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Thursday, 28 August 2008

McLibel

The McLibel case is the finest, most beautiful example of a Crap Libel Case. It is a true work of art, to be savoured by all of us over time.

It is the Crap Libel Case against which all others are measured.

In particular, there are three really, really stupid decisions by McDonalds in this case. These decisions are so staggeringly misconceived that they should be treasured by anyone interested in the dysfunctions of human nature. Only very special decision-makers can make decisions this bad.

The initial facts are simple. A group of activists are handing out leaflets attacking McDonalds. The attacks are in respect of a number of subjects. A copy of the leaflet is here.

McDoanlds then threaten to sue a number of the activists. All but two apologise. However, Helen Steel and David Morris do not.

We come to the first silly decision: the initial decision to sue.

There was nothing to be gained by suing but adverse publicity. It was foreseeable that the defendants would seek to justify their claims wherever possible. If McDonalds won any of these points, no one would care; but if they lost any one of them, it would be a PR calamity.

It was also foreseeable that the case would be seen as "David vs Goliath" with McDonalds being heavy handed. At a stroke, the defendant supersized an otherwise trivial matter.

As it was, both of these predictable points were borne out in practice. The defendants took full advantage of the wide-ranging nature of the allegations. Dozens of witnesses were called, dozens of papers were cited, and - deliciously - many McDonalds executives were cross-examined. And some of the allegations were upheld. Furthermore, the "McLibel Two" became celebrities: a cause for enlightened sorts to support.

As the judge himself said:

"...the case received publicity, some of which was unfavourable to McDonalds who were portrayed in some quarters as bullies who were trying to stifle freedom of speech".

(The judge's own 45 page summary of the judgment is here. Read, enjoy.)

The next two stupid decisions came in response to this unfolding PR disaster.

First, McDonalds decided not to just drop the case. The executives involved wanted to have something to show for bringing the claim. They wanted to somehow save face. So McDonalds insisted on certain conditions before the case would be dropped. The McLibel Two would have to stop public criticism of McDonalds, though they could criticise McDonalds privately to their friends.

Wonderfully, the McLibel Two responded by saying that in return McDonalds would have to cease advertising their products, though they could continue recommending their products privately to their friends.

McDonalds should have just dropped the case and walked away. It would have taken courage by the relevant executives to do this. But they couldn't. Such a sensible course of action simply "did not compute".

And then there is the third decision, a decision of incredible senselessness perhaps unrivalled in legal history.

Some bright executive decided that McDonalds should publish statements which appeared to accuse the McLibel Two of being liars. Perhaps the executive thought that such statements would counter the adverse media coverage.

In fact, it just allowed the McLibel Two to countersue McDonalds for libel. This meant that McDonalds became trapped in the litigation: they no longer could drop the case even if they wanted to.

They had to sit there and suffer. They could no longer escape from the trial. And they sat and they suffered for a very long time.

In the end, the case ran for 313 days in court, perhaps the longest libel trial in history. McDonalds managed to win only on some points, and in the end were awarded £20,000 in damages, which they never collected.

And in return for the decisions to sue and not drop the case, the gormless McDonalds executives ran up a legal bill of about £10,000,000 and secured a judicial ruling that McDonalds advertising was misleading, that children were exploited, that they were culpable for cruelty to animals, and paid low wages.

Stepping back, the fundamental flaw in McDonalds' approach was that someone thought that threatening libel proceedings provided a "quick win" against criticism. Sometimes it does, but sometimes the bluff can be called. And when it is called, then it can turn into a lengthy and very painful experience for the claimant.

3 comments:

Mojo said...

Auberon Waugh described the trial as "the best free entertainment in London".

HolfordWatch said...

I had no idea that McD's legal fees had mounted up to that amount. I wonder if there were consequences for the people who authorised that disastrous sequence of decisions/events.

Looking forward to the next case.

marmitelover@mac.com said...

Good post!
Of course the Mclibel 2 did have to spend several years of their own lives dealing with this case which can't have been easy... trials are always stressful.