DEFAMATION
Artists

McDonalds have finally lost one of the longest running sagas in UK defamation history to Helen Steel and David Morris, two anti-McDonalds Greenpeace activists when the European Court of Human Rights ruled that the pair did not get a fair trial and the UK Government was wrong not to award the pair legal aid to fight their case in breach of Article 6 of theEuropean Convention on Human Rights. The two activists were found liable for libeling the U.S. fast food chain McDonald’s after the longest court case in English legal history did not get a fair trial, the European Court of Human Rights ruled on Tuesday. Steel and Morris produced a 1984 pamphlet which accused McDonald’s of starving the Third World, destroying rainforests and selling unhealthy food, were also deprived of their freedom of expression by their 1997 conviction, it said. The Strasbourg-based court ordered Britain to pay Steel E20,000 and Morris E15,000 for non-pecuniary damages and E47,311 costs and expenses and offer them a retrial. The United Kingdom has three months to appeal the decision. In its ruling, the court said the denial of state legal aid to the defendants, a part-time barmaid or unemployed single person and an unemployed single father, had skewed the case from the start. “The denial of legal aid to the applicants had deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms with McDonald’s,” it wrote. The ruling also argued there was “a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate”. The original decision had rejected the idea the activists enjoyed the same freedom of expression as journalists under Article 10 of the European Convention on Human Rights. The Court held that there was a strong public interest in enabling groups and individuals outside of the mainstream to contribute to the public debate by disseminating information and ideas on matters of public interest such as health and the environment. The safeguard afforded to journalists by Article 10 is subject to the proviso that journalists acted in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism. The original “McLibel” trial was the longest in English legal history, running for 314 days between 1994 and 1997, eight weeks of closing speeches and six months of deliberation. Steel and Morris’s lawyer, Mark Stephens, called the original award of £40,000 damages against the pair ‘completely disproportionate’ with their activities handing out leaflets in North London.

COMMENT : by Jonathan Coad, Solicitor

The European Court of Human Rights handed down judgment in the epic legal battle between Helen Steel and David Morris of London Greenpeace (unconnected with Greenpeace International) and the multi billion dollar McDonald’s empire. This was the end of a legal battle which had lasted some nine years and six months, with a trial period of two years and six months, and a twenty three day appeal. The application by Steel and Morris was billed as a major attack on the UK law of libel.

Steel and Morris complained to the ECHR of a number of breaches of their human rights, but in particular those set out at Article 6.1 and Article 10 of the Convention. Article 6.1 provides: “In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] tribunal.” Article 10 guarantees the right to freedom of expression and “to hold opinions and to receive and impart information and ideas without interference by public authority,” which right is limited by certain “duties and responsibilities” also set out in Article 10.

The claim brought originally by McDonald’s in 1990 can be summarised in the defamatory meaning which the leaflet distributed by Steel and Morris was found to have borne, that:

“McDonald’s food is very unhealthy because it is high in fat, sugar, animal products and salt (Sodium) and low in fibre, vitamins and minerals, and because eating it may well make your diet high in fat, sugar, animal products and salt (Sodium) and low in fibre, vitamins and minerals, with the very real risk that you will suffer cancer of the breast or bowel or heart disease as a result; that McDonald’s knew this but they do not make it clear; that they still sell food, and they deceive customers by claiming that their food is a useful and nutritious part of any diet.”

The ECHR found in favour of Steel and Morris on the failure of the UK government to provide legal aid for them in the action. It noted that Steel and Morris did not choose to commence defamation proceedings, “but acted as Defendants to protect their right to freedom of expression, a right accorded considerable importance under the Convention.” It noted that the financial consequence of their failing to verify each defamatory statement was considerable. McDonald’s had claimed damages of up to £100,000, and the Court noted that “the awards actually made, even after reduction by the Court of Appeal, were high when compared to the Applicants’ low incomes.” The awards were £36,000 for Helen Steel and £40,000 for David Morris.

The court also noted the massive length and complexity of the case against Steel and Morris, and concluded “that the denial of legal aid to the Applicants deprived them of the opportunity to present their case effectively before the Courts and contributed to an unacceptable inequality of arms with McDonald’s. There has, therefore, been a violation of Article 6.1.”

As to the claim that Steel and Morris’s Article 10 rights were violated, the court identified as the central issue whether the interference in their Article 10 rights was “necessary in a democratic society”. The court also observed that “in a campaigning leaflet a certain degree of hyperbole and exaggeration is to be tolerated, and even expected. In the present case, however, the allegations were of a very serious nature and were presented as statements of fact rather than value judgments.”

Turning to the award in favour of McDonald’s, the court stated that where a State decides to provide a remedy to such a corporate body, “it is essential, in order to safeguard the countervailing interests in free expression and open debate, that a measure of procedural fairness and equality of arms is provided for.” Noting that it had already found that the failure to provide legal aid rendered the proceedings unfair, and in breach of Article 6.1, it went on to consider that the sum awarded by way of damages “may also have failed to strike the right balance.” The court observed that compared with the modest incomes and resources of the two applicants, although the awards were moderate for a UK libel action, McDonald’s had not established any financial loss and therefore “the award of damages … was disproportionate to the legitimate aim served.”

The result of the ECHR judgment is that the UK law of defamation, which had come under severe attack in the application, has survived largely unscathed. However, the government will be obliged to rethink its refusal to provide legal aid in such cases in the future, and the courts will have to rethink what sums are appropriate by way of damages when large corporations sue irritant pressure groups for libel.

Also see the London Evening Standard, 15 February 2005