Small fries v Big Mac

BY NIRI SHAN & TIMOTHY PINTO – TAYLOR WESSING SOLICITORS

On 15 February, the European Court of Human Rights held that the UK
government had violated the rights to a fair trial and freedom of
expression of two individuals. The original English libel action had
been brought by McDonald’s against Helen Steel and David Morris (‘the
applicants’) for handing out leaflets which made allegations about
McDonald’s food and corporate practices.

At 313 court days, it was the longest trial in English legal history
and the proceedings, from the issue of the Writ in 1990 to the refusal
by the House of Lords of leave to appeal, lasted nine years and six
months. It was a highly complex and demanding case factually and
legally. For the most part, the applicants represented themselves, as
they had been refused legal aid. They lost the English court case and
McDonald’s were awarded £40,000 in damages.

Right to a fair trial – Article 6

The applicants appealed to the European Court of Human Rights. It
held that the disparity between the levels of legal assistance enjoyed
by the applicants and McDonald’s was of such a degree that it could not
have failed to have given rise to unfairness. The denial of legal aid
therefore deprived the applicants of the opportunity to present their
case effectively and contributed to an unacceptable inequality of arms
with McDonald’s. There had been a violation of Article 6 of the
European Convention on Human Rights.

Freedom of expression – Article 10

In assessing the right of freedom of expression, the crucial
question was whether the interference by the decisions of the UK courts
with the applicants’ right under Article 10 was necessary in a
democratic society. The court took into account the inequality of arms
and the enormity of the undertaking the applicants were faced with (if
they did not choose to retract the leaflets and apologise to McDonalds).

The correct balance had not been struck between the need to protect
the applicants’ right of free expression and the need to protect the
reputation of McDonald’s.

Further, there was a more general
interest in promoting the free circulation of information about the
activities of powerful commercial entities. Bearing in mind the
legitimate and important role campaign groups can play in stimulating
public discussion, suppression of such information could cause a
chilling effect. Given the powerful commercial position of McDonald’s
compared with the modest incomes and resources of the applicants, the
award of damages was disproportionate.

Thus there had been a violation of Article 10.

Comment

There is a degree of concern among media defendants that legal aid
will have to be granted to libel claimants which could result in a
proliferation of claims. We believe however that legal aid will
continue only to be granted to libel claimants in very exceptional
circumstances.

Moreover, it is now open to parties in libel proceedings to be
represented under a conditional fee agreement (CFA), which was not the
case at the time of the McDonald’s action.

We consider that the
UK Government would argue that the introduction of CFAs gives such
parties access to justice and therefore a change in the legal aid rules
is not necessary. Consequently, groups campaigning to abolish CFAs in
libel proceedings will face an uphill struggle as the government will
claim that, in the absence of legal aid, CFAs play a vital role.

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