(f) Status of multi-national corporations.

149. Although in English law government and local authorities may not maintain an action for libel: Derbyshire County Council v. Times Newspapers [1993] AC 534, the same does not apply to multinational corporations. Despite their enormous power and influence, and lack of accountability, they enjoy the full protection of libel laws.

(g) Defences.

150. In English law there is no defence of reasonable belief.20 The three principal defences are (a) justification; (b) privilege; and (c) fair comment.

a. Justification

151. The defendant is required to prove that the defamatory imputation (as found by the judge or jury) contained in the words complained of is true in substance and in fact. The burden is on the defendant. The standard is the balance of probabilities, although the more serious the allegation the more credible the evidence must be to prove it.
152. The repetition rule requires a defendant to prove the truth of the allegation. The defendant cannot simply prove that s/he was merely repeating what s/he had been told by someone else or had an honest or reasonable belief in the truth or fair comment of the allegations.

b. Privilege

153. In English law no privilege attaches to a statement on a matter of public interest believed by the publisher to be true in relation to which he had exercised reasonable care: Blackshaw v. Lord [1984] 1 QB 1 at 26.
154. The nature and extent of the defence of qualified privilege (particularly in relation to the application of that defence to the media) was considered in the case of Reynolds v. Times Newspapers Ltd.21, by the Court of Appeal after the trial of the Applicants’ case but before their appeal was heard by the Court of Appeal.
155. Since the decision of the Court of Appeal in the Applicants’ case, the House of Lords has delivered judgment in the case of Reynolds22.
156. It held that the defence of qualified privilege is available where (a) the publisher was under a legal, moral or social duty to those to whom the material was published (which can include the general public) to publish the material in question; and (b) those to whom the material was published had an interest to receive the material.
157. When determining whether the defence of qualified privilege applies the court will take into account all relevant circumstances, including: the seriousnes of the allegaton; the nature of the information and the extent to which the subject matter is a matter of public concern; the source of the information; the urgency of the matter; whether comment was sought from the claimant; whether the article contained the gist of the claimant’s side of the story; the tone of the article; the circumstances of the publication, including its timing.
158. The applicants comment that these guidelines and the balance excercise to be undertaken are unclear, can be interpreted in many different ways, are a particularly unfair burden on members of the public, especially those not authors of a document they may wish to distribute, and leave a disproportionate and unpredictable power in the hands of individual judges or juries
159. In any event, the Applicants submit that the 'circumstantial test' must be demonstrated to work, to protect freedom of speech, in practice. Yet its inadequacy was demonstrated by the Court of Appeal in the current case - despite the circumstances including matters of the highest public interest and ongoing public debate, the words complained of being in the public domain already including from authoritative sources (See Public Domain, below), McDonald's having also consented to their continued distribution, the fact that McDonald's distributed 300,000 leaflets directly countering the allegations and calling the defendants liars (which the courts found was untrue but protected by qualified priviledge), the ability of the company to promote and protect its image and reputation by its advertising and marketing, and substantial findings and sub-findings of fact being made against them on each and every issue (including, highly significantly, against their deceptive and exploitative marketing practices - which must put into question the quality of their pre-existing reputation).
160. The Applicants submit that in the light of this, the domestic courts' qualified privilege protection for freedom of speech is in reality not effective.
161. The arguments above also raise the questions of proportionality.

c. Fair comment

162. English law recognises a defence of fair comment. The defamatory imputation must, however, be comment and not an assertion of fact. Further, there must be a substratum of facts in the words complained of, or in common knowledge, on which the comment is based. A defendant is required to prove the truth of those sub-facts. The distinction between statements of fact and comment is often difficult to draw. There is very little authority in which the courts have given clear guidance as to the distinction.

163. By statute, legal aid is not available to parties to defamation proceedings (Schedule 2, Part II, Legal Aid Act 1988). Impecunious defendants are therefore not eligible to receive public funding no matter how important or complicated the case is. There is also no provision for simplifying procedures to ensure effective access or equality of arms.
164. In 1975, the Report of the Committee on Defamation23 ("the Faulks Report") considered the availability of legal aid in defamation actions. It stated:

"579. Defamation is now the only cause of action in which legal aid is excluded. We regard this exclusion as anomalous. We think that Legal Aid Committees would be well able, with all their experience, to differentiate between the meritorious and unmeritorious complaints …"

165. The Committee recommended that legal aid under the legal aid statute should be extended to persons in connection with actions in respect of defamation. However, this has never been implemented.

IV STATEMENT OF ALLEGED VIOLATION(S) OF THE CONVENTION AND/OR PROTOCOLS AND OF RELEVANT ARGUMENTS.

A: VIOLATION OF ARTICLE 10.

166. Article 10 provides, in so far as relevant:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".

General principles.

167. The Court’s jurisprudence establishes that:
freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no ‘democratic society’. This freedom is subject to the exceptions set out in Article 10(2), which must, however, be construed strictly. The need for any restrictions must be established convincingly.

The test of "necessity in a democratic society" requires the Court to determine whether the "interference" complained of corresponded to a "pressing social need", whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient … In assessing whether such a "need" exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 …

The Court further recalls the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest … journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation … In cases such as the present one, the national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of "public watchdog" by imparting information of serious public concern …".24

168. The Applicants note that the Court of Appeal Judgment in the current case rightly accepted that there is no reason to debar campaigning groups from having any protection afforded to the established media.
169. The extent of the Court’s supervisory jurisdiction is important:
The Court’s task in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was "proportionate to the legitimate aim pursued" and quot;relevant and sufficient" …. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts.25

…

Such a margin of appreciation is particularly essential in commercial matters, especially in an area as complex and fluctuating as that of unfair competition … It is however necessary to reduce the extent of the margin of appreciation when what is at stake is not a given individual’s purely "commercial" statements, but his participation in a debate affecting the general interest, for example, over public health; in the instant case, it cannot be denied that such a debate existed. It concerned the effects of microwaves on human health (indeed, the only issue was over the conclusions reached by Mr Hertel in his research ….) …".26

170. The Applicants contend that their case has many parallels with the above points, and further, as the document complained of criticises the fast food industry as a whole, this further serves to reduce any ‘margin of appreciation’.
171. ‘Proportionality’ implies that the pursuit of the aims mentioned in article 10(2) has to be weighed against the value of open discussion of topics of public concern. When striking a fair balance between these interests, the Court cannot overlook the great importance of not discouraging members of the public, for fear of criminal or other sanctions, from voicing their opinions on issues of public concern.27
172. Politicians and necessarily organisations which have an impact on matters of public significance and debate must display a greater degree of tolerance of criticism than a private individual:
Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.

The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10(2) enables the reputation of others – that is to say, of all individuals – to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion about political issues".28

173. The applicants submit the same principles should apply to huge multinationals such as McDonald’s whose practices equally have a profound impact on matters of public significance and debate. Political debate is not limited to the activities or policies of a governmental body, and should equally apply to the activities, policies and influence of an organisation like the McDonald’s Corporation, which as Bell J acknowledged is a gigantic enterprise with immense economic strength. Moreover, like other multinationals it chooses to promote itself in the public domain by extensive advertising.
174. Regard must be had to the background against which the leaflets were written/distributed.29 This is particularly important in the applicants’ case where the leaflet complained of was a campaigning document, forming part of an ongoing public discussion on matters of public importance.
175. The wide limits of acceptable criticism in political discussion also apply to other matters of public concern.30
176. In Prager and Oberschlick v. Austria, the European Court was "mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation".31
177. The Applicants contend that the domestic courts failed to consider any possible recourse to exaggeration or provocation, and indeed penalised the Applicants for this – for example the cartoon of the cow and person in a hamburger bun was used to increase the severity of the meaning in relation to the nutrition section; the significant findings that McDonald’s use of recycled paper was ‘small’ but not ‘tiny’, and that proving the ‘getting rid of’ union activists would not be capable of justification for ‘sacking’ union activists.
178. In Bladet Tromso and Stensaas v. Norway,32 the applicants, a newspaper and its editor, complained of violations of their rights under article 10 of the European Convention after defamation proceedings were brought against them. The European Court made the following observations of importance:
As to the sufficiency of those reasons for the purposes of Article 10 of the Convention, the Court must take account of the overall background against which the statements in question were made. Thus, the contents of the impugned articles cannot be looked at in isolation of the controversy that seal hunting represented at the time in Norway and in Tromso, the centre of the Trade in Norway. It should further be recalled that Article 10 is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Moreover, whilst the mass media must not overstep the bounds imposed in the interests of the protection of the reputation of private individuals, it is incumbent on them to impart information and ideas concerning matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Consequently, in order to determine whether the interference was based on sufficient reasons which rendered it "necessary", regard must be had to the public-interest aspect of the case.
179. The Applicants submit that all the issues in the current case clearly fall into that category and that the domestic courts failed to apply, or to properly apply, this test.
180. In Bladet, the Court continued;

"In the Court’s view, however, the manner of reporting in question should not be considered solely by reference to the disputed articles in Bladet Tromso on 15 and 20 July 1988 but in the wider context of the newspaper’s coverage of the seal hunting issue. …

… The impugned articles were part of an ongoing debate of evidence concern to the local, national and international public, in which the views of a wide selection of interested actors were reported.

The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authorities are capable of discouraging the participation of the press in debates over matters of legitimate public concern.

181. This is particularly important in the applicants case where it is submitted the approach of the domestic authorities is likely to have a profound effect on the willingness and ability of ordinary members of the public to participate in debates on matters of legitimate public concern.
182. Returning to Bladet;

"…By reason of the "duties and responsibilities" inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.

… In the view of the Court, the press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the contents of official reports without having to undertake independent research. Otherwise, the vital public-watchdog role of the press may be undermined.

183. The Applicants contend that the aforementioned World Health Organisation Report: Diet, Nutrition and the Prevention of Chronic Diseases, which concludes that there is a causal link between diet and cancer, is one such official report.
184. Returning to Bladet;
On the facts of the present case, the Court cannot find that the crew members’ undoubted interest in protecting their reputation was sufficient to outweigh the vital public interest in ensuring an informed public debate over a matter of local and national as well as international interest. In short, the reasons relied on by the respondent State, although relevant, are not sufficient to show that the interference complained of was "necessary in a democratic society". Notwithstanding the national authorities’ margin of appreciation, the Court considers that there was no reasonable relationship of proportionality between the restrictions placed on the applicants’ right to freedom of expression and the legitimate aim pursued. Accordingly, the Court holds that there has been a violation of Article 10 of the Convention".
185. The Applicants submit that the burden must be on the state authorities to ‘show that the interference complained of was "necessary in a democratic society".’ They submit that the domestic courts failed to impose this burden.
186. Crucial to the Court’s approach to Article 10 is the principle that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof.33
187. Where an individual is merely reporting what was being said by others, in so far as that person is required to establish the truth of those reported statements he or she is faced with an unreasonable, if not impossible, task.34 These principles were simply not observed in the applicants case.

SUBMISSIONS ON ARTICLE 10

188. The Applicants submit that the failure of domestic law adequately to protect their right to freedom of expression breached Article 10 of the Convention in each and all of the following respects:

Each of these submissions will now be developed in turn.

(a) Burden of proof

189. The applicants contend that the inflexible rule in domestic law which requires that they prove the truth of any statements of fact contained in the leaflet and alleged by McDonalds to be untrue violates their rights under Article 10. This raises an important and complex issue, which, to the applicants’ knowledge has yet to be considered by the European Court of Human Rights.
190. The issue is whether the domestic law of defamation in England and Wales strikes the right balance between the free speech rights of campaigners and the trading reputation of powerful corporations, whose practices they seek to criticise.
191. The applicants contend that it does not because it leaves out of account:

1. the public interest
2. mode of publication
3. the ease of proof
4. the means of the parties
5. the reasonableness of any belief in the truth of the words complained of
6. the nature of the statements complained about

192. Each of these will be developed in turn;

(i) The public interest

193. The Court of Appeal in the applicants’ case described McDonalds as ‘a gigantic enterprise with immense economic strength’ (CA p.17) and, it is submitted, public discussion of the practices of such enterprises is an essential characteristic of an effective democracy. Plurality dictates that there should be room for strong criticism of such enterprises within any such discussion.

(ii) The mode of publication.

194. It has never been contended that the applicants in this case were the authors of the leaflet complained of by McDonalds; it was researched and written by others. The applicants’ were sued in defamation because McDonalds alleged that they supported a campaign which included, as one of its activities, distribution of the leaflet in question and because McDonalds alleged that they had, on occasion, handed out the leaflet themselves. Requiring individuals in the position of the applicants to prove as true any assertion made in a campaigning leaflet merely because they supported the campaign in general and/or because they may, on occasion, have handed out the leaflet to members of the public has an obvious chilling effect on campaigning activities. In reality, very few campaigners on matters of public concern are in a position to prove the truth of every assertion made in the course of a campaign, whether in a leaflet or otherwise, and the effect of the ruling in the applicants’ case is to stifle legitimate debate and strangle ideas which powerful corporations find distasteful.

(iii) The ease of proof

195. In the applicants’ case on tropical forests, much of the evidence turned on McDonalds’ practices and policies in Central America and, in particular, the extent to which (if at all) they were responsible for environmental damage, including destruction of rainforests and the displacement of indigenous people. Although McDonalds were uniquely well-placed to put evidence of their practices and policies before the court, the domestic law of defamation required the applicants’ to establish the truth of every fact asserted in the leaflet with which they were associated. This was an unduly heavy burden, inimical to free speech.
196. Further, the 1st Plaintiff is an international organisation, and the issues raised were global in scope and effect. For example the key point not established on employment related to international trade union issues. McDonald’s chose to rely on witnesses from many countries (see list) on this (and other issues), yet there is no power to order discovery or subpoena from abroad. This adds to the unfairness of the burden of proof on the defendants alone.
197. Regarding nutrition, the requirement that the Applicants prove the truth of statements re diet and disease was also unfair, particularly when similar statements have already been made in a broad range of medical journals, for example;

198. This, it is submitted, is a clear breach of the principle in Bladet; "…. In the view of the Court, the press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the contents of official reports without having to undertake independent research. Otherwise, the vital public-watchdog role of the press may be undermined."

(iv) The means of the parties

199. The rule in domestic defamation proceedings that the defendant prove the truth of any words complained of is applied irrespective of the means of the parties and, in particular, without regard to the position in relation to legal representation. Legal aid is not available for defamation proceedings in England and Wales and this manifestly led to acute inequalities in the applicants’ case and, in particular, inhibited their ability to establish a comprehensive defence to the proceedings.

(v) The reasonableness of any belief in the truth of the words complained of.

200. The applicants case was highly unusual in that, after issuing proceedings against them, McDonalds published a leaflet about the applicants, which effectively accused them of lying when they claimed that the contents of the leaflet complained of were true. The trial judge found this to be defamatory and unjustified (albeit protected by an extension of the rule relating to qualified privilege). The significance of this is that, unlike most defamation trials, there was a finding that the defendants genuinely and not unreasonably believed the truth of the assertions they sought to defend.
201. The significance of this for campaigners is profound. If they are vulnerable to a claim in damages in relation to the publication of information which they genuinely and not unreasonably believe to be true, but which they cannot prove to be true, many will simply not involve themselves in campaigns and protests. `
202. The applicants submit that, in a defamation action, the appropriate test to be applied by courts should be whether the defendant held a genuine and not unreasonable belief in the truth and accuracy of the alleged defamatory statement. To apply a stricter test requiring the defendant to prove the justification of the statement is contrary to article 10 of the European Convention of Human Rights and international human right's standards applied by the European Court. Further, the burden of proof imposed on the applicants in this case removed their right to a fair trial and as such breached Article 6(1) of the Convention.

(vi) The nature of the statements complained about.

203. The applicants contend that the nature of the statements complained about is highly important. In particular to apply a strict test of proof to matters of public debate or scientific conjecture, such as the link between diet and disease, is highly inappropriate, not least because developments over time are commonplace. Even during the course of the trial before Bell J, it was claimed that scientific opinion had shifted during the course of the hearing, and, as a result, McDonalds were permitted to recall witnesses to give evidence to the effect that the evidence had become weaker on the links between diet and cancer. For that reason, it is contended, the very nature of much of the material complained about demanded a more flexible approach to the burden of proof and one that recognised the difficulties and dangers of requiring strict proof of the truth of statements on scientific and complex issues.
204. Furthermore, notwithstanding the fact that the Judgment was for the Applicants in relation to low pay, bad conditions, advertising to children, deceptive advertising, heart disease and cruelty to animals, it is submitted that the requirement for positive proof of such matters, was inappropriate and necessitated a great deal of expense and time (both in and out of court) in preparing and adducing the necessary evidence. This added to the overall unfairness and oppressiveness of the proceedings as whole.
205. Almost all of the issues required the calling of experts and the conducting of a scientific debate eg: nutrition, animal cruelty, definition of recycled paper and its effects, food safety/poisoning, advertising (age of children likely to be affected).
206. The Applicants specifically place reliance on the Court’s approach in Thorgeirson v Iceland (1992) 14 EHRR 229 where the Court noted that when an individual is essentially reporting what is being said by others, a requirement that s/he establish the truth of their statements can present him/her with an unreasonable, if not impossible task. Where statements bear on matters of serious public concern, such a requirement can be inimical to open discussion and robust debate.
207. The Applicants contend that their circumstances were comparable. The factsheet complained of consisted of a compilation of a wide range of criticisms that had previously been made by organisations, experts and individuals in their respective fields, and also by the media. The Plaintiffs’ original case was not authorship or even production of the factsheet. Neither of the Applicants were found to have authored the words complained of. It was accepted that Ms Steel had no part in the production of the factsheet, and, it is submitted, there was no credible evidence that Mr Morris played any part in its production either [See argument on Haringey Affidavit]. Inevitably anyone in the position of the applicants faces an onerous burden in proving the truth of statements made by others in such circumstances. The principal purpose of the factsheet was to raise issues of public concern and try to prevent exploitation and harm (hence the references to other fast food outlets and multinationals, and the suggested alternatives given on the final page of the factsheet [Appx 1]).
208. Furthermore, in support of their assertion that a reasonable belief defence was appropriate and may well have succeeded, the Applicants highlight that: (a) the leaflet complained of was published in the context of a public debate which had been taken up by newspapers, NGOs and others, which included publication of the same allegations; (b) the material in the factsheet was effectively the same as material previously sanctioned by McDonalds; (c) it was reasonable for the applicants to treat the sources of information behind the material in the factsheet as reliable, particularly given the widespread public debate and discussion of the key issues, including the availability of authoritative sources for the allegations.
209. Moreover, corporations in McDonalds' position are already offered protection by: (a) the availability of actions in malicious or injurious falsehood for malicious and scurrilous attacks; (b) actions in negligence for false statements leading to provable financial loss (see the recommendation of the Faulks Committee (Cmnd 5909) 1975, Chap 13: "for the avoidance of doubt it should be enacted that in actions for defamation at the instance of corporate bodies...the damages recoverable shall be limited to actual or probable pecuniary loss"; and (c) actions in libel by individual corporate officials who are sufficiently identified in the alleged libel.

Contrast to position in the US

210. The Applicants submit that it is relevant for the Court to consider the position in the US for two reasons: first because the approach taken by the Supreme Court is instructive on questions of free speech generally; second because the Ist Plaintiff, the McDonald’s Corporation is a US corporation, and the extent to which its trading reputation is protected in the US is important to an overall assessment of the fairness of the proceedings in the UK.
211. In Vladimir Telnikoff v. Vladimir Matusevitch (1997) the Maryland Court of Appeals had to determine whether a particular English libel judgment was contrary to the public policy of Maryland so that it should be denied recognition under principles of comity.35 The court answered the question in the affirmative.
212. The Maryland Court of Appeals observed that "American and Maryland history reflects a public policy in favor of a much broader and more protective freedom of the press than ever provided for under English law".36
213. The US cases accept that ‘the press’ is not merely newspapers and periodicals. Similarly, the Article 10 protection of ‘the press’ as repeatedly emphasised by the European Court, does, or ought to, include leaflets and pamphlets. See Telnikoff v. Matusevitch, pp.19 and 20, fn 16; and citation of Hughesx CJ in Lovell v. Griffin, 203 U.S. 444, 452 (1938): the "liberty of the press is not confined to newspapers and periodicals," and that the "press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion".
214. After an historical review of restrictions on the English press, the Maryland Court of Appeals considered the decision of the US Supreme Court in New York Times Co. v. Sullivan, 376 US at 279-80, which held that the First Amendment:
prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not".

215. The Maryland Court of Appeals recalled that the US Supreme Court:
… went on to hold that such malice could not be presumed … that the constitutional standard requires proof having "convincing clarity" … and that evidence simply supporting a finding of negligence is insufficient …. In Curtis Publishing Co. v. Butts, 388 U.S. 130 … the Supreme Court held that the principles set forth in New York Times Co. v. Sullivan were also applicable to the defamatory criticism of "public figures
216. The Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 … (1974), held that the "actual malice" standard of New York Times Co. v. Sullivan did not extend to defamation actions by persons who were neither public officials nor public figures. Nevertheless the Court went on to hold that, in a defamation action by such a private person against a magazine publisher who published an article relating to a matter of public concern, the First Amendment precluded the imposition of liability for compensatory damages without fault. The Court further held that, in such a defamation action, there can be no recovery of presumed or punitive damages without a showing of actual malice, defined as "knowledge of falsity or reckless disregard for the truth"."
217. The Maryland Court of Appeals considered the "contrast between English standards governing defamation actions and the present Maryland standards" to be "striking".37 Further, the "principles governing defamation actions under English law, which were applied to Telnikoff’s libel suit, [were] so contrary to Maryland defamation law, and to the policy of freedom of the press underlying Maryland law, that Telnikoff’s judgment should be denied recognition under principles of comity".
218. The Maryland Court of Appeals was also concerned that "recognition of English defamation judgments could well lead to wholesale circumvention of fundamental public policy in Maryland and the rest of the country" as a result of American claimants ‘forum-shopping’ and bringing defamation claims in England.38

Conclusion on burden of proof.

219. For all the reasons set out above, the Applicants contend that the requirement that they prove the truth of all statements of fact concerning complex matters or public interest, and the lack of a defence of ‘reasonable belief’, coupled with the blanket prohibition of legal aid, deprived them of their rights under Article 10 (and Article 6). Even if there are some circumstances in which it is appropriate to put a burden on the defendant in libel proceedings to prove the truth of any statement of alleged fact, it was inappropriate to apply that rule in the unusual circumstances of the Applicants’ case.
220. Inflexible rules on the burden of proof and blanket prohibitions on legal aid leave no discretion to the relevant authorities to consider the merits of the individual case before them and the unfairness of their strict application. In reality these combined features, together with the very high cost of defamation litigation, mean that when threatened with libel proceedings by those with economic power, individuals and bodies back down and effectively accept the curtailment of their free speech: in the circumstances, it is submitted, any suggestion that the long list of individuals and bodies who backed down when threatened with a libel writ from McDonalds did so because they were wrong and McDonalds was right would be highly mischievous. For example the 3 other Defendants originally part of this case apologised to McDonald’s and agreed not to repeat any of the alleged libels in this case, including those which the Judge ultimately found to be true.
221. Additionally it is clear that McDonald’s have made false claims which nonetheless have succeeded, for example Bell J [Appx 3 p465] found that;
In October,1990, the Bournemouth Advertiser published an article reporting London Greenpeace's forthcoming Day of Action against McDonald's. It quoted allegations that one third of cattle subjected to the captive bolt method of stunning were not stunned but stood grievously wounded and fully conscious while the gun was reloaded. In February,1990, the Second Plaintiff's solicitors wrote a letter to the newspaper's editor, which said that McDonald's did not approve of the captive bolt method or of that or other "similarly cruel practices". This letter was clearly written on a false basis and the solicitors must have been misled by whoever gave them instructions for the Second Plaintiff, possibly on the basis that if the practice was cruel the Second Plaintiff could not be involved or seen to be involved."

222. McDonald's also obtained other similarly unsatisfactory public apologies from other UK publishers in the 1980s - notably from the Transnational Information Centre and The Guardian Newspaper, from Greenscene magazine and from Prince Philip. [See an accurate account and useful analysis of these cases in the book 'Legal Intimidation' by Fiona Donson, lecturer in law, Cardiff University – Appx 6]. It is significant that Harriet Lamb (involved in the Transnational and Guardian cases) and Juliet Gellately (editor of Greenscene) both effectively retracted their apologies in the witness box during testimony during the Applicant’s case (See Trial transcript Day 230, pp4 and 21, and Day 49 p28 Ln23 - Appx 22). Further, the 3 additional defendants in the McDonald's vs Steel case also retracted their apologies (See their Statements - Appx 18).
223. The applicants submit that it is wrong, unnecessary and disproportionate that domestic law enables bodies such as McDonald's to bring proceedings in libel, relying on the burden of proof resting on the defence, over material which is of public importance or interest, and/or which is already in the public domain, and/or which has been previously consented to by them, and/or can be supported by authoritative sources, and/or has been specifically and publicly denounced by them in their own publicity material. It is further disproportionate that there is no obligation on the claimant to make a declaration of the falsity of the words complained of, or any equivalent obligation which could lead to the possibility of legal sanctions at a later stage for bringing proceedings on a false basis.

(b) The extent to which the right to a ‘reputation’ in relation to multinational and other similar bodies should outweigh free speech under Article 10.

224. The Applicants contend that restrictions on free speech to protect reputation should distinguish between human beings and trading corporations. No such distinction was made in their case. On the contrary, damage to McDonalds’ trading reputation was presumed, even in the absence of any evidence that they lost a single burger sale as a result of the Applicants’ conduct. This, it is submitted, runs counter to the notion of free speech under Article 10 and strikes a wholly unfair balance between the right to impart and receive information and protection of reputation.
225. In particular, it is submitted, the limits of acceptable criticism are wider with regard to businessmen actively involved in the affairs of large public companies, even more so to the companies themselves which cannot be said to have feelings, than with regard to private individuals, and such businessmen lay themselves open to close scrutiny of their acts by bodies (like Greenpeace London) acting in the public interest (see, e.g. the Court’s approach in Fayed -v- UK (1994) 18 EHRR para 75). The applicants rely on the principle in Hertel; to censor part of a debate bearing on public health and similar issues raised by the advent of fast food chains (even if the opinion expressed is a minority one) is wholly inconsistent with the notion of plurality and democracy inherent in Article 10.
226. As stated earlier in English law government and local authorities may not, quite rightly it is submitted, maintain an action for libel.
227. The Applicants submit that multinationals should not have a right to sue their critics for libel. It is of the highest public importance that Corporations such as McDonald's should be open to uninhibited public scrutiny and criticism, particularly on issues of public interest such as diet and health, advertising, the environment, employment conditions and animal welfare. It is widely recognised that the threat of civil actions for defamation places an undesirable fetter on the freedom to express such criticism (inc Derbyshire County Council v Times Newspapers Ltd [1992] QB 770 CA [1993] AC 534 HL). It is therefore contrary to the public interest for multinationals to have any right at common law to maintain an action for damages for defamation over such issues of public interest. This principle was extended further in the cases of British Coal Corporation v NUM (Yorkshire Area), unreported, 28 June 1996 and Goldsmith v Bhoyrul,[1997] EMLR 407,QB.
228. The general principle of the Derbyshire case, is that it is contrary to the public interest for organs of government to be able to sue for libel. The BCC case extends that not just to elective governmental bodies but to, effectively, any organs of government, the British Coal Corporation being a kind of quango without any elective criteria whatsoever. The Goldsmith’s case extended that to a company registered as a political party.
229. The applicants submit that such protection for freedom of expression should apply and should be applied to multinational corporations, particularly those of the nature and scope of McDonald's. Multinational corporations are often more powerful and generally have less accountability than elective bodies, and therefore it is even more compelling that they be subject to unfettered scrutiny and therefore no right to sue for libel.
230. At the very least, the Applicants submit, in libel actions brought by corporations against their critics, bodies such as McDonalds should have an obligation to show actual damage, not only for a damages claim to succeed but also, more fundamentally, as the basis for the institution of proceedings.
231. Corporations such as McDonalds should not have been allowed to take advantage of a rule that was introduced and has been applied to safeguard the reputation of individuals, namely the rule that in actions for libel the Plaintiffs need not prove actual loss and that loss is presumed. That is because the rationale for this rule is that a living person's reputation is incapable of quantification and that a defamatory allegation against such an individual is presumed to affect his or her whole being. In relation to individuals, damage has to be presumed because no evidence could realistically be called to prove the nature and extent of the damage to his or her character.
232. Multinationals and/or large corporations such as McDonalds are in an entirely different position. They do not have a general reputation which is protected by the court; a trading corporation only has a "trading" reputation. In this particular case of course McDonald’s trading reputation was at least in part inflated by marketing practices found by the domestic court to be deceptive and exploitative. In any event it will be recalled, during the course of the 314 day trial, McDonalds did not adduce any evidence that they suffered any financial loss whatsoever as a result of the Applicants’ conduct. Indeed Bell J's ruling on McDonald's deceptive promotion of their food as 'nutritious', coupled with the Court of Appeal's ruling on heart disease and the 'very real risk' of eating McDonald's food must bring into question the artificiality of their reputation, at least on the central issue of the implications of their food for a nutritious and healthy diet.
233. This has important implications because the presumption of damage in the domestic proceedings presented McDonalds with a windfall gain of £40,000 If the only loss they are capable of sustaining in law is a loss to their trading reputation, the question of whether they have in fact suffered any loss should be gauged by reference to their trade. In other words, a trading corporation that claims that its trading reputation has been damaged ought to be required to show proof of that fact.
234. The Applicants draw to the Court’s attention that this submission is in line with the recommendation of the Faulks Report on defamation that trading and non-trading corporations alike should only be able to bring defamation proceedings if they can prove that they have suffered special damage or that the words are likely to cause them pecuniary damage. [Appx 23] (Cmnd. 5909, paragraph 342.)

(c) Matters already in the public domain.

235. The Applicants submit that the libel proceedings against them were also in breach of Article 10 because no account was taken of the fact that most, if not all, of the allegedly defamatory statements attributed to the Applicants were already in the public domain, and/or being published with the knowledge and consent of McDonalds, therefore the action (and damages awarded) against the applicants could not be said to be necessary or proportionate when weighed against the interference with the applicants article 10 rights.

Veggies agreement

236. The facts and matters contained in the leaflet complained of by McDonalds and which formed the basis of the libel proceedings and the judgment against the applicants were also published by an organisation based in Nottingham called Veggies Ltd. Veggies published a leaflet in 1987 comprising the Greenpeace London factsheet with an additional page highlighting the conditions in which cattle were slaughtered and a page of information about the work of Veggies. [See Appx 24a] It was accepted by Bell J and the Court of Appeal that the Veggies leaflet reprinted word for word the London Greenpeace factsheet which lead to the libel proceedings against the applicants.

237. In 1987 McDonalds threatened Veggies with legal proceedings. As Bell J noted ;
Veggies took legal advice. While they were doing so, Peace News published an article on the 30th October,1987, pointing out that although the leaflet had criticised working conditions at McDonald's, the "ill-effects of junk food" and the torture and murder of animals, McDonald's solicitors had only asked for a retraction of the allegations concerning destruction of the rainforest.

On the 23rd November,1987, the First Plaintiff's solicitors wrote to Veggies. They referred to the article in Peace News and demanded that the apology and correction should be extended to cover the allegation of torture and murder of animals.39

238. As a result, Veggies made minor apologies, and then reprinted their leaflet with minor amendments [Appx 25] to the knowledge and satisfaction of McDonald’s. Since that time Veggies Ltd have widely distributed the ‘What’s Wrong With McDonald’s?’ factsheet. On the last day of the trial, Mr Rampton, counsel for McDonalds, stated: ‘I would certainly accept that after the agreement, the settlement with Veggies had been reached, McDonald’s were not able to claim damages against Veggies for further distribution of the material which is the subject of this action. Plainly because there has been an accord of satisfactions...’ [Appx 26 Transcript Dec 13th 1996, p59 ln 35]. The Plaintiffs, by conduct and implication consented to publication of the contents of the amended factsheet, and thereby submitted the said matters to public discussion at that time and ever since. The unaltered parts of that leaflet contained almost all of the statements in the London Greenpeace leaflet which McDonald challenged as defamatory in the proceedings against the applicants. Yet McDonalds agreed with Veggies that their leaflet could be published and circulated; and it was. In other words, the very same statements upon which the libel proceedings against the applicants were based were in the public domain at all material times, and were being published with the knowledge and consent of McDonalds.
239. Furthermore, the Applicants submit that it is significant that before the issue of writs against the Applicants, McDonald’s made no effort to contact the Applicants to counter the allegations, to seek amendments or to warn of plans to launch proceedings. In the light of this, the Applicants submit that it must have been more than reasonable for them to conclude that the ‘accord of satisfactions’ had settled the matter – at least for the vast majority of the allegations.
240. In addition to the publication by Veggies of the ‘What’s Wrong with McDonalds?’ factsheet, there was a great deal of evidence that nothing in the leaflet upon which the applicants were sued was new, and that the allegations were already in the public domain. Furthermore, admissions made by McDonald’s during the case ensure that most of the allegations will rightly remain in the public domain. Defence witness testimony could also be relied on to show the existence of the allegations in the public domain, but it has not been necessary to refer to such testimony.

241. Some general sources:

     a. Robert Beavers: the most senior representative of the first Plaintiff, the person put forward to explain the reasons for bringing the case (see Plaintiffs' Opening Speech, Trial Day 1, p48 ln9 [Appx 27]), recognised that the criticisms made in the factsheet were not new, and had been made by others previously. (Trial Day 123, p12 ln5 and ln41- [Appx...27] He was asked: ‘What I’m saying is the criticisms in this factsheet are in the public domain in America to some extent?’, to which he replied: ‘To some extent’. He specifically recognised ‘McJobs’ as an americanism for McDonald’s jobs (although he was unaware of it being used in the UK in a perjorative sense applying to similar kinds of jobs), a campaign against McDonald’s in the USA in the 1980s regarding involvement in rainforest destruction (including pickets of stores), criticisms of McDonald’s food being unhealthy, and causal links between diet and cancer.

b. Veggies: as explained previously Veggies reprinted the London Greenpeace Factsheet and have been its main distributors from 1987. After being threatened that year with legal action by McDonald's solicitors there were negotiations and the company dropped all further action. The agreement reached specifically accepted the continued distribution of the Factsheet with only minor amendments, in reality only affecting the 'rainforest' section. Veggies continue to circulate this version of the Factsheet widely. McDonald’s have accepted that their agreement with Veggies amounts to an ‘accord of satisfactions’. [Appx...26]

c. Behind The Arches: This is a book about McDonald’s, authorised by and produced with the assistance of the Corporation in 1986. In this book various criticisms are acknowledged to exist. The book for example includes a substantial section on McDonald’s efforts to keep unions out of McDonald’s. [Appx.28]

d. Common knowledge and/or belief: Some of the criticisms are, it is submitted, in common parlance, publicly associated with bad practices. For example: ‘McJobs’ being a public by-word for jobs with particularly bad pay and conditions, and no Union rights; McDonald’s food being a public by-word for junk food - highly processed foods high in fat, salt and sugar linked to an unhealthy diet; McDonald’s packaging being publicly associated with being responsible for widespread littering.

e. Admissions by McDonald’s: The document ‘Examples of Admission Against Interest’, details admissions by McDonald’s representatives and in company documents, including admissions which acknowledge that the various sections of the words complained of were in the public domain (and in some cases in the direct knowledge of McDonald’s themselves) before the trial began (or indeed have become so as a result of their statements made). [Appx...29]

f. McDonald’s distribution of the factsheet: McDonald’s themselves put the entire London Greenpeace factsheet into the public domain in 1990, before the service of writs, through the distribution of it by their agents who had infiltrated London Greenpeace.

Sources for each specific issue

242. There was also considerable further evidence that, on an issue by issue basis, the allegations were already in the public domain and/or subject to admissions to this effect by McDonald’s, or otherwise known to them. For example:

Tropical/Rainforests