David slays Goliath

BY JOANNE CORCORAN

Fifteen years ago, writing an article condemning the practices of fast food giant McDonalds could have got you sued.

While everyone knew Ronald and Co were pushing a diet of mainly salt and fat on children, cruelty to animals, ripping down rain forests, refusing to re-cycle, exploiting teenage workers - few were brave enough to stand up and say it. Those who did were forced into making apologies before the company could drag them into long, drawn out, expensive libel actions, which it could well afford, but they could not.

In the last decade or so, the world has changed and it has become more acceptable to criticise multinational corporations making massive profits without, seemingly, any sort of accountability. Films such as Super Size Me (a recent documentary involved one man's quest to discover what a month consuming only McDonald's food can do to the human body) even managed to put pressure on the fast-food giants to introduce 'healthy' options to their menus.

But the decision on Tuesday by the European Court of Human Rights in an appeal brought by two people known as the McLibel Two, is a great victory for free speech.

The court found that the pair, who were successfully sued for libel by McDonald's in the 1990s, had their rights to free speech, protest, and the right to free legal aid, under the European Convention for Human Rights, violated by the English judicial system. The ruling effectively slammed the English court system for unnecessarily protecting the rights of big companies over individuals, through its strict and biased interpretations of libel laws.

The background

In 1990, after a decade of scuppering its opponents at every turn, the McDonald's franchise turned its all-seeing eye to a small campaigning group called London Greenpeace.

The group predated the more well-known Greenpeace International, and had been active in England since the early '70s. It supported the miners in the 1984 strike, campaigned for an end to nuclear power and Third World debt, and in the 1980s started to tackle McDonald's on behalf of consumers.

In 1986, it produced a leaflet entitled "What's wrong with McDonald's?" and began to distribute it.

In 1987, McDonalds challenged a group called 'Veggies', who were distributing similar material. The incident was settled when Veggies made an amendment to their leaflet concerning paragraphs on the destruction of the rain forests of Central America. But the company left the rest of the leaflet alone, including the sections on cruelty to animals, the exploitation of children and workers, and the promotion of a fatally damaging diet.

In 1989, it decided to take action against London Greenpeace, and, because the group was not a limited company (it could not be sued as an entity), it sent in spies to get the names of individuals disseminating the damaging leaflets.

Five people were named. Three, understandably worried, agreed to write apologies for their part in the group's campaign. The other two, postal worker David Morris and gardener Helen Steel, refused to bow to the corporate giant.

Court battle

In 1990, McDonald's had over 11,800 restaurants in 53 countries. Their profits were in and around the $25 billion mark. Morris and Steel couldn't even afford legal representation, and as is the law in England regarding libel cases, were refused free aid.

After a long battle of words, the case began in 1994. McDonald's hired an expensive legal team. Morris and Steel defended themselves.

The lack of experience on the defence side showed straight away when they allowed McDonald's to argue successfully for a non-jury trial. The judge, Justice Bell, agreed this was necessary because the case would involve prolonged examination of documents and scientific investigation, which would prove too complex for a jury composed of lay people (the ECHR mentioned in its ruling that this was of considerable significance, as the applicants were themselves effectively 'lay people').

Had a jury been allowed to sit in on the trial, it may have been thrown out of court immediately, because McDonald's had a very thin basis for a libel action.

The defendants had not written the leaflets and libel actions are normally brought against the authors responsible for generating and publishing allegedly defamatory statements.

But the reason McDonald's chose to tackle two English people in their own court system was becoming more apparent.

By the '90s it was well established that English libel law was among the strictest in the world, and plaintiffs frequently chose to sue in England rather than in any other jurisdiction because their chances of success were so much higher (so-called Forum Shopping). The English judicial system never had to determine the extent to which English libel law corresponded with the requirements of the European Convention on Human Rights because, until the Human Rights Act 1998 was passed (after this case finished), there was no obligation for it to comply with the Convention.

In court, McDonald's did not have to prove the allegations against it were false. It didn't even have to state on oath that the allegations were untrue.

The libel laws also allowed Justice Bell to make his own interpretation of the famous leaflet and Morris and Green had to prove the assertions as he understood them.

This provided some of the more absurd moments of the trial, when Bell asked for proof that McDonald's 'got rid of' union activists, when all the leaflet had actually meant was that the company tended to 'sack' union activists.

When it came to the paragraphs on nutrition, again the burden of proof was on the defendant, when what the leaflet said was already very much in the public domain. The World Health Organisation had proven that dietary factors, such as high salt and saturated fat levels, influenced a number of chronic diseases, such as coronary heart disease and cancer.

McDonald's wasn't disputing the salt or fat levels of its foods.

Guilty as charged

The McLibel trial ran until 1997, becoming the longest trial in Britain, with 313 days in court. The US media proclaimed it a "PR disaster" for McDonald's.

At the end, Bell found that while much of what the defendants had argued was true (McDonald's did pay low wages to its workers, was responsible for cruelty to animals used in its food products and was guilty of exploiting children through advertising campaigns), he found in favour of McDonald's because Morris and Steel could not prove every word of the leaflet they distributed. They were fined £40,000 for libel. The two refused to accept the verdict and, though penniless by this stage, continued with appeals, until eventually getting a hearing in the ECHR.

Vindicated

The Strasbourg court's verdict marks the end of a very long battle. The court found that numerous European Convention rights had been violated, particularly 10 (the right to free speech and to protest) and 14 (the right to free legal aid), and that the denial of the latter right had meant the couple did not receive a fair hearing.

The court further noted that

• Most of the meanings found by Bell were hard to reconcile with the words published and;

• Bell's findings reflected an over-strict approach to meanings in domestic law.

Morris and Steel were awarded £26,000 in damages from the British Government, which is expected to look at its libel laws and possibly implement some changes.

The most important aspect of the victory is that now, rights and justice campaigners don't have to be so worried that they can be taken to the cleaners by multinational corporations, protected by domestic laws.

Responding to the verdict, McDonald's said: "It is important to note, although the so-called 'McLibel' case came to court in 1994, the allegations related to practices in the '80s. The world has moved on since then and so has McDonald's."

So there you have it — even McDonald's agree that times have changed.