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19 June 1997


Helen Searls, legal co-ordinator for LM magazine, gives a personal view of British libel laws in the wake of the McLibel verdict

Mr Justice Bell has finally delivered his verdict on the McLibel Two. After the longest trial in English legal history the judge predictably decided that Helen Steel and Dave Morris did, in the eyes of the law, libel the McDonald's corporation in a six-sided factsheet produced by London Greenpeace entitled 'What's wrong with McDonald's? Everything they don't want you to know?'.

It is wrong in my view that this case ever reached the High Court. There ought to be a public interest defence in English libel. Were this in place the McLibel 2 would never even have had a case to answer. For the last few months I have looked at libel law in some detail. I have read law books and spoken to solicitors, barristers, publishers and journalists. I have met few who have a good word to say about the law. People commonly tell me that it is a rich man's law. There is no legal aid in libel cases and only the super-rich can afford to bring cases to court. I have been told that it is a 'plaintiff friendly' law since the burden of proof rests almost entirely on the defendant. I have also discovered what is known as the 'chilling effect' of libel law - the way that even the threat of a costly libel suit is enough to make most publishers drop articles irrespective of the fact that they believe the content of such articles to be true.

But of all the things that are wrong with the law the thing that worries me most is the lack of a public figure or public interest defence. British libel laws play an insidious role in stifling broad political debate and criticism. Under the guise of concern about defamation much legitimate public debate is silenced. Most libel cases that hit the headlines do seem to be about the alleged sexual misconduct of the rich and famous - for whom few have sympathy. And if this was all that was involved in libel cases it would be hard to get excited about them. As a frivolous pastime for the super-rich the law would be not be the fairest in the world but it would be of relatively little importance.

The Defamation Act however is not merely about protecting people's personal reputations. It can also be used by public figures and most public bodies to counter public criticisms of their public activity. This is a peculiar attribute of British law. It is this aspect of the law that make British libel laws the envy of the powerful across the globe and has given London the nickname internationally of 'Sue City'. In the USA a public figure defence was developed out of a ruling made in 1964 in the New York Times vs. Sullivan case. In this case the court ruled that if a public figure like a politician, a celebrity or even a corporation is defamed through criticism of their public activity they have no automatic redress to the courts unless they can prove the information was maliciously fabricated.

McDonald's could never have brought the 'McLibel' case in an American court. In America it could be deemed that London Greenpeace were acting in the public interest by raising criticisms of McDonald's food. The public do after all eat millions of their hamburgers each year. It is in the general public interest to know what others think about this food. So long as criticisms were not made out of malice and the authors of the leaflet believed that what they said was true there simply would be no libel case to answer within a US court - even if points in the leaflet were found to be wrong.

In Britain it is only public authorities like a County Council that are prevented from suing for libel. Everyone else can use the law to immunise themselves from public criticism. Even policemen can use the libel laws to counter press claims about their individual behaviour as policemen. The Police Federation reputedly has a seven figure budget for libel action. In one three year period the Police Federation brought 95 actions for defamation. It is therefore of no surprise to find that one recent study of libel law noted that most English provincial newspapers have now stopped writing articles about the local police as the threat of libel suits has proved to crippling for them.

Even political parties in the midst of elections fall victim to the law. While much fuss was made about the rights and wrongs of the British National Party's and the ProLife Alliance's respective broadcasts it went almost unnoticed that Sinn Fein's broadcast was censored by the BBC on the grounds that it might contain an implied defamation of a Unionist politician. Whatever you may think of Sinn Fein's politics is it really right that we are prevented from hearing their views on the grounds that they might incorrectly lower the reputation of their bitter political opponents? Isn't that what party politics is supposed to be all about?

Not everyone in the USA is happy with a public figure/public interest defence. Critics of the New York Times vs. Sullivan ruling say that the decision has allowed for public debate to be 'polluted'. In theory it is now possible for untruths to be published in the USA without redress so long as the criticism is made in good faith. They say that this has diminished the individual rights of public figures since they are no longer treated in the same way as private individuals.

In my view however the interests of free speech within a democracy far outweigh these concerns. Public figures and public bodies can counter public criticism by virtue of being in the public eye. For years now McDonald's has offered their customers free leaflets about the nutritional value of their food from racks within their stores. And in our own case I can't help but feel that ITN has ample opportunity to counter their critics by virtue of the fact that their broadcasts are beamed into our homes two or three times a day on three national TV channels. It is the very fact that such bodies can do so much to influence our views that they should be open to more vigorous public criticism and investigation than the rest of us.

Unfortunately though the trend in Britain is going the other way. The recent Defamation Act of 1996 made the law even more undemocratic. Before this Act was passed Members of Parliament at least were restrained from suing for libel as their parliamentary privilege prevented the courts from investigating activities in parliament. If MPs were criticised by newspapers for their activities as parliamentarians, it was at least difficult for them to pursue a successful libel case. Last year however this aspect of the law was changed. MPs can now waive parliamentary privilege in the interest of pursuing libel actions. This allowed Tory MP Neil Hamilton to sue the likes of the Guardian for their cash for questions allegations. In the end Hamilton's case collapsed around him but I take no comfort in this. The anti-democratic dangers contained within this amendment still stand in British law.

The Defamation Act is an attack upon free speech. And in the litigious climate of modern times it 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 attacks the right to free speech where it really counts for something, since it can curtail real debate on matters of public concern within a democracy. In my view reform of the law is long overdue.

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