Tag: Helen Steel

“McLibel” Defendants Win Partial Victory at European Court of Human Rights

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.

Sources:

‘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.

Lycos and EnviroLink have a parting of the ways

On May 14, 1998, the Internet
search engine/portal Lycos entered into an agreement with EnviroLink,
which among other things hosts web sites for extremist animal rights groups,
to send Lycos users searching for information on the environment to EnviroLink’s
web site. On August 10 Lycos summarily, and apparently without prior notice,
severed its ties to EnviroLink. What happened between May 14 and August
10? Norm Lenhart happened.

Lenhart, senior editor for
the online racing enthusiast magazine Off-Road.Com, wrote a lengthy scathing
article for the August issue pointing out that EnviroLink hosts everything
from a web site for the terrorist group, Animal Liberation Front, including
information on how to firebomb stores and build bombs, to the bizarre
Church of Euthanasia with its slogan, “Save the Planet, Kill Yourself.”
Lenhart’s article was a tour de force and one of the best anti-animal
rights pieces I’ve seen on the web (hey, he even quoted from an article
on this site). Lenhart accomplished this by simply quoting extended passages
directly from EnviroLink’s site and saying, in effect, to Lycos, “Do
you really want to be supporting this?”

Then on Thursday, August 13,
an email was posted to a mailing list run by animal rights terrorist supporters
“No Compromise” claiming that because of Off-Road.Com’s article,
Lycos was terminating its contract with EnviroLink. The “No Compromise”
email said EnviroLink’s supporters should start a letter writing campaign
to Lycos to get them to reverse their decision. The email also called
for a fund raising effort to help prop up EnviroLink, claiming that without
the Lycos sponsorship EnviroLink would only have “funds for two months
of operation. This will mean no more hosting of Animal Rights organizations,
both national and grassroots (including No Compromise, the ALF Info Site
and others), as well as e-mail lists.”

Not that all the money should
be spent on keeping EnviroLink afloat. The email also called for raising
money to help fund a libel lawsuit against Off-Road.Com for its article.

In an article on the controversy
for News.Com, reporter Janet Kornblum’s interviews with the players involved
tended to raise more questions than they answered.

Lycos attorney Jeffrey Snider
confirmed that Lycos indeed severed its relationship with EnviroLink but
claimed the Off-Road.Com article played no part in that decision — well,
sort of. Snider told Kornblum, “They [Off-Road.Com] made a complaint
and asked that the site be taken down and the site was taken down. The
fact that the two occurred at the same time was coincidental.”

A fundamental disagreement

So if it wasn’t Off-Road.Com’s
expose and complaint that led to the break, what was the cause? Snider,
like a good lawyer, would only say “there is a fundamental disagreement
about the intent of the contract” between Lycos and EnviroLink but
wouldn’t go into any further detail claiming “the contract is confidential.”

Josh Knauer, executive director
of EnviroLink, maintained that his company “complied in all material
respect to this contract and EnviroLink performed as was mandated in the
contract.” Knauer seems to take Snider’s comments about there being
no link between the termination of the contract and the Off-Road.Com article
with a grain of salt, telling Kornblum, “Basically I’m still not
ready to say why Lycos dumped us, but there certainly seem some events
occurring that have to be more than coincidental.”

Lycos lawyer Snider only added
to such suspicions when he told Kornblum that, although it had nothing
to do with Lycos’ decision, the Off-Road.Com article “pointed out
to us some things about certain sites being served up under the EnviroLink
domain that we didn’t know about and we felt were misleading to our users.
We will admit that it’s misleading to our users to have those kinds of
sites available [under a button that says] ‘save the planet.'”

Whatever the cause of the
break, Knauer confirms that without the money it was expecting from the
Lycos deal, EnviroLink faces serious financial difficulties. “This
agreement with Lycos was a major, major, major source of our funding for
this year,” he told News.Com. “We need to look toward other
corporations that have the backbone to stand up and have free speech and
free expression heard on the Internet.”

So what’s really going on here?

Reading between the lines,
here’s my take on the situation (note, this is completely my speculation
— I have absolutely no inside knowledge of any of these events).

It seems clear from Snider’s
comments that Lycos took the unbelievable step of signing a contract with
EnviroLink without being aware of the sort of sites EnviroLink hosts.
This is simply an incredible position for a company like Lycos to put
itself in. It’s not like EnviroLink tried to hide the ALF Information
Site or the Church of Euthanasia — spend more than a few minutes surfing
its site and you’ll run smack dab into content like this. That Lycos would
enter into a contract without thoroughly evaluating EnviroLink shows just
how fast and loose deals are being struck on the Internet.

Snider’s remarks are also
more interesting for what they don’t say. Specifically Snider never
comes out and denies that Lycos dropped EnviroLink because of EnviroLink’s
content. Once this is apparent, the idea that Off-Road.Com’s article wasn’t
the main cause of the decision to terminate the content doesn’t necessarily
seem improbable. Here’s what I think happened. Lycos didn’t have a complete
idea of what was on EnviroLink’s site. But as they began receiving news
feeds and checking out the content since the signing of a contract in
May, Lycos became more aware, and probably deeply concerned, about the
sort of content they were seeing.

A decision to drop EnviroLink
was probably already in the works when Off-Road.Com dropped its bombshell,
probably pushing Lycos finally into making its abrupt decision. That the
problem was content and not some other issue, say technical issues, can
also be seen in the sudden and unannounced way Lycos ended its contract.
According to Knauer Lycos gave absolutely no warning before hand — EnviroLink
workers just came in one day and found they could no longer upload information
to Lycos.

So why the tight lip from
Lycos? Why all the secrecy? Again, Snider is earning his money. Forget
the silly idea of a libel suit against Off-Road.Com — a much more likely
scenario is a breach of contract suit filed by EnviroLink against Lycos. If the break is indeed over content issues, Lycos might face legal trouble.
It may not have known about the sites EnviroLink hosts, but that’s hardly
EnviroLink’s fault assuming EnviroLink did indeed meet the material requirements
of its contract as Knauer claimed. Certainly a press release announcing
the deal and posted on Lycos’ site in May indicates that Lycos believed
it had all of the information it need to praise EnviroLink as the preeminent
environmental site on the Internet. I don’t see how Lycos could claim
EnviroLink misled them, but that appears to be what Snider might be hinting
at — that Lycos paid for mainstream environmental content only to learn
that EnviroLink is overly represented by radical and extremist groups.

Animal Rights Hypocrisy and Nonsense

Finally, lets not leave this
whole affair without commenting on the wholesale hypocrisy of EnviroLink
and No Compromise on this affair.

First there’s the threat of
a libel lawsuit against Off-Road.Com raised in the “No Compromise”
email. This is highly ironic given that one of the issues environmentalist
and animal rights activists have expressed support for is the so-called
McLibel case in the United Kingdom. McDonald’s sued two activists, Helen
Steel and Dave Morris, for libel for distributing a fact sheet titled
“What’s Wrong With McDonald’s?” The fact sheet accused McDonald’s
of a variety of wrongdoings. After a three-year trial — the longest of
any British trial in history — the two were convicted and fined $90,000.
The animal rights community criticized this abuse of the law.

So what do they do when somebody
criticizes their sacred cows? Turn around and suggest a libel suit against
those who exercise their rights to free expression, proving themselves
no better than the “evil corporations” they hate so much (the
Off-Road.Com article, by the way, doesn’t even come close to meeting the
U.S. legal definition of libel – such a lawsuit would almost certainly
be thrown out as frivolous.)

Second, EnviroLink director
Knauer’s plea for corporate sponsors is highly amusing in a pathetic sort
of way. Both the sites EnviroLink hosts as well as the content it features
directly from its home page regularly denounce “corporate domination”
and often any sort of market capitalism as representative of an unjust
social order. So what does EnviroLink do to support itself? It runs to
these very same corporations its web sites denounce for whatever funding
it can get. Apparently there is no need for these people to believe they
have to be consistent in their views and actions.

Which puts Knauer’s implication
that Lycos doesn’t have the “backbone to stand up and have free speech
and free expression on the Internet” into perspective. Certainly
EnviroLink has the right, protected by the US Constitution and the laws
of other enlightened nations, to say whatever it wants and avoid being
censored — that would and should be illegal. In fact even though it has
apparently lost its funding from Lycos, the EnviroLink site is still up
and available to the hundreds of thousands of people who view it.

But does supporting free expression
mean that Lycos and others are obligated to contribute to organizations
dedicated to destroying the very foundations upon which they are built?
If an AIDS victim refuses to give money or buy products from EnviroLink
because it hosts groups that oppose animal testing even to find a cure
for HIV, is she preventing EnviroLink from exercising its rights to free
expression? Of course not.

In fact by ending its relationship
with EnviroLink, Lycos is exercising another fundamental right — the
right of free association. Lycos would not (I hope) partner with a Holocaust
revisionist site to provide its users with information on World War II.
It would not (again, I hope) partner with Sinn Fein to provide its users
with information about Ireland (for those unaware, Sinn Fein is the political
arm of the Irish Republican Army). Similarly Lycos should be applauded
for exercising its right of free association to avoid partnering with
a site that includes among its offerings, instruction on how to commit
acts of terrorism against medical researchers trying to find treatments
for diseases and conditions that continue to debilitate and kill many
human beings.

Sources:

Action Alert. No Compromise, Press Release, August 13, 1998.

Lycos ends environment site alliance. Janet Kornblu, CNET News, August 14, 1998.

Lycos to feature Envirolink, the premier environmental site on the Internet. Lycos/Envirolink, Press Release, May 14, 1998.

McLibel two convicted. Environmental News Service, June 19, 1997.