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Chief Justice Bell's Verdict
19th June 1997
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The Hon. Mr Justice Bell
SUMMARY OF THE JUDGEMENT
The issue of publication of the leaflet The cause of action in libel in this case arises from the publication in England or Wales of written matter which is defamatory of the Plaintiffs to persons other than the Plaintiffs without the consent of the Plaintiffs and within the three year "limitation" period immediately preceding the commencement of the Plaintiff's action by issue of the writ. The writ was issued on the 20th September 1990. The claims of both Plaintiffs are specifically founded on the leaflet to which I have already referred, although there were other leaflets which bore similar messages. The first issue in the case is whether Ms Steel and Mr Morris published the leaflet complained of between the 21st September 1987 and the 20th September 1990. As a matter of law, any person who causes or procures or authorises or concurs in or approves the publication of a libel is as liable for its publication as a person who physically hands it or sends it off to another. It is not necessary to have written or printed the defamatory material. All those jointly concerned in the commission of a tort (civil wrong) are jointly and severally liable for it, and this applies to libel as it does to any other tort. The burden of proving publication by any Defendant lies on the Plaintiff. In civil, non-criminal, libel proceedings the standard of proof in all matters is the preponderance of probability, usually referred to as the balance of probability. Certainty is not required. The Plaintiffs' case was that at the material time Ms Steel and Mr Morris were members of, or involved in the activities of the group called Greenpeace (London) or London Greenpeace; that London Greenpeace ran an anti-McDonald's campaign which involved dissemination of the leaflet complained of; that Ms Steel and Mr Morris were directly involved in the furtherance of the campaign; indeed that they each took a leading role in the campaign; and that by virtue of their involvement, working in harness with other members of the group, they caused or procured or authorised or concurred in, or approved and were therefore party to the distribution and publication of the leaflet complained of wherever and whenever it was distributed and published between the 21st September 1987, and the 20th September 1990. The Plaintiffs also alleged that Mr Morris took part in the initial production of the leaflet. Both Ms Steel and Mr Morris denied that they published the leaflet complained of as alleged by the Plaintiffs. Ms Steel denied that she ever played any part in the production or distribution of the leaflet complained of. Her case was that she was not responsible for, nor was she involved in organising the anti-McDonald's campaign although she attended anti-McDonald's events and handed out shorter anti-McDonald's leaflets because the aims of the campaign were the same as her own. Mr Morris's case was that he played no part in the production or distribution of the leaflet. His attendance at London Greenpeace meetings and events tailed off during the period from September 1987, to September 1990. He rarely attended meetings after August 1989, and he was not really interested in McDonald's by 1990. Alternatively, Ms Steel and Mr Morris contended that the Plaintiffs consented to the publication of the leaflet and of the words complained of contained in it. They said that the Plaintiffs' consent to publication was to be inferred from the instruction of enquiry agents to involve themselves in, and thereby encourage the activities of London Greenpeace, which involved publication of the leaflet complained of. I have no doubt that Mr Morris published the leaflet complained of between 21st September 1987 and 20th September 1990, and that Ms Steel published it between early 1988 and 20th September 1990. At all material times Greenpeace (London) or London Greenpeace was a small group of people who worked together with the common aim of campaigning against McDonald's. Members of the group had other interests, but McDonald's remained an important target for collective attack. Both Ms Steel and Mr Morris were core members of that small group and they were active in its anti-McDonald's campaign up to the commencement of the proceedings on the 20th September 1990: Mr Morris from the beginning of the campaign in about 1984, and Ms Steel from early 1988 at the latest. A major feature of the group's anti-McDonald's campaign was the publication, including the publication in England and Wales, of the leaflet complained of, the London Greenpeace "factsheet". Publication was achieved by handing the leaflet out at demonstrations, by putting it out for collection at meetings and events and by sending it through the post in answer to requests for information. Publication was indirectly achieved by encouraging other groups to distribute it. Mr Morris participated in the production of the leaflet complained of in 1986, although the precise part which he played in its production cannot be identified. He must have done so with the intention that copies should be published whenever and wherever possible in the future which included the period from the 21st September 1987, to the 20th September 1990. There is no evidence that Mr Morris ever tried to arrest the publication which he had helped set in train. On the contrary, after the initial production of the leaflet by members of the group, Mr Morris remained a member of the group and encouraged its anti-McDonald's campaign which included the publication and distribution of the leaflet, until the commencement of proceedings on the 20th September 1990. Although his "hands-on" participation in London Greenpeace activities may have grown less as time went by, particularly for some time after August, 1989, because of his interest in other matters and a family misfortune, he remained interested in McDonald's as a multinational target, and he was active in anti-McDonald's activities. My conclusion is that, jointly with others, Mr Morris caused, procured, authorised, concurred in and approved all publications of the leaflet complained of in England and Wales, as well as elsewhere, between the 21st September 1987, and the 20th September 1990, which is the relevant period for the purposes of this action. The exact extent of the publication of the leaflet, for which Mr Morris shared responsibility, is impossible to specify precisely, but it must have involved several thousand copies being published worldwide, both directly and consequentially by those to whom it was originally handed or sent handing or copying it on, including several thousand copies within England and Wales. Ms Steel did not participate in the initial production of the leaflet and it has not been proved that she took part in London Greenpeace's anti-McDonald's activities in the Autumn of 1987, the first few months of the relevant period for the purposes of this action. But by her participation in the group's activities, sharing its anti-McDonald's aims, from early 1988, Miss Steel jointly with others including Mr Morris, caused, procured, authorised, concurred in and approved all publications of the leaflet complained of in England and Wales, as well as elsewhere, between that time and the 20th September 1990. Ms Steel's involvement in the anti-McDonald's campaign, involving distribution of the leaflet, during that period, was considerable. Ms Steel's responsibility for publication of the leaflet in England and Wales coincided with that of Mr Morris from early l988, but she has not been shown to be responsible for publication of copies of the leaflet before that. That leaves the question of whether the Plaintiffs or either of them consented to publication or any significant part of the publication of the leaflet by Ms Steel or Mr Morris, so as to deprive them of their cause of action or any part of it. It is a defence to an action for defamation that the Plaintiff consented to the publication of which he now complains, by participating in or authorising it. Thus, if the Plaintiff has consented to the publication of the words used substantially as they were, there is a good defence to the action. Proof of consent must be clear and convincing, since it is inherently unlikely that a party, albeit a company, has consented to being libelled. The consent may be expressly given or it may be implied, that is inferred from what the Plaintiff has said or done or what its agents have done with its express or implied authority. There was no evidence that anyone employed by either Plaintiff in this case expressly authorised or consented to publication or any act of distribution of the leaflet complained of or of any other anti-McDonald's material. The Defendants' real case was that consent to publication was to be inferred from the nature of the Plaintiffs' instructions to enquiry agents and from the activities of those enquiry agents with, it is said, the approval of the Plaintiffs. There was no evidence that any enquiry agent actually shared the anti-McDonald's aims of London Greenpeace. In my JUDGEMENT it is clear that the enquiry agents did what they did the easier to remain apparent members of the group in order to pursue their investigations which were in fact directed by the Plaintiffs at obtaining evidence in order to stop publication of the leaflet complained of. I do not believe that Ms Steel or Mr Morris or Mr Gravett needed any encouragement to continue the anti-McDonald's campaign and publication of the leaflet between October l989, and September l990, or at all: nor did the group need any encouragement to keep going. One of Ms Steel's and Mr Morris's points in relation to the litigation as a whole was that the Plaintiffs could not resist the temptation to suppress any material which was critical of them. Whether or not this point was fully justified, it is quite clear from this litigation and from the Plaintiffs' threats to sue others and from proceedings against others in other actions, that they take very unkindly to defamatory material which their executives believe to be untrue. The whole idea of either Plaintiff consenting to, let alone encouraging, the publication of the leaflet complained of is bizarre. The defence of consent to publication of the leaflet fails.
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