BCA v Singh & McLibel: Two Important Lessons

The threat of being sued for libel is one that is shared by many writers and activists. The nature of such laws varies from nation to nation with some nations having the law set up in a manner that puts burden of proof on the defendant, this and other aspects of their legal system make the UK one of the hardest places to win when being sued for libel. British science writer and skeptic Simon Singh found this out first hand when in a piece in The Guardian on April 19th 2008 entitled “Beware The Spinal Trap” he wrote,

“You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

It was the last sentence that drew the ire of the British Chiropractic Association who then took legal action. The BCA contended and it was initially ruled that by writing “happily promotes bogus treatments” Singh intended it as a statement of fact (rather than opinion) and meant to say that the BCA were knowingly promoting ineffective treatments. At this point the burden laid upon Singh to prove both that chiropractic treatment isn’t supported by good science, not that hard to do, and that the BCA themselves knew this but were perpetuating a fraud (much harder to do). Thankfully in April 2010 that initial ruling was reversed upon appeal, Simon then only had to defend his statement as opinion which is defensible as fair comment and as a result on the 15th of April the BCA dropped their case against Simon Singh.

Simon’s case was all over the papers and blogosphere and had sparked off a Libel Reform Campaign , drawing much of the public’s attention to the issue and bringing back memories of past injustices. Libel isn’t something just skeptics and science writers must worry about, it is a major concern for animal rights, environmental, and political activists as exemplified by the now famous McLibel trial. In 1990 McDonald’s initiated what would become one of the worst PR disasters for the company when they pursued a lawsuit against two London activists for distributing a leaflet entitled “What’s Wrong With McDonald’s”. The leaflet, which had actually been in distribution since 1986, was the handy work of a small activist group called London Greenpeace (no affiliation with the larger organization) and had over the years drawn the attention and ire of top McDonald’s execs. McDonald’s sent two different private investigator teams to spy on the activists. At “some London Greenpeace meetings there were as many spies as campaigners present”, Morris once remarked. Activists were followed home, the London Greenpeace office was broken into, and one spy even had a 6 month love affair with one of the campaigners. Such activities are not all that out of the ordinary, from COINTELPOL to the Green Scare corporations and governments have sought to silence effective criticism and activism. Originally five members of London Greenpeace where to be sued over the content of the leaflet but three reluctantly apologized and were dropped from the lawsuit leaving Helen Steel and Dave Morris as the sole defendants.

Because of the complex nature of some of the scientific claims in the leaflet the court deemed it necessary or at least expedient  to forgo a jury trial for a trial by a single judge, a move that both Morris and Steel objected to. British law also does not provide for free legal aid in libel cases so the two, having little money, would have to defend themselves. In going up against a Goliath like McDonald’s with its army of corporate lawyers the pair were at a significant disadvantage.

The story of the trial itself its long and complex, being detailed in the documentary McLibel and more thoroughly in the 30,000 pages, of court transcripts. As it dragged on it became first the longest libel case, then the longest civil trial, and then the longest trial of any kind in English history. The case completely backfired on McDonald’s, having printed a potentially libelous flyer about the defendants at one point they became trapped in the case and the publicity only served to gain the anti-McDonald’s leaflet more attention. The lawsuit itself hinged on various claims made in the leaflet ranging from animal cruelty, hunger in poor nations, environmental destruction, advertisements targeted at children, employment practices, poor working conditions, nutrition, and disease and in the end the judgment was mixed, while the defendants where found guilty of libel on some counts other claims were found to have merit. Most interesting to the readers of this blog is the ruling on the animal cruelty section of the leaflet,

“Although not all the particular charges are justified, in my overall judgment those that are justified, relating to the restriction of movement of battery hens, broiler chickens and chickens who have their throats cut while still fully conscious are sufficient to justify the general charge that the First and Second Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food.

‘There are other cruel practices affecting chickens which are used to provide the Plaintiffs’ food; calcium deficit resulting in osteopaenia in battery hens, the restriction of broiler breeders’ feed with the result that they go hungry although bred for appetite, leg problems in broilers bred for weight, rough handling of broilers taken for slaughter and pre-stun electric shocks suffered by broilers on the way to slaughter. Those matters, for which the Second Plaintiff or both Plaintiffs are in my judgment culpably responsible, go to strengthen my view that the sting of this part of the leaflet to the effect that the First and Second Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food is justified, true in substance and in fact.

The judge ruled that the pair were justified in their claims that McDonald’s exploits children through advertising, is responsible for animal cruelty, risks the health of long term customers, falsely advertises their food as nutritious, pays low wages and is anti-union. But it was also ruled that they had not adequately proved, to the judge’s satisfaction, the allegations against McDonald’s on third world hunger, rainforest destruction, food poisoning, cancer, heart disease, or poor working conditions. Morris and Steel were ordered to pay £60,000 in damages to McDonald’s, something that they had no intention of ever doing. Nor did they intend to stop their activism against McDonald’s, indeed as early as two days after the verdict Morris and Steel were back on the sidewalk leafleting along with thousands of others across the nation and world-wide. After years of hard legal battle the pair eventually went on to have the European Court of Human Rights rule that the way the Mclibel case was handled violated their right to a fair trial and freedom of expression. Ultimately though they won in court McDonald’s never collected damages, never obtained an injunction against the leaflet, and were seen in the eyes of the public as anti-free speech bullies, in other words, Morris and Steel were undefeated.

Activists of all kinds must recognize that this is not a narrow issue, it is one that can affect us all. As Dave Morris said is reference to Simon’s case, [We] “should all be opposed to aspects of English libel law which unfairly protect public or corporate bodies from public scrutiny and fair criticism, especially around health and scientific issues.”

For more information about the Libel Reform Campaign visit the Sense About Science website and for more on the McLibel trial please read the full story or view the documentary film.

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