Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Expands Expression
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The European Court of Human Rights found that the Applicants’ right to a fair trial was violated under Article 6 of the European Convention of Human Rights and that their leaflets were protected under Article 10’s freedom of expression. The Applicants, Steel and Morris, were associated with the activist collective London Greenpeace, which began an anti-McDonald’s campaign. The Applicants handed out partially libelous leaflets critical of McDonald’s, for which they were imposed with a hefty fine. The European Court reasoned that since there was a vast inequality between Steel and Morris and McDonald’s, denying legal aid to the Applicants deprived them of their ability to present the case effectively, and therefore violated Article 6. In addition, the court noted that there was strong public interest in the opinions of non-mainstream groups regarding the environment and health. Lastly, the court drew upon the need for democratic societies to allow all campaign groups, including London Greenpeace, to carry out their activities.
Steel and Morris (the applicants) were associated with London Greenpeace, which has no connection with Greenpeace International. In the mid-1980s London Greenpeace began an anti-McDonald’s campaign. In 1986, the applicants were handing out six-paged leaflets entitled “What’s wrong with McDonald’s?”
McDonald’s alleged that the leaflets were defamatory in a United Kingdom court. For example, the first page of the leaflet 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. Additionally, along the top of pages 2 to 5 was a header comprised of the McDonald’s “golden arches” symbol, with the words “McDollars, McGreedy, McCancer, McMurder, McDisease …” superimposed on it.
In two hearings in the U.K. court system, the leaflet by Steel and Morris was determined to be partially defamatory. Steel and Morris were assessed £40,000 in damages. Steel and Morris then applied for relief in the ECtHR.
Two issues were decided by the ECtHR. First, the ECtHR decided whether Steel and Morris had a right to legal aid for the cases under Article 6 of ECHR providing for the right to a fair trial. The ECtHR recognized that the right of access to a court is not absolute and may be subject to restrictions, but those restrictions must pursues a legitimate aim and be proportionate to that aim. It may therefore be acceptable to impose conditions on the grant of legal aid based on the financial situation of the litigant or his or her prospects of success in the proceedings. It was noted that the “inequality of arms could not have been greater” — McDonald’s economic power outstripped that of many small countries (they enjoyed worldwide sales amounting to approximately USD $30 billion in 1995), whereas the first applicant was a part-time bar worker earning a maximum of £65 a week and the second applicant was an unwaged single parent. The trial itself at first instance lasted 313 court days, preceded by 28 interlocutory applications. The appeal hearing lasted 23 days. The factual case Steel and Morris had to prove was highly complex, involving 40,000 pages of documentary evidence and 130 oral witnesses, including a number of experts dealing with a range of scientific questions such as nutrition, diet, degenerative disease and food safety. Some of the issues were held by the domestic courts to be too complicated for a jury to properly understand and assess. Due to the complexity and difficulty of the case and the inequality between Steel and Morris and McDonald’s, the ECtHR found denying legal aid to Steel and Morris deprived them the ability to present the case effectively. Hence, it was a violation of Article 6 of ECHR.
The second issue was whether the U.K. courts had violated Steel and Morris’ right to freedom of expression under ECHR Article 10. There was no disputing that there had been an interference with the right to freedom of expression, and that it was prescribed by law. The ECtHR also found that the English law of defamation, and its application in this particular case, pursued the “legitimate aim of the protection of the reputation or rights of others.” The crux of the argument laid in whether it was “necessary in a democratic society.” The ECtHR has long held that “political expression,” including expression on matters of public interest and concern, requires a high level of protection under Article 10. However, Steel and Morris were not journalists, and should not therefore attract the high level of protection afforded to the press under Article 10. Necessary in a democratic society, even small and informal campaign groups such as London Greenpeace must be able to carry on their activities effectively. There exists a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and the environment.
It is important to note that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to them acting “in good faith to provide accurate and reliable information in accordance with the ethics of journalism.” The creation of the leaflets themselves did not include Steel and Morris, who stressed that they believed the contents to be true. It would be disproportionate to assume that the person distributing the leaflets would have complete knowledge of the contents of the leaflets. Further, it would be unfair to place the burden on Steel and Morris for the truth of the leaflets, which would stifle public debate.
The ECtHR recognized that the state 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. However, if a state decides to provide such a remedy to a corporate body, it is essential — in order to safeguard the countervailing interests in free expression and open debate — to provide a measure of procedural fairness and equality. In accordance with the law, the applicants had the choice either to withdraw the leaflet and apologize to McDonald’s or bear the burden of proving, without legal aid, the truth of the allegations contained in it. The more general interest in the free circulation of information and ideas — particularly about the activities of powerful commercial entities — and the possible “chilling effect” were also important factors considered. As a result of the procedural unfairness and the disproportionate awarding of damages, the ECtHR found that there had been a violation of ECHR Article 10 and the right to freedom of expression.
 U.K., Ashingdane v. the United Kingdom, No. 8225/78 (1985).
 para. 50.
 para. 90
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case offers protection for the distribution of leaflets that generate public debate and educate the general public. The protection extends to the distributors themselves, who should not have to bear the burden of the truth contained in the content of the leaflets. This allows non-governmental organizations to campaign without fear of action based on the potentially defamatory contents of a leaflet, removing the effect of chilling speech that the original fine imposed by the U.K. courts had.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This ECtHR decision puts ECHR States Parties on notice that denying legal aid to certain parties can violate Article 6 of the ECHR and that proving the truth of a leaflet’s contents is not always the burden of the distributing party when the leaflet is intended to provoke debate or educate on matters of public interest.
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