defamation and free speech: impacts for public relations

Defamation is a published statement which damages someone’s reputation or holds them up to ridicule. A person’s reputation is a fundamental human right which must be balanced against the public interest of freedom of speech. This post will examine how these conflicting rights collide and what are the positive and negative implications for public relations.

Defamation law is costly in terms of reputation, time and money. Libel is a permanent form of defamation where the burden of proof is entirely on the defendant. In the McLibel case, defendants had to prove every point from primary sources such as official documents and direct witnesses. Such onerous requirements meant that most McDonalds’ critics backed down and apologised rather than go through the prohibitive expense of libel action. But the McLibel Two fought the case as a freedom of speech issue. They forced McDonalds to defend their operations in great and embarrassing detail. Although McDonalds won the three year case on a semantic judgement, they were refused costs and the case became the biggest corporate PR disaster in history. A newspaper headline of the day best captured their dilemma: “Big Mac pays high price for win over small fries”.

But defamation law need not always prevent free speech. Organisations get more of what they want when they give up some of what they want. Grunig and Hunt’s two-way symmetrical model is the most effective model for public relations because targeted publics benefit as much as the programs’ sponsors. The model is underpinned by the PRIA code of ethics whose first point says members “shall deal fairly and honestly” with all their publics. Reputations are integral to contemporary public relations. Defamation law is a vehicle to guard practitioners and clients reputations. But it should also be best PR practice to maintain the reputation of their publics when publishing any material about them.

Nonetheless, good intention is no defence to defamation. The test for defamation is whether an ordinary, reasonable person would consider a publication to be defamatory. Ordinary, reasonable people so found in the Nixon v Slater & Gordon case. The plaintiffs were identified in a digitally altered photograph (ironically used to promote the dangers of growing litigation). The photo imputed an unintentional meaning of malpractice. Media releases are the most frequently used public relations tactic. The public relations industry exists largely to manipulate news media and claim authorship of the news. Therefore public relations officers need to be guard against defamatory content in their published releases. Australia does not have a bill of rights or statutory protection of free speech which can lead to a “chilling effect”. Defamation action is extremely expensive, especially if appealed, and can cost hundreds of thousand dollars in legal fees for both parties. Practitioners need to be aware of the three valid defences to defamation: truth, fair comment and privilege. But as the McLibel case showed, a legal win is not always a public relations win.

Remembering McLibel

This coming June sees the 10th anniversary of the legal judgement in the longest trial in British legal history – the McLibel trial. The verdict ended an astonishingly unequal battle between the $US60 billion a year fast food giants McDonalds and two supporters of an independent collective called London Greenpeace. They were Dave Morris, an ex-postman and single parent and Helen Steel, a gardener and part-time bar worker. After a 3 year trial, 130 witnesses and an 800 page ruling, Justice Bell ruled the pair had "exaggerated" some of their claims against the food giants. McDonalds won a pyrrhic legal battle but badly lost the PR war. They were widely deemed corporate bullies, lost millions on the case and British Channel 4 news called it the most expensive and disastrous public relations exercise ever mounted by a multinational company.

London Greenpeace was formed in 1971 as an independent collective active in environmental and social issues. In 1985 it launched a campaign against McDonalds in sympathy with a growing worldwide opposition to the hamburger industry. The roots of the trial date back to a fact sheet produced by London Greenpeace in 1986. The fact sheet brought together arguments around the impact of global trading on the third world, damage to the environment, lack of nutrition, exploitation of children, animal welfare and poor employment conditions. None of these criticisms were new.

Whenever confronted by these allegations, McDonalds' tactics have been to step up their own propaganda and use libel laws to intimidate opponents. In the past they had forced critics such as Channel 4, BBC, the Guardian, the Scottish TUC and the Vegetarian society to apologise or back down. The problem with the libel laws is that the burden of proof is on the defence who must demonstrate every point from primary sources such as official documents or direct witnesses. In most cases it was easier to apologise than to risk a major financial loss.

McDonalds first sent private investigators to infiltrate London Greenpeace meetings and then served libel writs on five members in September 1990. The defendants would not get legal aid and were advised to apologise. Three reluctantly did so. But Steel and Morris refused and decided to mount their own defence. Their argument was that free speech was on trial as was the right of individuals to voice criticisms of powerful business interests.

The task ahead was mammoth. The duo needed to master court procedures, legal jargon and 60,000 pages of documents and technical details. Meanwhile McDonalds hired Richard Rampton QC, one of Britain’s top libel barristers. Mt Justice Bell heard the trial of David v Goliath without jury. McDonalds successfully argued the link between diet and cancer was too complex for a jury to assess. The decision was upheld by the Court of Appeals who refused leave to appeal to the House of Lords.

But Morris and Steel were not dispirited. Instead they hit back with a counterclaim. McDonalds had issued a press release and 300,000 leaflets nationwide calling them liars. The counterclaim put the burden of proof on McDonalds to show that the original leaflet was untrue. The trial began in 1994 after 28 pre-trial hearings. Rampton predicted it would last 3 weeks, instead it went for 3 years. McDonalds alleged every claim in the fact sheet was libellous and defending each claim made the case wide-ranging with over 180 witnesses. The defendants had to prove packaging ended up as litter, advertising works on children and McDonalds pays low pages.

Evidence was completed in July 1996. The parties made closing speeches four months later. By now it was clear that McDonalds and the economic system that served them that was on trial. Company executives were forced to testify under oath and made many damaging admissions. Steel and Morris were encouraged by public donations and commentators such as Auberon Waugh were describing the case as “the best free entertainment in London”.

In 1995, an increasingly desperate McDonalds attempted a secret settlement with the defendants. The defendants wanted McDonalds not to sue anyone again over similar statements, apologise to those they have sued in the past and make a substantial payment to a third-party. McDonalds refused. Meanwhile in court, they went back on an earlier commitment and withheld copies of essential court transcripts to the defendants and the media. The pair was forced to pay the full commercial cost to a transcript company at $US700 a day to continue.

In Justice Bell’s verdict, he ruled substantial parts of the criticism were true based on evidence. McDonalds won the other parts of the judgement based on legal and semantic interpretations of the fact sheet. But the judge still found McDonalds do exploit children, are culpably responsible for animal cruelty and the company pays criminally low wages. The judge ruled McDonalds counterclaim leaflets were defamatory and unjustified and a move to discredit the defendants. But somehow he ruled this was legally permissible as a right to “self-defence” to protect the company from attack. McDonalds claimed damages and costs. The judge awarded 60,000 pounds damages (half of what McDonalds demanded) but failed to award costs despite spending $US 20 million on the case.

McDonalds' efforts to silence opposition had totally backfired. 2 million more of London Greenpeace’s “What’s Wrong with McDonalds” leaflets were handed out in the UK alone. Protests extended to 24 countries. At the conclusion of the trial, the campaigners held an international “Victory Day of Action” outside McDonalds' stores across the world. McDonalds meanwhile refused to comment on the verdict and its US headquarters claimed it was a British issue.

Finally in 2005, Helen Steel and Dave Morris won a case at the European Court of Human Rights. The court ruled they did not receive a fair trial as guaranteed under the Human Rights Convention, because of the lack of legal aid available to libel defendants, and that their freedom of expression was violated by the 1997 judgement. The pair was awarded £24,000 damages, plus costs. Joshua Rozenberg, legal editor of the Daily Telegraph thought the judgement was significant. "I think the government will have to make legal aid available to people accused of libel who can't otherwise defend themselves”, he said.