Information Note on the Court’s case-law No. 72
February 2005
Steel and Morris v. the United Kingdom - 68416/01
Judgment 15.2.2005 [Section IV]
Article 6
Civil proceedings
Article 6-1
Fair hearing
Lack of legal aid in defamation proceedings: violation
Article 10
Article 10-1
Freedom of expression
Award of damages for defamation: violation
Facts: The applicants were associated with a small organisation called London Greenpeace (unconnected with Greenpeace International). The organisation launched an anti-McDonald’s campaign in the mid-1980s. A six-page fact sheet was produced and distributed as part of that campaign. The fact sheet contained allegations against McDonald’s stating, for instance, that it was responsible for starvation in the Third World or for the eviction of small farmers from their land or of tribal people from their rainforest territories. A number of allegations were related to the lack of nutritional qualities of McDonald’s food, and the health risks involved in consuming it. Finally, other allegations referred to the abusive targeting of children in their advertising, the cruel practices in the rearing and slaughter of the animals used to produce the food or the unsatisfactory working conditions in the corporation. McDonald’s brought proceedings against the applicants claiming damages for libel. The applicants denied publication of the fact sheet or that the meanings in it were defamatory. They applied for legal aid but were refused it since legal aid is not available for defamation proceedings in the United Kingdom. They represented themselves throughout the trial, although they received some help from barristers and solicitors acting pro bono. (It was the longest trial – 313 court days – in English legal history.) At one stage of the trial the applicants were unable to pay for the daily transcripts of the proceedings. They eventually obtained copies with some delay, using donations from the public. During the trial, one of the applicants signed an affidavit related to another set of proceedings in which he mentioned that the libel action had arisen from the “leaflets we had produced”. Despite the applicant’s objection that his solicitor had by mistake omitted to include the words “allegedly produced”, the trial judge admitted the affidavit as evidence. On the basis of the affidavit, McDonald’s were permitted to amend their statement at a late stage in the trial. The applicants were held liable for publication of the fact sheet, which was found to include several statements that were untrue and others which were not justified. The judge made an award for damages in favour of McDonald’s. In the appeal proceedings before the Court of Appeal some of the contentious allegations were considered comment and others as being justified. The damages award was in consequence reduced. Leave to appeal to the House of Lords was refused.
Law:Article 6 § 1 – Lack of legal aid: The question whether the provision of legal aid was necessary for a fair hearing had to be determined on the basis of the particular facts and circumstances of each case and depended inter alia on the importance of what was at stake for the applicants in the proceedings, the complexity of the relevant law and procedure and the applicants’ capacity to represent themselves effectively. In terms of what had been at stake for the applicants, although defamation proceedings were not, in this context, comparable to, for instance, proceedings raising important family-law issues, the financial consequences had been potentially severe. As regards the complexity of the proceedings, the trial at first instance had lasted 313 court days, preceded by 28 interlocutory applications. The appeal hearing had lasted 23 days. The factual case which the applicants had had to prove had been highly complex, involving 40,000 pages of documentary evidence and 130 oral witnesses. Nor was the case straightforward legally. Extensive legal and procedural issues had to be resolved before the trial judge was in a position to decide the main issue. Against this background, it was necessary to assess the extent to which the applicants were able to bring an effective defence despite the absence of legal aid. The applicants appeared to have been articulate and resourceful and they had succeeded in proving the truth of a number of the statements complained of. They had moreover received some help on the legal and procedural aspects of the case from barristers and solicitors acting pro bono: their initial pleadings were drafted by lawyers. For the bulk of the proceedings, however, including all the hearings to determine the truth of the statements in the leaflet, they had acted alone. In an action of this complexity neither the sporadic help given by the volunteer lawyers nor the extensive judicial assistance and latitude granted to the applicants as litigants in person, was any substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel. The very length of the proceedings was, to a certain extent, a testament to the applicants’ lack of skill and experience.
In conclusion, the denial of legal aid to the applicants had deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms with McDonald’s.
Conclusion:violation (unanimously).
Article 6 – Other complaints: In view of its above finding the Court did not consider it necessary to examine separately the additional complaints directed at a number of specific rulings made by the judges in the proceedings.
Article 10 – The central issue which fell to be determined under Article 10 was whether the interference with the applicants’ freedom of expression had been “necessary in a democratic society”. The Government had contended that, as the applicants were not journalists, they should not attract the high level of protection afforded to the press under Article 10. The Court considered, however, that in a democratic society even small and informal campaign groups, such as London Greenpeace, had to be able to carry on their activities effectively. There existed a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and the environment.
The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest was subject to the proviso that they acted in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism, and the same principle applied to others who engaged in public debate. In a campaigning leaflet a certain degree of hyperbole and exaggeration could be tolerated, and even expected, but in the case under review the allegations had been of a very serious nature and had been presented as statements of fact rather than value judgments.
The applicants, who, despite the High Court’s finding to the contrary, had denied that they had been involved in producing the leaflet, had claimed that it placed an intolerable burden on campaigners such as themselves, and thus stifled public debate, to require those who merely distributed a leaflet to bear the burden of establishing the truth of every statement contained in it. They had also argued that large multinational companies should not be entitled to sue in defamation, at least without proof of actual financial damage. Complaint was further made of the fact that under the law McDonald’s were able to bring and succeed in a claim for defamation when much of the material included in the leaflet was already in the public domain.
Like the Court of Appeal, the Court was not persuaded by the argument that the material was in the public domain since either the material relied on did not support the allegations in the leaflet or the other material was itself lacking in justification. As to the complaint about the burden of proof, it was not in principle incompatible with Article 10 to place on a defendant in libel proceedings the onus of proving to the civil standard the truth of defamatory statements. Nor should in principle the fact that the plaintiff in the present case was a large multinational company deprive it of a right to defend itself against defamatory allegations or entail that the applicants should not have been required to prove the truth of the statements made. It was true that large public companies inevitably and knowingly laid themselves open to close scrutiny of their acts and the limits of acceptable criticism are wider in the case of such companies. However, in addition to the public interest in open debate about business practices, there was a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoyed a margin of appreciation as to the means it provided under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation.
If, however, a State decided to provide such a remedy to a corporate body, it was essential, in order to safeguard the countervailing interests in free expression and open debate, that a measure of procedural fairness and equality of arms was provided for. The more general interest in promoting the free circulation of information and ideas about the activities of powerful commercial entities, and the possible “chilling” effect on others were also important factors to be considered in this context. The lack of procedural fairness and equality which the Court had already found in respect of Article 6 therefore also gave rise to a breach of Article 10.
Moreover, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered. While it was true that no steps had so far been taken to enforce the damages award against either applicant, the fact remained that the substantial sums awarded against them had remained enforceable since the decision of the Court of Appeal. In those circumstances, the award of damages in the present case was disproportionate to the legitimate aim served.
Conclusion: violation (unanimously).
Article 41 – The Court awarded the applicants EUR 20,000 and 15,000 to the respective applicants in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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