<nettime> Fwd: McJustice/06-19-97

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Date: 97-06-20 07:49:38 EDT

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LM COMMENTARY

McJustice

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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