Battling Big Business — McLibel

Thick shake

Using libel laws to censor your critics: a masterclass from McDonald’s.

Will Ross and Franny Armstrong

The McDonald’s Corporation sells cheap hamburgers made from cheap ingredients. The people who make them work long hours for low wages and cannot join unions. It’s junk food: high in fat, sugar and salt, low in fibre and minerals, and the animals that go into it often live and die in cruel conditions. Their advertising misleads adults and manipulates children into pestering their parents to take them to McDonald’s.

It is thanks to two remarkable Londoners that we can safely print these remarks. All of them

have been examined and judged to be true in the course of the longest and most unlikely libel trial in English history. All of them appeared in gleeful press coverage on the day after the verdict, while newspapers and TV stations fought to outdo one another in righteous indignation. All of them are common knowledge among those who stop to consider where their food comes from.

The McLibel trial is commonly told as a David and Goliath story: a fairy tale in which the little people outwit and finally defeat the sluggish giant, armed only with quick mind and noble countenance. It’s a good yarn, but it’s just the penultimate chapter of a much longer, more complicated story.

Every day forty five million people eat in McDonald’s. They open a new store every four hours. Seven percent of the world’s cattle are used to make their burgers, but as far as the British press is concerned, all we can see is happy clowns and smiling children. The corporation’s methods are not examined and their advertising is rarely questioned.

McDonald’s call their foods ‘nutritious’, their jobs ‘challenging and rewarding’ and the company an ‘environmental leader’ They give money to the NHS so they can open restaurants in hospitals. They put a McDonald’s advert behind the goal of every premier league football club. They opened a store in the Sydney Olympics Village and implied in press releases that the athletes were eating there. They sponsored a rainforest exhibit at Auckland Zoo. They spend a total of $3 billion a year creating and reinforcing this association with health, sport, ecology and enjoyment and their message has been swallowed whole. How did our notoriously invasive, unruly, sensation-seeking media manage to sustain such a gigantic blind spot?

Two reasons: the advertising carrot and the legal stick. The former is obvious: no media organisation will hurry to bite a hand that feeds it so much advertising revenue. The latter requires a bit more explanation.

An article is printed, somewhere public. The article alleges that a certain corporation produces food which is, say, not very nutritious after all. The corporation feels, with some justification, that this has a negative impact on its reputation. It is possible that the allegations are a malicious fabrication, so there is a legal mechanism that will allow the corporation to defend itself: a libel trial. The corporation is the claimant, and if it is vindicated, it can expect a public apology, compensation for its legal costs, and a considerable amount of money in ‘damages’.

You might think that all it has to do is produce a convincing argument that its food is nutritious. But no. A peculiar quirk of the UK libel laws puts the burden of proof on the defendant. The person or organisation that produced the allegations must demonstrate that they are true, and they must do so from primary sources. They have to bring an eminent nutritionist to court to hold forth about the importance of fibre and vitamins, or locate the abattoir worker who has witnessed animal suffering, or fly the cattleman from Brazil to produce the paperwork which points to the claimant. All the claimant has to do is start the case, then sit back while their critics pay vast sums to libel lawyers in pursuit of a watertight proof.

This makes the British libel trial a powerful cousin to the American SLAPP, or ‘strategic lawsuit against public participation’. It can be used to defend against an unprincipled attack, but it is also a way to intimidate and silence an opponent. Like a SLAPP, it favours the wealthy and powerful and functions most effectively as a deterrent.

Mounting a libel defence is staggeringly, ruinously expensive. If the defence succeeds – the criticisms levelled at the claimant are found to be correct – then the claimant will have to pay everybody’s legal expenses. It might sound risky, but to get to that point the defendant may well have gambled hundreds of thousands of pounds on their ability to prove beyond question the truth of what they have alleged. If they lose, they are often ruined: a research organisation called the Transnationals Information Centre was forced to close after being sued by McDonald’s over one of its pamphlets

In the case of McLibel, the alleged defamation occurred in a leaflet produced by a tiny activist group called London Greenpeace (no relation), photocopied and handed out to a few hundred people in North London. The leaflet described McDonald’s activities in a detailed and very uncomplimentary way, and the corporation sued. The five people identified in the writ as the supposed authors of the leaflet were offered a choice: prove in court that each of its many criticisms was true, or eat their words in public.

It was McDonald’s standard warning shot: apologise conspicuously or start saving up for libel lawyers. That letter, or a variation, has been sent to almost every significant media organisation in the country, at some time or other, and to some amazingly obscure ones too. It costs McDonald’s next to nothing to send.

The recipient of a letter like that, with its intimidating letterhead and impenetrable jargon, has always reacted the same way. They grovel. The BBC, the Telegraph, The Guardian, The Sun, Channel 4: almost all of the self-appointed guardians of the public interest have at some point capitulated to McDonald’s, along with several trade unions and campaigning groups, a children’s theatre club and a tea shop.

The apology or withdrawal of criticism is not just a formality, however embarrassing: it also provides ammunition for the next round. Prince Philip – husband of the British Queen, then President of the World Wildlife Fund, and famously given to undiplomatic outbursts – once allegedly greeted a McDonald’s executive with "So you are the people who are tearing down the Brazilian rain forests and breeding cattle". The corporation took offence, and a written retraction and royal failure to recollect were quickly forthcoming.

A year later, a BBC wildlife programme about rainforest destruction included the phrase “It doesn’t seem that anyone can be blamed except you and me, the consumers”, and followed it with a montage of various hamburger outlets, including McDonald’s. The corporation disliked the association, and sent another letter. This time, it also included the Prince’s retraction and the WWF’s climbdown:

“It is clear from the attached copy letter from the Duke of Edinburgh … that the World Wildlife Fund were satisfied that our clients were exonerated from any implication in the destruction of the rainforests.”

McDonald’s key argument was that each national subsidiary used only local beef. This was later shown to be untrue – the McLibel defendants proved that McDonald’s UK had been secretly importing beef from Brazil that very year – yet by the time this second letter went out, it had the full weight of Royal approval behind it. An apology was broadcast by the BBC to the effect that they:

“ … may have given the impression that McDonald’s hamburgers are made with beef originating from (ranches built on former rainforests). McDonald’s have informed us that they do not use such beef. We accept this, and apologise to McDonald’s for any embarrassment our programme may have caused them.”

The year after that a third letter went out, this time to Friends of the Earth. This one referred to both the Prince’s and the BBC’s apologies, and concluded:

“…this statement shuld clear up any misunderstandings your organisation may have, and further statements regarding Brazilian rainforests should, therefore, exclude any reference to McDonald’s”

A chance remark from Prince Philip had been parlayed into a set of apparently highly credible testaments to McDonald’s innocence, all without a single point being debated in court or held up for public appraisal. The truth or falsehood of the allegations, and McDonald’s counter-arguments, were never independently examined. The whole episode would still be hidden from view if it weren’t for the McLibel defendants and their extraordinary tenacity.

It is possible to imagine that the writers of these letters spoke in good faith. Let’s say they were very senior and saw only the broad policy, not the specific purchase order. However, another case forces us to doubt the sincerity of McDonald’s indignation.

In October 1989 a local UK newspaper, the Bournemouth Advertiser, printed an article that referred to the ‘captive-bolt’ method used to slaughter cattle for McDonald’s burgers. The corporation demanded an apology, and the newspaper printed it:

“McDonald’s have asked us to point out that they do not approve of the captive-bolt method”

Not true. During the McLibel Trial, it was accepted by McDonald’s executives that the captive bolt method is standard practice throughout the industry and is the method used by their suppliers to slaughter cattle. The McLibel Judge was not impressed: “This letter was clearly written on a false basis, and the solicitors must have been misled by whoever gave them instructions”.

The letter to the newspaper was deceptive, but it worked: the apology was printed, and the subject was closed. Even if the whole thing had gone to court, McDonald’s deception carried no risk: the newspaper article would have been on trial, not the letter. The corporation had nothing to lose and everything to gain by misleading their solicitors and misrepresenting the facts.

In retrospect, it seems clear that the last thing the corporation wanted was to take a case to trial. Their tactics were designed to intimidate critics and deter the media from straying near potentially expensive subjects.

It’s not just the stories that were withdrawn and disowned: we will never know how many possible articles were not printed, leads not pursued and issues ignored. It’s easy to see how it works: a bright-eyed new journalist draws up an article that describes working conditions in McDonald’s. Perhaps she even gets a job there to find out what it’s really like. Her editor loves the story but remembers the humiliation of printing an apology three years ago, on another paper, after an article about pester-power and the unscrupulous targeting of advertising at children. The stinging reprimand from his publisher is fresh in his mind, and the story is quietly spiked. The paper fearlessly exposes the contents of a pop star’s wardrobe instead.

We can’t tell whether McDonald’s strategy was deliberate or just inspired muddling through, but the result was a climate of fear and self-censorship that spread throughout the British media and made the corporation effectively immune from criticism.

We ran into this barrier repeatedly during the McLibel trial. TV stations and newspapers withdrew stories at the last minute. Chat-show producers said we couldn’t mention “the issues”, or the offending part of the show would be cut. It’s quite hard to talk about the fight against a burger company without being able to say why anyone is fighting.

McDonald’s tactics were spectacularly successful. By the end of their honeymoon they dominated the UK fast food industry. Then Ronald stubbed his toe on Steel and Morris. Three of the London Greenpeace activists accused in the writ had apologised and withdrawn, but two of them refused, and the corporation found itself in court.

The McLibel trial was an agonising ordeal: two scruffy anarchists and an even more ragtag band of volunteers spent three years using the British legal system as a stage on which to rummage through McDonald’s dirty laundry and hold up the best bits for the world to see. Channel 4 News described it as the “worst corporate public relations disaster in history”, and by the time every detail had been lovingly reproduced on the McSpotlight website, it was being called “an image-conscious corporation’s worst nightmare”.

McDonald’s spent something like £10 million bringing the case: as well as court costs, they were paying for some of London’s most expensive libel experts. Helen and Dave defended themselves, to the frequent bemusement of the judge, without the benefit of legal aid or even a jury.

They produced expert witnesses to explain that no, a high-fat low-fibre diet could not be called nutritious, or that future chicken McNuggets sometimes had their throats cut while still fully conscious. Academics flew in, documents were unearthed from ancient archives, and the corporation’s senior executives were cross-examined on everything from animal welfare to packaging litter, all in a public forum and under the spotlights of a timid but delighted media. While much of the coverage revolved around Dave’s jumpers and Helen’s haircut, there was even the occasional story about one of the issues in the trial. No wonder McDonald’s tried to buy their way out and issued frantic orders to try and contain the damage.

Helen and Dave succeeded in making a case on several of the most damaging issues. McDonald’s were found culpably responsible for cruelty to animals, manipulative of children, and several other serious indictments.

On other issues – including the rainforests again – the defendants failed to convince the Judge. They did commit libel, in the eyes of the law, and do still owe the McDonald’s corporation £40,000 in damages. Damages which the corporation has never pursued, and is unlikely to get from an unwaged single father and an occasional barworker who have publicly said they would rather go to jail.

In a strictly legal sense, McDonald’s won the case. In every other way, they lost. Helen and Dave won many of the issues outright, and even where they didn’t prove their points, the trial had exposed the inner workings of McDonald’s to the public: exactly the damaging sort of transparency from which their censorship strategy had so far protected them.

In short, it was all a gigantic bluff. The corporation’s tactics were designed to avoid scrutiny, to bully critics into silence and intimidate the press into covering something else.

If further confirmation is needed, consider another critic in receipt of a writ. A Vegetarian Society magazine, Greenscene, offered to print a debate because “as McDonalds appears to be so confident of its case as to threaten proceedings, they will welcome this opportunity for an open and public discussion”. A golden opportunity to let people see the wholesome truth about their products, you might think. They declined. Of course.

We spent the McLibel years making a film about the case. Right from the start it had all the qualities of a great prime-time documentary, but this was 1995, and we walked straight into the middle of the blind spot. Both Channel 4 and the BBC had already had embarrassing legal run-ins with the corporation. ITV was out of the question, because of their reliance on McDonald's advertising, and Channel 5 hadn’t yet been invented.

Several of the UK’s top documentary names were also trying to persuade broadcasters to fund McLibel films. Every single one was turned down. Even Channel 4 confined itself to verbatim re-enactments of parts of the trial.

We made the film anyway, with no money, little experience, borrowed equipment, a spare room in a flat and a volunteer crew that turned out to include Ken Loach. Funding came from selling our footage to news stations around the world and from generous people who thought the story should be told. Most of the film was financed by a single shot of Helen and Dave having a legal meeting on a busy underground train.

As the trial dragged on, the big media organisations began to smell blood in the water. Demand for bits of footage picked up, and news and documentary commissioners starting sniffing around, terrified that they might have missed something big. Finally, shortly before the verdict was issued, the BBC suddenly offered to buy our film for a prime-time slot directly after the verdict. No time to waste, we’ll do the paperwork later, we have to ring the listings magazines right away. A fee and a transmission slot are agreed. All are delighted. Just have to run it past the legal department.

During the previous three years, of which we had spent every waking minute thinking about libel, free speech and corporate intimidation, it had occurred to us to consider what we could safely expect to say on film and what we couldn’t. We were pragmatic: our aim was to get the film on television and for that we needed to make it as safe to broadcast as it could possibly be. Ken Loach came to the rescue, lending us a top-notch media lawyer from the human rights law firm, Bindman & Partners. We had the best possible advice, for free, throughout the production and we followed it scrupulously. In the opinion of our lawyer, the film is accurate, fair comment and, given the subject matter, carries minimal risk of libel litigation.

The BBC lawyer disagreed, and suggested changes and amendments in various parts of the film. The editorial board had reservations about the secretly taped meeting in which senior US executives try to buy Helen and Dave off. The Commissioning Editor watched her story being snipped to bits and finally got cold feet. The film was dropped at the last minute, leaving us at the climax of the story with an all-but finished film, a huge potential audience and no outlet.

Some good news, though: we had found a big-name distributor prepared to sell the film to international TV just as soon as it was ready. Better still, Channel 4 got in touch. They watched the rough cut. They were keen. Just have to check with their lawyers. Oh wait. The Channel 4 lawyer was more alarmed than the BBC’s : "McDonald's would almost certainly sue Channel 4, and would almost certainly win". They dropped us like boiling styrofoam, and our distributor quickly followed suit.

There were other nibbles, but nobody was prepared to take on even the debilitated remnant of the McDonald’s legal machine. The film had become a victim of exactly the frightened self-censorship it portrayed.

So we printed leaflets and sent out VHS tapes, one by one. We courted baffled receptionists at Portuguese TV stations, entered festivals, gave indignant interviews and filmed Helen and Dave giving out the same leaflets all over again outside the High Court the day after the verdict. We booked a cinema and showed the film to a full house. The papers loved it. Freespeech TV pushed us through public services channels to nine million American homes. A network grew by word of mouth and email list, and the McLibel faithful adopted us.

Then, at last, an unlikely Australian in a Hawaiian shirt and flip-flops did the impossible: he sold the film to a national broadcaster. SBS is the equivalent of Channel 4, and they put us in their prime documentary series. There was an explosion: the film played three times a day for six weeks in a four-hundred seat cinema in Sydney. We were on the front covers of magazines and the sofas of early morning talk shows. The film was picked up by an international distributor who caught the show and since then it has been broadcast in four European countries. Only last week, as we write, it was picked up by Greek TV.

We haven’t been sued by McDonald’s. Neither have any of the broadcasters who have shown the film, nor the distributor, which is based in the UK and just as vulnerable as our craven TV networks. Nor has Macmillan’s, who published a book about the trial. Nor has McSpotlight, somewhat to its disappointment. More to the point, nor has anyone else.

With any luck, this is the last chapter of the longer story. Since the start of the McLibel trial, so far as we know, McDonald’s have not issued a single writ. Nobody has been asked to withdraw criticism, to apologise on air or print a retraction. The injunction against Helen and Dave has not been taken up, and the damages were written off.

The broader business world has taken note, and ‘doing a McLibel’ has entered the corporate vocabulary. All it took was a supportive press release from the McLibel Support Campaign to make retailer John Lewis drop its libel suit against a National Anti-Hunt Campaign over a leaflet about pheasant-shooting.

The credit for that can only be given to Helen Steel and Dave Morris - and to all those others who defied threats of legal intimidation by continuing to leaflet, write, film and html - but the lesson is for everyone the corporate world order tries to silence. The preparation and sale of products for the global consumer requires secrecy, so that the buyer can be told a happy story and the sweatshops and abattoirs kept behind a screen of posturing and spin. We can’t afford to miss any opportunity to yank the screen aside and show people what they’re really buying. When a corporation puffs up its legal department and struts around, it’s not indignation. It’s fear.