Wednesday, July 28, 2004

Anarchists' roadshow: McLibel trial

UK: The McLibel Two are preparing for a new legal fight in Europe, where they hope to prove that multinationals should not be able to sue individuals for libel.

Auberon Waugh once declared that the McLibel trial was "the best free entertainment in London". In September the show is back for a limited run, but this time in Strasbourg. Self-styled anarchists Helen Steel and Dave Morris are to appear before the European court of human rights some 14 years after the fast-food giant sued them for distributing a handful of leaflets titled: "What's wrong with McDonald's".

Dave Morris, 50, is rummaging through folders, books and papers in his front room in search of a particularly apposite quote about the woeful state of our defamation laws.

It is no easy task. The former postman would need a warehouse, as opposed to his small terraced house in Tottenham, north London, to properly store the paper mountain generated by the two-and-a-half-year trial.

There were 18,000 pages of court transcripts and 40,000 pages of documents and witness state ments. But Morris, who has developed a lawyer's knack for detail over the years, digs it up.

"'For better or worse, the law of defamation has grown up in its special way over the last 150 years,'" he reads.

"'Whereas in ordinary negligence claims - if you don't know what the law is - you can say what you think is sensible and there is a 90% chance of being right. I am not sure the percentage isn't the reverse of that in the law of defamation'."

This implied criticism of the legal system came from Mr Justice Bell, the endlessly patient judge who presided over McLibel, the longest trial in British history. The judge went on to reflect that there were "some people" who believed that multinationals should not have the right to sue for libel at all.

This is the issue at the heart of what will inevitably be dubbed "Euro-McLibel". Steel and Morris will also argue that if there is a right to sue, then there should be a defence of "reasonable belief" available to campaigners.

The court will also consider whether a trial that pitted two individuals (with a combined annual income of £7,500) against the McDonald's legal team (led by the £2,000-a-day Richard Rampton QC) could be fair.

"If the European court agrees that the current law of defamation is having a chilling effect on the free speech rights of critics of powerful corporations - and the experience of Steel and Morris has to be a prime example - we could well see a shift in the balance towards freedom of expression," says Rebecca Jackson, media lawyer with City law firm Reynolds Porter Chamberlain.

She points to a ruling by the House of Lords, during the course of the McLibel trial, which held that government bodies could sue only if there was malice. The law lords argued that this was fair on the grounds that people should be able to criticise government bodies. If the public sector can't sue, Jackson argues, why not limit the same right for those global companies that arguably exert greater power and are generally less accountable than elected bodies?

Do the McLibel Two relish the prospect of being in court and taking on the system again? "I can't say I want to spend any more time in a courtroom," says Steel, 38. A former gardener, since the trial she has helped set up a housing cooperative and has trained to be an electrician. Morris has been busy as a single parent and active in his local residents' association.

The two seasoned activists have thrown their energies into a local group of like-minded people, the Haringey Solidarity Group. They describe themselves, in a matter-of-fact way, as anarchists. Not in "the media sense of chaos and disorder", explains Steel, but in the sense of aspiring to "a society where ordinary people have control over their lives and communities".

Much to their relief, the European hearing is limited to a couple of hours, but it has been four years in the preparation. Their application to the European court weighs in at 180 pages. So why go through all the hassle? "We want to prevent similar court cases happening again. Campaigners, ordinary people, should have the right to go out and express criticisms about the way society is being run and how these corporations operate without having to fear they'll be dragged through the courts," Steel replies.

As far as Morris is concerned, they won the trial. McLibel was once called "the biggest corporate PR disaster in history". The court ruled that the firm did "exploit children" with its advertising, produced "misleading" advertising, and was "culpably responsible" for cruelty to animals, as well as paying its workers low wages. Two years later the appeal court made further rulings against McDonald's in relation to heart disease and employment conditions.

But Steel and Morris failed to prove all their criticisms were true, so the court ruled that they had libelled McDonald's and ordered them to pay £60,000 damages. The two have refused to pay on principle. "And we haven't got the money anyway," Steel adds. Two days after the verdict, they were back outside their local McDonald's handing out leaflets. "Even though we felt that we beat them," says Morris, "why should anyone have to have to go through 313 days in court over seven years just to defend that right to criticise a multinational?"

As the trial took up permanent residence in court 35 at the Royal Courts of Justice, the global anti-capitalist movement was gathering momentum. It is easy to regard Steel and Morris as pioneering heroes who delivered a devastating blow to a huge corporation.

Mark Stephens, head of media at Finers Stephens Innocent, who occasionally advised the two during their trial and is now fighting their case in Strasbourg, doesn't see it that way. "One is left with a really nasty taste. British justice failed dismally here," he says. "In legal terms and, in practical terms, the case is a stain on our jurisprudence."

Stephens believes the McLibel case simply "got out of hand", leaving two litigants-in-person at the mercy of the judicial system for years. "Dave was a single parent, having to come home after his day in court to feed his son, read him a story and put him to bed," he says. "Then he carried on working into the wee small hours to prepare for his case. It was gruelling - it's unacceptable to expect people to defend themselves in this way."

Stephens was impressed at how effective the DIY lawyers turned out to be. "It was a great double act. Dave steamed in like a bull in a china shop and Helen was much more sophisticated, picking off the more delicate points with enormous skill." One commentator observed that the two campaigners threatened to crush the enemy counsel "with the terrifying possibility that they had all the time in the world and they might just take it".

Steel says they recognised from the start that "if it was our word against McDonald's, the court would find for them", so they forced their opponents to do their job for them. It was a remarkably effective strategy. "I brainwashed youngsters into doing wrong," one "Ronald McDonald" clown volunteered in a witness statement. There were many memorable exchanges. "So are you saying, then, that as long as there is room in the dumps, there is no problem with dumping lots of McDonald's waste in the ground?"

Steel asked Ed Oakley, a McDonald's executive. "I can see it to be a benefit, otherwise you will end up with lots of vast, empty gravel pits all over the country," he replied, without a hint of irony. For the most part, however, Auberon Waugh's view of the case as "entertainment" could not have been further from the truth; it was a tedious slog. The court spent 100 days on the employment issues alone, much of the time spent quibbling over whether the minimum wage constituted "low pay".

So what do the two anarchists make of the legal system? "It's totally geared towards representing the rich and powerful, and clearly that's the case in defamation, where the law is there to protect the reputations of corporations," says Morris. In Strasbourg they will receive legal aid for the first time since the two hours' free advice they had at the start of their trial, so they won't be representing themselves. "Thank goodness," Steel adds.

Steel and Morris will talk at the English premiere of Super Size Me, the US documentary whose director spent a month on a McDonald's-only diet, on September 5 at the Curzon Cinema, Shaftesbury Avenue, London W1D (020-7734 2255). Also screening is the UK premiere of the documentary McLibel: Two Worlds Collide.

By Jon Robins posted 28 July 04