure that the truth would be revealed, and the alternatives to corporate practices be given a full airing. As in society at large, it really felt like two worlds colliding. As experienced campaigners, this, and the successes we were having, is what drove us on.
The main reason that the case took so long is because McDonald's insisted that almost every criticism in the Factsheet was libellous. We believe that those criticisms are common sense views on matters of great public interest, not just directed at McDonald's but at the food industry in general. Defending such views made the case very wide-ranging. Most of the time McDonald's forced us, despite our complaints, to prove the obvious - for example, that much of its packaging ends up as litter, that diet is linked to ill-health, that their advertising to children gets them to pester their parents to take them to McDonald's, that animals raised for the food industry suffer cruelty, and that McDonald's pays low wages to its workers.
The Corporation called its big guns into the witness box. As the trial wore on they were forced under lengthy cross examination to make damaging admissions and concessions on all the issues.
The day after the McLibel verdict, the Jonathon Aitken libel case would fall apart after the former Government minister would be exposed as a bare faced liar. Commentators had asked how he expected to get away with lying in court, and answered by saying that when it came down to the word of a former Tory minister against that of a journalist he could safely assume, having successfully applied for trial by Judge alone, that the courts would believe his word, particularly since as a Plaintiff legally he didn't have to prove anything under UK libel laws.
We felt the same. Having been denied a jury, who might not be so ready to accept the word of Corporate Executives as true, we expected the Judge to prefer the evidence of those representing the establishment or status quo. So from the start we adopted a strategy of gaining admissions from McDonald's witnesses, so that it wouldn't come down to just ‘our word against theirs’, but also ‘their word against their own’.
A Highly Controversial Trial
A Highly Controversial Trial
There were so many controversies. As far as we could see it was a Kafkaesque political and legal scandal from beginning to end by any objective criteria or by plain common sense.
For example, when the writs were served, the ‘words complained of’ [a 1986 6-sided factsheet prophetically titled ‘What’s Wrong With McDonald’s? - Everything They Don’t Want You To Know’ of which no more than 5,000 had been published] were already out-of-print. McDonald’s had made an agreement, which we argued was tantamount to a generalised ‘consent’ and which Richard Rampton had to concede amounted to ‘an accord of satisfactions’ with the main distributors of the document, accepting their continued distribution of a version which was identical on every issue (except rainforests) to the words complained of in the trial. This guaranteed the continued public circulation of the 95% of the allegations whatever the verdict in the trial. McDonald’s had known the original was out of print as they had hired 7 agents to infiltrate London Greenpeace over an 18 mth period before serving the writs. Despite this, none of the 5 spies who gave evidence could identify a single example of either defendant actually distributing the document - publication is a pre-condition of establishing libel, and the one point that McDonald’s accepted they had the burden of proving. Even more incredibly, McDonald’s own agents actually admitted distributing the factsheet themselves and hence McDonald’s had published what they were trying to suppress - perfect grounds for a second defence of ‘consent’.
McDonald's witnesses regularly said ridiculous things in the witness box in a vain attempt to conceal the truth or justify the way McDonald's operates and the effect those operations have around the world.
For example, David Green, McDonald’s Senior Vice-President of Marketing (USA), stated 'McDonald's food is nutritious' and 'healthy'. When asked what the company meant by 'nutritious' he said: 'provides nutrients and can be a part of a healthy balanced diet'. He admitted this could also apply to a packet of sweets [candy]. When asked if Coca Cola is 'nutritious' he replied that it is 'providing water, and I think that is part of a balanced diet'. He agreed that by his definition Coke is ‘nutritious’.
When asked to define 'junk food', Professor Wheelock, McDonald's consultant on nutrition, said it was 'whatever a person doesn't like' (in his case semolina). With disbelief mounting in the courtroom, Richard Rampton intervened to say that McDonald's was not objecting to the description of their food as 'junk food'!
Incredibly, Paul Preston, McDonald's UK President, claimed that the character Ronald McDonald is intended not to ‘sell food’ to children, but to promote the ‘McDonald's experience’. But an extract from the corporation's official and confidential ‘Operations Manual' was read out:: “Ronald loves McDonald's and McDonald's food. And so do children, because they love Ronald. Remember, children exert a phenomenal influence when it comes to restaurant selection. This means you should do everything you can to appeal to children's love for Ronald and McDonald's.”
McDonald's distributed 'McFact' cards nationwide for several years publicising a scheme to recycle polystyrene waste from stores in Nottingham, where customers were asked to put polystyrene packaging into a separate bin, "for recycling into such things as plant pots and coat hangers". Ed Oakley, Chief Purchasing Officer for McDonald's UK, admitted that the company had not recycled any of the waste and in fact the polystyrene was ‘dumped’. He later said ‘I can see [the dumping of waste] to be a benefit, otherwise you will end up with lots of vast, empty gravel pits all over the country.’
Paul Preston, McDonald's UK President, said that if one million customers each bought a soft drink, he would not expect more than ‘150 cups’ to end up as litter. Photographs were then put to him, showing 27 pieces of McDonald's litter in one stretch of pavement alone.
Internal company documents, mistakenly disclosed to us (and which they asked us to return - no chance!) revealed that McDonald’s purchased in the UK in 1983/4 beef imported from Brazil, a rainforest country. A letter from the McDonald's Corporation to a member of the public in the UK in 1982 stated "we can assure you that the only Brazilian beef used by McDonald's is that purchased by the six stores located in Brazil itself". Ed Oakley denied that the purchase of Brazilian beef for use in the UK was in breach of McDonald's policy of not using beef which originated outside the European Union, saying ‘No, it was not. We still bought the hamburgers locally. We did not buy the ingredients locally’.
Sid Nicholson, McDonald's UK Vice President, admitted that McDonald's set their starting rates for crew employees for most of the country ‘consistently either exactly the same as the minimum rates of pay set by the Wages Council or just a few pence over them’. He agreed that for crew aged 21 or over the company ‘couldn't actually pay any lower wages without falling foul of the law’. However, he said ‘I do not accept that McDonald's crew are low paid’. So many weeks of testimony would have to be heard on this.
Dr Neville Gregory, McDonald's expert witness, admitted that McDonald's egg suppliers keep chickens in battery cages, 5 chickens to a cage with less than the size of an A4 sheet of paper per bird and with no freedom of movement and no access to fresh air or sunshine. Ed Oakley of McDonald's said the company had thought about switching to free range eggs, but, not only are battery eggs ‘50% cheaper’, but, he claimed ‘hens kept in batteries are better cared for’. He said he thought battery cages were ‘pretty comfortable’! I’m sorry to say it but this is the kind of outrageous garbage we were expected to put up with, in buckets full, and carry on. The judge in his verdict was to find Mr Oakley ‘refreshing’.
Outside court the Corporation, not noted for its coyness when it comes to publicity, seemed strangely silent throughout the proceedings. Some indication of its perception of what was happening can be gleaned from a request to us - after only a couple of months of testimony - that 2 members of their US Board of Directors were ready at 24hrs notice to fly over to secretly meet us to discuss settling the case. Overall three meetings were held, but although the Corporation offered to pay a ‘substantial sum’ to a mutually agreeable third party they refused to give us a guarantee that they would not sue their critics in the future. They hoped we would agree not to circulate the London Greenpeace factsheets, but failed to guarantee to us that they themselves would halt all their advertising and promotions. So it was back to court.
A further insight into Corporate thinking comes from the notorious “Highly Confidential” 1995 memo from McDonald’s Australia, leaked to ABC’s ‘60 mins‘ who were requesting an interview with them: “We could worsen the controversy by adding our opinion”... “Contain it as a UK issue”... “We want to keep it at arm’s length - not become guilty by association”. “Who should we not talk to? Any ABC radio or TV station Australia wide (because they have given significant coverage to the case in a positive perspective)”.
We had a constant battle to get McDonald’s to hand over all the relevant documents in their possession, - as they should have done before the case began, but were still being forced to do right up to the end. Just a couple of examples - we finally persuaded the judge that employees’ clock cards and time sheets should be disclosed to help establish whether the allegations by our witnesses (ex-employees of McDonald’s, relying on memory) of illegal lack of breaks, denied by McDonald’s representatives (all current managerial grades, with easy access to company documentation). We finally got documents from one store where there were witnesses on both sides, for just a few weeks period, as a ‘snapshot’ on company practices in the mid-90’s. It revealed hundreds of illegalities in those few pages alone of the kind McDonald’s had been prosecuted for in the 1980s. In his verdict the judge refused to discredit the store management. In fact, despite these examples being just the tip of a large iceberg, none of McDonald’s representatives or employees were to be discredited in the final verdict, unlike some of the defence witnesses.
We had a similar battle over McDonald’s beef supply sources for their Brazil stores. Finally, when the last witness was due to testify - defence expert Susan Brandford - we received a list of supply points in Goias State near a tributary of the Amazon. She was amazed to find places which she then testified had been rainforest which she had seen being deforested in the early 1980’s to make way for cattle ranching. It was too late to chase up the matter further, but it seemed we’d established a key part of our case.
Legal disputes, many of them acrimonious, often defined the parameters of what we were being forced to prove and how. But McDonald’s had a top QC constantly bending the ear of an inexperienced judge, with us, as two members of the public, trying to read between the lines of his submissions, to research and get on top of other authorities, and to inject common sense into the proceedings.
Maybe the last word on this should go to Mr Justice Bell during one of the interminable arguments: ‘For better or worse, the law of libel has grown up in its own special way over the last 150 years, and whereas in ordinary negligence claims if you don’t know what the law is you can say what you think is sensible and there is a 90% chance of you being right, I am not sure the percentage isn’t the reverse of that in the law of defamation. But there we are.’
The Verdict and Appeal
The Verdict and Appeal
The courts rejected our arguments over McDonald’s failure to prove our ‘publication’ of the factsheet, over their own publication through their agents, and over the company’s ‘consent’ through their agreement with the main distributors.
In terms of our counterclaim, the judge ruled that McDonald’s had issued hundreds of thousands of leaflets and press releases carefully crafted by their PR firm, which were defamatory of me and Helen and which they’d failed to justify - libellous you would think. No said the judge as the poor old company had the right to self-defence! This, and the ‘publication’ issue, are two of the most blatant examples in the case of the incredible double standards operating at the most fundamental legal level.
One of the major things for a jury to decide in a libel case is the meaning of the disputed words. The areas of the verdict which we failed to win were, we believe, mainly because the Judge largely accepted McDonald's ludicrous and extreme meanings on most of the issues, which we had argued the factsheet just didn't say. For example, the factsheet repeatedly criticised the business practices of the food industry as a whole (ie. about peoples' diets, cash crops and hunger, damage to the environment etc) but the Judge insisted that we would have to prove that McDonald's itself was responsible. In a serious threat to free speech he also ruled that the accompanying satirical cartoons and graphics should be taken into consideration. And he bizarrely and unfairly refused our right to rely on any of the statements in the factsheet (bar one) as 'comment' or 'opinion', ruling instead that every statement was an allegation of fact that would have to be proven by us from primary sources of evidence. This made the task ten times as hard, at a stroke. Ironically, this last ruling meant that the parts found in our favour as fact turned out therefore to be all the more devastating for McDonald’s.
Mr Justice Bell ruled that:
- McDonald's marketing has ‘pretended to a positive nutritional benefit which their food (high in fat & salt etc) did not match’
- that McDonald's ‘exploit children’ with their advertising strategy, ‘using them, as more susceptible subjects of advertising, to pressurise their parents into going to McDonald’s’
- are ‘culpably responsible for animal cruelty’
- ‘pay low wages, helping to depress wages in the catering trade’.
Despite McDonald’s technical ‘win’ over other points, it was seen generally as a humiliating defeat for the Corporation. No-one could recall a court delivering such critical judgments against such a powerful institution. McDonald’s then capitulated by abandoning all efforts to get costs, damages or even an injunction to halt the leafletting (their primary aim - as outlined in their original Statement of Claim). 2 days after the verdict , in a Victory Celebration Day called by the McLibel Support Campaign, over 400,000 anti-McDonald’s leaflets were defiantly distributed outside the majority of their UK stores, and there were solidarity protests around the world. We were elated. As experienced campaigners we knew throughout that what really counted was the court of public opinion, the determination of activists to refuse to be silenced and to ensure that an oppressive law could be made
The specialist, industry press which informs and advises corporations warned other companies not to ‘do a McLibel’. If the McLibel example inspires future defiance could this signal the beginning of a real fightback against censorship, or even the end for libel laws?
Significantly McDonald's did not appeal over the damning rulings against their core business practices, later stating that the Judge was 'correct in his conclusions' ! [McDonald's written submissions 5.1.99]. We had failed to convince the judge on all issues however and so we appealed, challenging his 762-page verdict on a wide range of evidential, procedural and legal grounds specific to our case, and over fundamental matters of libel law.
On March 31st the Court of Appeal added to those damning findings, after an intense and gruelling 23-day hearing in early 1999 in which we again represented ourselves. Lord Justices Pill, May and Keane ruled:
- it was fair comment to say that McDonald's employees worldwide ‘do badly in terms of pay and conditions’
- true that ‘if one eats enough McDonald's food, one's diet may well become high in fat etc., with the very real risk of heart disease.’
But despite these further findings the Appeal Court only reduced Mr Justice Bell's original award of £60,000 pounds damages to McDonald's (who'd spent an estimated £10m on the case) by £20,000. We naturally have refused to pay a penny - it is an outrage that McDonald's has been awarded any damages at all in the light of all the serious findings made against the company, including those of deception and exploitation, and the fact that no official sanctions have been taken against them.
We believe that the critics of the company and the food industry in general were completely vindicated by the evidence. We felt we succeeded in almost every area of the case, which is why the majority of sub-findings of fact, if not necessarily all the final conclusions, were in our favour.
An illustration of the irresponsible and farcical nature of libel trials can be seen in the issues we supposedly failed to win, eg. the central issues of nutrition and employment (which together took up over 164 days of testimony).
Nutrition, Diet and Ill-health
Nutrition, Diet and Ill-healthWe basically won all of this issue, although we were somehow deemed to have lost it. Our position was identical to that of the World Health Organisation, and we called internationally- eminent experts to testify for us. Early on in the trial, McDonald's expert witness on cancer had been asked for his view of the statement contained in the London Greenpeace factsheet: "A diet high in fat, sugar, animal products and salt and low in fibre, vitamins and minerals is linked with cancer of the breast and bowel and heart disease". He replied: "If it is being directed to the public then I would say it is a very reasonable thing to say." After all we had just shown him a virtually identical statement in one of McDonald’s own documents. McDonald's expert witness Professor Verner Wheelock admitted that a typical McDonald's meal was high in fat, saturated fat and sodium content, and that cancer and heart disease were caused by a poor diet. Paul Preston admitted that McDonald's products were low in fibre. This left almost the entire nutrition section of the factsheet admitted by McDonald's own witnesses within a few days of the trial starting. To escape this obvious own goal, McDonald's then proceeded to move the goalposts by changing their claim against us and arguing that we had to prove what seemed a more severe meaning than the one they had originally claimed over. It was an ongoing controversy, the judge stating and then redefining his meaning, and eventually witnesses had to be recalled. We appealed but to no avail.
Despite the fact that during closing speeches the judge had agreed that the actual text of the leaflet in relation to nutrition was OK, he had ruled that satirical cartoons and graphics which appeared on the factsheet made the overall message stronger - that it meant there was a ‘very real risk’ of getting heart disease and cancer from eating McDonald’s food.
Nonetheless his verdict included findings of fact which confirm all the criticisms made. People, the Judge concluded, 'who eat McDonald's food several times a week will take the very real risk of heart disease if they continue to do so throughout their lives, encouraged by the Plaintiffs' advertising.' He also ruled, 'it is possible it increases the risk to some extent' of breast cancer and 'strongly possible that it increases the risk to some extent' of bowel cancer.
We had effectively proved even the extreme meaning decided on by the Judge, but the company had, in his view, been unjustly defamed because a causal cancer link was not ‘proven’ and most of the people the factsheet was addressed to didn't eat there often enough to suffer the ill effects!
The Appeal Court ruled that it had ‘considerable sympathy’ with our submissions that the leaflet meant 'that there is a respectable (not cranky) body of medical opinion which links a junk food diet with a risk of cancer and heart disease', that 'this link was accepted both in literature published by McDonald's themselves and by one or more of McDonald's own experts and in medical publications of high repute' and that therefore 'that should have been an end of this part of the case' . They even ruled that the judge should not have carried out the scientific enquiry [lasting 60 days - the original reason for the case being ‘too complex’ for a jury trial]. However, they ruled that their hands were tied because of a previous Court of Appeal decision on the meaning of the leaflet and so the appeal did not succeed regarding cancer. This was despite sometimes farcical discussions during the McLibel appeal about that meaning... Lord Justice Pill: ‘The Defendants do not believe it. The judge himself did not believe it. You [Richard Rampton QC] do not believe it. And we are stuck with it.’... Rampton: ‘What does the meaning mean? The meaning means, I would say, just what it says.’ Mr Justice Keane: ‘..are you not opening up...this particular can of worms as to what actually does the Court of Appeal’s approved meaning mean?’ [!!]
EmploymentWe also won virtually all this issue (see the verdicts above), with only a semantic dispute over one phrase remaining. Although the trial Judge found as a fact that '[McDonald's] are strongly antipathetic to any idea of unionisation of crew in their restaurants' and that ‘There have been occasions where McDonald's crew have lost their jobs or been victimised for union activity’ the Court of Appeal upheld the judge’s ruling that we had libelled McDonald's because we had failed to prove that 'McDonald's have a policy of preventing unionisation by getting rid of pro-Union workers'.
But McDonald's UK Vice President and former Head of Personnel Sid Nicholson had testified as far back as day 120 of the trial and at the beginning of the evidence on this issue. After strenuous cross-examination from me, and much beating around the bush from the executive, the judge put it to him and he agreed that employees ‘would not be allowed to carry out any overt union activity on McDonald's premises’. Mr Justice Bell turned to me and said: ‘Can you do any better than that?’. I didn’t think I could - it seemed to be in the bag. After all, Mr Nicholson had just admitted that 'to inform the Union about conditions inside the stores'would be a breach of the employee's contract (Crew Handbook), 'gross misconduct' and a 'summary sackable offence'. If that's not a ‘policy' then what is? Indeed, this being in the company contract of employment, it seemed much more extensive and systematic discrimination against every employee not just those involved in unionisation efforts, and we argued clearly illegal under Trade Union discrimination laws.
Both the trial judge and the Appeal court pointedly ignored our detailed submissions that this was illegal and refused to rule on it. We believe that the courts felt it was their job to protect the interests of a major employer, and that this would have been one ruling too far they were being forced to make.
The appeal judges did rule that 100 days of evidence on employment conditions was too much. It certainly felt like that to me, especially as a member of the Corporation’s Board of Directors had admitted enough by Day 4 for our case on this issue to have been justified as proven or fair comment.
Other issuesDespite a great deal of evidence on the environmentally damaging effects of the production and disposal of mountains of McDonald’s disposable packaging, the Appeal Court upheld the finding by the trial Judge that most of this evidence was not relevant, and that McDonald's had been libelled because the leaflets said they used only a 'tiny' amount of recycled paper, whereas he found that it was a 'small but nevertheless significant proportion' ! He also agreed with McDonald’s that it was their customers who were the ones responsible for causing litter!
Mr Justice Bell had accepted ‘the expansion of beef cattle production has...led to the destruction of areas of rainforest’ in Costa Rica, Brazil and Guatemala, and that McDonald’s is the world’s largest promoter and user of beef, and has in those countries used beef from ex-rainforest land. But the Appeal Court upheld his narrow and semantic interpretation of the meaning of this section of the Factsheet - that we had to prove McDonald’s itself had been involved more directly, and in the destruction of only a specific type of ‘luxuriant, broadleaved, evergreen, very wet, canopy’ tropical forest. He therefore discarded any evidence about damage to tropical forests in general. He also chose to over-rule the opinions of the only experts on this issue (called by the defence). So we were unsuccessful.
Regarding food safety, the Appeal Court upheld the adverse ruling based on the trial Judge’s controversial meaning ie. that the factsheet accused McDonald’s of subjecting their customers to ‘a serious risk of food poisoning’ (which it did not say - it merely criticised modern factory farming methods). This was despite Justice Bell finding that we ‘were able to establish some incidents of food poisoning attributable to eating McDonald’s food’, including 2 serious Ecoli outbreaks; that salmonella was present in ‘25% of the pieces of deboned [chicken] meat’ supplied to McDonald’s, and campylobacter on 70%; and that the risk of undercooking, the only effective defence against food poisoning, ‘is endemic in the fast food system’.
To summarise, we won outright the sections on Advertising, Animals, effectively all of Nutrition and Employment short of a part of the final conclusion in each, but didn’t succeed on Environment and Food Safety despite overwhelming evidence.
I believe, by outlining just some of the controversies, that I have demonstrated how the legal establishment strained every fibre to protect a major player in the economic establishment, despite the company’s completely untenable position in trying to suppress widespread public criticisms.
There have been no sanctions at all against McDonald’s as a result of this case. Despite the admissisions by McDonald's and findings by the court that several of the statements which the Corporation sued over in the factsheet were known by them to be true, as were practices which they had originally denied took place, the courts failed to impose any sanctions on the company for bringing legal proceedings under false pretences. Recent reviews and statutory changes to the law of defamation pointedly refused to look at any of the fundamental issues such as those I have raised here, and failed to do more than tinker with streamlining procedures. Libel laws remain as unfair, oppressive and unnacceptable as always.
Effectively the courts have given the green light to companies to abuse the legal system without any risk of paying consequences. It is only the actions of campaigners and witnesses in ensuring that the truth came out during the trial, and was widely publicised, and the international grass-roots campaign of mass defiance and solidarity, that has created a deterrent to companies from taking similar legal action in the future - and given encouragement to the public to openly voice their concerns about present day issues without fear.
Overall the one thing the trial and the rulings have shown is how inappropriate it is for the legal system to be deciding what people can and can’t say, and what is deemed to be ‘true’ or ‘untrue’. In contrast the US legal system is not allowed to take on such a role. There are many different political viewpoints, inevitable conflicts between those who hold the power in society and those who seek to expose and resist such rule. It is vital for the future of this planet and its population that these subjects are areas of free uninhibited debate and ordinary people can express their views, so the self-interested propaganda of greedy multinationals and their ruthless drive for profits can be widely challenged.
The Case goes on...and on...
The Case goes on...and on...
We are seeking to defend the public's right to criticise companies whose business practices affect people's lives, health and environment, arguing that multinational corporations should no longer be able to sue for libel.
In an important legal judgment, the Appeal judges did rule in favour of our submissions that publicity produced by campaigning groups should be able to have the legal protection of ‘Qualified Privilege’ [which protects the publisher from having to prove the criticisms made] which is now beginning to be afforded to the media. However, they implied that authoritative references should be included within such publicity material - discrimination against the distribution of ‘populist’ leaflets rather than academic or highly-detailed material.
We also seek an end to unfair and oppressive defamation laws and procedures, as highlighted by our own case.
Most importantly for McDonald's we are seeking leave to argue that, having now won the bulk of the issues in dispute with the fast-food corporation, we should have won the case outright - McDonalds’ reputation has been so damaged by the findings against them that the remaining matters not proven have no material affect.
Should leave not be granted by the House of Lords we intend to take the British Government to the European Court of Human Rights. The legal battle with McDonald’s has been largely won, but the struggle against oppressive laws continues.
Inevitably in a battle like this there are opportunities for spin offs. For example Helen and I are suing the Metropolitan police for unlawfully passing on information about us to McDonald’s and their infiltrators.
Also a campaign has just been launched to demand that all McDonald’s TV advertising to children be halted in the light of the verdict that they ‘exploit children’ through pester power - in direct contravention of statutory advertising rules. A Judicial Review is being prepared to challenge the regulatory authority’s failure to carry out its statutory duty. In Sweden, all advertising to under 12 year olds is banned - so why not UK and worldwide?
Outside Court - the campaign
Outside Court - the campaign
McDonald’s brought the case to suppress the dissemination (at that time in the thousands) of London Greenpeace anti-McDonald’s leaflets. However, 3 million leaflets have been handed out on the streets in the UK alone since the writs were served on us, and there have been over a million more handed out in solidarity protests all over the world, available in at least 27 languages. This is no thanks to the media who, with one or two exceptions, covered the case only patchily and superficially. It is due to the McLibel Support Campaign, set up to galvanise the great public interest and support, and to help with legal finances and practical tasks... but most importantly to back the grass-roots leafletters, thousands of whom signed a Pledge to continue to disseminate leaflets before, during and after the trial in defiance of the law.
Despite the campaign being run on half a shoe-string from an office in someone’s bedroom, it succeeded in ensuring that the private and often obscure legal battle in the courtroom became a public issue fought and won in the court of public opinion and on the street. In addition, an Internet site, ‘McSpotlight’, was launched in 1996 by volunteers, enabling campaigners, researchers, journalists and interested people world-wide to have immediate free access to anti-McDonald’s leaflets (and the translations), full daily trial transcripts, legal arguments and judgements, documentation about the company, press coverage, previously censored material, ongoing debate sections and so on. It is probably the most comprehensive and publicly accessible documentation of a major case in existence. It has been accessed 75 million times. McDonald’s, despite being probably the most sophisticated and successful propaganda organisation in the world, was forced onto the defensive and it effectively buried its head in the sand on the issue.
People often wonder just how we managed to have the strength to battle away and achieve what we did. Both myself and Helen, and also London Greenpeace, had the long experience of involvement in a wide range of inspiring campaigns, struggles and movements of ordinary people against the odds. We also have no illusions which could have led to disillusionment - we are anarchists who want to see the end of the exploitation of people, animals and the environment in order to create a new society where people have control over their own lives and communities. We know this will be a life-long struggle.
A real DIY victory with far-reaching implications
A real DIY victory with far-reaching implications
Campaigns of this type raise important and exciting questions:
- In what ways can courts be transformed into arenas around which public debate and struggles can be stimulated and mobilised?
- Are ‘natural justice’ and ‘civil society’ much stronger than people realise? And can supposedly powerful legal, state and corporate institutions be rendered powerless?
- Do grass-roots movements, backed by public support, have the potential to really take on and undermine or even abolish those institutions which currently dominate and oppress the public?
What Can Those In The Legal Profession Do To Advance Justice?
What Can Those In The Legal Profession Do To Advance Justice?
So how can those with experience or specialist knowledge of the law help to serve the public and the public interest? I suggest that to achieve real justice and a decent life for our children and future generations, we all need to help to encourage and empower ordinary people to articulate their own needs and rights, to understand how society is really functioning and in whose vested interests, and to be able to take practical steps to fight for their own interests individually and collectively with others (including inside or against the legal system). To such an end many legal professionals volunteer, for example, to: help set up community law centres...act pro-bono and as McKenzie friends... speak out and write about the reality of the legal system and how it can or can’t be used for the public good... join and advise campaigning groups and movements... and generally join in the struggle for a better world - something we can all do!
Dave Morris, with contributions from Helen Steel and the McLibel Support Campaign November 1999
Available in CD-Rom. McLibel Support Campaign, 5 Caledonian Road, London N1 9DX, UK. Tel/Fax +44-(0)171 713 1269 firstname.lastname@example.org
Further info on the issues: ‘McLibel Verdict & the Evidence', ‘McLibel Appeal Decisions - More Bad News For McDonald’s’, 'Trial News' evidence summaries, 'What’s Wrong With McDonald’s?’ A5 leaflet - Fully Referenced Version' (available from MSC & on McSpotlight).
Also available: ‘McLibel: Burger Culture On Trial’ (Pan Books) and the superb documentary ‘McLibel: Two Worlds Collide’ (One Off Productions, email@example.com)