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McLIBEL VERDICT AND THE EVIDENCE|
An analysis of the outcome and the Judgement of the McLibel trial
On 19th June 97, Mr Justice Bell gave his personal verdict in the UK's longest ever libel trial, brought by McDonald's against two supporters of London Greenpeace, Helen Steel and Dave Morris over a factsheet entitled 'What's wrong with McDonald's? Everything they don't want you to know'. Publicity surrounding the award of £60,000 damages to McDonald's conveyed to some that McDonald's had won the case all bar a few minor points. In fact, most of the Judge's findings of fact back up the criticisms made in the factsheet, which is not surprising since the evidence was overwhelmingly in the defendants favour.
The day after the McLibel verdict the Jonathon Aitken libel case fell apart after the former Government minister was exposed as a bare faced liar. Commentators 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 only, that the courts would believe his word, particularly since as a Plaintiff legally he didn't have to prove anything under UK libel laws.
The situation in McLibel is much the same. Having been denied a jury, who might not be so ready to accept the word of Corporate Executives as true, the Judge has in the main chosen to prefer the evidence of those representing the establishment or status quo. However, the Defendants thought this was likely to happen, and so from the start adopted a strategy of gaining admissions from McDonald's witnesses so that, as the Defendants said, "it wouldn't come down to their word against ours' but instead to their word against their own'". Helen & Dave succeeded on this in almost every area of the case, which is why the majority of findings of fact were in the Defendants favour.
One of the things to be decided in a libel case is the meaning which a notional ordinary, reasonable, reader' would take from reading the leaflet. The areas in which the Defendants lost the verdict were largely because the Judge accepted McDonald's ludicrous and extreme meanings on most of the issues, which the Defendants had argued the factsheet just didn't say. For example, the Factsheet repeatedly criticised the business practices of the food industry and multinationals in general (ie. about peoples' diets, cash crops and hunger, damage to the environment etc) but the Judge insisted that the Defendants would have to prove that McDonald's itself was responsible.
This demonstrates just one of the disadvantages the Defendants faced having been denied a jury. A jury would be very unlikely to adopt the extreme meanings put forward by the Plaintiffs, and in fact would more than likely have thrown the whole case out early on, viewing it as oppressive and contrary to the public interest.
The Judge also bizarrely and unfairly refused the Defendants' right to rely on any of the statements in the factsheet (bar one) as 'comment' or 'opinion', ruling instead that every statement was a 'fact' that would have to be proven from primary sources of evidence by the defence. This made the task ten times as hard, at a stroke.
Although the Judge decided that McDonald's had been libelled by some of the statements in the factsheet, he also ruled that several of the most biting allegations had been proved to be true. These are particularly significant since the burden of proof was on the defendants to legally justify the allegations by bringing extensive first-hand evidence to show that they were true. McDonald's didn't have to prove that they were false, so where the judge ruled in McDonald's favour, it doesn't necessarily mean that he thought the allegations were untrue, rather that the pair, with their limited resources and up against a wall of propaganda from McDonald's well briefed representatives in the witness box, had been unable to prove them to the satisfaction of the law.
What follows are some major pieces of evidence of McDonald's business practices in the US and UK, in the main from their witnesses' own mouths and from their own documents, and the judge's findings, which clearly back up all the statements in London Greenpeace leaflets:
DIET AND ILL HEALTH
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" (Day 22, p32). McDonald's expert witness Professor Wheelock admitted that a typical McDonald's meal was high in fat, saturated fat and sodium content (Day 21, pp29-31). Paul Preston (McDonald's UK President) admitted that McDonald's products were low in fibre (Day 5, p22, line 7). This left almost the entire nutrition section of the factsheet admitted by McDonald's own witnesses. To escape this obvious own goal, McDonald's then proceeded to move the goalposts by changing their claim against the defendants and arguing that the defendants had to prove a more severe meaning than the one they had originally claimed over.
This enabled the Judge to find in McDonald's favour by interpreting the meaning of the leaflet in an extreme and controversial way. Despite the fact that during closing speeches the judge had agreed that the text of the leaflet in relation to nutrition was OK, he ruled that satirical cartoons and graphics which appeared on the factsheet (not in current leaflets) made the overall message stronger.
Nonetheless his verdict included the following findings of fact which confirm all the criticisms made: 'At the material time of publication of the leaflet between September 1987, and September 1990, McDonald's food was high in fat (including saturated fat) and salt (sodium) and animal products and it has continued to be so. It was low in fibre at the material time of publication of the leaflet'. [N.B. It is still low in fibre, but current fibre content wasn't gone into.]
'I..find that various of [McDonald's] advertisements, promotions and booklets have pretended to a positive nutritional benefit which McDonald's food, high in fat and saturated fat and animal products and sodium, and at one time low in fibre, did not match.'
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. (NB The Corporation's Head Of Marketing had given evidence that approx 75% of all visits to their US stores were from 'heavy users' who ate there on average 3 times a week, and also that these people were likely to eat similar fast food during the rest of the week as well (Day 45 pp42-3).)
The Defendants had effectively proved even the extreme meaning decided on by the Judge, but the company had, in his view, been unjustly defamed because many of the people the factsheet was addressed to didn't eat there often enough to suffer the ill effects!
The Defendants won this section of the case outright, with the Judge ruling as a fact that ' [The criticism in] the leaflet to the effect that [McDonald's] exploit children by using them, as more susceptible subjects of advertising, to pressurise their parents into going to McDonald's is justified. It is true'. He also ruled 'In my judgment McDonald's advertising and marketing makes considerable use of susceptible young children to bring in custom, both their own and that of their parents who must accompany them, by pestering their parents.'
The Judgement was not surprising in the light of damaging revelations of company strategy in court, such as when 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." (Day 42, p62, line 32). The Corporation's Head Of Marketing considered that children were 'virgin ground as far as marketing is concerned' (Day 45, p56, ln 11). Furthermore, their UK Marketing chief stated that, without advertising 'you might see that the company declines completely' (Day 41, p7, ln 25). McDonald's spend over $2 billion per year worldwide on advertising and promotions.
The Defendants would have won this section of the case if it wasn't for the Judge's extreme and controversial interpretation of the words complained of in the Factsheet, based on the supposed 'context'. He ruled that this 'context' meant that the paragraph about general safety concerns associated with modern factory farming methods and mass meat production put the burden on the Defendants to prove that McDonald's sell products which 'expose their customers... to a serious risk of food poisoning and poisoning by the residues of antibiotic drugs, growth-promoting hormone drugs and pesticides', something which the factsheet had not said. In fact the judge agreed that the text of this section of the factsheet, taken literally, could be viewed as inoffensive'.
The judgement noted evidence that McDonald's own witnesses had said that 'antibiotic compounds which acted as growth promoters' were fed to chickens from their arrival at Sun Valley [McDonald's suppliers] until 5 days before slaughter'. That hormonal growth promoters such as clenbuterol were used in the pig industry as fairly standard practice', including at GD Bowes [McDonald's pig meat suppliers], until the E.C. banned their use in Europe in about 1990. (ie, they were in use at the time the factsheet was in circulation). That antibiotics were routinely given to cattle in U.S. feedlots as growth promoters and that pesticide residues were found in meat in the U.S. McDonald's International Meat Purchasing Manager had also given evidence that hormonal growth promoters are widely used in cattle rearing in the USA (Day 92 p17 line 1-17). However the judge decided that the defendants had not brought sufficient evidence to prove that any of this posed a risk to consumers. This is despite widespread concern in many countries over these unnatural practices, and the fact that the EC had banned the use of hormone growth promoters in Europe because of fears over their safety.
The Judgement notes that 'the principal food poisoning organisms carried by chickens are salmonella and campylobacter'. A representative of McDonald's chicken meat supplier accepted during his evidence that campylobacter was found on 70% of raw poultry, (Day 91 p55 line51), and that salmonella was found on 25% of deboned chicken meat for McNuggets (Day 89 p64 line59).
The defence against the presence of food poisoning organisms on meat is dependent on adequate cooking to kill the organisms. According to the judge, 'the risk of [undercooking] is endemic in the fast food system whatever protective measures the Plaintiffs put in place'. The Judge refered to several instances where McDonald's were prosecuted for selling undercooked burgers, and stated I have no doubt that there must be many more incidents of undercooking than prosecutions or convictions reveal'. McDonald's admitted that in 1994 they were convicted for serving undercooked chicken McNuggets in Shrewbury McDonald's which contained salmonella, and that the McNuggets, which had been served to a 3 year old girl, were declared by Local Health Officials to be unfit for human consumption'.
McDonald's also admitted that they were responsible for two very serious outbreaks of E.Coli 0157 food poisoning, in the USA in 1982 affecting at least 47 people, and in Preston (UK) in 1991, in which people suffered serious kidney failure. (Day 101 p8, Day 94 pp27-29). Although the company has raised cooking temperatures since the Preston outbreak, evidence from McDonald's own witnesses and documents revealed that the company still only instructs UK stores to cook standard beef patties for 40-44 seconds to reach an internal temperature of 70 degrees centigrade (Day 85 p52 line31).
In deciding that the defendants had not proved there was a serious risk of food poisoning the Judge ignored UK Govt advice contained in the Food Safety Advisory Committee report on E.Coli, 1995; 'Regardless of the technique used it is critical that the operation can consistently achieve 70 degrees centigrade for 2 minutes or equivalent in all parts of every burger', in order to ensure that pathogenic bacteria are killed.
LOW PAY AND HOSTILITY TO TRADE UNIONS
Most of the findings of fact on the employment issue were in the Defendants favour, but the Judge then decided that he found certain forms of exploitation acceptable and therefore in his view the company had been libelled. On conditions of employment he ruled that Despite the hard and sometimes noisy and hectic nature of the work, occasional long, extended shifts including late closes, inadequate and unreliable breaks during busy shifts, instances of autocratic management, lack of third party representation in cases of grievance and occasional requests to go home early without pay for the balance of the shift if business is slack, I do not judge the Plaintiffs' conditions of work, other than pay, to be generally "bad", for its restaurant workforce'.
He did however judge that the practice of pressurising staff to go home if a store was quiet, without being paid for the balance of the shift 'should not happen at all, and in my judgement it shows where the ultimate balance lies between saving a few pounds and interest of the individual.' The evidence, he ruled, has disclosed unsatisfactory aspects of McDonald's working conditions'.
On pay the Judge clearly found for the Defendants, ruling that ' [McDonald's UK] does pay its workers low wages thereby helping to depress wages for workers in the catering trade in Britain'. This was probably inevitable after the company was forced to produce copies of surveys they had conducted comparing their wage rates very unfavourably with other retail outlets. It was accepted by a Human Resources Manager' for McDonald's, that "the basic McDonald's starting rate is below the general averages for that kind of work in the country" (Day 133, p37).
Moving on to Unions, the Judge found as a fact that '[McDonald's] are strongly antipathetic to any idea of unionisation of crew in their restaurants'. However, he then bizarrely ruled that the Defendants had libelled McDonald's because they had failed to prove that 'McDonald's have a policy of preventing unionisation by getting rid of pro-Union workers'. This is despite the evidence of McDonald's UK Vice President and former Head of Personnel Sid Nicholson that employees "would not be allowed to carry out any overt union activity on McDonald's premises" (Day 120, p5, line 27). Mr Nicholson had also said that 'to inform the Union about conditions inside the stores' would be a breach of the employee's contract (Crew Handbook), 'gross misconduct' and as such a 'summary sackable offence' (Day 120, p4). If that's not a policy' then we don't know what is!
RAINFORESTS & THIRD WORLD STARVATION
The judgement on this section of the case hinged entirely on the extreme meaning the Judge attributed to the words in the factsheet. It is widely accepted that the increasing consumption of hamburgers in the west has been the main cause of the huge increase in cattle raising in tropical forest countries, which is in turn a major cause of deforestation. (McDonald's is of course the world's single largest user and promoter of beef products) The Factsheet had identified McDonald's as just 'one of many US Corporations' involved in and responsible for this process. But the Judge ruled the Defendants had to prove that McDonald's itself had bought vast tracts of land for cattle ranching, and itself used lethal poisons to destroy vast areas of rainforest (which he defined so narrowly as to exclude most of the tropical forest which had been deforested to make way for beef) and that any evidence less than this was irrelevant.
He therefore disregarded as irrelevant to his judgement all the evidence of McDonald's responsibility for damage to tropical forests. This included the admission by McDonald's in their opening speech that they had used beef in Costa Rica from cattle reared on former rainforest land, some of which 'had been rainforest up to the 1960's. (Day 1, p50). The company also admitted importing Brazilian beef into the UK in the 1980's (Day 78, p21). Some of their current declared supplies to their 250 Brazilian stores emanate from areas of Goias State defined by Defence experts as former rainforest areas destroyed in the 1970's and '80s to make way for cattle ranches (Day 251, pp18-23). Charles Secrett, Executive Director of Friends of the Earth, explained that 'McDonald's Corporation, as a global supplier of beef products to mass markets, must accept some responsibility for encouraging development and land use pressures that result in the clearance of tropical forests' (Day 240 p34).
On the subject of the eviction of small farmers and indigenous people from land, and hunger in the 3rd World, the factsheet clearly talked of the role of multinationals in general in the cash crop economy which forces people off their land, or forces them to grow cash crops instead of staple foods. But again the Judge ruled that the defendants must show that McDonald's itself had carried out the acts. Direct evidence was given in court of land conflicts in areas which McDonald's identify as their current sources of beef in Brazil such as in Goias state. (S Branford, Day 251 pp24 -26) and in Mato Grosso do Sul (F Watson, Day 238 pp12-20). Fiona Watson of Survival International stated there were "many cases of conflict and land theft caused by the cattle ranching industry as a whole in Mato Grosso do Sul. The industry has undoubtedly played a significant role in the reduction in size of Indian lands, the climate of intimidation and violence that prevails in many areas and the consequent social and cultural disintegration of these peoples in Mato Grosso do Sul."
PACKAGING, RECYCLING AND LITTER
An average McDonald's store produces at least 140 pounds of waste packaging a day, excluding takeaway packaging which represents around 50% of custom (Day 9, pp24-5) . Including takeaway packaging, this works out worldwide (x 21,000 stores) at around 1 million tons of waste packaging each year, a phenomenal amount - and generally thrown away after less than 5 minutes use. Much evidence was heard about how both the production and disposal of packaging inevitably causes damage to the environment. Paper products lead to destruction of trees, and natural forests being replaced by monoculture plantations, dangerous chlorine compounds are used to bleach the paper. Plastic based packaging is non-biodegradable and often consists of polystyrene made using blowing agents which contribute to ozone depletion or the 'greenhouse effect'. All the witnesses extolled the virtues of recycling.
In the UK all McDonald's packaging ends up as litter or in landfill sites. (Day 61, p 33, line 47). The picture is much the same in the US. (Day 9, p18, line 30). McDonald's Local Store Marketing news-sheet for May 1990 admitted "When one considers that McDonald's each day is serving food and drink to approximately three-quarters of a million people in the UK, it does not take a genius to conclude that our packaging will be prevalent on the streets whilst littering continues." (Day 6 p53). Ed Oakley, Vice President of McDonald's UK admitted that the polystyrene packaging collected during a nationally-publicised UK scheme "for recycling into such things as plant pots" was in fact "dumped" (Day 59, p64). He also considered that as long as there is room in the dumps, there is no problem with dumping lots of McDonald's waste in the ground,' and even asserted it could be 'an environmental benefit to dump waste in landfill sites' (D61 p29).
With a record like this you might think it would be hard to be accused of libelling McDonald's over the issue of packaging, but due to the Judge's extremely narrow interpretation of the 'environment' section of the Factsheet, he ruled that all the evidence relating to packaging was irrelevant except for an allegation that in the late 1980's McDonald's used only a 'tiny' amount of recycled paper. Ludicrously he ruled it was a 'small but nevertheless significant proportion' and therefore the company had been libelled!
The defendants won this section of the case outright, with the Judge ruling it was a fact that McDonald's 'are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food'. These 'cruel practices' included: the severe restriction of movement' of US and UK battery hens crammed into cages all their lives, and hens suffering 'osteopaenia'; the 'severe restriction of movement' for US and UK broiler chickens for some of their lives and endemic 'leg problems' caused by breeding for weight; 'rough handling' and pre-stun electric shocks suffered by broilers on the way to slaughter' and 'a proportion of chickens [used for McDonald's food] are still fully conscious when they have their throats cut'. He also found as a fact that a not insignificant proportion of the sows which produce pigs [for McDonald's UK] spend virtually their whole lives in dry sow stalls' where they suffer 'severe restriction of movement'.
During the case David Walker of McKey Foods (sole hamburger supplier to McDonald's UK) had admitted that "as a result of the meat industry, the suffering of animals is inevitable" (Day 78 p63 line 48).
Overall the one thing the trial and the Judgment has shown is how inappropriate it is for the legal system to be deciding what subjects are valid areas for debate. There are many different political viewpoints on each of the issues, inevitable conflicts between those who hold the power in society and those who seek to end 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. 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 is challenged.
For further info on all the issues see 'Trial News' evidence summaries, 'Great McQuotes', 'McDonald's - Facts & Figures', 'A5 leaflet - Fully Referenced Version' (available from MSC and on McSpotlight) and the complete transcripts of the trial, including defence closing submissions, Days 283-303 (on McSpotlight).
Press Release: McLIBEL VICTORY !!!!