Archive for January, 2010
Friday, January 22nd, 2010
This article was originally published in Index on Censorship 05/98
Fear of libel actions and of losing advertising revenue has persuaded most media to leave well alone when it comes to exposing some of the more unsavoury aspects of the burger giant McDonald’s. Julian Petley reports
Do you know that Helen Steel and David Morris, the McLibel two, are scheduled to start their appeal on 12 January 1999? Did you realise the trial judge ruled in the defendants’ favour in the case of two and a half of their seven groups of allegations against McDonald’s, and that these concerned cruelty to certain animals, exploitation of children via advertising, and low pay? Were you actually aware of the trial throughout its record-breaking 314-day run? And finally, have you heard that both the BBC and Channel 4 refuse to show the independently-produced documentary McLibel: When Worlds Collide?
If your answer is “no”, it’s not surprising. Although at the climax of this legal blockbuster the media were awash with “David and Goliath” stories, all too often laced with unnecessary and patronising “human interest” angles, the vast majority of this crucial libel trial received remarkably little coverags. As the McLibel support campaign state on their McSpotlight website: “You would’ve expected the entire media to line up behind the defence, if only out of pure self-interest. But the media seem to treat McDonald’s either with awe or sucophancy, or else as daft and jokey, a well-loved service organisation.” It was, to quote Michael Mansfield QC, as if a “cordon sanitiare” had been placed around the whole subject. It is still in existence.
Admittedly, McDonald’s is a potentially tricky media subject, Firstly, as the McLibel case itself proves, the company is notoriously litigious, or at least it was until this catastrophic legal own-goal.
Secondly, McDonald’s global advertising and marketing budget is colossal (US1,800m in 1995), and media that are financed even partly by advertising risk the company’s wrath at their peril. It is alleged, for example, that when the Independent carried a front-page story about McDonald’s secret attempts to negotiate a settlement after only six weeks on the case, the company withdrew over US$120,000 of advertising from the Independent on Sunday. In 1989, Channel 4 was forced to apologise in court and pay McDonald’s costs after showing Jungleburger, in which the sales director of one of McDonald’s Costa Rican suppliers appeared to admit that beef he supplied to the company had been farmed on ranches created by deforestation.
But mystery surrounds another McDonald’s film which was supposed to be shown on the channel but never transmitted, One Every Mile. A persistent suggestion, however, is that C4 felt that the filmmaker hed been pushed into ceding too much editorial control to McDonald’s.
Both these films are briefly quoted in Dennis Woolf’s exemplary dramatisation of highlights of the trial, the three-hour plus McLibel, shown on C4 just before the verdict was announced. But even this has now run into problems, since the channel is refusing to sell it to overseas buyers unless they indemnify it against possible libel action by McDonald’s. Apparently at least one foreign sale has thus been lost.
All this is as nothing, however, compared to the problems facd by McLibel: Two Worlds Collide, although only the Guardian has seen fit to cover them. Franny Armstrong set up her company, One-Off Productions, specifically to make this film and was among a number of independent producers who tried during the trial to interest the broadcasters in it. ITV told her there was “not enough action”; the BBC didn’t feel “sufficiently enthusiastic”; and Channel 4 decided to put its resourced behind Dennis Woolf.
Nothing daunted, Armstrong carried on filming. She wrote to McDonald’s witnesses, asking to interview them, but the refusal letters came from the company’s press office. So she persuaded Ken Loach to direct dramatised reconstructions of some of their courtroom evidence. She also interested Jane Balfour Films in the idea of distributing the film worldwide. Then, with media interest finally growing as the trial neared its climax, Armstrong struck lucky with the BBC;s Heart Of The Matter and, although no written contract was signed, the film was scheduled for 30 June 1997. The series editor, Anne Reevel, was clearly aware that the film posed certain problems: 60 minutes had to be reduced to 40; Helen Steel and Dave Morris’s clandestine recording of McDonald’s abortive settlement attempt almost certainly infringed BBC guidelines; the use of McDonald’s advertisements raised copyright issues; and, last but not least, there was the question of libel. However, neither the BBC’s lawyers nor Alan Yentob seemed to think the problems intractable, and Armstrong and Reevell worked together to try, in the latter’s words, “To turn the film into something the BBC could transmit.” In the end, however, she had to admit that “it proved impossible to broadcast”. According to Armstrong, “she kept having to send reports to Yentob and await his replies, it was all dragging out, the verdict was getting nearer and nearer and, when it was only 10 days away, Anne felt she couldn’t go on with it.”
When the trial finished, there was a brief but unproductive flurry of interest from Channel 5 and World In Action; then, two months later, Armstrong met Alan Hayling, commissioning editor for documentaries at Channel 4, at the Sheffield Documentary Festival, and interested them in seeing the film. Hayling says he thought it “a strong piece of work for a first-time filmmaker, and I wanted to be able to do something with it”. But he adds “Right away I could see there were clear legal difficulties. The secretly recorded conversation with McDonald’s lawyers was an obvious problem, but there was also the question of libel.
“Anyway I showed it to our legal department and their decision was very clear: nothing resembling this programme could be broadcast in Britain because it was repeating allegations that had already been found to be defamatory in the High Court. If we showed it, McDonald’s was highly likely to sue us and win. Under such circumstances nobody would insure the programme against libel, and every C4 programme has to be insured against that.”
Dennis Woolf got around this proble, by sticking rigidly to quoting verbatim courtroom testimony, but what appears to have swayed Channel 4’s lawyers (more than the BBc’s) is that certain allegations found libellous by the trial judge are repeated outside the courtroom context by some of the participants in the programme. What Armstrong calls Channel 4’s “absolute categorical no” then put the wind up Jane Balfour, who regretfully decided that she couldn’t sell Two Worlds Collide abroad in case foreign TV showings led to her being prosecuted under English libel law.
According to One-Off’s legal adviser, Robin Lewis of Bindmans, “Franny has produced a film in which she has reduced the libel risk to the minimum that is compatible with the kind of programme she wanted to produce. But when you’re trying to assess libel risk you have to take into account not only the wording of an item but also if it is about the sort of person or organisation likely to sue for libel.”
On the first point, Lewis feels “the broadcasters sem to be arguing for a total elimination of all libel risk as opposed to eliminating the irreducible minimum compatible with a programme communicating what actually took place.” On the second, he says, “One has the distinct feeling that is the programme were not about McDonald’s but about Joe’s Cafe, the broadcasters’ editorial courage might return.” However, he also believes that the company is less litigation-prone given the consequences of its “barely rational” decision to sue Steel and Morris. On the other hand, as long as broadcasters continue to show themselves to be intimidated by McDonald’s fearsome past record, the company has little to fear.
Meanwhile, it’s just the audience, hungry for knowledge about a company whose global activities raises some of the most important issues of our time, that’s the loser.
Friday, January 22nd, 2010
Corporations should be open to uninhibited public scrutiny and criticism argues Julian Petley
Question: what do McDonald’s, Monsanto and Trafigura have in common? Answer: they’ve all been accused of routinely administering SLAPPS. These are Strategic Lawsuits Against Public Participation — forms of strategic legal intimidation or gamesmanship employed by large corporations against their critics in order to frighten and harass them, and tie them in legal knots. Such actions are also designed to demonstrate to would-be critics the fate that awaits them should they dare to publicise their views.
That SLAPPS frequently involve threatening to sue critics for libel makes it particularly important that Index, Sense about Science and English Pen have followed the example of some Australian states and proposed limiting the ability of corporations and associations to sue, unless they can prove malicious falsehood.
In this, they are following directly in the tradition of the McLibelTwo, the heroic Helen Steel and Dave Morris, who successfully argued before the European Court of Human Rights in 2004 that they had been denied a fair trial when they were sued for libel by McDonald’s. The court decreed, the denial of legal aid to the defendants “deprived them of the opportunity to present their case effectively and contributed to an unacceptable inequality of arms with McDonald’s”. However, another plank of their case was that “multinationals should not have a right to sue their critics for libel. It is of the highest public importance that corporations such as McDonald’s should be open to uninhibited public scrutiny and criticism, particularly on issues of public interest such as diet and health, advertising, the environment, employment conditions and animal welfare”. Citing the fact that public authorities are not permitted to sue for libel because it is widely recognised that “the threat of civil actions for defamation places an undesirable fetter on the freedom to express criticism”, Steel and Morris argued that “such protection for freedom of expression should apply and should be applied to multinational corporations, particularly those of the nature and scope of McDonald’s. Multinational corporations are often more powerful and generally have less accountability than elective bodies”.
Although the court agreed that the pair had indeed been denied a fair trial, it rejected this part of their argument on the grounds that it did
“not consider that the fact that the plaintiff in the present case was a large multinational company should in principle 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 is true that large public companies inevitably and knowingly lay themselves open to close scrutiny of their acts and, as in the case of the businessmen and women who manage them, 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 is 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 enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation”.
In other words, if the British government chose to allow large corporations to sue for libel, it was within its rights to do so.
Arguing for a change to the defamation laws in this respect could well turn out to be one of the most challenging tasks facing the Libel Reform campaign. Let me explain why.
Back in Index on Censorship in 1998 I wrote that “although at the climax of this legal blockbuster the media were temporarily awash with ‘David and Goliath’ stories, all too often laced with unnecessary and patronising ‘human interest’ angles, the vast majority of this crucial libel trial received remarkably little coverage”. As Michael Mansfield QC said at the time, it was as if a cordon sanitaire had been placed around the whole subject, although one should note the excellent contributions throughout the case of Joshua Rozenberg (Telegraph), John Vidal (Guardian) and Danny Penman (Independent). There were a number reasons for this.
First, given the then fearsomely litigious reputation of McDonald’s, media organisations were scared of being sued if they put a foot wrong in their reporting of the case. Second, newspapers feared losing advertising by McDonald’s if their reporting of the trial irked the burger behemoth. Indeed, it is alleged that when the Independent revealed on its front page, six weeks into the case, that McDonald’s had attempted to negotiate a secret settlement with Helen and Dave, the company withdrew over $120,000 of advertising from its sister Sunday paper. But third, and perhaps most important of all, in a battle between, on the one hand, two out and proud anarchists, and, on the other, a familiar fixture in every High Street which does its absolute utmost to promote a cosy, family friendly, indeed lovable, image, which side would you expect most of Britain’s overwhelmingly conservative press to take? Not that of Helen and Dave’s, whose description by Brian Appleyard as “grumpy, disaffected anarchists with chips – sorry, french fries – on their shoulders” all too clearly summed up the attitude of much of Fleet Street towards them at the time of their mammoth trial. The fact that this was actually written in a liberal newspaper simply reinforces the point.
The hostility resurfaced in significant sections of the press when Morris and Steel won their case at Strasbourg in 2005. And, of course, they weren’t exactly helped by the fact that the organisation which had found in their favour was a particular hate object for many right-wing newspapers, namely the European Court of Human Rights. What a lethal combination.
The Sun reported that “Euro judges yesterday ripped up Britain’s libel laws” and that “the ruling may force Britain to pay out millions in taxpayer’s cash in legal aid for libel cases”. The message here is somewhat implicit, but much more forthright was the same day’s Telegraph, which marked Morris and Steel’s victory with a leader entitled “How lawyers get rich on bogus human rights” which began: “If you were asked to come up with a basic list of human rights, who would think of including ‘The right to be rude and inaccurate’ among them?” It claimed that this was essentially the right that the court’s judgement had upheld and that what the court had effectively said was that “we taxpayers should foot the bill for individuals to malign corporations and other individuals”. Exactly the same line was taken the same day by a leader in the Mail, which complained that “once again, ‘human rights’ legislation is playing fast and loose with British justice. And the implications are deeply worrying. The floodgates are now open to anyone to say what they like about the commercial world, be sued, and then have their costs funded by the taxpayer”. And in the same paper in a column headed “We’re all victims now”, the inevitable Melanie Phillips echoed the Telegraph (and that’s putting it politely) in her lament that:
“This week, Strasbourg judges bestowed upon us longsuffering Britons yet another so-called human right – the right to be rude and inaccurate about someone at public expense … The European Court of Human Rights effectively said that taxpayers should foot the bill for individuals to malign corporations and other individuals … Almost every day, it seems, the human rights industry throws up fresh absurdities as it trains its legal guns on what it deems to be unfair or prejudiced”.
So keen were these papers to use this case to bang the drum for their usual anti-human rights, anti-juridical crusades that they appeared to have entirely misunderstood (or simply ignored) what the case was actually about, namely the right to a fair trial. As it happens, both the Mail and Telegraph were themselves guilty of inaccuracy, since they omitted to mention that at both the original trial and the subsequent appeal, several of Morris and Steel’s claims about McDonald’s were upheld. But the crucial point, which was entirely absent from these papers’ coverage, was that the court found that the pair had been denied a fair trial. That McDonald’s won an unfair trial proves absolutely nothing about the truth or falsity of the allegations over which the company dragged them through the courts.
Precisely the same inaccuracies informed a piece by Graham Searjeant, the financial editor of The Times, in a piece headed “This week of hate is depressing for the idealists”. But this also broadened the issues involved by linking the Strasbourg verdict with the Kyoto Treaty which came into force the same week and which he described (regretfully) as “a wonderful pretext to attack Western consumers and multinationals”. In Searjeant’s view,
“the judgment was on a narrow issue. British taxpayers had a duty to pay for a high-priced defence team. At this level it is just another case of once high-minded lawyers acting as the marketing arm of their own trade association. The implications are more serious. The court found it unfair that the ‘McLibel two’ should have to prove all the allegations they spread and that the libel action had disproportionately interfered with their freedom of expression”.
However, the right to a fair trial — which is what the case was actually about — is about as far from a narrow issue as it’s possible to get, and the main point of the case, as we have seen, was not the defendants unwillingness to prove the points in contention but their immense difficulty in doing so given the grotesque disparity between their resources and those which McDonald’s could afford. But according to the logic of Searjeant’s inaccurate and ill-informed piece, “under this new tyranny of liberalism, no clear line is to be drawn between researched fact and propaganda smears”, and he warned of a future in which “we can already see campaigns beginning against Tesco, Cadbury Schweppes, food manufacturers, drug companies and most of all oil multinationals without necessary regard for truth. They are all fair game”.
The argument advanced by English Pen, Sense about Science and Index on Censorship that large corporations should be treated in defamation law in the same way as public authorities has an unimpeachable logic. However, it is unlikely to find as much favour as some of the other recommendations in Free Speech is not for Sale, either with a government which is notoriously unwilling to antagonise corporate interests or with newspapers (and indeed other commercially-funded media) which are not only extremely business-friendly but which are themselves big business epitomised. But that’s no reason not to try. The Libel Reform Camaign should take great heart from the fact that the QC who advanced precisely this argument at Strasbourg (and who generously helped Helen and Dave pro bono throughout their epic struggle) was one Keir Starmer, now the Director of Public Prosecutions.
Julian Petley is professor of Screen Media and Journalism in the School of Arts at Brunel University
FROM THE ARCHIVE:
SLAPPS and chills (Index on Censorship 01/99)
Libel: an unsavoury business (Index on Censorship 05/98)
Thursday, January 21st, 2010
In a major speech trailing American policies for internet freedom Secretary of State Hillary Clinton today urged US media companies to take a proactive role in challenging foreign governments’ demands for censorship and surveillance. Clinton’s announcement following Google’s bold denunciation of Chinese censorship, and the company’s announcement that it will withdraw from China if it can’t reach an accommodation with the Chinese government.
But how do experts see the speech and will Clinton’s new Global Internet Freedom Task Force help those behind the great firewall?
Ethan Zuckerman Co-founder of Global Voices and research fellow at the Berkman Center
Today’s speech exposes Hillary Clinton as a dyed in the wool cyberutopian… which is a good thing. Her description of the internet as a “new nervous system for the planet” reflects aspiration as much as reality and points to a thorough embrace of the potentials for this technology, even in the face of dangerous uses of the tools. I was gratified to see her root the idea of “freedom to connect” not just in American history and tradition, but in the Universal Declaration of Human Rights and to make clear that she saw the responsibility to protect these rights falling on international institutions, like the UN Human Rights Council.
I’d been somewhat concerned that her statement might propose a new slate of internet rights, which might have sparked debate about whether the US was trying to impose its norms of speech on a global network – making it clear that internet freedom is rooted in the UDHR as is not a novel set of rights was an excellent move on her part. The policy part of the speech didn’t have many surprises. There’s been support in different branches of the US government for years for censorship circumvention technologies, and the State Department had already announced their interest in online diplomacy. What was interesting was the idea that taking a stand against censorship should become part of the “American brand”. That, combined with the prominent mention of the Global Network Initiative, looked like a hearty endorsement of Google’s recent decision to change its China business practices, and a challenge to other US companies to reconsider how they engage with nations that censor the Internet
Bill Thompson Journalist and technology analyst
It is hardly surprising that Hillary Clinton should call on other countries to bring down the barriers to the free flow of information online, nor that she should promise to discuss the issues “candidly” with China in the light of Google’s revelations about attacks on its infrastructure. The internet has long been seen as a way of exporting First Amendment guarantees of free speech to others, and Clinton’s liberal instincts remain strong.
We should not ignore the subtext, that an internet open for speech is also open for business and that US companies still build the majority of internet infrastructure and increasingly rely on it to trade. Nor should be disregard the hypocrisy of a senior politician in a governmentthat still routinely issues national security letters — in order to compel the secret disclosure of online information — calling on China to investigate the attacks on Google. But I take comfort from the fact that Clinton clearly understands the issues she is talking about, knows what the network is and what it can do, and is engaging with the pressing task of figuring out how to absorb it into her political practice.
Leslie Harris President/ CEO of the Center for Democracy & Technology
We applaud Secretary Clinton for placing global internet freedom at the heart of 21st century diplomacy. This is a critical moment in the evolution of the Internet. Authoritarian regimes are remaking the Internet into a tool of political control; meanwhile, democratic countries are struggling to manage old social ills in the new digital world.The United States must take bold action to ensure that the global internet remains a powerful force for democracy and human rights, Secretary Clinton’s speech is an historic first step toward that end.
Ian Brown Senior research fellow at the Oxford Internet Institute
Hillary Clinton’s support for online freedom is welcome. I hope it leads to a push for Internet companies to make that freedom meaningful. Microsoft, Yahoo!, Cisco and others can all do much more to protect the privacy and free speech of Internet users around the world. Search engines should join Google in refusing to provide censored results. Webmail providers should store messages and account information out of reach of repressive regimes. Infrastructure companies should refuse to sell “surveillance-ready” Internet routers to countries such as China and Iran.
At the same time, democracies should be careful of their own online freedoms. The US and UK both require Internet Service Providers to enable real-time interception on their networks. The UK government has strong-armed ISPs into blocking access to web pages on a secret list of alleged child pornography, including last year a Wikipedia entry. European ISPs are required to log information about their customers’ online activity — which in the UK is accessible without a warrant to hundreds of central and local government agencies. We should hardly be surprised when repressive governments follow our own example.
Guido Fawkes political blogger
Hillary’s speech is a restatement of Western values and the commitment to freedom of expression in the digital sphere just as we have for so long insisted on it for the written word. She was less solid on “hate speech”. Many regimes claim that those who oppose them are inciting violence or hate. Clinton could have clarified that only those advocating “hate acts” should face legal consequences.
Thursday, January 21st, 2010
In a talk chaired by LSE Director Howard Davies, Lee Bollinger, President of Columbia University, will present his new book ‘Uninhibited, Robust, and Wide-Open: A Free Press for new Century‘ and discuss the freedoms of speech and the press.
Widely published on legal and constitutional issues involving free speech and press, Bollinger books include: Eternally Vigilant: Free Speech in the Modern Era; Images of a Free Press; The Tolerant Society: Freedom of Speech and Extremist Speech in America; and Contract Law in Modern Society: Cases and Materials. He continues to teach an undergraduate course, “Freedom of Speech and Press” at Columbia each year.
Monday, 1 February 2010, 18.30-20.00
Sheikh Zayed Theatre
New Academic Building
London School of Economics
Thursday, January 21st, 2010
*Please note change in date, originally listed as 22 February
An appeal against a 2008 ruling handed down by Mr Justice Eady in favour of the British Chiropractic Association. It pursued Singh for libel after he wrote an article published in The Guardian that criticised the view that chiropractors can cure disease by manipulating the spine.
Hearing date: 23 February 2010*
Judges and court: Court of Appeal; Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger, Lord Justice Sedley.
Thursday, January 21st, 2010
As part of the Centre for Investigative Journalism Investigative Film Week, producer Tracy Worcester and associate producer Alastair Kenneil will discuss how to avoid libel and lawsuits when conducting investigations after a screening of their film Pig Business. The documentary charts the four-year investigation into the industrialisation of pig farming.
The film begins in the UK, where Worcester discovers how supermarket labels are an unreliable guide to how and where pork has been produced. She takes us on a journey to the USA, Brazil and Poland and visits the offices of corporate leaders, European bureaucrats and banks. She finds policies that support a farming system of poor quality, damaging to the environment and which pushes traditional farmers out of business.
Tuesday, 2 February 2010 at 18.30
£5 full price; £4 concessions
Oliver Thompson Theatre
City University London
Northampton Square,
London EC1V 0HB
Thursday, January 21st, 2010
One of the key issues facing all online providers is the extent to which the rights of users should be protected and enhanced. Can users themselves be empowered to take greater control of their information? Recent controversies over new policies and practices also show that policy agendas and market pressures may collide on issues around privacy,security, and end-user autonomy.
Innovation in this space is dramatic and the subject of a special Polis discussion with the leading internet and telecommunications companies to identify the key policy and technological challenges for the coming years.
Speakers:
Richard Allan, Director of European public policy, Facebook
Kasey Chappelle, Global Privacy Counsel, Vodafone
Alma Whitten, Privacy Engineering Lead, Google
Usama M. Fayyad, Open Insights
Chair:
Gus Hosein, Information Systems and Innovation Group, LSE
6.30pm, 25 Jan 2010
Sheikh Zayed Theatre
New Academic Building, Lincolns Inn Fields
Thursday, January 21st, 2010
Event to mark the first year of Barack Obama’s presidency we will be examining his foreign policy. Obama was elected on a ticket of change but to what extent has the international agenda altered since the 44th President of the United States replaced George Bush in the White House?
His address to the Muslim world at Cairo University in June last year was lauded as a masterpiece of oratory and cultural sensitivity but what in practice has Barack Obama delivered when it comes to Iraq, Afghanistan and Iran as well as the War on Terror declared by his predecessor?
Discussion with Jim Sciutto, author of Against US, a book that chronicles the rise of anti-Americanism and Islamic extremism in the Arab world. Rest of panel to be announced. Enayat Fani, senior editor and presenter, BBC Persian Television; Zaki Chehab, author and journalist and editor of arabstoday.net; Davis Lewin, head of programmes at the Henry Jackson Society, a foreign policy think tank based in London
Moderator: Elizabeth Palmer, CBS News correspondent
Frontline Club
21 January 2010 7pm
£12.50
13 Norfolk Place
London, W2 1QJ
