New Holyrood defamation bill a step forward

Sunday National, 19th January 2020.

Thirty years ago, five London Greenpeace activists found themselves slapped with a libel writ. It was
the beginning of what would become one of the biggest, longest and most notorious UK defamation
trials of the 1990s. You’ve probably heard its name before. It came to be known as the “McLibel”
case.

Since 1986, a small squad of London Greenpeace activists had been campaigning against the
American fast food giant. McDonald’s established its first UK outlet in Woolwich in 1974. By the end
of 1990, it ran to 380 British outlets. By the time the McLibel trial finally concluded, the
multinational had ratchetting up more than 650 restaurants. Today, there are approximately 1,300
franchises scattered across the UK.

London Greenpeace were distributing leaflets headlined “What’s wrong with McDonald’s?
Everything they don’t want you to know.” As the judge in the subsequent libel trial summarised, this
leaflet essentially accused McDonald’s of hypocrisy, dishonesty and profiteering. Behind Ronald
McDonald’s plastic smile, they argued, the Iowa-based company was “responsible for starvation in
the Third World, of destroying vast areas of Central American rainforest, of serving unhealthy food
with a very real risk of cancer of the breast or bowel and heart disease and food poisoning, of lying
when it claimed to use recycled paper, of exploiting children with its advertising and marketing, of
cruelty to animals, and of treating its employees badly.”

McDonald’s called in its barristers. Helen Streel and David Morris – along with their three comrades
– were accused of blackening the corporation’s good name. Or, to express the same thought in more
legalistic terms, of “disseminating materials which tended to lower the company’s reputation in the
estimation of ordinary persons.” McDonald’s sued for substantial damages. While the other
campaigners apologised and retracted, Morris and Steel weren’t for turning. The pair went all in
against the corporation in the High Court in London in 1994. They did so, hampered by several
disadvantages.

Steel and Morris found themselves defending a libel action against a multinational corporation, with
all the financial clout hundreds of thousands of Big Macs can command. Their application for legal
aid to defend their position against the multinational was declined. Then, as now, libel suits were
seen by state bean counters as vanity litigation. If you offended the vanity of the wrong man or
wrong corporation – well, hell mend you.

Neither Morris nor Steel had two pennies to rub together. Neither Steel nor Morris could afford to
instruct QCs to answer the murder of barristers which McDonald’s paid through the nose to send
into the courtroom. There was worse to come. In most court cases, it’s for the party who brings the
action to prove their case.

Prosecutors must prove beyond reasonable doubt that you committed the crime. Landlords wanting
to evict their tenants must prove cause shown. Not so in defamation cases. There, the civil courts flip
the ordinary rules. If you find yourself accused of defaming someone, the burden falls on you – not
the plaintiff – to prove the claims you have made against them are substantially true.

As the McLibel trial unfolded over weeks, months and years, the press clichés wrote themselves.
Two plucky individuals facing down the faceless corporation. Socially-conscious little guys, menaced
by powerful corporate interests, using legal tools to suppress legitimate criticism. The case has been
described as “one of the greatest corporate PR disasters of all time” for the conglomerate. The
Streisand Effect on acid, or at least on potato starch, disaccharides and sodium.

The McLibel case may have looked like David against Goliath – but unlike the Biblical version, Goliath won. In June 1997, Mr Justice Bell found in favour of McDonald’s. But the judge’s legal conclusions were two-edged. While he determined Morris and Steel had defamed the corporation, Mr Justice Bell also found that some of the pamphlet’s allegations were substantially true. His award of £60,000 damages against the pair was never recovered.

In 2005, the European Court of Human Rights subsequently ruled that the trial was unfair and that
the activists’ rights to free expression had been unjustifiably infringed by the British authorities.
There was, said Strasbourg, a “strong public interest” in enabling even small campaigning groups to
“disseminate information” and discuss contentious ideas “on matters of general public interest.”
Quite so.

Three decades on, the McLibel case still encapsulates stubborn issues with the law of defamation,
north and south of the border. While protecting people’s reputations against being unfairly and
inaccurately blackened seems like a good idea, how do we stop the law of defamation becoming a
tool of intimidation? How do we prevent it becoming yet another weapon for rich people – or
corporations – to suppress legitimate criticism of their products or practices? How do we protect
legitimate challenges from the peevish, the spiteful and thin-skinned?

This week, Scotland has taken a few steps forward towards some better answers to these questions.
Holyrood has now confirmed this week that its Justice Committee will be scrutinising the Scottish
Government’s new Defamation Bill, building on the work of the Scottish Law Commission and
campaigners to modernise Scottish defamation law.

The Bill makes a number of important changes. Under the new rules, pursuers will have to show the
alleged defamation has caused “serious harm” to their reputations. If they can’t? Case closed. Where the pursuer is a company rather than an individual – like in the notorious 1990s McLibel case
– then they must show the statement has caused or is likely to cause them a “serious financial loss”.
Tuppence ha’penny threats won’t be tolerated or indulged.

Scottish public authorities will be banned from suing the punters who use their services. And in the
social media age, the Bill’s proposals on secondary publishers are particularly important. If you
retweet or share a potentially defamatory story on Facebook – then as the law stands, you can be
sued for damages, as if you were the original author or publisher of the tale. The law gives secondary publishers have no refuge. If this Bill passes, all that’s going to change. There will also be a new defence for people who publish information in the public interest, alongside defences of truth and honest opinion.

“To whom it may concern.” Messers Sue, Grabbit and Runne, crave your attention. I imagine most
of you have never received a lawyer’s letter, indicating their client has instruct them to take you to
law for defamation. I can tell you: it is an intimidating experience. As resilient as you might be, as
hardy as you hope to be, the dire personal consequences of – even defending, never mind winning –
a defamation action could keep any responsible writer awake a-night. You feel exposed, second
guess yourself, fret about it.

Talk to any Scottish journalist doing more than polishing up PR and printing puff-pieces, and they’ll
tell you stories about the threats they’ve received, the stories they never published, the issues and
individuals they body-swerved, for fear of ending up on the receiving end of the kind of life-changing litigation Steel and Morris fought in the 1990s.

The names of the responsible individuals and organisations will often never make it to the front page in this context. Many have never taken a case to a full hearing. They don’t have to. But some of
Scotland’s public figures are notorious for their close connections with the nation’s defamation
specialists, those pinstriped gentlemen of the law prepared to throw their weight around, with
threats and promises of litigation if the story’s run, if the copy isn’t amended, if the apology isn’t
forthcoming, if the paper won’t capitulate.

It’s right that Scots Law recognises that those who blacken the good name of other people should
face consequences for those actions, and the wrongfully maligned should find in the law some
remedy. But it isn’t the number of full blown Court of Session or Sheriff Court which we should use
to measure the risks of our imperfect law on defamation. It isn’t the cases you’ve heard about – but
the ones you haven’t heard about, which should worry you.

This is the chilling effect in action. The good news is: Holyrood’s new Defamation Bill should warm
things right up.

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