The European Court of Human Rights ruled in February that activists David Morris and Helen Steel should have received legal aid from the British government in the libel case that McDonald’s filed against them in the mid-1990s. The Court awarded Morris and Steel $25,934 and $19,451 respectively.
Morris and Steel were sued by McDonald’s for distributing pamphlets in 1984 which McDonald’s claimed contained libelous and inaccurate statements. The subsequent trial was the longest libel trial in British history, taking 313 court days culminating in a victory for McDonald’s and a $135,000 fine against Morris and Steel. The verdict against the activists was upheld on appeal, though the damages were reduced.
In appealing to the European Court of Human Rights, the activists’ lawyer argued that Great Britain should have provided legal assistance to Morris and Steel, and that British libel law was biased against the defendant to the point of impinging on Morris and Steel’s right of freedom of expression.
The court, in its decision got it exactly backwards — it ruled that the activists were correct that they should have been given legal aid and that the damages award against them was excessive, but incorrect in their legal criticisms of British libel law.
In its ruling, the European Court of Human Right said,
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.
The fundamental problem in the McLibel case — and similar cases involving British libel lawsuits — is that the burden is excessively on the defendant. In the United States, the plaintiff would have the burden to prove that a given statement made by the defendant was false, for example. In Great Britain, the burden is on the defendant to prove that the statement is true.
Moreover many of the defenses allowed in countries such as the United States and other countries are not available to defendants in Great Britain. In the United States, for example, defendants can argue that they acted reasonably in believing and republishing a nonetheless false statement — in order to prevail in a libel case, a plaintiff must generally show that a defendant acted recklessly and in an unreasonable manner or knew the statement to be false. In Great Britain, this sort of defense is generally not an option (there are some specific exemptions such as a “public interest” privilege for journalists in certain situations).
The result is that the United States and other countries favor more, expansive speech even though it will inevitably result in more falsehoods, whereas Great Britain choose a route that results in (arguably) less falsehoods but at the expense of much more constrained speech.
The former is much preferable in this writer’s opinion. The problem with the McLibel lawsuit is not that Morris and Steel weren’t provided with legal aid — the problem was that McDonald’s not only had a chance at winning such a lawsuit, which it would never even dream of filing in the United States, and that it actually won.
The full text of the European Court of Human Rights’ decision can be read here.
‘McLibel’ activists win legal aid case. Associated Press, February 15, 2005.
Court: Activists didn’t get fair trial. Jan Sliva, Associated Press, February 15, 2005.
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