McLibel pair's court victory exposes holes in UK libel law

Two fast-food activists emerge from Britain’s longest court battle and Jon Robbins considers the legal legacy of their action.

“For
better or worse the law of defamation has grown up in its special way
over the last 150 years,” a wise lawyer once said. “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 per cent chance of you being
right, I am not sure the percentage isn’t the reverse of that in the
law on defamation. But there we are.” That rather ambivalent critique
of our libel law in fact came from Mr Justice Bell, the infinitely
patient judge who presided over McLibel, the longest trial in British
history. The judge went on to consider that there were “some people”
who were of the opinion that world-dominating multinationals should not
have the right to sue for libel at all.

Whilst it would seem that
the European Court of Human Rights didn’t quite subscribe to such an
eccentric view this month, it was emphatically on the side of the two
unwaged activists who spent 313 days in the middle of the 1990s locked
in the legal equivalent of trench warfare in the Royal Courts of
Justice, pitted against one of the biggest brands in the world.

The
Strasbourg judges ruled that our law had failed to protect their right
to criticise mega-corporations whose business practices can affect
people’s lives, health and the environment.

“The way that libel
works is a form of mass censorship that is carried out in secret,
people get nods and winks and threatening letters telling them they
will be taken to court if they don’t retract, shut up or not publish,”
argues David Morris, the former postman who almost 15 years ago handed
out a bunch of leaflets as part of a campaign against McDonald’s to
shoppers in Finchley, North London.

The Strasbourg ruling renders
McDonald’s High Court victory truly Pyrrhic. Whilst the pair lost at
the High Court in 1997, Mr Justice Bell found that McDonald’s did
“exploit children” with their advertising, produced “misleading”
advertising, and was “culpably responsible” for cruelty to animals, as
well as paying their workers low wages. Two years later the Appeal
judges made further rulings against McDonald’s in relation to heart
disease and employment and cut its damages from £60,000 to £40,000.

Morris
and Helen Steel regard their victory over the fast-good giant as
“total”. The Strasbourg court held unanimously that there had been a
violation of their right to a fair hearing, because of the lack of
legal aid, as well as their right to freedom of expression.

“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,” the
judges said.

Libel damages must bear “a reasonable relationship of proportionality to the injury to reputation suffered”, they added.

The court awarded damages of £13,750 to Steel and £10,300 toMorris.

“What
the European Court recognised is that everyone is entitled to a fair
trial, whether rich or poor,” reckons Mark Stephens, the solicitor who
represented the McLibel Two at the Human Rights Court and who has
advised them for 11 years. “Dave Morris and Helen Steel did not choose
to be sued by McDonalds, they simply chose to defend themselves and to
do so they had to endure the longest-ever trial in English legal
history themselves without any legal assistance.”

The story of
McLibel is frequently misread as that of two plucky activists relishing
the prospect of dragging out every second of the trial as an
opportunity to further expose their adversary. It is certainly not a
version of events that Stephens subscribes to. “British justice failed
dismally here,” he says. “This is a case that seriously went off the
rails.”

Both Morris and Steel acknowledge that the pressures on
them were enormous to defend themselves against the might of McDonald’s
legal team headed by Richard Rampton QC, and backed by a crack team of
solicitors from the City firm Barlow Lyde & Gilbert.

And where does this leave libel law?

Well, the Department for Constitutional Affairs has promised to review defamation law “in the context”

of
the recent ruling. Whilst defamation is generally excluded from the
scope of legal aid, funding can be granted in exceptional cases after
the law changed five years ago. The floodgates have remained resolutely
closed – so far, only one case has been funded. It is unlikely that the
Euro-McLibel will prise them open any further.

“I really don’t
think the case will make much difference at all,” reckons Maddie
Mogford, a media partner at City firm Reynolds Porter Chamberlain.
“Legal aid was never available for defamation actions up until recently
and, generally, it’s less available now than it was before. I’d be very
surprised if the Government reversed the position.” She also points out
that ‘no win, no fee’ deals are now available. But it is hard to see
solicitors queuing up to defend fearless campaigners who want to bring
down multinational companies on such a basis.

Mark Stephens
points out that the courts will now have to consider the means of
defendants before awarding damages, which would be a novel approach.

Jon Robbins is a freelance journalist

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