Corporations should be open to uninhibited public scrutiny and criticism argues Julian Petley

Question: what do McDonald’s, Monsanto and Trafigura have in common? Answer: they’ve all been accused of routinely administering SLAPPS. These are Strategic Lawsuits Against Public Participation — forms of strategic legal intimidation or gamesmanship employed by large corporations against their critics in order to frighten and harass them, and tie them in legal knots. Such actions are also designed to demonstrate to would-be critics the fate that awaits them should they dare to publicise their views.

That SLAPPS frequently involve threatening to sue critics for libel makes it particularly important that Index, Sense about Science and English Pen have followed the example of some Australian states and proposed limiting the ability of corporations and associations to sue, unless they can prove malicious falsehood.

In this, they are following directly in the tradition of the McLibelTwo, the heroic Helen Steel and Dave Morris, who successfully argued before the European Court of Human Rights in 2004 that they had been denied a fair trial when they were sued for libel by McDonald’s. The court decreed, the denial of legal aid to the defendants “deprived them of the opportunity to present their case effectively and contributed to an unacceptable inequality of arms with McDonald’s”. However, another plank of their case was 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”. Citing the fact that public authorities are not permitted to sue for libel because it is widely recognised that “the threat of civil actions for defamation places an undesirable fetter on the freedom to express criticism”, Steel and Morris argued 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”.

Although the court agreed that the pair had indeed been denied a fair trial, it rejected this part of their argument on the grounds that it did

“not consider that the fact that the plaintiff in the present case was a large multinational company should in principle deprive it of a right to defend itself against defamatory allegations or entail that the applicants should not have been required to prove the truth of the statements made. It is true that large public companies inevitably and knowingly lay themselves open to close scrutiny of their acts and, as in the case of the businessmen and women who manage them, the limits of acceptable criticism are wider in the case of such companies … However, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The state therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation”.

In other words, if the British government chose to allow large corporations to sue for libel, it was within its rights to do so.

Arguing for a change to the defamation laws in this respect could well turn out to be one of the most challenging tasks facing the Libel Reform campaign. Let me explain why.

Back in Index on Censorship in 1998 I wrote that “although at the climax of this legal blockbuster the media were temporarily awash with ‘David and Goliath’ stories, all too often laced with unnecessary and patronising ‘human interest’ angles, the vast majority of this crucial libel trial received remarkably little coverage”. As Michael Mansfield QC said at the time, it was as if a cordon sanitaire had been placed around the whole subject, although one should note the excellent contributions throughout the case of Joshua Rozenberg (Telegraph), John Vidal (Guardian) and Danny Penman (Independent). There were a number reasons for this.

First, given the then fearsomely litigious reputation of McDonald’s, media organisations were scared of being sued if they put a foot wrong in their reporting of the case. Second, newspapers feared losing advertising by McDonald’s if their reporting of the trial irked the burger behemoth. Indeed, it is alleged that when the Independent revealed on its front page, six weeks into the case, that McDonald’s had attempted to negotiate a secret settlement with Helen and Dave, the company withdrew over $120,000 of advertising from its sister Sunday paper. But third, and perhaps most important of all, in a battle between, on the one hand, two out and proud anarchists, and, on the other, a familiar fixture in every High Street which does its absolute utmost to promote a cosy, family friendly, indeed lovable, image, which side would you expect most of Britain’s overwhelmingly conservative press to take? Not that of Helen and Dave’s, whose description by Brian Appleyard as “grumpy, disaffected anarchists with chips – sorry, french fries – on their shoulders” all too clearly summed up the attitude of much of Fleet Street towards them at the time of their mammoth trial. The fact that this was actually written in a liberal newspaper simply reinforces the point.

The hostility resurfaced in significant sections of the press when Morris and Steel won their case at Strasbourg in 2005. And, of course, they weren’t exactly helped by the fact that the organisation which had found in their favour was a particular hate object for many right-wing newspapers, namely the European Court of Human Rights. What a lethal combination.

The Sun reported that “Euro judges yesterday ripped up Britain’s libel laws” and that “the ruling may force Britain to pay out millions in taxpayer’s cash in legal aid for libel cases”. The message here is somewhat implicit, but much more forthright was the same day’s Telegraph, which marked Morris and Steel’s victory with a leader entitled “How lawyers get rich on bogus human rights” which began: “If you were asked to come up with a basic list of human rights, who would think of including ‘The right to be rude and inaccurate’ among them?” It claimed that this was essentially the right that the court’s judgement had upheld and that what the court had effectively said was that “we taxpayers should foot the bill for individuals to malign corporations and other individuals”. Exactly the same line was taken the same day by a leader in the Mail, which complained that “once again, ‘human rights’ legislation is playing fast and loose with British justice. And the implications are deeply worrying. The floodgates are now open to anyone to say what they like about the commercial world, be sued, and then have their costs funded by the taxpayer”. And in the same paper in a column headed “We’re all victims now”, the inevitable Melanie Phillips echoed the Telegraph (and that’s putting it politely) in her lament that:

“This week, Strasbourg judges bestowed upon us longsuffering Britons yet another so-called human right – the right to be rude and inaccurate about someone at public expense … The European Court of Human Rights effectively said that taxpayers should foot the bill for individuals to malign corporations and other individuals … Almost every day, it seems, the human rights industry throws up fresh absurdities as it trains its legal guns on what it deems to be unfair or prejudiced”.

So keen were these papers to use this case to bang the drum for their usual anti-human rights, anti-juridical crusades that they appeared to have entirely misunderstood (or simply ignored) what the case was actually about, namely the right to a fair trial. As it happens, both the Mail and Telegraph were themselves guilty of inaccuracy, since they omitted to mention that at both the original trial and the subsequent appeal, several of Morris and Steel’s claims about McDonald’s were upheld. But the crucial point, which was entirely absent from these papers’ coverage, was that the court found that the pair had been denied a fair trial. That McDonald’s won an unfair trial proves absolutely nothing about the truth or falsity of the allegations over which the company dragged them through the courts.

Precisely the same inaccuracies informed a piece by Graham Searjeant, the financial editor of The Times,  in a piece headed “This week of hate is depressing for the idealists”. But this also broadened the issues involved by linking the Strasbourg verdict with the Kyoto Treaty which came into force the same week and which he described (regretfully) as “a wonderful pretext to attack Western consumers and multinationals”. In Searjeant’s view,

“the judgment was on a narrow issue. British taxpayers had a duty to pay for a high-priced defence team. At this level it is just another case of once high-minded lawyers acting as the marketing arm of their own trade association. The implications are more serious. The court found it unfair that the ‘McLibel two’ should have to prove all the allegations they spread and that the libel action had disproportionately interfered with their freedom of expression”.

However, the right to a fair trial — which is what the case was actually about — is about as far from a narrow issue as it’s possible to get, and the main point of the case, as we have seen, was not the defendants unwillingness to prove the points in contention but their immense difficulty in doing so given the grotesque disparity between their resources and those which McDonald’s could afford. But according to the logic of Searjeant’s inaccurate and ill-informed piece, “under this new tyranny of liberalism, no clear line is to be drawn between researched fact and propaganda smears”, and he warned of a future in which “we can already see campaigns beginning against Tesco, Cadbury Schweppes, food manufacturers, drug companies and most of all oil multinationals without necessary regard for truth. They are all fair game”.

The argument advanced by English Pen, Sense about Science and Index on Censorship that large corporations should be treated in defamation law in the same way as public authorities has an unimpeachable logic. However, it is unlikely to find as much favour as some of the other recommendations in Free Speech is not for Sale, either with a government which is notoriously unwilling to antagonise corporate interests or with newspapers (and indeed other commercially-funded media) which are not only extremely business-friendly but which are themselves big business epitomised. But that’s no reason not to try. The Libel Reform Camaign should take great heart from the fact that the QC who advanced precisely this argument at Strasbourg (and who generously helped Helen and Dave pro bono throughout their epic struggle) was one Keir Starmer, now the Director of Public Prosecutions.

Julian Petley is professor of Screen Media and Journalism in the School of Arts at Brunel University

FROM THE ARCHIVE:
SLAPPS and chills (Index on Censorship 01/99)

Libel: an unsavoury business (Index on Censorship 05/98)