28 March 2012
Media Release - 15th February 2005
McLibel 2 against UK Government
- verdict of the European Court of Human Rights, Strasbourg
- campaigners celebrate 20 years of growing protests against McWorld
This morning (15th February) the European Court of Human Rights in Strasbourg declared that the notorious and long running McLibel case was in breach of the right to a fair trial and right to freedom of expression. The McLibel 2 (Helen Steel, aged 39 & Dave Morris, aged 50) had launched legal proceedings against the UK government arguing that the marathon 'McLibel trial' which lasted 313 days - the longest trial of any kind in English legal history - and UK libel laws, breached the European Convention on Human Rights Article 6 (right to a fair trial) and Article 10 (right to freedom of expression).
The European Court ruled that UK laws had failed to protect the publics right to criticise massive corporations whose business practices can affect peoples lives, health and the environment.
The European case, known as Steel and Morris vs UK was launched on 20th September 2000, exactly 10 years after the McDonalds Corporation served writs on the McLibel 2 in an attempt to prevent the distribution of leaflets criticising the company. The McLibel trial became the longest case in English legal history, lasting 313-days, in which the McLibel 2 represented themselves against McDonald's. The trial and a 23-day appeal in 1999, resulted in a mixed verdict in which damning rulings were made against McDonalds core business practices. The case was described by commentators at the end of the trial as 'the worst Corporate PR disaster in history'. Despite the rulings, no sanctions were ordered against McDonald's, yet the McLibel 2 were ordered to pay the company damages [See 'Background' below]. They have refused to pay a single penny.
The McLibel 2 asserted in Strasbourg that English libel laws and libel court procedures are incompatible with the convention. They and the UK Government lodged hundreds of pages of written arguments on these issues.
The European Court has now agreed that the McLibel defendants were denied a fair trial due to the complex and oppressive nature of the UK libel laws, and the lack of legal aid and resulting imbalance in resources between them and McDonalds
The McLibel 2 commented today:
Having largely beaten McDonald's, and won some damning judgments against them in our trial, we have now exposed the notoriously oppressive and unfair UK laws. As a result of the European Court ruling today, the government may be forced to amend or scrap some of the existing UK laws. We hope that this will result in greater public scrutiny and criticism of powerful organisations whose practices have a detrimental effect on society and the environment.
' The McLibel campaign has already proved that determined and widespread grass roots protests and defiance can undermine those who try to silence their critics, and also render oppressive laws unworkable. The continually growing opposition to McDonald's and all it stands for is a vindication of all the efforts of those around the world who have been exposing and challenging the corporation's business practices.'
- Helen Steel and Dave Morris - the McLibel applicants
On March 31st 1999 the Court of Appeal added to those damning findings. Lord Justices Pill, May and Keane ruled that it was fair comment to say that McDonald's employees worldwide "do badly in terms of pay and conditions", and true that "if one eats enough McDonald's food, one's diet may well become high in fat etc., with the very real risk of heart disease." However the Courts ruled that the McLibel 2 had still libelled McDonald's over some points and outrageously ordered them to pay £40,000 damages to the $40 billion-dollar company. The McLibel 2 have refused to pay a penny.
The European Court of Human Rights hearing took place in Strasbourg on 7th September 2004.
Background info on the case, verdict and ECHR application is available by visiting www.mcspotlight.org
High quality (beta/dv) footage available covering whole trial from 1994 to 2005, including Helen & Dave in Strasbourg. Contact Journeyman Pictures. Tel 020 8941 9994 International Tel 00 44 20 8941 9994 Email: firstname.lastname@example.org Website: www.journeyman.co.uk
European Court of Human Rights: Press release issued by the Registrar
CHAMBER JUDGMENT STEEL AND MORRIS v. THE UNITED KINGDOM
The European Court of Human Rights has today notified in writing a judgment in the case of Steel and Morris v. the United Kingdom (application no. 68416/01).
The Court held unanimously:
that there had been a violation of Article 6 1 (right to a
fair hearing) of the European Convention on Human Rights; that
there had been a violation of Article 10 (freedom of expression)
of the Convention.
Under Article 41 (just satisfaction) of the Convention, the Court awarded 20,000 euros (EUR) to the first applicant and EUR 15,000 to the second applicant for non-pecuniary damage, and EUR 47,311.17 for costs and expenses.
(The judgment is available in English and in French.)
1. Principal facts
The case concerns an application brought by two United Kingdom nationals, Helen Steel and David Morris, who were born in 1965 and 1954 respectively and live in London. During the relevant period Mr Morris was unemployed and Ms Steel was either unemployed or on a low wage. Both were associated with London Greenpeace, a small group, unconnected with Greenpeace International, which campaigned principally on environmental and social issues.
In the mid-1980s London Greenpeace began an anti-McDonalds campaign. In 1986 a six-page leaflet entitled "What's wrong with McDonalds" was produced and distributed as part of that campaign.
On 20 September 1990 McDonalds Corporation ("US McDonalds") and McDonalds Restaurants Limited ("UK McDonalds") issued a writ against the applicants claiming damages for libel allegedly caused by the alleged publication by the defendants of the leaflet.
The applicants denied publication, denied that the words complained of had the meanings attributed to them by McDonalds and denied that all or some of the meanings were capable of being defamatory. Further, they contended, in the alternative, that the words were substantially true or else were fair comment on matters of fact.
The applicants were refused legal aid and so represented themselves throughout the trial and appeal, with only some help from volunteer lawyers. They submit that they were severely hampered by lack of resources, not just in the way of legal advice and representation, but also when it came to administration, photocopying, note-taking, and the tracing, preparation and payment of the costs and expenses of expert and factual witnesses. Throughout the proceedings McDonalds were represented by leading and junior counsel, experienced in defamation law and by a one or, at times, two solicitors and other assistants.
The trial took place before a judge sitting alone between 28 June 1994 and 13 December 1996. It lasted for 313 court days and was the longest trial in English legal history. On appeal the Court of Appeal rejected the majority of the applicants submissions as to general grounds of law and unfairness, but accepted some of the challenges to the trial judges findings as to the content of the leaflet. The damages awarded by the trial judge were reduced, leaving Ms Steel liable for a total of GBP 36,000 and Mr Morris for a total of GBP 40,000. Leave to appeal to the House of Lords was refused. McDonalds, who had not applied for costs, have not sought to enforce the award.
2. Procedure and composition of the Court
The application was lodged on 20 September 2000 and declared partly admissible on 6 April 2004. A hearing took place in public in the Human Rights Building, Strasbourg, on 7 September 2004.
Judgment was given by a Chamber of 7 judges, composed as follows:
Matti Pellonp (Finnish), President,
Nicolas Bratza (British),
Viera StrÃ¡nickÃ¡ (Slovakian),
Josep Casadevall (Andorran),
Rait Maruste (Estonian),
Stanislav Pavlovschi (Moldovan),
Lech Garlicki (Polish), judges,
and also Michael OBoyle, Section Registrar.
3. Summary of the judgment
The applicants complained, under Article 6 1 of the Convention, that the proceedings were unfair, principally because they were denied legal aid, and, under Article 10, that the proceedings and their outcome constituted a disproportionate interference with their right to freedom of expression.
Decision of the Court
Article 6 1 of the Convention
The applicants principal complaint under this provision was that they were denied a fair trial because of the lack of legal aid.
The question whether the provision of legal aid was necessary for a fair hearing had to be determined on the basis of the particular facts and circumstances of each case and depended inter alia upon the importance of what was at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicants capacity to represent him or herself effectively.
The Court examined the facts of the case with reference to these criteria.
In terms of what had been at stake for the applicants, although defamation proceedings were not, in this context, comparable to, for instance, proceedings raising important family-law issues, the financial consequences had been potentially severe.
As regards the complexity of the proceedings, the trial at first instance had lasted 313 court days, preceded by 28 interlocutory applications. The appeal hearing had lasted 23 days. The factual case which the applicants had had to prove had been highly complex, involving 40,000 pages of documentary evidence and 130 oral witnesses.
Nor was the case straightforward legally. Extensive legal and procedural issues had to be resolved before the trial judge was in a position to decide the main issue.
Against this background, it was necessary to assess the extent to which the applicants were able to bring an effective defence despite the absence of legal aid. The applicants appeared to have been articulate and resourceful and they had succeeded in proving the truth of a number of the statements complained of. They had moreover received some help on the legal and procedural aspects of the case from barristers and solicitors acting pro bono: their initial pleadings were drafted by lawyers. For the bulk of the proceedings, however, including all the hearings to determine the truth of the statements in the leaflet, they had acted alone.
In an action of this complexity, neither the sporadic help given by the volunteer lawyers nor the extensive judicial assistance and latitude granted to the applicants as litigants in person, was any substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel. The very length of the proceedings was, to a certain extent, a testament to the applicants lack of skill and experience.
In conclusion, 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 McDonalds. There had, therefore, been a violation of Article 6 1.
In view of its finding of a violation of Article 6 1 based on the lack of legal aid, the Court did not consider it necessary to examine separately additional complaints under that provision directed at a number of specific rulings made by the judges in the proceedings.
Article 10 of the Convention
The central issue which fell to be determined was whether the interference with the applicants' freedom of expression had been "necessary in a democratic society".
The Government had contended that, as the applicants were not journalists, they should not attract the high level of protection afforded to the press under Article 10. However, in a democratic society even small and informal campaign groups, such as London Greenpeace, had to be able to carry on their activities effectively. There existed a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and the environment.
The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest was subject to the proviso that they acted in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism, and the same principle applied to others who engaged in public debate. In a campaigning leaflet a certain degree of hyperbole and exaggeration could be tolerated, and even expected, but in the case under review the allegations had been of a very serious nature and had been presented as statements of fact rather than value judgments.
The applicants, who, despite the High Court's finding to the contrary, had denied that they had been involved in producing the leaflet, had claimed that it placed an intolerable burden on campaigners such as themselves, and thus stifled public debate, to require those who merely distributed a leaflet to bear the burden of establishing the truth of every statement contained in it. They had also argued that large multinational companies should not be entitled to sue in defamation, at least without proof of actual financial damage. Complaint was further made of the fact that under the law McDonalds were able to bring and succeed in a claim for defamation when much of the material included in the leaflet was already in the public domain.
Like the Court of Appeal, the Court was not persuaded by the argument that the material was in the public domain since either the material relied on did not support the allegations in the leaflet or the other material was itself lacking in justification.
As to the complaint about the burden of proof, it was not in principle incompatible with Article 10 to place on a defendant in libel proceedings the onus of proving to the civil standard the truth of defamatory statements.
Nor should in principle the fact that the plaintiff in the present case was a large multinational company deprive it of a right to defend itself against defamatory allegations or entail that the applicants should not have been required to prove the truth of the statements made. It was true that large public companies inevitably and knowingly laid themselves open to close scrutiny of their acts and the limits of acceptable criticism are wider in the case of such companies. However, in addition to the public interest in open debate about business practices, there was a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoyed a margin of appreciation as to the means it provided under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation.
If, however, a State decided to provide such a remedy to a corporate body, it was essential, in order to safeguard the countervailing interests in free expression and open debate, that a measure of procedural fairness and equality of arms was provided for. The more general interest in promoting the free circulation of information and ideas about the activities of powerful commercial entities, and the possible "chilling" effect on others were also important factors to be considered in this context. The lack of procedural fairness and equality which the Court had already found therefore also gave rise to a breach of Article 10.
Moreover, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered. While it was true that no steps had so far been taken to enforce the damages award against either applicant, the fact remained that the substantial sums awarded against them had remained enforceable since the decision of the Court of Appeal. In those circumstances, the award of damages in the present case was disproportionate to the legitimate aim served.
In conclusion, given the lack of procedural fairness and the disproportionate award of damages, the Court found that there has been a violation of Article 10.
Spotted an error? If you've spotted a problem with this page, just click once to let us know.
Statewatch does not have a corporate view, nor does it seek to create one, the views expressed are those of the author. Statewatch is not responsible for the content of external websites and inclusion of a link does not constitute an endorsement. Registered UK charity number: 1154784. Registered UK company number: 08480724. Registered company name: The Libertarian Research & Education Trust. Registered office: c/o MDR, 88 Fleet Street, London EC4Y 1DH, UK. © Statewatch ISSN 1756-851X. Personal usage as private individuals "fair dealing" is allowed. We also welcome links to material on our site. Usage by those working for organisations is allowed only if the organisation holds an appropriate licence from the relevant reprographic rights organisation (eg: Copyright Licensing Agency in the UK) with such usage being subject to the terms and conditions of that licence and to local copyright law.