H.S. AND D.M. v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 21325/93

                      by H.S. and D.M.

                      against the United Kingdom

      The European Commission of Human Rights (First Chamber) sitting

in private on 5 May 1993, the following members being present:

           MM.   E. BUSUTTIL, Acting President of the First Chamber

                 A.S. GÖZÜBÜYÜK

           Sir   Basil HALL

           Mr.   C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   B. MARXER

                 G.B. REFFI

           Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 2 December 1992

by H.S. and D.M. against the United Kingdom and registered on 3

February 1993 under file No. 21325/93;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicants are British citizens, born in 1965 and 1954

respectively.  They live in London and are both unemployed.  They are

represented before the Commission by John Wadham, the Legal Officer of

Liberty, London.

      The applicants produced a leaflet entitled "What's wrong with

McDonald's?" dealing with certain of McDonald's business practices in

the context of, inter alia, environmental damage, starvation and

malnutrition in developing countries, advertising ethics, the slaughter

of animals, staff working conditions and McDonald's attitude to trade

unions.

      McDonald's are in the process of suing the applicants for libel

damages and a permanent injunction against the applicants to prevent

them repeating the alleged libel.

      The applicants are defending themselves in matters of some

complexity and have sought legal aid.  It was refused on 3 June 1992

because legal aid is not available for defamation proceedings, not

being in the schedule of proceedings envisaged by the Legal Aid Act

1988.  An appeal to the public has apparently been made for voluntary

funding of the applicants' case, which seems to have aroused media

interest.

COMPLAINTS

      The applicants complain that they are being denied effective

access to court under Article 6 of the Convention to defend their right

to free speech.  They feel they are unable to defend themselves without

legal aid, expert advice, assistance and representation against such

a weighty adversary as McDonald's.

      The applicants also complain that the initiation of proceedings

against them by McDonald's constitutes an unjustified interference with

their Article 10 freedom of expression, in particular their right to

receive and impart information and ideas.  The failure of the United

Kingdom to provide legal aid or simplified procedures, or to limit the

amount of damages which could be awarded in such defamation proceedings

also constitutes a breach of Article 10 of the Convention.

      The applicants invoke Article 6 of the Convention, Article 14 of

the Convention (wealth discrimination) and Article 13 of the

Convention, alleging a lack of effective domestic remedies for their

Convention claims.

      The applicants seek to distinguish their case from the

Commission's previous case-law in which the absence of legal aid in

defamation cases was not found to breach Article 6 of the Convention,

because in their case they did not initiate the defamation proceedings,

but are the unwilling defendants in a case brought against them by a

large business.

THE LAW

1.    The applicants have complained that they are denied effective

access to court by virtue of an absence of legal aid or simplified

procedures for defamation proceedings and the possible unlimited nature

of an award of damages.

      Article 6 para. 1 (Art. 6-1) of the Convention guarantees a fair

hearing in the determination of civil rights and obligations and,

implicitly, access to court (Eur. Court H.R., Golder judgment of 21

February 1975, Series A no. 18).  Although the Convention does not

guarantee a right, as such, to legal aid in civil cases, effective

access to court must be ensured.  The means by which a State does so

is within its margin of appreciation (Eur. Court H.R., Airey judgment

of 9 October 1979, Series A no. 32, p. 15, para. 26).

      The Commission has already had occasion to consider the lack of

legal aid for defamation proceedings in the English legal aid scheme

and it has held as follows:

      "The Commission notes that even where legal aid may be available

      for certain types of civil action, it is reasonable to impose

      conditions on its availability involving, inter alia, the

      financial situation of the litigant or the prospects of success

      of the proceedings (cf. No. 8158/78, Dec. 10.7.80, D.R. 21

      p. 95).  The Commission considers, similarly, that, given the

      limited financial resources of most civil legal aid schemes, it

      is not unreasonable to exclude certain categories of legal

      proceedings from this form of assistance.  The fact that the

      English legal aid scheme excludes assistance in defamation

      proceedings has not been shown to be arbitrary in the present

      case.

      The question remains, therefore, whether, despite the absence of

      legal aid for defamation proceedings, the applicant was

      effectively denied access to court, contrary to Article 6 para. 1

      (Art. 6-1) of the Convention"

      (No. 10871/84, Winer v. the United Kingdom, Dec. 10.7.86, D.R.

      48 p. 154)

      The Commission considers that this general approach to the

question of access to court is not affected by the litigant's status

as either plaintiff or defendant.

      Turning to the facts of the present case, it has not been shown

that the applicants are being denied effective access to court as

litigants in person, albeit inexperienced.  They seem to be making a

tenacious defence against McDonald's, despite the absence of legal aid,

the complexity of the procedures and the risk of an award of damages

against them if they are found to have libelled McDonald's.  The

Commission finds, therefore, that the unavailability of legal aid to

defend defamation proceedings in the present case has not deprived the

applicants of access to court contrary to Article 6 para. 1 (Art. 6-1)

of the Convention.

      It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    The applicants have next complained that the institution of libel

proceedings against them by McDonald's, as well as the combined effect

of a lack of legal aid, simplified procedures or restrictions on

damages, constituted an unjustified interference with their freedom of

expression ensured by Article 10 (Art. 10) of the Convention.

      Article 10 (Art. 10) of the Convention provides as follows:

      "1.  Everyone has the right to freedom of expression.  This

      right shall include freedom to hold opinions and to receive and

      impart information and ideas without interference by public

      authority and regardless of frontiers.  This Article shall not

      prevent States from requiring the licensing of broadcasting,

      television or cinema enterprises.

      2.   The exercise of these freedoms, since it carries with it

      duties and responsibilities, may be subject to such formalities,

      conditions, restrictions or penalties as are prescribed by law

      and are necessary in a democratic society, in the interests of

      national security, territorial integrity or public safety, for

      the prevention of disorder or crime, for the protection of health

      or morals, for the protection of the reputation or rights of

      others, for preventing the disclosure of information received in

      confidence, or for maintaining the authority and impartiality of

      the judiciary."

      The Commission notes, first, that it has no competence to deal

with that aspect of the complaint directed against McDonald's, being

a private company not incurring the State's responsibility under the

Convention.

      Secondly, it notes that the freedom conferred by Article 10

(Art. 10) of the Convention is not of an absolute, unfettered nature.

It does not authorise the publication of defamatory material.  On the

contrary, the second paragraph of Article 10 (Art. 10) offers specific

protection for "the reputation or rights of others".  McDonald's are,

therefore, entitled to seek the determination of their civil rights to

a good reputation and, if successful, the protection of that reputation

against an alleged libel.  Similarly the applicants are entitled to

defend themselves against McDonald's writ in the determination of their

civil right to free speech and fair comment in matters of public

interest.

      The Commission does not find that the matters which may involve

the responsibility of the respondent Government under the Convention,

namely a lack of legal aid, simplified procedures or restrictions on

damages, essentially interfere with the applicants' freedom of

expression.  They have published their views, upon which there was no

prior restraint, and, if those views are subsequently found to be

libellous, any ensuing sanctions would in principle be justified for

the protection of the reputation and rights, within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention.

      The Commission considers, therefore, that the present case does

not disclose any appearance of a violation of Article 10 (Art. 10) of

the Convention.  It follows that this aspect of the case is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.    The applicants next complain that they have been discriminated

against on grounds of wealth in the protection of their Articles 6 and

10 rights, contrary to Article 14 (Art. 6, 10, 14) of the Convention.

They contend that the lack of legal aid, simplified procedures or

restrictions on damages amounts to a breach of Article 14 (Art. 14) of

the Convention, in that those who can afford to pay for legal and

expert advice, assistance and representation are better able to secure

and defend their rights under Articles 6 and 10 (Art. 6, 10) of the

Convention than those without financial resources.

      The Commission acknowledges that in most circumstances wealthy

people are better able to defend their rights.  However the Commission

has also recognised above (p.4) that it is reasonable, given the

limited financial resources of most civil legal aid schemes, to

establish priorities which may exclude defamation litigation, given its

risky nature and the difficulty in accurately predicting its outcome

(No. 10594/83, Munro v. the United Kingdom, Dec. 14.7.87, D.R. 52 p.

158, at p. 165).

      For the same reasons, the Commission considers that it has not

been shown to be unreasonable or arbitrary to give low priority to any

reform of litigation procedures in defamation, however desirable such

reform may be.  Furthermore, the Commission does not consider that the

lack of restriction on any award of damages affects the applicants, who

claim to be unemployed and penniless.  Should they lose the defamation

case, account would be taken of their income in any attempt to enforce

an overburdensome award.

      In the circumstances, the Commission finds that there are

reasonable and objective grounds for the State not to provide special

assistance to litigants in defamation proceedings.  It follows that

this part of the application is manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.    Finally the applicants complain of a breach of Article 13

(Art. 13) of the Convention which guarantees an effective domestic

remedy for breaches of the Convention.  However, the case-law of the

Commission establishes that Article 13 (Art. 13) does not require a

remedy in domestic law for all claims alleging a breach of the

Convention; the claim must be an arguable one (Eur. Court H.R., Boyle

and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).

In the light of the above conclusions concerning the applicants'

complaints under Articles 6, 10 and 14 (Art. 6, 10, 14) of the

Convention, the Commission finds that the applicants do not have an

arguable claim of a breach of these provisions which warrants a remedy

under Article 13 (Art. 13).  This part of the application must also,

therefore, be rejected as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber    Acting President of the First Chamber

      (M.F. BUQUICCHIO)                       (E. BUSUTTIL)

 

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