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McGoliath v. David: The European Court of Human Rights Recent “Equality of Arms” Decision

Published online by Cambridge University Press:  06 March 2019

Monique C. Lillard

Extract

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The European Court of Human Rights has issued a judgment which adds to the developing law of Article 6, Section 1 (right to a fair hearing) of the European Convention on Human Rights (ECHR or “the Convention”) and which sheds light on Article 10 (freedom of expression) and its interaction with the law of defamation. Practically, the decision in Steel and Morris v. the United Kingdom (hereinafter referred to as Steel) is likely to prompt a review of the availability of legal aid for defendants in civil cases in the United Kingdom (“UK”), and may be a small step towards balancing the arms in ad terrorem suits brought by large corporations against private citizens in order to silence public debate.

Type
Developments
Information
German Law Journal , Volume 6 , Issue 5 , 01 May 2005 , pp. 895 - 907
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 Case of Steel and Morris v. United Kingdom, App. No. 68416/01 (15 February 2005), available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=42244&sessionId=2271639&skin=hudoc-en&attachment=true. This case will be hereafter referred to as “Steel.“Google Scholar

2 Id. at para. 9.Google Scholar

3 Id. at para. 10.Google Scholar

4 Id. at paras. 10 and 11. The applicants protested the trial judge's finding that they assisted in production of the leaflet.Google Scholar

5 Id. at para. 12.Google Scholar

6 Id.Google Scholar

7 Id.Google Scholar

8 Id. at para. 13.Google Scholar

9 Plaintiffs were McDonald's Corporation (a U.S. company) and McDonald's Restaurants Limited (a UK company), hereinafter referred to collectively as “McDonald's.” Id. at para. 14.Google Scholar

10 McDonald's withdrew proceeding against the three other defendants, in exchange for an apology. Id.Google Scholar

11 Id. at para. 16.Google Scholar

12 Id.Google Scholar

13 Id. at para. 26.Google Scholar

14 Id. at para. 27.Google Scholar

15 Id. at para. 28.Google Scholar

16 Id.Google Scholar

17 Id.Google Scholar

18 McDonald's did not invoke the English Rule, and did not ask for an order that the applicants pay their costs. Id. at para. 29.Google Scholar

19 Id. at paras. 30-35. That appeal was heard in 1996, before the incorporation of the Convention into UK Law by the Human Rights Act 1998. If the appeal had been heard after that Act came in to operation (in October 2000) the UK's Court of Appeal would have been obliged to hear the arguments based on the Convention articles, and the matter need not have gone to the ECtHR in Strasbourg.Google Scholar

20 Id. at pars. 34.Google Scholar

21 Id. at para. 35.Google Scholar

22 Id. at para. 36.Google Scholar

23 European Convention on Human Rights, Nov. 4, 1950, art. 6(1), available at http://www.echr.coe.int/Convention/webConvenENG.pdf.Google Scholar

24 One alternative available to States is simplifying applicable civil procedure so that the system is more accessible. Another, used extensively by Judge Bell in the McDonald's case, is for the judge to intervene frequently during the courtroom proceedings. Case of Steel and Morris v. United Kingdom, App. No. 68416/01 (15 February 2005), paras. 57, 60 and 62, available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=42244&sessionId=2271639&skin=hudoc-en&attachment=true.Google Scholar

25 Legal Aid Act 1988, Schedule 2, Part II, Paragraph 1. Since then legal aid law in England and Wales has been reformed by the Access to Justice Act 1999. The new act still maintains the presumption that civil legal aid should not be granted in defamation suits, but does allow for discretionary exceptional funding for cases involving wide public interest. Defamation suits could be treated favorably, within that discretion, but have not been.Google Scholar

26 Case of Steel and Morris v. United Kingdom, App. No. 68416/01 (15 February 2005), para. 62, available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=42244&sessionId=2271639&skin=hudoc-en&attachment=true.Google Scholar

27 Id.Google Scholar

28 Airey v. Ireland, 2 EHRR 305 (9/10/79)(Mr. O'Donoghue, Dissenting).Google Scholar

29 Case of Steel and Morris v. United Kingdom, App. No. 68416/01 (15 February 2005), para. 72, available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=42244&sessionId=2271639&skin=hudoc-en&attachment=true.Google Scholar

30 Id. at para. 61.Google Scholar

31 Id. at para. 87.Google Scholar

32 Id. at para. 63.Google Scholar

33 Id. Of course, Steel and Morris could have chosen to apologize and be dismissed, like the three others who were sued along with them. But to do so would be to give up expressive rights. At this point the applicant's Article 10 rights link to their Article 6 rights.Google Scholar

34 Id. McDonald's originally pled for damages up to GPB 100,000. The ECtHR compared the pled amount to the applicant's small or nonexistent incomes.Google Scholar

35 Id. at para. 68.Google Scholar

36 Id.Google Scholar

37 Id. at para. 69.Google Scholar

38 McVicar v. the United Kingdom, App. No. 46311/99 (7 May 2002), available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=34164&sessionId=2275835&skin=hudoc-en&attachment=true.Google Scholar

39 Id.Google Scholar

40 Id.Google Scholar

41 Case of Steel and Morris v. United Kingdom, App. No. 68416/01 (15 February 2005), paras. 64 and 67, available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=42244&sessionId=2271639&skin=hudoc-en&attachment=true.Google Scholar

42 Id. at para. 64.Google Scholar

43 Id.Google Scholar

44 Id. at para. 67.Google Scholar

45 Id. at para. 63 (citing McVicar v. the United Kingdom, App. No. 46311/99 (7 May 2002), para. 61, available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=34164&sessionId=2275835&skin=hudoc-en&attachment=true).Google Scholar

46 Id. at para. 55.Google Scholar

47 Id. at para. 61.Google Scholar

48 Id. at para. 75.Google Scholar

49 Id. at para. 77 (quoting Article 10 of Convention). These restrictions are conceived within a legal and democratic framework.Google Scholar

50 See, e.g., New York Times v. Sullivan, 376 U.S. 254 (1964). Indeed, the arguments made by applicants are similar to those made by defendants in New York Times. New York Times was asserted by the applicant in McVicar (McVicar v. the United Kingdom, App. No. 46311/99 (7 May 2002), para. 65, available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=34164&sessionId=2275835&skin=hudoc-en&attachment=true) but was not addressed by the ECtHR.Google Scholar

51 Case of Steel and Morris v. United Kingdom, App. No. 68416/01 (15 February 2005), paras. 89-90, available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=42244&sessionId=2271639&skin=hudoc-en&attachment=true.Google Scholar

52 Id.Google Scholar

53 Id. at para. 94.Google Scholar

54 Id. at para. 98. The ECtHR rejected, summarily, the applicants’ objection to the placement of the burden of proof on truth should not be on the defendant. It refused to disturb factual findings by the UK courts regarding applicants’ role in production of the leaflet and the relevance of similar leaflets earlier by other organizations.Google Scholar

55 Id. at para. 95.Google Scholar

56 Id.Google Scholar

57 Id. at 96 (citing Tolstoy Miloslavsky v. the UK, 316-B Eur. Ct. H. R. (ser. A) at para. 49 (1995)).Google Scholar

58 Id. at paras. 95-97.Google Scholar

59 Id.Google Scholar

60 Id. at para. 95 (citing Thorgeir Thorgeirson v. Iceland, App. No. 13778/88 (25 June 1992), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Thorgeirson&sessionid=2282851&skin=hudoc-en).Google Scholar

61 Thorgeir Thorgeirson v. Iceland, App. No. 13778/88 (25 June 1992), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Thorgeirson&sessionid=2282851&skin=hudoc-en).Google Scholar

62 Hertel v. Switzerland, App. No. 25181/94 (25 August 1998), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Hertel&sessionid=2282932&skin=hudoc-en Google Scholar

63 Id.Google Scholar

64 Id.Google Scholar

65 Id.Google Scholar

66 Id. at para. 20. The injunction was limited and specific about what could not be said.Google Scholar

67 Id.Google Scholar

68 Id. at para. 50.Google Scholar

69 Id. at para. 51.Google Scholar

70 Case of Steel and Morris v. United Kingdom, App. No. 68416/01 (15 February 2005), paras. 100-112, available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=42244&sessionId=2271639&skin=hudoc-en&attachment=true.Google Scholar

71 Id.Google Scholar

72 Id.Google Scholar

73 Id.Google Scholar

74 McDonald's case was not meritless, but otherwise would meet the standard definition of a Strategic Lawsuit Against Pubic Participation or “SLAPP.” Defamation is one of the favorite tools of SLAPPers. See Jackson, D. Mark, The Corporate Defamation Plaintiff in the Era of SLAPPs: Revisiting New York Times v. Sullivan, 9 William and Mary Bill of Rights Journal 491 (2001). California and other American states have successfully attempted to prevent SLAPP suits. See, e.g, Cal. Code Div. Pro. Section 425.16. See, generally, Daerr-Bannon, Kathleen L., Cause of Action: Bringing and Defending Anti-SLAPP Motions to Strike or Dismiss 22 COA2d 317 (Oct. 2004).Google Scholar

75 In fact, the ECtHR correctly defended McDonald's ability to sue. “[T]he fact that the plaintiff … was a large multinational company should [not] in principle deprive it of a right to defend itself against defamatory allegations…. [There is an] interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, [and] for the wider economic good.” Case of Steel and Morris v. United Kingdom, App. No. 68416/01 (15 February 2005), para. 94, available at http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=285953B33D3AF94893DC49EF6600CEBD49&key=42244&sessionId=2271639&skin=hudoc-en&attachment=true.Google Scholar