Censorship for hire
ITN's use of libel writs against LM magazine, over our revelations about their award-winning pictures of a Bosnian camp, demonstrates how those with the money can use the law of defamation in a bid to buy immunity from criticism through the courts.
Helen Searls and Daniel Lloyd spoke to Dan Mills of the McLibel support campaign, and discovered why Britain's libel laws are the envy of the rich and powerful around the world
Towards the end of May, Mr Justice Bell is expected to deliver his final verdict on the longest trial in English legal history. After 25 months of testimony and eight weeks of closing speeches, he has to decide whether Helen Steel and Dave Morris libelled the McDonald's corporation in a six-page factsheet, produced by London Greenpeace, entitled 'What's wrong with McDonald's? Everything they don't want you to know'.
Dan Mills left his job as a solicitor to work full-time for the McLibel support campaign just as the trial was starting. He had no idea what he was letting himself in for. 'We needed someone to co-ordinate the office. I was working in a corporate law firm at the time and I wasn't particularly happy. When my contract came to an end I agreed to work full time for the campaign. It quickly took over my life! The trial was only scheduled to last about three months. No one had any inkling that it would last this long.'
Dan Mills, McLibel support campaign
Dan Mills thinks that the courts and McDonald's thought that the case would go the same way as other libel actions, and the plaintiffs would have an easy ride. 'McDonald's had a very arrogant attitude to the proceedings. Even quite a long time after the trial began they thought it was going to be a walk-over.' The defendants had to conduct their own defence since neither had any money and there is no legal aid in libel cases. 'McDonald's just assumed that they could wear them out.'
The McLibel trial is noteworthy not only for its length. Whatever you think of the original factsheet, the case serves as a perfect illustration of how British libel law is used by the rich and powerful to stifle criticism. Rather than answering the criticisms levelled at them in the factsheet, McDonald's used the courts and the judiciary to intimidate their critics - and not for the first time. Before anybody coined the word McLibel, McDonald's had acquired a formidable reputation for suing anybody who crossed the corporation.
'McDonalds had been very successfully using the libel laws to silence their critics over a long period of time', says Dan Mills. 'Anyone who dared to criticise the company in the 1980s was either threatened with a libel writ or actually received one. It had proved very effective at shutting people up. Everyone apologised, backed down or went bust trying to fight the case because the law is very much in favour of people suing.
'It is a real gamble if you are going to defend a case. Organisations like the BBC or the Guardian had to consider the damages that could be incurred. Most papers like the Guardian can only take on two or three libel cases a year, and they have to pick and choose which ones to contest. They decided to back down. McDonald's created a climate of intimidation and fear so that people did not dare to put pen to paper in the first place. Everyone knew how litigious they were - rather like Robert Maxwell. So until now using the libel laws has been a very successful tactic for them.'
As a lawyer, Dan Mills has no doubts about the injustice of the libel laws. 'I think you would find that most lawyers would agree that they are very harsh and repressive. All the burden of proof falls on the defendant. There is no legal aid to defend libel. This makes it the preserve of the rich and powerful.' He notes that British libel laws are widely regarded as the most repressive in the West. 'You just have to look at some cases, where an alleged libel takes place predominately abroad, but because a few copies of the magazine or paper are sold here that entitles people to sue in the British courts. A lot of libel litigation actually comes to Britain because the plaintiffs know they have a much better chance of winning here than in other countries.'
Libel is the written form of defamation (slander is the spoken form) and as such falls under the law of defamation. On paper the defamation acts look fair enough. The law can be used by anybody who feels that their reputation has been damaged by statements made by others; it was reputedly introduced as a more civilised alternative to the ancient art of duelling. Those bringing an action under the defamation acts - the plaintiffs - have to prove that the words complained of are capable of lowering their reputation in the eyes of right-thinking members of the public. Publishers, broadcasters and writers can defend their use of such statements by proving that they are 'justified' because they are true or that they are 'fair comment', given that the facts behind the statements are true.
A closer examination, however, reveals that the laws that frame libel actions are profoundly undemocratic. Just as duelling was the preserve of the old aristocrats, so libel law serves the interests of the elites in modern society. All may have the same rights on paper, but in practice most of us never get a look in.
For a start the costs involved in libel actions are prohibitive and there is no legal aid. Libel actions can be notoriously complex. Even before cases come to court there can be numerous pre-trial hearings to resolve finer points of law; there were 28 of them before the McLibel trial finally began. With every stage involving expensive barristers, very few people can afford to even get a case into court. If you do get that far, libel proceedings can only be heard in the High Court. This adds to the expense of cases, and ensures that libel law remains the specialism of a handful of London-based barristers who can command top fees.
McDonald's, for example, were reportedly paying their legal team £6500 for every day they appeared in court. If such claims were true the trial alone will have cost McDonald's well over £2m. The defendants on the other hand, a bar worker and a gardener, were forced to conduct their own defence since they had no money to pay for expert help. The McLibel case is not typical, but one barrister recently estimated that few libel cases could be heard for less than £200 000 worth of costs on either side.
The threat of huge costs hanging over the defendant means that few libel cases get to trial. In most instances the complainant issues a writ or even a threatening letter, and the matter will be settled out of court within weeks. For those who can put the money up front this is a game that plaintiffs rarely loose. Most defendants back down at the first sign of a writ; they have to apologise, pay costs and damages and promise never to repeat the allegation.
But it is not just the costs that make libel law unjust. Unlike in criminal cases, in a libel trial the burden of proof falls largely on the defendant. The plaintiff only has to demonstrate to the court that the words are capable of lowering their reputation. They do not even have to prove that actual damage has been suffered. The defendant on the other hand has to prove that all the statements made are true in substance and in fact. Much of the evidence needed to prove these facts is often in the hands of the plaintiffs, and it is up to them whether they release this information or not. If the defendants fail to prove the truth of their statements to the court's satisfaction, they lose - even if every word they said was true. Little wonder then that the plaintiff wins the overwhelming majority of cases which come to court.
Britain's libel laws play an insidious role in stifling public debate and criticism. Most libel cases that hit the headlines seem to be about the alleged sexual misconduct of celebrities. If this was all that was involved it would be hard to get excited about libel law. As a frivolous pastime for the super-rich it might be unfair, but of little importance. The law of defamation, however, is not merely about protecting people's personal reputations. It can also be used by public figures and most public bodies to suppress and punish public criticisms. This is a peculiar attribute of British libel laws - one which makes them the envy of the powerful across the globe.
McDonald's - and now ITN - stand in an unsavoury tradition of sensitive public figures and corporations who have hidden their dirty linen behind the libel laws. A good example is COPEX, the company that organises the Covert Operations Procurement Exhibition, where the world's police chiefs and spy-masters come to buy the latest in hi-tech repression and surveillance. COPEX has sued (among others) a pensioner and a schoolgirl who wrote to the manager of the exhibition's venue, questioning what they believed was the sale of dangerous goods to despotic governments.
In the USA, there is such a thing as a public figure defence. If a public figure like a politician is criticised in their public capacity, they have no automatic redress to the courts unless they can prove that the information was maliciously fabricated. In Britain, by contrast, it is only state funded public authorities that are prevented from suing for libel. Every other individual or institution can use the law to immunise themselves. Even policemen can use the libel laws to prevent public discussion of their actions. The Police Federation reputedly has a seven figure budget for libel action on its members' behalf, and has brought 95 actions for defamation in less than three years. As one critic of the libel laws notes, 'This explains why the public is rarely informed which police station an errant policeman belongs to: the newspaper risks a collective writ from his blameless colleagues.' (George Monboit, Guardian, 29 April 1996)
The recent Defamation Act of 1996 has made this aspect of the law even more undemocratic. Before this amendment to the law was passed MPs at least were slightly restrained from suing for libel, as their parliamentary privilege prevented the courts from investigating what MPs did in parliament. This privilege makes it possible for MPs to speak their minds without fear of prosecution. But equally, it meant that when MPs were criticised for their activities as parliamentarians, it was difficult for them to sue. The 1996 changes to the law mean that MPs can now waive parliamentary privilege in order to pursue libel actions. This allowed Tory MP Neil Hamilton to sue the Guardian over cash-for-questions allegations. In the end Hamilton's case collapsed. But this is really nothing to gloat about. The amendment to the law still stands, making it easier for the media to be sued over criticisms of politicians.
The law of defamation is an attack upon the right to free speech and the principle of open democratic debate. And in the litigious climate of modern times, it is being used more and more to gag those who dare to criticise. Since 1992 there has been a 66 per cent increase in the number of writs issued for libel. Moreover, libel law attacks the right to free speech where it really counts, since it can be deployed to curtail real debate on matters of public concern within a democracy. ITN's decision to issue writs against LM magazine shows another worrying development; libel law is now being used as a gagging order to attack press freedom not just by a McDonalds or a COPEX, but by a major news organisation that prides itself on its reputation for reporting the truth.
A court case may look like an improvement on duelling, but in a modern democracy matters of honour and reputation ought to be settled in a far more straightforward way through full and frank public argument. Let both sides of the dispute slug it out in the court of public opinion, and may the best party - the one with the most convincing arguments rather than the most expensive barristers - win.
For more information about the McLibel case see http://www.mcspotlight.org
Helen Searls is the legal co-ordinater LM magazine. Daniel Lloyd is a barrister
Reproduced from LM issue 100, May 1997