McLibel saga set to fight new battle in human rights court

In the wake of the Olympics, it is only fitting that this column should turn its eye to another epic contest.

Against the odds, David Morris and his fellow Greenpeace campaigner, Helen Steel, have been singlehandedly waging a legal battle with the global corporation of McDonald’s for some 14 years and are fast approaching a final moment of judgement.

McDonald’s first issued libel proceedings against them on 20 September 1990, in relation to leaflets entitled “What’s wrong with McDonald’s?” which were produced and distributed by Greenpeace.

As an unincorporated organisation, Greenpeace itself could not be sued and, after hiring private investigators to establish the individuals behind the leaflet, McDonald’s launched what became the longest running libel trial in English legal history.

Although a PR disaster for McDonald’s, in the summer of 1997 McDonald’s won the claim and damages of £60,000 were awarded, the defendants unable to prove on the balance of probabilities that all of the claims in the leaflet were true.

They failed to prove that McDonald’s had wrecked the rainforests and forced tribes to move, had lied about using recycled paper, or knew that its food caused cancer. However, they did prove that McDonald’s exploited children, were responsible for cruel practices in animal rearing and slaughtering, and had unsatisfactory working conditions.

Next Tuesday (7 September) the dispute will reach new heights. Morris and Steel have brought a claim against the UK Government in the European Court of Human Rights that the proceedings were unfair under Article 6 of the European Convention of Human Rights, principally because of the denial of legal aid which breached their right to a fair trial, and under Article 10, that the proceedings constituted a disproportionate interference with their right to freedom of expression.

Champions of the battle against the power of corporations to suppress their critics by the threat of costly legal action, Steel and Morris argue that the burden of proving the truth of the statements in the leaflet was disproportionate.

They have submitted that the statements had been published before and formed part of an ongoing debate about matters of public concern. Huge multinationals such as McDonald’s, they argue, should be required, along with other figures in the public eye, to “display a greater degree of tolerance in the face of criticism.”

The Government argues, in reply, that during the trial Morris and Steel were given significantly extra time and dispensation because they were defending themselves and that English law reflects the ordinary fact that a party who asserts a fact should have to prove its truth.

The activists claim that, had they had legal aid they could have proved the statements in this case and, anyway, free speech on matters of public concern should prevail.

It is perhaps a shame that, when the activists argued their case before the domestic courts, the full power of Article 10 as, for example in the Albert Reynolds v Times Newspapers case, had not been felt.

Whether they succeed in Strasbourg is a very open question.

Andy Sloan Trainee solicitor in the Technology, Media & Telecommunications Department at Lovells

Andy Sloan

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