Paul Stanton Kibel

The Recorder, February 3, 1995

In London, the McDonald's food corporation has brought suit against two British environmentalists, David Morris and Helen Steel. As members of London Greenpeace, Morris and Steel distributed leaflets to McDonald's customers outside numerous McDonald's restaurants in the London area. These leaflets accused McDonald's of, among other things, the "ruthless exploitation of resources and animals," "wrecking the planet," and of encouraging tropical deforestation by raising cattle on recently deforested land in Central and South America. McDonald's has sued Morris and Steel for libel, or as the British press has taken to calling the case, " McLibel. "

Because England does not have a constitution, there is no equivalent to the First Amendment free-speech protections guaranteed under U.S. law. Instead, English common law has developed a somewhat comparable doctrine called "fair comment," which provides citizens with considerable freedom to express subjective opinions. The fair-comment doctrine, however, is much narrower than the U.S. free-speech liberties. English judges are more willing than their American counterparts to scrutinize opinions or commentary to see whether they might contain implicit or inferred factual claims.

The litigation, which began early in June 1994, is expected to continue until the summer of 1995, making the suit the longest libel trial in Britain in this century. According to the British legal press, McDonald's, which posted over $ 24 billion in international sales last year, apparently believed that the threat of an expensive suit would silence Morris and Steel. Instead, it has had the exact opposite effect. Unable to afford a lawyer, Morris and Steel have vowed to run their own defense. Moreover, the lopsidedness of the suit has created a surge of international sympathy and support for the defendant-environmentalists.

To offer encouragement and financial assistance to Morris and Steel, McLibel support groups have formed in Spain, Italy, New Zealand and the United States. Additionally, the former assistant attorney general of Texas, Steve Gardner, has agreed to appear as a defense witness. Gardner testified that McDonald's consistently failed to comply with Texas consumer labeling laws and made health and environmentally related product claims that were untrue.

In the suit, McDonald's hopes to convince the court that what is at issue is not a matter of variant opinions, but instead a matter of truth and falsehood. McDonald's will put on witnesses to defend and substantiate what it believes are environmentally responsible corporate practices. If the court agrees that these practices are not merely arguably responsible but responsible in fact, then English environmentalists will have a strong disincentive from open criticism. Questioning corporate policy could result in liability as a matter of law.

A victory for McDonald's could have the practical effect of establishing corporate definitions of environmentally responsible behavior as new legal standards. Under McDonald's argument, any attempt to characterize such behavior as destructive or irresponsible could expose the speaker or writer to damages for slander or libel. If accepted by the court, this new standard will likely have a chilling effect on environmental debate in the U.K. Some fear it could freeze the debate solid.

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