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Justice Bell's Verdict
19th June 1997

Chief Justice Bell's 800 page judgement was handed down on Thursday 19th June 1997 after his presentation of the Summary - the whole judgement is presented here for your enjoyment.

3. Some general principles.

Since Ms Steel and Mr Morris did, in my judgment, publish the factsheet to the extent which I have just set out, I must next consider the meaning of the factsheet, whether it is defamatory of either Plaintiff in any respect and, if so, whether either Defendant nevertheless has a defence to a claim of libel. The main legal principles which I apply to those questions are as follows.

The Court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary, reasonable reader.

It is for the Court to decide how much attention the ordinary, reasonable reader would give to the material complained of, having regard to the relevant circumstances of the publication in question, including the method of publication, the form in which it is published, to whom it is published, its context and presentation, and the purpose for which it is read including whether the reader might act on it in some way, among other matters. It is necessary to take all these matters into account in order to determine the natural and ordinary meaning of the words complained of.

The question of whether material complained of bears a defamatory meaning has to be answered by reference to the response of the ordinary, reasonable reader to the entire publication. A claim for libel can not be founded on a headline or picture or cartoon in isolation from the related text.

Whether the text of a publication will, in any particular case, be sufficient to neutralise the defamatory implication of a prominent headline will sometimes be a nicely balanced question for the court to decide and will depend not only on the nature of the libel which the headline conveys and the language of the text which is relied on to neutralise it but also on the manner in which the whole of the relevant material is set out and presented. By the same token, the text cannot be read without any relevant headline or picture or cartoon unless it clearly unpicks the impression created by those features. Neither can be read in isolation from the other. This is important in this case where there has been a tendency to take individual sentences in the leaflet, with a view to justifying them, without regard

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to their context.

The Court should not be too literal in its approach. The hypothetical, reasonable reader can read between the lines. He can read in an implication more readily than a lawyer, and he may indulge in a certain amount of loose thinking. He is not naive but he is not unduly suspicious. He must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

Whilst limiting its attention to what the Defendants are actually alleged to have published, the Court should be cautious of an over-elaborate analysis of the material in issue.

Although a combination of words may in fact convey different meanings to the minds of different readers, the Court is required to determine the single meaning which the publication would convey to the notional, reasonable reader and to base its verdict and any award of damages on the assumption that this was the one sense in which all readers would have understood it.

In deciding what impression the material complained of would have been likely to have had on the hypothetical reasonable reader the judge is entitled, if not bound, to have regard to the impression it has made on him.

The meaning intended to be conveyed by the author or publisher of the Material complained of is irrelevant.

Where the alleged defamatory meaning is said by the Plaintiffs to be the literal meaning of the words complained of or a natural inference or implication which a reasonable reader would draw from the words, guided only by his general knowledge and ordinary commonsense, no evidence is admissible as to the meaning of the words complained of, or as to what particular readers thought that the leaflet meant.

When deciding the meaning of the words complained of the Court is not concerned with the merit or demerit of any possible defence to the Plaintiffs' claims. That comes later if the meaning is defamatory.

A statement is defamatory of a Plaintiff if it would tend to lower the Plaintiff in the estimation of right thinking

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members of society generally or would be likely to affect the Plaintiff adversely in the estimation of reasonable people generally.

The essence of the tort of defamation in English law is the protection of the reputation of a person whether a living human person or a legal fiction such as a corporation or a company.

A company has a trading character which may be destroyed by libel, but the words complained of must attack the company in the method of conducting its business or affairs. The question for the court is whether the words complained of contain statements with regard to the Plaintiff company's conduct of its business, tending to show that it was so improper or inefficient as to bring it into contempt or discredit.

In Derbyshire County Council v. Times Newspaper Ltd. [1992] 1 Q.B. 770 in the Court of Appeal, Balcombe L.J. said (at page 809H):

"In my judgment the principle established by the authorities is that any corporation, whether trading or non-trading, which can show that it has a corporate reputation (as distinct from that of its members) which is capable of being damaged by a defamatory statement, can sue in libel to protect that reputation, in the same way as can a natural person, although there will of course be certain types of statement which cannot defame an artificial person." Balcombe L.J. went on to say that that principle seemed to him to be in accordance with good sense.

"Even a non-trading corporation may need to engage in various activities in pursuance of its objects. Thus it may need to borrow money, and its ability to do so may potentially be affected by an attack on its credit worthiness. Or it may need to employ staff, and a statement that it engages in discriminatory employment practices may potentially affect its ability to attract staff of the right calibre.

These are only two examples of cases where it should be possible for a non-trading corporation, which asserts that its reputation is capable of being damaged by the defamatory statement, to sue for libel." In the leading speech in the House of Lords in the same case, at [1993] A.C.534, page 547B, Lord Keith of Kinkel said that the authorities which he cited, "clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the

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way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it."

It is not necessary to prove any particular financial loss or 'special damage', provided that damage to its goodwill is likely.

The Plaintiff in the Derbyshire County Council case was a democratically elected local authority, and both the Court of Appeal and the House of Lords decided that notwithstanding the general principle that a trading or non-trading corporation was entitled to sue in libel to protect so much of its corporate reputation as was capable of being damaged by a defamatory statement, a local authority, a public authority or a governmental body should not be allowed to do so. The Court of Appeal relied upon Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides the right of freedom of expression, subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others. The Court of Appeal held that there was no pressing social need that a corporate public authority should have the right to sue in defamation for the protection of its reputation since an action for malicious falsehood or a prosecution for criminal libel provided it with the sufficient and necessary protection it required in a democratic society. The House of Lords reached its conclusions upon the common law of England without finding any need to rely upon the European Convention. After referring to the position of a trading corporation, Lord Keith said, at page 547E: ''There are, however, features of a local authority which may be regarded as distinguishing it from other types of corporation, whether trading or non-trading. The most important of these features is that it is a government body. Further, it is a democratically elected body, the electoral process nowadays being conducted almost exclusively on party political lines. It is of the highest public importance that a democratically elected government body, or indeed any

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government body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech".

Later, at page 549A, Lord Keith said that there were rights which institutions of central government and local authorities were not in a position to exercise unless they could show that it was in the public interest to do so. "In both cases I regard it as right for this House to lay down that not only is there no public interest favouring the right of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it. It is contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech".

In British Coal Corporation N.U.M. (Yorkshire Area) and Capstick, unreported, 28th June, 1996, French J. applied Lord Keith's observations to hold that the Plaintiff which was not a democratically elected body, but which was a body over whose activities the democratically elected government had close control, should not be allowed to sue in libel.

On Day 312 of the trial of this action the Defendants argued that the proceedings brought by both Plaintiffs should be dismissed without proceeding to judgment by application of Article 10 of the Convention or by the application of Derbyshire C.C. V. Times Newspapers Ltd and the observations of Lord Keith. They contended that the threat of a civil action for defamation by a vast multinational corporation like the First Plaintiff, or a very large company like the Second Plaintiff, inevitably had an inhibiting effect on freedom of speech and was therefore against public policy, and that it failed the test of pressing social need for the protection of its reputation, required to pass Article 10 of the Convention.

I will not rehearse the arguments put forward in any more detail because it is in my view clear from what Lord Keith said in the Derbyshire County Council case that English law makes a distinction between governmental bodies and trading corporations, however powerful. The former cannot maintain an action for defamation. The latter can.

Article 10 has not been incorporated into English domestic law. Nevertheless it may be resorted to in order to help resolve some uncertainty or ambiguity in English law. In the Derbyshire

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County Council case the Court of Appeal held that English law was uncertain as to the extent to which local authorities might sue for libel. So the Court of Appeal carried out a balancing exercise, required by Article 10, between the right to freedom of expression and such restrictions as are necessary in a democratic society for the protection of the reputation of a local authority. But at the very beginning of his judgment at [1992] 1 Q.B. 818E, Ralph Gibson L.J. said:

"If by established principles of English law it is clear that Derbyshire County Council has the right to sue for libel then this court must say so and let the action proceed. It would not matter that the consequence of so holding might be that the defendants, if they should lose the action, would satisfy the European Court of Human Rights that any verdict against them would constitute a breach of article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 10, as with any other provision of the Convention, is not a rule of the law of this country: see Reg.v. Secretary of State for the Home Department, Ex parte Brind [1991] 1 A.C. 696.

If the defendants should succeed in such an application, upon the ground that a verdict and judgment for libel in favour of the council , as a local authority, would constitute a breach of article 10, it would be for this country to decide whether to leave the law as it would, on that hypothesis, have been declared to be, or to change it to avoid the risk of repetition".

Since it is clear and certain that under English law the trading corporation Plaintiffs in this case have a right to maintain an action for defamation, no balancing exercise or application of the Convention falls to be performed by me. The principles of the English law of libel, substantive, procedural and evidential, to which I will shortly return, apply to this case. If large trading companies are to lose their right to sue for libel under English law, or if their right to sue is to be modified, it is for our democratically elected Parliament, or for the House of Lords in its judicial capacity, not me, a single judge, to say so, having taken account of all material and policy factors. Also on Day 312, the Defendants argued that the Plaintiffs' action should be stayed as an abuse of process in the light, in particular, of alleged delay in bringing it and proceeding with

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it, lack of representation of the Defendants, lack of a jury, and general "inequality of arms". On Day 2, in his opening statement, Mr Morris said that the action was an abuse, but neither he nor Ms Steel made any application for the proceedings to be stayed or struck out. I believe that they welcomed the opportunity which the proceedings gave them to put both Plaintiffs under public scrutiny, and they brought their own counterclaims on the back of the Plaintiffs' claims. I do not believe that either Ms Steel or Mr Morris has been prejudiced by the time taken to commence proceedings or bring them to Court. The trial was long and arduous, no doubt particularly so for litigants in person, but the pace at which it proceeded made due allowance for the Defendants' lack of representation, and despite any inequality of resources they sustained a determined defence and counter-attack which they believed to be effective, as they said in their final submissions.

The Court of Appeal upheld the decision that the case should be tried by a judge alone. Having heard all the evidence, I do not doubt that the Plaintiffs brought the proceedings in good faith to defend their trading reputations from defamatory statements which they, through their officers, genuinely believed to be untrue, and not to stifle criticisms which they knew to be well-founded. I do not consider that any of the matters which the Defendants raised in arguing for a stay resulted in them being unable fairly to defend the claims brought against them.

In so far as the Defendants' arguments on Day 312 amounted to applications to dismiss, strike out or stay the Plaintiffs claims, I reject them.

To return to the relevant principles of English law, the defamatory meaning pleaded by a Plaintiff is to be treated as the most injurious meaning which the words are capable of bearing, so far as the Plaintiff's claim for relief is concerned, and the questions which a judge sitting alone has to ask himself are, first, is the natural and ordinary meaning of the words that which is alleged in the Statement of Claim and, secondly, if not, what if any less injurious meaning do they bear? Of course, it matters not that the words complained of actually bear a more injurious meaning than that pleaded by the Plaintiff, if the Defendant can successfully defend them in any event.

The burden of establishing that the leaflet or any part of it bears a defamatory meaning within that pleaded in the

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Statement of Claim, lies on the Plaintiff's, to be judged on the balance of probabilities.

I turn to the relevant defences to the Plaintiffs' claims of libel, made in this case.

Where a Plaintiff establishes the publication of words which are defamatory, he has established his claim subject to the Defendant proving that he has a defence to the claim. The Plaintiff does not have to prove that the defamatory words are false. The law presumes that the defamatory words are false until the contrary is shown.

However, it is a complete defence to an action for libel to show that defamatory statements of alleged fact are true in substance and in fact. This is the defence of "justification" and it was the primary defence of Ms Steel and Mr Morris in this case. They contended that the substance of what is said in the factsheet is true.

The burden of proving that the substance of the words is true lies on the Defendant even though the Plaintiff may have set out to prove that the words are in fact false, as McDonald's have done in many instances in this case. Again the standard of proof is the balance of probabilities. I will not repeat what I have said about the standard of proof, when dealing with the issue of publication. It applies to the many factual issues relevant to the plea of justification in this case.

It is not necessary for the Defendants to prove the truth of every detail of the words in order to justify defamatory matters, but they must prove the truth of the sting or substance of the words complained of, not just in their literal meaning but also in any inferential meaning.

Where the words complained of contain more than one distinct charge against a Plaintiff, the Defendant must justify the sting of each distinct charge in order to have a complete defence, subject to the provisions of section 5 of the Defamation Act, 1952. If a Defendant justifies part only of the defamatory words, he remains, subject to section 5, liable to pay damages in respect of the part which he cannot justify provided that it would by itself form a substantial ground of an action of libel. Section 5 provides that in an action for libel in respect of words containing two or more distinct charges against a

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Plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the Plaintiffs reputation having regard to the truth of the remaining charges.

Those principles are particularly important in this case. The leaflet attacks McDonald's which, it is contended, would be taken by the ordinary reader to mean the First and Second Plaintiffs, in a number of different areas, such as starvation in the Third World, destruction of rainforest, recycling of packaging material and waste, nutrition, advertising, animal welfare, food poisoning and employment practices, and the sections of the leaflet which are devoted to each of those subjects make numbers of charges in relation to the subject in hand. Moreover, it is sometimes possible to see distinct charges within a particular area.

So even if some defamatory charges a-e not justified, I have to ask whether the Plaintiffs' reputations are materially injured having regard to any remaining charges which have been shown to be true.

Even if I find that the Defendants have not proved sufficient facts to establish the defence of justification at common law and they have been unable to bring themselves within the statutory extension of the defence contained in section 5, I may still rely upon any relevant evidence, properly introduced in partial justification of defamatory matters complained of by the Plaintiffs, when assessing damages.

To go to justification or to mitigation of damages the evidence must bear on the truth of actual charges complained of. But where the words complained of contain a general charge or where an apparently specific charge has a more general defamatory sting, the Defendants may justify what has been said by proving specific facts which show that the general defamatory sting is true, even though those facts are not set out or referred to in the leafy et; and the Defendants are entitled to rely on facts which occurred after the date of the publication if they are indicative of what probably went on before the date of publication.

Much of the evidence which I heard did in fact relate to events occurring since 1990. To some extent this was inevitable because witnesses have a better recollection of more recent

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events. Witnesses of events some years ago may no longer be available, and documents and records are more likely to be available in respect of recent years.

It is no defence of justification of a defamatory matter that the Defendant was merely repeating what he or she had been told or that he or she believed that what was said was true. The defence of justification does not extend to cover misstatements of fact even if the statement of alleged fact is made in good faith about a matter of public interest. There is no general freedom in English law to make defamatory misstatements of fact with impunity provided that they are made about a matter of public interest or about a person or trading corporation of public importance, in the genuine belief that they are true.

For the purpose of deciding whether a defence of justification succeeds in whole or in part the only charges against the Plaintiff which are relevant are those which are defamatory of the Plaintiff. It is not relevant that the Defendant has proved the truth of an innocuous statement of fact. This may seem obvious but I have stated it in the light of some of the points made during the trial.

In deciding whether a defamatory statement is proved to be true or not, I can rely only upon the admissible evidence which the parties have been able to, and chosen to put before me. This is the result of the adversarial system of trial in England.

Moreover I cannot rely on information which has been put before me but which is nut admissible as evidence under English law. I know that there is information available to all parties, which bears on issues in the case, and from time to time I may refer to it, but if it is not admissible in law as evidence, I can take no account of it in reaching my conclusions. Some of those who read this judgment, or parts of it, will rightly consider themselves better informed that I am, especially on topics in which they have a particular interest. So be it.

Of course I can use my own general experience of the ways of the world, such as it is, in evaluating the evidence.

The evidence which has been put before me has fallen into three broad categories.

The first category consisted of the evidence of the very many witnesses who gave oral evidence from the witness box. Most

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or Loose witnesses spore or matters or tact and I must make my own assessment of the extent to which I find their evidence reliable.

Saying that a thing is so does not make it so.

Some of them were put forward as experts who were qualified to give their opinions for me to assess and follow if I saw fit.

The second category of evidence consisted of written witness statements. Because McDonald's has traded for many years in many countries, the evidence of a large number of witnesses of fact or of expert opinion, who are resident abroad or now untraceable, was given in the form of written statements which they had made or in the form of reports of what they were alleged to have said to someone else. I can take account of this evidence in so far as it is admissible in English law, particularly under Civil Evidence Act provisions, but I still have to judge the weight, if any, which I should attach to it. This is not always an easy task since there is no question of it being tested or evaluated by the process of cross-examination, nor by observation of the witness! for whatever that may be worth. I can of course look to see whether a written statement was made close in time to the occurrence of the matters to which it relates, and I can look to see whether a written statement was made for any particular purpose. Moreover, as with oral evidence, I can judge whether the maker of a statement has a motive to misrepresent matters and whether the contents of the statement are consistent with any inherent probability or with the evidence of other, live witnesses. Other circumstances may help as to the reliability of "Civil Evidence Act evidence". Some of it may be patently reliable or unreliable, but generally speaking it is less easy to judge than live evidence and it may carry less weight as a result.

The third category of evidence consisted of a very considerable number of documents which were referred to, either as evidence in their own right or to assist the examination or cross-examination of witnesses. Some were learned articles.

There were formal and informal admissions, written and oral.

Although I was presented with an enormous body of evidence from live witnesses, Civil Evidence Act witnesses and documents, it was very patchy in some areas. I heard or read a lot of evidence about practices in the United Kingdom, less about what goes on in the U.S.A., and little or nothing at all about most

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of the other countries where there are McDonald's restaurants. In some but by no means all cases it may be fair to assume that British or American practices prevail elsewhere in the world. For instance, Mr Robert Beavers who is a Senior Vice President of McDonald's Corporation and who has been an executive member of the Corporation's Board of Directors since 1984, told me that for the most part McDonald's management and operating philosophies were pretty much the same worldwide, subject to variance according to local laws and customs; but I had little or no evidence of what happened where local laws or customs might be very different to the U.S. or the U.K., for instance with regard to the rearing or slaughter of animals.

Quite apart from any question of justification it is a defence to an action for libel that the words complained of are fair comment on a matter of public interest.

There is no doubt that the statements made in the leaflet complained of relate to matters of public interest, and during the trial the Defendants repeatedly described one statement or another in the leaflet as fair comment or as a comment which they were entitled to make.

However, the defence of "fair comment'' is available only in relation to statements which are expressions of opinion and not defamatory statements of fact. A comment is a statement of opinion on facts, and the defence of fair comment does not extend to cover misstatements of fact, however bona fide.

Whether a statement is one of fact or comment is a matter of interpretation in all the circumstances known to the ordinary reader of the material, including in particular the context in which the words appear. If in all the circumstances a reasonable member of the public would understand the words as an expression of an opinion on facts, or as an inference drawn from facts, the words will be held to be comment. But any matter which does not indicate with reasonable clearness that it purports to be comment, and not a statement of fact, cannot be protected as "fair comment'". If a person making a defamatory statement which might otherwise be interpreted as comment does not set out or sufficiently refer to the facts upon which it is based, then it may appear as a simple statement of fact to which there is no defence but truth.

Save for one sentence, I have come to the conclusion that

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defamatory statements in the leaflet complained of taken in their context, are statements of fact, and not comments or expressions of opinion. I will deal with the question of whether particular words complained of in the leaflet are statements of fact or comment when I come to them in their context, but it is important to note the boldly printed question "What's wrong with McDonald's?" with the sub-heading "Everything they don't want you to know" on the front of the leaflet or "Factsheet" as the Defendants called it, followed by the first sentences: "This leaflet is asking you to think for a moment about what lies behind McDonald's clean, bright image. Its got a lot to hide." All this, in my view, promises the reader of the leaflet the true facts about McDonald's, and what follows throughout the leaflet is a series of categorical statements of alleged fact.

Save in the one limited respect, the leaflet does not set out various facts and pass an opinion or comment based upon them, which might be defamatory but "fair" in the legal sense that an honest-minded person, however prejudiced and obstinate, could honestly hold the view expressed on the true facts which are set out or which are sufficiently referred to or which are common knowledge, so that the reader can judge for himself the value of the opinion or comment which is expressed. What is said in the leaflet is presented as the factual truth.

It follows that the real issue in the case is whether the statements of alleged fact, where they are defamatory of the Plaintiffs, have been shown to be true.

Although the leaflet stands to be judged as a whole, it falls into different sections, each with its own introductory headline, and I propose to take them in the order in which they appear .

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