MCLIBEL: A CASE STUDY IN ENGLISH DEFAMATION LAW MARLENE ARNOLD NICHOLSON* I. INTRODUCTION...........................................................................................2 II. FREEDOM OF SPEECH JURISPRUDENCE UNDER THE EUROPEAN CONVENTION .....................................................................13 A. THE COMMISSION DECISION IN MCDONALD’S ...........................................16 B. HERTEL V. SWITZERLAND ............................................................................20 C. PRINCIPLES OF ADJUDICATION UNDER ARTICLE 10 ..................................24 D. APPLYING ARTICLE 10 TO MCDONALD’S...................................................30 III. DEFAMATION LAW IN ENGLAND AND THE UNITED STATES .........................................................................................................31 A. WHEN IS A STATEMENT DEFAMATORY?....................................................31 B. JUSTIFICATION ..........................................................................................34 C. FAULT.......................................................................................................35 D. “OPINION,” “FAIR COMMENT” AND “PROVABLE AS FALSE”.....................36 IV. THE MCDONALD’S OPINION.................................................................43 A. STARVATION IN THE THIRD WORLD..........................................................45 B. DESTRUCTION OF RAIN FORESTS...............................................................58 C. USE OF RECYCLED PAPER MATERIALS ......................................................61 D. MCDONALD’S RESPONSIBILITY FOR LITTER..............................................69 E. MCDONALD’S FOOD IS UNHEALTHY.........................................................71 F. ADVERTISING............................................................................................86 G. WORKING CONDITIONS.............................................................................88 H. CRUELTY TO ANIMALS..............................................................................95 I. SUMMARY OF TRIAL COURT OPINION .....................................................101 V. ADDENDUM: THE APPELLATE DECISION......................................102 A. ENGLISH DEFAMATION LAW ...................................................................103 B. THE APPLICATION OF ENGLISH LAW........................................................108 C. THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS APPLIED TO THE MCDONALD’S APPELLATE COURT OPINION..................114 D. SUMMARY OF APPELLATE COURT DECISION ...........................................125 VI. CONCLUSION...........................................................................................127 APPENDIX: MCLIBEL FACTSHEET..........................................................134 * Professor of Law, DePaul University; J.D., 1968, B.A., 1961, U.C.L.A. I am appreciative of the research assistance of Michele Lynn Birkmeier, David Lipschultz, Michelle Mills, Yvonne Ocrant and Kevin Vodak. I am also grateful for the research support from Deans Teree Foster and John C. Roberts, and Acting Dean Mark Weber. 2 Wisconsin International Law Journal On March 31 of 1999, the English Appellate Court decided the defendants’ appeal in McDonald’s v. Steel, the case discussed in this article. The full Appellate Court opinion was released during the summer. The Appellate Court left most of the trial court’s judgment in place. However, that court did disagree with the trial court on the application of the law to some of the allegedly defamatory statements. An addendum discussing the ways in which the Appellate Court opinion differed from the trial court opinion and modified the defendants’ liability for defamation has been added at the end of this article. The modifications in the Appellate Court opinion did not significantly change either the English law of defamation or the concerns regarding the negative effect of that law on freedom of public discussion in England that are addressed in this article. I. INTRODUCTION Helen Steel and Dave Morris joined “London Greenpeace” in 1980. The organization was not connected to international Greenpeace; rather it was an independent activist group that campaigned for social change on a broad range of issues. One of the group’s projects was the distribution of a pamphlet that was published in 1986, entitled “What’s Wrong with McDonald’s.”1 McDonald’s hired private detectives to infiltrate the organization, and ultimately threatened to sue the individuals who were distributing the pamphlets.2 In order to avoid being sued for libel, three of the five apologized, and in 1990 promised to stop distributing the pamphlets. But Ms. Steel and Mr. Morris, who have been dubbed the “McLibel 2,” refused.3 No doubt this obstinacy was not expected, as McDonald’s had apparently been successful in the past in stopping criticism and forcing apologies from much more affluent foes, including the BBC.4 McDonald’s U.S. and its U.K. affiliate (“First Plaintiffs” and “Second Plaintiffs” respectively) filed suit against Morris and Steel. The more than two and a half-year trial, the longest in English history, began in June of 1994, after twenty-eight pre-trial hearings.5 In June of 1997, in a 750 page judgment, Justice Rodger Justice Bell found that McDonald’s had been 1 See discussion in John Vidal, You and I Against McWorld, GUARDIAN (London), Mar. 9, 1996, at T12. 2 See Barry James, English Activists Bear Up Under Ferocious Big Mac Attack: David vs. Goliath/The Sequel, INT’L HERALD TRIB., May 20, 1997, at 2, available in LEXIS, NEWS Library. 3 Sarah Lyall, Golden Arches Are Victorious, But Bloodied, in a English Courtroom, N.Y. TIMES, June 20, 1997, at A1. 4 According to The Guardian, during the mid 1980’s, McDonald’s had “forced apologies or retractions from the BBC, The Guardian, and the Scottish TUC, effectively closed down the Transnational Information Centre, stopped the transmission of at least one [T.V.] film and silenced a play.” Vidal, supra note 1. 5 See id. Vol. 18, No.1 McLibel: A Case Study in Defamation Law 3 defamed and assessed damages equivalent to $96,000 against the two defendants.6 It is not very likely that McDonald’s will ever recover its $96,000, as Mr. Morris is an unemployed former postal worker and Ms. Steel is a part time bartender.7 But the president of McDonald’s U.K. testified that this was not about money—it was about preventing lies being used to try to “‘smash’” the company.8 The recovery would not come close to compensating McDonald’s for its costs in the law suit, which have been estimated to be about $10 million, including over £ 6,500 per day of trial for their team of top English libel lawyers.9 Although a McDonald’s official commented that they were “broadly satisfied,”10 some have suggested that it was at best a Pyrrhic victory.11 The case became a public relations disaster around the world, thanks in large part to the Internet, which now has a very active anti-McDonald’s website. The site displays the offending pamphlet as well as even more derogatory comments about McDonald’s, including some allegations from other sources that McDonald’s had previously successfully suppressed by threats of law suits.12 The title of a newspaper article, “David vs. Goliath/The Sequel,”13 captures the essence of most of the extensive press coverage of the trial. Although defamation is the only civil action that is routinely still tried by a jury in England, the defendants were denied their request for a jury.14 6 See McDonald’s v. Steel, available in <http://www.mcspotlight.org/case/trial/verdict>[hereinafter Steel]. See Lyall, supra note 3. The compensation was “for the damages to its trading reputation and goodwill, and to vindicate its good name such as it may be…” Sarah Lyall, Her Majesty’s Court Has Ruled: McDonald’s Burgers are not Poison, N.Y. TIMES, June 22, 1997, § 4, at 7 (quoting the summary of Justice Bell’s ruling in the McLibel trial). 7 Their combined annual income is reported to be $12,000. See James, supra note 2. In 1996, McDonald’s had earnings of $31.8 billion. McDonald’s Plans to Invest $1 Billion in Latin America, N.Y. TIMES, Oct. 9, 1997, at D4. McDonald’s has indicated that it does not intend to collect from the defendants. See Lyall, Golden Arches, supra note 3, at A5. 8 Maurice Weaver, McDonald’s May “Waive Damages if It Wins Libel,” DAILY TELEGRAPH (London), May 8, 1996, at 5. 9 See Vidal, supra note 1. Presumably, McDonald’s did not ask to be compensated for its costs as that would obviously have been futile and a public relations nightmare. England and nearly all legal systems outside the United States ordinarily require losing parties to pay the winners’ costs. See, e.g., MARY ANN GLENDON ET. AL., COMPARATIVE LAW 171-72 (1994); RUDOLF B. SCHLESINGER ET AL., COMPARATIVE LAW: CASES-TEXTS-MATERIALS 353-54, 366-70 (5th ed. 1988). Exceptions apply in some systems when 10 Lyall, supra note 3. The official response from the chairman of McDonald’s was that, “For the sake of our employees and our customers, we wanted to show these serious allegations to be false, and I am pleased that we have done so.” Id. 11 See Lyall, supra note 6. 12 See Vidal, supra note 1. 13 James, supra note 2. 14 Under the Supreme Court Act of 1981, libel and slander is to be tried by a jury. See Supreme Court Act of 1981, ch. 54 (Eng.). However, there is an exception if a party applies for a bench trial and the judge determines that “the case is scientifically