McLibel case

McLibel case
The McLibel case is the colloquial term for McDonald's Restaurants v Morris & Steel, a
long-running English court action for libel filed by McDonald's Corporation against
environmental activists Helen Steel and David Morris (often referred to as "The McLibel
Two") over a pamphlet critical of the company. The original case, considered by many
scholars to be a Strategic lawsuit against public participation, lasted seven years, making
it the longest-running court action in English history.
Although McDonald's had technically won two separate hearings of the case in the
English courts, the partial nature of the victory and drawn-out litigation has turned the
case into a matter of serious embarrassment for the company. Because of this,
McDonald's has repeatedly announced that it has no plans to collect the £40,000 it was
awarded by the courts. Since then, certain aspects of the trial have been declared by the
European Court of Human Rights (ECHR) to be in violation of the Convention on
Human Rights and on 15 February 2005, the pair's 20-year battle (and 11-year court
battle) with the company concluded when the ECHR ruled that the original case had
breached Article 6 (right to a fair trial) and Article 10 (right to freedom of expression) of
the European Convention on Human Rights and ordered that the UK government pay the
McLibel couple £57,000 in compensation.
History
Beginning in 1986, "London Greenpeace", a small environmental campaigning group
(not to be confused with the larger Greenpeace International organisation, which they
declined to join as they saw it being too "centralized and mainstream for their tastes"),
distributed a pamphlet entitled What’s wrong with McDonald’s: Everything they don’t
want you to know.
This publication made a number of allegations against McDonald's, including that the
corporation
sells unhealthy food;
exploits its work force;
practices unethical marketing of its products, especially towards children;
is cruel to animals;
needlessly uses up resources;
contributes to poverty in the Third World by forcing peasants either to leave their
land in favour of export crops which could satisfy McDonald's needs, or to convert their
land to raise cattle;
creates pollution with its packaging; and
is at least partly responsible for destroying the South American rain forests.
Before McDonald's responded, the pamphlet was regarded as something of a failure.
Now, though, the pamphlet has been translated into over twenty-six languages.
Original case
In 1990, McDonald's responded by bringing libel proceedings against five London
Greenpeace supporters, Paul Gravett, Andrew Clarke and Jonathan O'Farrell, as well as
Steel and Morris, for distributing the pamphlet on the streets of London. The case was
assigned to Judge Rodger Bell.
Although none of these individuals was alleged to be the author of the pamphlet, and the
leaflets were distributed in a number of other countries, the group faced large financial
penalties and a difficult court battle unless they retracted and apologised for its content
and ceased its distribution. Under English law, the burden of proving (on balance of
probability) the literal truth of each and every disparaging statement is on the defendant.
For a number of years, McDonald's was thus perceived to have been able to use the
English libel laws to prevent public criticism being made against them. During the 1980s,
the company threatened to sue more than fifty organisations, including Channel 4
television and several major publications. Because of such precedents, and because of the
considerable financial and legal resources McDonald's could bring to bear, three of the
charged individuals (Gravett, Clarke and O'Farrell) felt that they had no choice but to
apologise as demanded; McDonald's typically uses this libel tactic in the United
Kingdom, and settles for a formal apology in court or an informal one. Steel and Morris,
on the other hand, refused to back down and decided to fight the case.
However, the two had no formal post-secondary school education, and few financial
resources; Morris was an out-of-work postal employee from Tottenham and Steel a
community gardener for Haringey Borough Council. Furthermore, they were denied
Legal Aid by the courts on the basis that it was not policy for libel cases. Although the
pair were deemed no legal match for McDonald's enormous legal assets, they represented
themselves, receiving much free legal advice, and doing enormous amounts of research in
their spare time; they would eventually call 180 witnesses to prove their assertions about
food poisoning, unpaid overtime, misleading claims about how much McDonald's
recycled, and even about how McDonald's hired "corporate spies sent to infiltrate the
ranks of London Greenpeace". McDonald's spent millions of pounds, while the protesters
had £30,000 raised from public donations. The lack of funds meant Morris and Steel were
not able to call all the witnesses they wanted, especially witnesses from South America
who would have testified in support of the claims about the destruction of the rainforest.
A major mistake by McDonald's and their lawyers when preparing the case was asserting
that all claims in the pamphlet were false. Although some of the claims were actually
quite strong - the assertion that the destruction of the Amazonian rain forests was in part
due to McDonald's demand for cattle (for burgers), for instance — other claims were less
controversial. The corporation found itself on trial before the British people and the
world, particularly with regard to those claims involving labour practices and the
nutritional content of McDonald's food. The case became a media circus, especially when
top McDonald's executives were forced to take the stand and be questioned by the two
non-lawyers.
In June 1995, McDonald's offered to settle the case (which "was coming up to its first
anniversary in court") by donating a large sum of money to a charity chosen by the two;
in addition, they would drop the case if Steel and Morris agreed to "stop criticising
McDonald's". Steel and Morris secretly recorded the meeting, in which McDonald's
executives said the pair could criticise McDonald's privately to friends but must cease
talking to the media or distributing leaflets. Steel and Morris wrote a letter in response
saying they would agree to the terms if McDonald's ceased advertising its products and
instead only recommended the restaurant privately to friends.
On 19 June 1997, Mr Justice Bell delivered a more than 1000-page decision largely in
favour of McDonald's, summarised by a 45-page paper read in court. Steel and Morris
had proven the truth of three fifths of the claims in the original leaflet but were found
guilty of libel on several points. Although a legal victory for McDonald's, the case had
long since been deemed a Pyrrhic victory for the company, as Bell's decision found that
the defendants proved many of the points made in the London Greenpeace pamphlet.
Thus, Bell noted that McDonald's did endanger the health of their workers and customers
by "misleading advertising", that they "exploit children", that they are "culpably
responsible" in the infliction of unnecessary cruelty to animals, and that they are
"antipathetic" to unionisation and pay their workers low wages.[14] Furthermore,
although the decision awarded £60,000 to the company, McDonald's legal costs were
much greater, and the defendants lacked the funds to pay it. Steel and Morris immediately
appealed the decision. Worse, evidence that surfaced during the trial regarding
McDonald's business practices proved extremely embarrassing for the company. It has
been estimated that the case has cost McDonald's £10,000,000.
In 1998, a documentary film was made about the case, also titled McLibel. This was
updated in 2005 after the verdict of the final appeal.
Appeals and further cases
Later, the defendants learned McDonald's had not only hired spies to infiltrate London
Greenpeace, but that the company had hired agents to break into their offices and steal
documents.
In September 1998, the pair sued Scotland Yard for disclosing confidential information to
investigators hired by McDonalds and received £10,000 and an apology for the alleged
disclosure.
The Appeal began on 12th January 1999 and lasted 23 days in court, ending on 26th
February. The case was heard in Court 1 of the Court of Appeal in the 1100 year old
Royal Courts of Justice. The case was heard by Lord Justices Pill & May and Mr Justice
Keane (as he then was, he is now Lord Justice Keane). The McLibel 2 represented
themselves in court, assisted only by 1st year law student Kalvin P. Chapman (King's
College London). McDonalds were represented by Libel law's most (in)famous QC,
Richard Rampton, a junior barrister - Timothy Atkinson and a partner at the law firm
representing McDonald - Ms Pattie Brinley-Codd of Barlow, Lyde & Gilbert [22]. Helen
& Dave had a 63 point appeal (for breakdown or for the actual appeal). The preparation
for the appeal had been long, arduous and painful for both Helen & Dave, and a request
for further time was denied by the Court, despite medical evidence of exhaustion.
The verdict for the McLibel Appeal was handed down at 11am, Wednesday 31st March,
in Court 1 at the Royal Courts of Justice. There was a lively celebration picket by
supporters outside the Court.
In their verdict , Pill, May and Keane added to the damning findings of fact made by the
original trial judge, Mr Justice Bell, against McDonald's core business practices. They
ruled that: it was fair comment to say that McDonald's employees worldwide 'do badly in
terms of pay and conditions' [Appeal Judgment p247], 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.' The Lord Justices went on to state that this last finding 'must have a serious
effect on their trading reputation since it goes to the very business in which they are
engaged. In our judgment, it must have a greater impact on the respondents'
[McDonald's] reputation than any other of the charges that the trial judge had found to be
true'. [Judgment p264]
On June 19th 1997, Mr Justice Bell had ruled that "various of McDonald's
advertisements, promotions and booklets have pretended to a positive nutritional benefit
which their food (high in fat & salt etc) did not match"; that McDonald's "exploit
children" with their advertising strategy, are "culpably responsible for animal cruelty"
and "pay low wages, helping to depress wages in the catering trade." Significantly
McDonald's did not appeal over these damning rulings against them, stating that the
Judge was 'correct in his conclusions' [McDonald's written submissions 5.1.99].
The Appeal Court also stated that it had 'considerable sympathy' with the defendants'
submissions that the leaflet meant 'that there is a respectable (not cranky) body of
medical opinion which links a junk food diet with a risk of cancer and heart disease', that
'this link was accepted both in literature published by McDonald's themselves and by one
or more of McDonald's own experts and in medical publications of high repute', and that
therefore 'that should have been an end of this part of the case' [p169]. However they
ruled that their hands were tied by a procedural technicality so the appeal didn't succeed
regarding the 'cancer' issue.[p170-2]. One should note that current (2008) opinion on fast
food diets is that it very quickly causes ill health and even liver damage.
As a result of their further findings against the Corporation, the 3 Lord Justices reduced
Mr Justice Bell's award of £60,000 damages to McDonald's (who'd spent an estimated
£10- 15million on the case) by £20,000 (almost a whole week's payment to Richard
Rampton).
The court ruled out the submission by the McLibel 2 that multinational corporations
should no longer be able to sue for libel over public interest issues, stating that although
'that may be seen as an argument of some substance' they rejected it [p287]. Their view
was that it was a matter for parliament, and 'a course which is not open to us' [p23].
Helen and Dave intend to appeal over these and other points to the House of Lords, and
then take the UK Government to the European Court of Human Rights if necessary.
The case was recognised by many as being the biggest PR disaster of the century[27] despite McDonalds directions to the rest of their empire that it was a "local problem" it
had an enormous effect upon them, then and now (2008). At the time, David Pannick QC
said in The Times: "The McLibel case has achieved what many lawyers thought
impossible: to lower further the reputation of our law in the minds of all right thinking
people.". It should be noted that since that time, you no longer see children eating
McDonalds' food in their adverts, though McDonalds deny that this was as a result of the
McLibel case.
European Court of Human Rights
Steel and Morris appealed to the Law Lords that their right to legal aid (to ensure a fair
trial) had been denied. When that body refused to hear the case, the pair filed a case with
the European Court of Human Rights (ECHR), contesting the UK government's policy
that legal aid was not available in libel cases. In September 2004, the human rights action
was heard by the ECHR. Lawyers for the McLibel Two argued that the original trial
pitted a poor, powerless pair of individuals against the wealth and might of a large
corporation and breached the pair's right to freedom of expression and to a fair trial.
On 15 February 2005, the ECHR ruled that the original case had breached Article 6 (right
to a fair trial) and Article 10 (right to freedom of expression) of the European Convention
on Human Rights and ordered that the UK government pay the McLibel Two £57,000 in
compensation. In making their decision, the ECHR criticised the way in which UK laws
had failed to protect the public right to criticise corporations whose business practices
affect people's lives and the environment (which violates Article 10) and criticised the
biased nature of the trial due to the defendants' lack of legal aid, the complex and
oppressive nature of the UK libel laws, and the imbalance in resources between the
parties to the case (which violates Article 6). In response to the ECHR's decision, Steel
and Morris issued the following press release;
Having largely beaten McDonald's... we have now exposed the notoriously oppressive
and unfair UK laws. As a result of the... 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.
The 2005 film quoted McDonald's as offering little comment on the European Court
decision other than to point out that it was the Government and not McDonalds who was
the losing party and that "times have changed and so has McDonald's."