Food for thought

The ECHR is set to decide whether multinationals should be
able to sue individuals for libel. Jon Robins reports on how the McLibel case could change the rules of the game

“Obviously, McDonald’s was beaten at the trial both in terms of publicity and the facts that emerged about their business methods,” reckons Dave Morris, one half of the McLibel Two. Together with Helen Steel, Morris took up what seemed like permanent residence in Court 35 of the Royal Courts of Justice for much of the last decade in their epic legal battle against the fast food giant. “But even though we felt that we beat them, we thought, ‘Why should anyone go through 313 days in court over six or seven years just to defend your right to criticise a multinational corporation?’,” he stresses.
The former postman is speaking ahead of this week’s appeal in Strasbourg in the European Court of Human Rights.

It has now been 14 years since the fast food giant first served libel writs against the two self-styled anarchists for handing out leaflets entitled ‘What’s wrong with McDonald’s?’ back in 1985. The main case was the longest in UK legal history, churning out 18,000 pages of court transcripts and 40,000 pages of documents and witness statements. The central issue in their appeal in Strasbourg will be whether multinational corporations should have a right to sue and, if so, should there be a defence of reasonable belief available to campaigners. The court will also consider whether a trial could be fair which pitted two individuals, one unemployed and one working part time in a nightclub, against one of the biggest companies in the world.

So what is the legacy of McLibel? For Michael Mansfield QC, the doughty campaigning duo were “an inspiration to a generation which has witnessed a relentless descent into moral bankruptcy”. “They have rekindled an agenda of which we should be proud, and we all owe them a debt of gratitude for being prepared, at great personal cost, to stand where others have fallen,” the silk said following the initial judgment. While Steel and Morris won many of their arguments, they failed to prove all the points. And so the court ruled that they had libelled McDonald’s and ordered them to pay £60,000 pounds damages. The McLibel Two have refused to pay on principle. “And we haven’t got the money anyway,” adds Steel.

Mark Stephens, head of media at Finers Stephens Innocent, who advised the pair during their trial and who is again at Strasbourg, views the case as “a stain” on our jurisprudence. “One is left with a really nasty taste,” says Stephens. “British justice failed dismally here.” The lawyer insists that the case is largely misunderstood by the public. It was “gruelling and unacceptable” that two litigants-in-person were subjected to defending themselves for so many years.

Both campaigners acknowledge that the case took a huge toll on
their lives. “I resent the fact that McDonald’s was able to steal seven years of my life,” Steel says. “It was a good opportunity to publicise exactly what they were up to, but that was making the best of a bad situation. I’d have much rather the case hadn’t happened and people could have carried on making criticisms of McDonald’s and other companies.”

But Stephens believes that there are “serious concerns” about the case as a result of the huge inequality between the parties. “As a result, not all the information went before the court, not all the legal points were taken, or they were taken in a way in which they were unlikely to win,” he says. “Ultimately, what happened was an abuse of process and the result can’t be regarded as safe or satisfactory.”

Amber Melville-Brown, a consultant at libel firm David Price Solicitors and Advocates, reckons that the case has gone down in history “as a great David and Goliath story” and “a great example of individuals struggling against the mighty machines of multinational corporations, courts and governments”. But she adds: “If they do succeed in persuading the court that multinationals should not be able to sue for libel, it would have a huge impact on our defamation law, and one which no doubt the multinationals would not take lying down.”
However, she adds that such a “blanket ban” on corporations suing for libel would seem unlikely. “While individuals should be able to criticise and express their views, so those targeted should surely also be entitled to protect their reputations,” she argues.

“At the moment, government bodies aren’t allowed to sue for libel. This is because it was recognised in Derbyshire County Council v Times Newspapers Ltd [1993] that if they were allowed to sue, this would have a chilling effect on freedom of expression,” says Rebecca Jackson, media lawyer with City law firm Reynolds Porter Chamberlain. “People should be allowed, or even encouraged, to criticise government bodies. What the McLibel Two are saying is that the same rule should apply to multinational corporations given how powerful they are these days.” Libel law in England is firmly pro-claimant and, says Jackson, they are challenging many of the rules which make it so. “If the European Court agrees with them that the current law is having a chilling effect on the free speech rights of critics of powerful corporations, we could well see a shift in the balance towards freedom of expression,” she says.

It will be a tough argument for Steel and Morris to run, though, predicts Martin Soames, a media litigation partner at DLA. “In fact, I don’t think it adds up to a whole hill of beans – or, in this case, burgers,” he says. While post-McLibel big business is now paranoid about using libel claims to silence its critics, companies still sue for libel. For example, diamond company Oryx sued the BBC for £10m in 2001 after the corporation ran an incorrect story on connections between the company and al-Qaeda. Then there is the £240m ongoing libel action by broker Collins Stewart Tullett against the Financial Times after the paper reported allegations by a former employee. “If you’re going to say that Steel and Morris should be able to say what they like about McDonald’s, what do you do about these cases?” asks Soames. “Do you say, ‘we’re going to make one law for penniless campaigners being sued by big corporations but another for publishers and broadcasters?’ And how on earth would that work?”

No doubt the McLibel Two suffered during the trial, says Soames, “but they also did bloody well; and the reason… was because it was asymmetric warfare. McDonald’s is a big, complex and vulnerable organisation and it took on two almost untouchable individuals with no money and nothing much else to do. Any success they scored was seen as a huge David and Goliath victory, whereas any success by McDonald’s tended to get overlooked.”

For Stephens at Finers, the legacy of McLibel was that it illustrated “the futility and stupidity” of companies firing out libel claims. “They handed out 40-odd leaflets outside a McDonald’s on a windy day in North London, and now that leaflet has been seen by more than three million people on the internet,” he adds.