Between 1990 and 2005, a libel case arising from a six-page leaflet occupied the British courts and then the European Court of Human Rights. It is known as “McLibel”. It pitted McDonald's Corporation and its British subsidiary McDonald's Restaurants Ltd against two activists, Helen Steel and David Morris. The facts that follow are those established by the Strasbourg Court's judgment of 15 February 2005, which summarises the whole of the English proceedings.
One leaflet, five writs
In the mid-1980s, a small London activist group, London Greenpeace - unconnected with Greenpeace International - launched a campaign against McDonald's. From 1986 it distributed a leaflet entitled “What's wrong with McDonald's?”, reprinted for the last time in early 1987. The text accused the company, among other things, of contributing to famine in the Third World, destroying the rainforest, selling products dangerous to health, mistreating animals and exploiting its employees.
McDonald's UK instructed seven private detectives, from two firms, to infiltrate the group. Between October 1989 and 1991, they attended more than forty meetings. As the group had no legal personality, the company served writs on five individuals on 20 September 1990, claiming up to 100,000 pounds. Three of them apologised and the proceedings against them were withdrawn. That left Helen Steel, then a part-time bar worker earning about 65 pounds a week, and David Morris, an unemployed former postman and single father.
On 3 June 1992, they were refused legal aid: at that time, it was not available in the United Kingdom for libel cases. The two activists conducted their own defence.
Three hundred and thirteen days of hearings
The trial opened on 28 June 1994 before Mr Justice Bell, without a jury, and closed on 13 December 1996. The European Court describes it as “the longest trial, civil or criminal, in English legal history”: 313 days of hearings, about 20,000 pages of transcripts, 40,000 pages of documents, 130 witnesses heard - 71 for McDonald's, 59 for the defence.
After six months of deliberation, the judge delivered on 19 June 1997 a 762-page judgment. It was neither a clear victory nor a clear defeat.
What the judge held to be untrue
- the accusation of responsibility for famine in the Third World, the purchase of vast tracts of land and the eviction of small farmers;
- the destruction of the rainforest and the expulsion of indigenous peoples;
- lying about recycled paper;
- knowingly selling products exposing customers to a serious risk of food poisoning;
- the existence of a policy of getting rid of pro-union employees;
- the general accusation of “bad working conditions”, which the judge found not justified - while noting that some working conditions were unsatisfactory.
What the judge held to be true
- advertising aimed at children: it is true, he wrote, that the plaintiffs “exploit children by using them, as more susceptible subjects of advertising, to pressurise their parents”;
- misleading nutritional advertising: the advertisements and leaflets “have pretended to a positive nutritional benefit” which McDonald's food, high in fat and sodium, did not offer;
- animal cruelty: the company was found “culpably responsible for cruel practices in the rearing and slaughter of some of the animals” used for its products;
- low wages, for McDonald's UK only, which “pays its workers low wages, thereby helping to depress wages for workers in the catering trade in Britain”.
Damages amounted to 60,000 pounds in total, 30,000 for each of the two companies. McDonald's did not seek an order for costs.
The appeal, then Strasbourg
The Court of Appeal ruled on 31 March 1999, after twenty-three days of hearings, in a 301-page judgment. It found partly in the activists' favour: the allegation of a “very real risk” of breast and bowel cancer was not proved, and the statements about wages and working conditions were fair comment, protected opinion. On the other hand, it added an allegation found to be justified: eating enough McDonald's products could lead to a diet high in fat carrying a real risk of heart disease. Damages were reduced to 36,000 pounds for Helen Steel and 40,000 pounds for David Morris. Leave to appeal to the House of Lords was refused on 21 March 2000.
The two activists then applied to the European Court of Human Rights. Their counsel was Keir Starmer, future British Prime Minister. On 15 February 2005, in the case of Steel and Morris v. United Kingdom (application no. 68416/01), the Court unanimously found a twofold violation:
- violation of Article 6 § 1 (right to a fair trial): the refusal of legal aid, in proceedings of exceptional complexity and length, had upset the equality of arms;
- violation of Article 10 (freedom of expression).
“The applicants had the choice either to withdraw the leaflet and apologise to McDonald's, or bear the burden of proving, without legal aid, the truth of the allegations contained in it. Given the enormity and complexity of that undertaking, the Court does not consider that the correct balance was struck.”European Court of Human Rights, Steel and Morris v. United Kingdom, 15 February 2005, § 95
The Court also found the damages disproportionate: “relatively moderate by contemporary standards” in English libel cases, they were “very substantial when compared to the modest incomes and resources of the two applicants”. It awarded 20,000 euros to Helen Steel and 15,000 euros to David Morris for non-pecuniary damage, plus 47,311.17 euros for costs and expenses. At the date of the judgment, no enforcement action had been taken by McDonald's to recover the sums due.
The point of contact with the Collorafi case file
The two cases have neither the same subject matter nor the same parties: McLibel is a libel trial, the Antibes case file a franchise dispute. The ground relied on in Strasbourg, however, is the same. Bernard Collorafi also brought an application against France before the European Court of Human Rights, in March 2001, under Article 6 § 1 - the right to a fair trial. The question of inequality of arms between an individual litigant and a multinational runs through both cases, whatever the outcome of each.
It should also be noted that Mr Justice Bell upheld, on the merits, two complaints that McDonald's disputed - advertising aimed at children and the nutritional claim - while rejecting most of the other accusations. That is what the judgment says, and nothing more.
What the trial leaves behind
The London Court of Appeal, seised in 1999, upheld the verdict in essence while reducing the damages. None of the sums was ever recovered.
Among the accusations that the trial judge held to be established was that of low wages. It is the criticism crystallised by the word “McJob”, which entered American and British dictionaries in the early 2000s, and against which the company waged a public campaign - without success.
The finding against the United Kingdom by the Strasbourg Court, on 15 February 2005, does not concern the substance of the leaflet but the conditions of the trial: two people without means, deprived of legal aid, could not defend themselves on equal terms for several years against a multinational's lawyers.