Free speech in the dock

The European Court of Human Rights (ECHR) ruled this week that, by not receiving legal aid in their UK libel case, the environmental activists Helen Steel and Dave Morris did not receive a fair trial.

Back in 1984 Steel and Morris distributed flyers claiming that the fast-food giant McDonald’s was selling unhealthy food, was to blame for starvation in the developing world, and was destroying rain forests. McDonald’s did what it had a track record of doing when maligned – it sued for libel. Thirteen years later, in 1997 – after 26 months of testimony and eight weeks of closing speeches – Steel and Morris lost the longest-running trial in English legal history. Because there is no legal aid available in libel cases, the defendants had conducted their own defence.

The notoriously prohibitive costs involved in libel cases have ensured that the libel courts exclusively serve the interests of the rich and powerful. So London, often dubbed ‘a town called Sue’, has long been considered the libel capital of the world, attracting chancers who know the odds are overwhelmingly stacked in favour of those who sue. As long as they have enough money to pay the extortionate lawyers’ fees, London’s High Court is the place to come to launder their reputation.

The ECHR ruled that due to the length and complexity of the case against Steel and Morris, ‘the denial of legal aid to the Applicants deprived them of the opportunity to present their case effectively before the Courts and contributed to an unacceptable inequality of arms with McDonald’s’.

The ruling has been welcomed for allowing more of a level playing field in libel cases. But financial assistance alone can never allow for a level playing field when it comes to English libel law, which is fundamentally unjust and undemocratic. In England the libel law assumes that the words complained of are untrue and that the claimant’s reputation is untarnished. The claimant does not have to prove any actual damage of reputation – only that the statement could potentially lower their esteem in the eyes of ‘right-thinking members of the public’. The burden then falls on the defendant to prove that the defamatory words – and their possible interpretations – are true.

Ultimately it does not matter whether Steel and Morris had received legal aid, since they would not have been able to prove to the court’s satisfaction the truth of the offending statement. The ECHR judgement did not endorse the campaigners’ claims. Although it acknowledged that in a campaigning leaflet ‘a certain degree of hyperbole and exaggeration is to be tolerated, and even expected’, it stating that ‘in the present case, however, the allegations were of a very serious nature and were presented as statements of fact rather than value judgements’. McLibel Two could not have successfully defended the truth of these ‘statements of fact’ in London’s High Court.

The Daily Telegraph concluded that the ECHR ruling has upheld the ‘The right to be rude and inaccurate’ at the taxpayers’ expense. But surely in a healthy democracy, campaigners and journalists should be free to criticise big corporations, public figures and politicians – whether or not their statements are justified? In the landmark ruling of New York Times v Sullivan in 1964, the American Supreme Court observed that in free debate erroneous statements are inevitable and must be protected – otherwise free expression would not have the ‘breathing space it needs’ and media self-censorship would be inevitable. The fear of not being able to prove the truth of the published word in court, and the recognition of the expense and resources required to do so, would limit public debate.

We are living in a climate where it is becoming increasingly acceptable to bash big corporations, which are blamed for untold human misery. Much of the corporation-bashing is crass and indeed inaccurate. But ensuring that big corporations, as well as rich and powerful individuals, maintain free reign to sue without allowing the defendant ample recourse to defend him or herself, is not going to raise the level of public debate.

The way to deal with the dire state of public debate today is to fight for more speech and debate, not less. That means scrapping the libel law, for a start. The UK libel law has a chilling effect on free speech. If authors, editors or publishers have the smallest inkling that the truth of a proposition cannot be proven in court (even when made in good faith), the knowledge that they will have a less than a one-in-five chance of success in a libel trial means the story is most likely to be dropped. So rather than tinker with a law that is antithetical to free speech, we should get rid of it once and for all