FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68416/01 by Helen STEEL and David MORRIS against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 22 October 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza ,

Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi ,

Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 20 September 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Helen Steel and David Morris, are United Kingdom nationals, who were born in 1965 and 1954 respectively and live in London. They are represented before the Court by Mark Stephens, a lawyer practising in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicants , may be summarised as follows.

During the period with which this application is concerned, Ms Steel was at times employed as a part-time bar worker, earning approximately GBP 65 per week, and was at other times unwaged and dependent on income support. Mr Morris, a former postal worker, was unwaged and in receipt of income support. He was a single parent, responsible for the day to day care of his son, aged four when the trial began. At all material times the applicants were associated with London Greenpeace, a small group, unconnected with Greenpeace International, which campaigned principally on environmental and social issues.

In the mid-1980s London Greenpeace began an anti-McDonald’s campaign. In 1986 a six-page leaflet entitled ““What’s wrong with McDonald’s?” (“the factsheet ”) was produced and distributed as part of that campaign. It was last reprinted in early 1987.

The first page of the factsheet showed a grotesque cartoon image of a man, wearing a stetson and with dollar signs in his eyes, hiding behind a “Ronald McDonald” clown mask. Running along the top of pages 2-5 was a header comprised of the McDonald’s “golden arches” symbol, with the words “ McDollars , McGreedy , McCancer , McMurder , McDisease ...” and so forth, superimposed on it.

The text of page 2 of the factsheet read as follows (extract):

“What’s the connection between McDonald’s and starvation in the ‘Third World’?

THERE ’ s no point feeling guilty about eating while watching starving African children on TV. If you do send money to Band Aid, or shop at Oxfam, etc., that’s morally good but politically useless. It shifts the blame from governments and does nothing to challenge the power of multinational corporations.

HUNGRY FOR DOLLARS

McDonald’s is one of several giant corporations with investments in vast tracts of land in poor countries, sold to them by the dollar-hungry rulers (often military) and privileged elites , evicting the small farmers that live there growing food for their own people.              The power of the US dollar means that in order to buy technology and manufactured goods, poor countries are trapped into producing more and more food for export to the States. Out of 40 of the world’s poorest countries, 36 export food to the USA - the wealthiest.

ECONOMIC IMPERIALISM

Some ‘Third World’ countries, where most children are undernourished, are actually exporting their staple crops as animal feed - i.e. to fatten cattle for turning into burgers in the ‘First World’. Millions of acres of the best farmland in poor countries are being used for our benefit - for tea, coffee, tobacco, etc - while people there are starving . McDonald’s is directly involved in this economic imperialism, which keeps most black people poor and hungry while many whites grow fat.

GROSS MISUSE OF RESOURCES

GRAIN is fed to cattle in South American countries to produce the meat in McDonald’s hamburgers. Cattle consume 10 times the amount of grain and soy that humans do: one calorie of beef demands ten calories of grain. Of the 145 million tons of grain and soy fed to livestock, only 21 million tons of meat and by-products are used. The waste is 124 million tons a year at a value of 20 billion us dollars. It has been calculated that this sum would feed, clothe and house the world’s entire population for one year”.

The first page of the factsheet also included a photograph of a woman and child, with the caption:

“ A typical image of ‘Third World’ poverty - the kind often used by charities to get ‘compassion money’. This diverts attention from one cause: exploitation by multinationals like McDonald’s.”

The second and third pages of the factsheet contained a cartoon image of a burger, with a cow’s head sticking out of one side and saying “If the slaughterhouse doesn’t get you” and a man’s head sticking out of the other, saying “The junk food will!” Pages 3-5 read as follows:

“FIFTY ACRES EVERY MINUTE

EVERY year an area of rainforest the size of Britain is cut down or defoliated, and burnt. Globally, one billion people depend on water flowing from these forests, which soak up rain and release it gradually. The disaster in Ethiopia and Sudan is at least partly due to uncontrolled deforestation. In Amazonia - where there are now about 100,000 beef ranches - torrential rains sweep down through the treeless valleys, eroding the land and washing away the soil. The bare earth, baked by the tropical sun, becomes useless for agriculture. It has been estimated that this destruction causes at least one species of animal, plant or insect to become extinct every few hours.

Why is it wrong for McDonald’s to destroy rainforests?

AROUND the Equator there is a lush green belt of incredibly beautiful tropical forest, untouched by human development for one hundred million years, supporting about half of the Earth’s life-forms, including some 30,000 plant species, and producing a major part of the planet’s crucial supply of oxygen.

PET FOOD AND LITTER

McDonald’s and Burger King are two of the many US corporations using lethal poisons to destroy vast areas of Central American rainforest to create grazing pastures for cattle to be sent back to the States as burgers and pet food, and to provide fast-food packaging materials. (Don’t be fooled by McDonald’s saying they use recycled paper: only a tiny per cent of it is. The truth is it takes 800 square miles of forest just to keep them supplied with paper for one year. Tons of this end up littering the cities of ‘developed’ countries.)

COLONIAL INVASION

Not only are McDonald’s and many other corporations contributing to a major ecological catastrophe, they are forcing the tribal peoples in the rainforests off their ancestral territories where they have lived peacefully, without damaging their environment, for thousands of years. This is a typical example of the arrogance and viciousness of multinational companies in their endless search for more and more profit.              It’s no exaggeration to say that when you bite into a Big Mac, you’re helping McDonald’s empire to wreck this planet.

What’s so unhealthy about McDonald’s food?

McDONALD ’ s try to show in their ‘Nutrition Guide’ (which is full of impressive-looking but really quite irrelevant facts & figures) that mass-produced hamburgers, chips, colas & milkshakes, etc., are a useful and nutritious part of any diet.              What they don’t make clear is that a diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals - which describes an average McDonald’s meal - is linked with cancers of the breast and bowel, and heart disease. This is accepted medical fact, not a cranky theory. Every year in Britain, heart disease alone causes about 18,000 deaths.

FAST = JUNK

Even if they like eating them, most people recognise that processed burgers and synthetic chips, served up in paper and plastic containers, is junk-food. McDonald’s prefer the name ‘fast-food’. This is not just because it is manufactured and served up as quickly a possible - it has to be eaten quickly too. It’s a sign of the junk-quality of Big Macs that people actually hold competitions to see who can eat one in the shortest time.

PAYING FOR THE HABIT

Chewing is essential for good health, as it promotes the flow of digestive juices which break down the food and send nutrients into the blood. McDonald’s food is so lacking in bulk it is hardly possible to chew it. Even their own figures show that a ‘quarter- pounder ’ is 48% water. This sort of fake food encourages over-eating, and the high sugar and sodium content can make people develop a kind of addiction - a ‘craving’. That means more profit for McDonald’s, but constipation, clogged arteries and heart attacks for many customers.

GETTING THE CHEMISTRY RIGHT

McDONALD’s stripey staff uniforms, flashy lighting, bright plastic décor, ‘Happy Hats’ and muzak , are all part of the gimmicky dressing-up of low-quality food which has been designed down to the last detail to look and feel and taste exactly the same in any outlet anywhere in the world. To achieve this artificial conformity, McDonald’s require that their ‘fresh lettuce leaf’, for example, is treated with twelve different chemicals just to keep it the right colour at the right crispness for the right length of time. It might as well be a bit of plastic.

How do McDonald’s deliberately exploit children?

NEARLY all McDonald’s advertising is aimed at children. Although the Ronald McDonald ‘personality’ is not as popular as their market researchers expected (probably because it is totally unoriginal), thousands of young children now think of burgers and chips every time they see a clown with orange hair.

THE NORMALITY TRAP

No parent needs to be told how difficult it is to distract a child from insisting on a certain type of food or treat. Advertisements portraying McDonald’s as a happy, circus-like place where burgers and chips are provided for everybody at any hour of the day (and late at night), traps children into thinking they aren’t ‘normal’ if they don’t go there too. Appetite, necessity and - above all - money, never enter into the ‘innocent’ world of Ronald McDonald.              Few children are slow to spot the gaudy red and yellow standardised frontages in shopping centres and high streets throughout the country. McDonald’s know exactly what kind of pressure this puts on people looking after children. It’s hard not to give in to this ‘convenient’ way of keeping children ‘happy’, even if you haven’t got much money and you try to avoid junk-food.

TOY FOOD

As if to compensate for the inadequacy of their products, McDonald’s promote the consumption of meals as a ‘fun event’. This turns the act of eating into a performance, with the ‘glamour’ of being in a McDonald’s (‘Just like it is in the ads!) reducing the food itself to the status of a prop.              Not a lot of children are interested in nutrition, and even if they were, all the gimmicks and routines with paper hats and straws and balloons hide the fact that the food they’re seduced into eating is at best mediocre, at worst poisonous - and their parents know it’s not even cheap.

RONALD’S DIRTY SECRET

ONCE told the grim story about how hamburgers are made, children are far less ready to join in Ronald McDonald’s perverse antics. With the right prompting, a child’s imagination can easily turn a clown into a bogeyman (a lot of children are very suspicious of clowns anyway). Children love a secret, and Ronald’s is especially disgusting.

In what way are McDonald’s responsible for torture and murder?

THE menu at McDonald’s is based on meat. They sell millions of burgers every day in 35 countries throughout the world. This means the constant slaughter, day by day, of animals born and bred solely to be turned into McDonald’s products.              Some of them - especially chickens and pigs - spend their lives in the entirely artificial conditions of huge factory farms, with no access to air or sunshine and no freedom of movement. Their deaths are bloody and barbaric.

MURDERING A BIG MAC

In the slaughterhouse, animals often struggle to escape. Cattle become frantic as they watch the animal before them in the killing-line being prodded, beaten, electrocuted and knifed.              A recent British government report criticised inefficient stunning methods which frequently result in animals having their throats cut while still fully conscious. McDonald’s are responsible for the deaths of countless animals by this supposedly humane method.              We have the choice to eat meat or not. The 450 million animals killed for food in Britain every year have no choice at all. It is often said that after visiting an abattoir, people become nauseous at the thought of eating flesh. How many of us would be prepared to work in a slaughterhouse and kill the animals we eat?

WHAT’S YOUR POISON?

MEAT is responsible for 70% of all food-poisoning incidents, with chicken and minced meat (as used in burgers) being the worst offenders. When animals are slaughtered, meat can be contaminated with gut contents, faeces and urine, leading to bacterial infection. In an attempt to counteract infection in their animals, farmers routinely inject them with doses of antibiotics. These, in addition to growth-promoting hormone drugs and pesticide residues in their feed, build up in the animals’ tissues and can further damage the health of people on a meat-based diet.

What’s it like working for McDonald’s?

THERE must be a serious problem: even though 80% of McDonald’s workers are part-time, the annual staff turnover is 60% (in the USA it’s 300%). It’s not unusual for their restaurant-workers to quit after just four or five weeks. The reasons are not hard to find.

NO UNIONS ALLOWED

Workers in catering do badly in terms of pay and conditions. They are at work in the evenings and at weekends, doing long shifts in hot, smelly, noisy environments. Wages are low and chances of promotion minimal.              To improve this through Trade Union negotiation is very difficult: there is no union specifically for these workers, and the ones they could join show little interest in the problems of part-timers (mostly women). A recent survey of workers in burger-restaurants found that 80% said they needed union help over pay and conditions. Another difficulty is that the ‘kitchen trade’ has a high proportion of workers from ethnic minority groups who, with little chance of getting work elsewhere, are wary of being sacked - as many have been - for attempting union organisation.              McDonald’s have a policy of preventing unionisation by getting rid of pro-union workers. So far this has succeeded everywhere in the world except Sweden, and in Dublin after a long struggle.

TRAINED TO SWEAT

It’s obvious that all large chain-stores and junk-food giants depend for their fat profits on the labour of young people. McDonald’s is no exception: three-quarters of its workers are under 21. The production-line system deskills the work itself: anybody can grill a hamburger, and cleaning toilets or smiling at customers needs no training. So there is no need to employ chefs or qualified staff - just anybody prepared to work for low wages.              As there is no legally-enforced minimum wage in Britain, McDonald’s can pay what they like, helping to depress wage levels in the catering trade still further. They say they are providing jobs for school-leavers and take them on regardless of sex or race. The truth is McDonald’s are only interested in recruiting cheap labour - which always means that disadvantaged groups, women and black people especially, are even more exploited by industry than they are already.”

The factsheet continued, on pages 5-6, with a number of proposals and suggestions for change, campaigning and activity, and information about London Greenpeace.

In the course of the libel action (see below), the domestic High Court found that Mr Morris had participated in the production of the factsheet in 1986, although the precise part which he played could not be identified, and had also taken part in its distribution. The judge found that Ms Steel’s involvement began in early 1988 and took the form of participation in London Greenpeace’s activities, sharing its anti-McDonald’s aims, including distribution of the leaflet. The judge found that the applicants were responsible for the publication of “several thousand” copies of the factsheet. It was not found that this publication had any impact on the sale of McDonald’s products. The domestic courts also found that the London Greenpeace factsheet had been reprinted word for word in a leaflet produced in 1987 and 1988 by an organisation based in Nottingham called Veggies Ltd. McDonald’s had threatened libel proceedings against Veggies Ltd, but had agreed a settlement after Veggies rewrote the section in the leaflet about the destruction of the rainforest and changed the heading “In what way are McDonald’s responsible for torture and murder?” to read “In what way are McDonald’s responsible for the slaughtering and butchering of animals?”

Between October 1989 and January or May 1991, McDonald’s hired seven private investigators from two different firms to infiltrate London Greenpeace with the aim of finding out who was responsible for the writing, printing and distribution of the factsheet and the organisation of the anti-McDonald’s campaign. The inquiry agents attended over 40 meetings of London Greenpeace, which were open to any member of the public who wished to attend, and other events such as “ fayres ” and public, fund-raising occasions. McDonald’s subsequently relied on the evidence of some of these agents at trial to establish that the applicants had attended meetings and events and been closely involved with the organisation during the period when the factsheet was being produced and distributed.

On 20 September 1990 McDonald’s Corporation (“US McDonald’s”) and McDonald’s Restaurants Limited (“UK McDonald’s”) issued a writ against the applicants and three others, claiming damages for libel allegedly caused by the alleged publication by the defendants of the factsheet. McDonald’s withdrew proceedings against the three other defendants, in exchange for their apology for the contents of the leaflet.

The applicants applied for legal aid but were refused on 3 June 1992, because legal aid is not available for defamation proceedings in the United Kingdom. Although a certain amount of money was raised by donation to assist the applicants, they submit that they were severely hampered by lack of resources, not just in the way of legal advice and representation, but also when it came to administration, photocopying, note-taking, and the tracing, preparation and payment of the costs and expenses of expert and factual witnesses.

In March 1994 UK McDonald’s produced a press release and leaflet for distribution to their customers about the case, entitled “Why McDonald’s is going to Court”. In May 1994 they produced a document called “Libel Action - Background Briefing” for distribution to the media and others. These documents included, inter alia , the allegation that the applicants had published a leaflet which they knew to be untrue, and the applicants counter-claimed for damages for libel from UK McDonald’s.

Before the start of the trial there were approximately 28 interim applications, involving various issues of law and fact, some lasting as long as five days. In respect of some of these, the applicants were represented by counsel acting on a pro bono basis. For example, on 21 December 1993 the trial judge, Mr Justice Bell, ruled that the action should be tried by a judge alone rather than a judge and jury, because it would involve the prolonged examination of documents and expert witnesses, on complicated scientific matters. This ruling was upheld by the Court of Appeal on 25 March 1994, after a hearing at which the applicants were represented.

The trial took place before Bell J between 28 June 1994 and 13 December 1996. It lasted for 313 court days, and was the longest trial (either civil or criminal) in English legal history. Transcripts of the trial ran to approximately 20,000 pages; there were about 40,000 pages of documentary evidence; and, in addition to many written witness statements, 130 witnesses gave oral evidence: 59 for the applicants, 71 for McDonald’s.

During the trial, the applicants carried the burden of proving the truth of the statements about which McDonald’s complained. McDonald’s were represented by leading and junior counsel, experienced in defamation law, and by one or two solicitors and other assistants. The applicants received some advice from lawyers acting on a pro bono basis out of court, but were otherwise without legal assistance.

The applicants were unable to pay for daily transcripts of the proceedings, which cost approximately GBP 750 per day, or GBP 375 if split between the two parties. McDonald’s paid the fee, and initially provided the applicants with free copies of the transcripts. However, McDonald’s stopped doing this on 3 July 1995, because the applicants refused to undertake to use the transcripts only for the purposes of the trial, and not to publicise what had been said in court. The trial judge refused to order McDonald’s to supply the transcripts in the absence of the applicant’s undertaking, and this ruling was upheld by the Court of Appeal. Thereafter, the applicants, using donations from the public, purchased transcripts at reduced cost (GBP 25 per day), 21 days after the evidence had been given. They submit that, as a result, and without anyone to take notes in court, they were severely hampered in their ability effectively to examine and cross-examine witnesses.

On 20 November 1995, Bell J ruled on the meaning of the paragraph in the factsheet entitled “What’s so unhealthy about McDonald’s food?”, finding that this part of the leaflet bore the meaning:

“... that McDonald’s food is very unhealthy because it is high in fat, sugar, animal products and salt (Sodium), and low in fibre, vitamins and mineral, and because eating it may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real risk that you will suffer cancer of the breast or bowel or heart disease as a result; that McDonald’s know this but they do not make it clear; that they still sell the food, and they deceive customers by claiming that their food is a useful and nutritious part of any diet”.

The applicants appealed to the Court of Appeal against this ruling, initially relying on seven grounds of appeal. However, the day before the hearing on 2 April 1996 before the Court of Appeal, Ms Steel gave notice on behalf of both applicants that they were withdrawing six of the seven grounds, and now wished solely to raise the issue whether the trial judge had been wrong in determining a meaning which was more serious than that pleaded by McDonald’s in its Statement of Claim. They applicants submit that they withdrew the other grounds of appeal relating to the meaning of this part of the leaflet because lack of time and legal advice prevented them from fully pursuing them. They mistakenly believed that it would remain open to them to raise these matters again at a full appeal after the conclusion of the trial. The Court of Appeal decided against the applicants on the remaining single ground, holding that the meaning determined was less severe than that pleaded by McDonald’s.

Bell J delivered his substantive 762 page judgment on 19 June 1997. He summarised his findings as follows:

“In summary, comparing my findings with the defamatory messages in the leaflet, of which the Plaintiffs actually complained, it was and is untrue to say that either Plaintiff has been to blame for starvation in the Third World. It was and is untrue to say that they have bought vast tracts of land or any farming land in the Third World, or that they have caused the eviction of small farmers or anyone else from their land.

It was and is untrue to say that either Plaintiff has been guilty of destruction of rainforest, thereby causing wanton damage to the environment.

It was and is untrue to say that either of the Plaintiffs have used lethal poisons to destroy vast areas or any areas of Central American rainforest, or that they have forced tribal people in the rainforest off their ancestral territories.

It was and is untrue to say that either Plaintiff has lied when it has claimed to have used recycled paper.

The charge that McDonald’s food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it more than just occasionally may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real, that is to say serious or substantial risk that you will suffer cancer of the breast or bowel or heart disease as a result, and that McDonald’s know this but they do not make it clear, is untrue. However, various of the First and Second Plaintiffs’ advertisements, promotions and booklets have pretended to a positive nutritional benefit which McDonald’s food, high in fat and saturated fat and animal products and sodium, and at one time low in fibre, did not match.

It was true to say that the Plaintiffs exploit children by using them as more susceptible subjects of advertising, to pressurise their parents into going into McDonald’s. Although it was true to say that they use gimmicks and promote the consumption of meals at McDonald’s as a fun event, it was not true to say that they use the gimmicks to cover up the true quality of their food or that they promote them as a fun event when they know that the contents of their meals could poison the children who eat them.

Although some of the particular allegations made about the rearing and slaughter of animals are not true, it was true to say, overall, that the Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food.

It was and is untrue that the Plaintiffs sell meat products which, as they must know, expose their customers to a serious risk of food poisoning.

The charge that the Plaintiffs provide bad working conditions has not been justified, although some of the Plaintiffs’ working conditions are unsatisfactory. The charge that the Plaintiffs are only interested in recruiting cheap labour and that they exploit disadvantaged groups, women and black people especially as a result, has not been justified. It was true to say that the Second Plaintiff [UK McDonald’s] pays its workers low wages and thereby helps to depress wages for workers in the catering trade in Britain, but it has not been proved that the First Plaintiff [US McDonald’s] pays its workers low wages. The overall sting of low wages for bad working conditions has not been justified.

It was and is untrue that the Plaintiffs have a policy of preventing unionisation by getting rid of pro-union workers.”

The judge awarded US McDonald’s GBP 30,000 damages and UK McDonald’s a further GBP 30,000. Mr Morris was severally liable for the whole GBP 60,000, and Mr Morris and Ms Steel were to be jointly and severally liable for a total of GBP 50,000 (GBP 27,500 in respect of each defendant). Although Bell J found that McDonald’s had published defamatory statements about the applicants, he found that these were protected by qualified privilege, and so he entered judgment for McDonald’s on the applicants’ counter-claims also. McDonald’s did not ask for an order that the applicants pay their costs.

The applicants appealed to the Court of Appeal. The hearing (before Lord Justices Pill and May and Mr Justice Keene) began on 12 January 1999 and lasted 23 days. On 31 March 1999 the court delivered its 301 page judgment, allowing the applicants’ appeal on several points, which were summarised as follows:

“On the topic of nutrition, the allegation that eating McDonald’s food would lead to a very real risk of cancer of the breast and of the bowel was not proved. On pay and conditions we have found that the defamatory allegations in the leaflet were comment.

In addition to the charges found to be true by the judge - the exploiting of children by advertising, the pretence by the respondents that their food had a positive nutritional benefit, and McDonald’s responsibility for cruel practices in the rearing and slaughtering of some of the animals used for their products - the further allegation that, if one eats enough McDonald’s food, one’s diet may well become high in fat etc., with the very real risk of heart disease, was justified. ...”

The Court of Appeal reduced the damages payable to McDonald’s, so that Ms Steel was now liable for a total of GBP 36,000 and Mr Morris for a total of GBP 40,000. It refused leave to the applicants to appeal to the House of Lords.

On 21 March 2000 the Appeal Committee of the House of Lords also refused the applicants leave to appeal.

B. Relevant domestic law and practice

1. Defamation

Under English law the object of a libel action is to vindicate the plaintiff’s reputation and to make reparation for the injury done by the wrongful publication of defamatory statements concerning him or her.

The plaintiff carries the burden of proving “publication”. As a matter of law, ( per Bell J at p. 5 of the judgment in the applicant’s case):

“any person who causes or procures or authorises or concurs in or approves the publication of a libel is as liable for its publication as a person who physically hands it or sends it off to another. It is not necessary to have written or printed the defamatory material. All those jointly concerned in the commission of a tort (civil wrong) are jointly and severally liable for it, and this applies to libel as it does to any other tort”.

A defence of justification applies where the defamatory statement is substantially true. The burden is on the defendant to prove the truth of the statement on the balance of probabilities. It is no defence to a libel action to prove that the defendant acted in good faith, believing the statement to be true. English law does, however, recognise the defence of “fair comment”, if it can be established that the defamatory statement is comment, and not an assertion of fact, and is based on a substratum of facts, the truth of which the defendant must prove.

Damage is presumed, once publication and defamatory meaning have been established.

2. Mode of trial

The Supreme Court Act 1981 provides in section 69:

“(1) Where, on the application of any party to an action to be tried in the Queen’s Bench Division, the court is satisfied that there is in issue -

a claim in respect of libel, slander ...

the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury”.

3. Legal Aid

Throughout the relevant time, the allocation of civil legal aid in the United Kingdom was governed by the Legal Aid Act 1988. Under Schedule 2, Part II, paragraph 1 of that Act, “[p] roceedings wholly or partly in respect of defamation” were excepted from the scope of the civil legal aid scheme.

COMPLAINTS

The applicants complain of a violation of their right to a fair trial under Article 6 § 1 of the Convention.

Under Article 8 of the Convention, the applicants complain about the infiltration of London Greenpeace by inquiry agents hired by McDonald’s, and the failure of the domestic courts to rule that this constituted an abuse of process and an unlawful interference with the applicants’ rights to privacy.

The applicants complain that they have suffered a disproportionate interference with their right to freedom of expression, contrary to Article 10 of the Convention.

In addition, the applicants complain of violations of Articles 11 and 13 of the Convention.

THE LAW

A. Article 6 § 1 of the Convention

Article 6 § 1 provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The applicants complain under this provision about the lack of legal aid which, they submit, given the length and complexity of the proceedings, prevented them from conducting an effective defence. They point out that the trial lasted 313 court days, involving about 40,000 pages of documentary evidence and 130 oral witnesses. The appeal hearing lasted 23 days. Although they had some legal assistance, provided on a pro bono basis, for the vast majority of the proceedings they acted alone. In addition to the more obvious disadvantages of being without experienced counsel to argue points of law and conduct the examination and cross-examination of witnesses in court, the applicants stress that they lacked sufficient funds for photocopying, purchasing the transcripts of each day’s proceedings, tracing and proofing expert witnesses, paying the witnesses’ costs and travelling expenses, note-taking in court, and so forth. They also complain about various rulings made by the trial judge in the course of the proceedings, relating, inter alia , to disclosure of evidence, adjournments, admission of evidence and amendment of the Statement of Claim.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

B. Article 8 of the Convention

Under Article 8 of the Convention, the applicants complain about the failure of the domestic courts to rule that the use of inquiry agents, both before and after the issuing of the writ, amounted to an abuse of process and an unlawful interference with the applicants’ rights to privacy. Article 8 states:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court notes that McDonald’s employed inquiry agents to attend public meetings and events organised by London Greenpeace and gather information about the production and distribution of the factsheet. The Court notes in the first place that it is difficult to see how the State could be held responsible under Article 8 for the use by a private company of inquiry agents. In any event, it considers that the concepts of “private life” and “home” are inapplicable to places which are freely accessible to the public and which are used for activities which do not relate to the private sphere of the participants (see the Report of the Commission in Pentidis and Others v. Greece, 27 February 1996, Reports of Judgments and Decisions 1997-III, p. 999, § 68). To the extent that the applicants complain about abuse of process, this is an issue connected to the fairness of the proceedings and falls more readily to be considered under Article 6 § 1 of the Convention.

It follows that the complaint under Article 8 is manifestly ill-founded within the meaning of Article 35 § 3 and must be declared inadmissible in accordance with Article 35 § 4.

C. Article 10 of the Convention

The applicants also complain of a breach of Article 10 of the Convention, which provides:

“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. ...

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.”

They claim that the domestic proceedings and their outcome were disproportionate given, inter alia, that the applicants bore the burden of proving the truth of the matters set out in the factsheet and that the damages awarded were excessive and quite beyond their means of paying. They submit, in addition, that most of the statements made in the factsheet had been published before and formed part of an ongoing debate about matters of public concern and that huge multinationals such as McDonald’s, in common with political and other figures in the public eye, should be required to display a greater degree of tolerance in the face of criticism.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

D. Article 11 of the Convention

The applicants submit that the national authorities violated their right to freedom of association, protected by Article 11 of the Convention, which states:

“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

The applicants contend that the domestic courts in effect held them responsible for the publication of the defamatory statements simply by virtue of their association with London Greenpeace, without clear evidence of their individual participation in the factsheet’s production or distribution. They reason that, in order to avoid liability for publication, they would have had to avoid participation in any protest, action or campaign against McDonald’s and avoided attending London Greenpeace meetings.

The Court recalls that it is not within its province to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them (see the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, § 34). The question whether the applicants “published” the factsheet was a question of fact for the trial judge, which McDonald’s had to prove on the balance of probabilities. Having heard all the evidence, the judge concluded that the applicants “caused, procured, authorised, concurred in and approved” publication of the leaflet.

The applicants did not, therefore, suffer any sanction in respect of their association with London Greenpeace as such. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be declared inadmissible in accordance with Article 35 § 4.

E. Article 13 of the Convention

Finally, the applicants contend under Article 13 that, before the entry into force of the Human Rights Act 1998, they had no effective means of raising their Convention complaints before the national authorities. Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Its effect is to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, amongst other authorities, Christine Goodwin v. the United Kingdom, [GC], no. 28957/95, § 112, ECHR 2002- ).

To the extent that the complaints under Articles 6 and 10 are “arguable”, the case-law of the Convention institutions indicates that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention. Insofar therefore as no remedy existed in domestic law prior to 2 October 2000 when the Human Rights Act 1998 took effect, the applicants’ complaints fall foul of this principle ( ibid ., § 113).

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be declared inadmissible in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning Articles 6 and 10 of the Convention;

Declares the remainder of the application inadmissible

Michael O’Boyle Matti Pellonpää Registrar President