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325 lines
17 KiB
Plaintext
IF YOU WISH TO REMOVE YOURSELF FROM THIS LIST FOR ANY REASON
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(Letter from Albert Beale in London and article by Dan Mills at the London
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office)
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Wednesday 7 June
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One of the national daily papers here - The Independent - has had McLibel stuff
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on its front page two days running:
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On Monday a speculative(?)/informed(?) piece about how McD want to ditch the
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case against the 2 because of the bad publicity, if only they could do it
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without giving carte blanche to others to repeat the allegations without risk
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of legal action.
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Yesterday thee was a lovely front page pic of a Ronald McD in a south London
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park (with 70 technicians/extras/etc) where they'd gone to spend two days
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trying to film a new commercial, only to find a bunch of anti-McDers with
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banners etc getting in the way. Police and local council officials were both
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brought in by the advertising agency, but both said protesters had as much
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right to wander in the park as the filmers did - even though the filmers had
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permission and had spent the previous week tarting up part of the park in
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readiness!
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Heh-heh!!
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Albert Beale
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==============================================
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McLIBEL TRIAL - LEGAL SUMMARY, March 1995
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'McLibel 2' bite back against Big Mac
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by Dan Mills
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Mr Morris: "A diet high in fat, sugar, animal products and salt and low in
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fibre, vitamins and minerals is linked with cancer of the breast and bowel and
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heart disease". Is that a reasonable statement?
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Dr Arnott: ...If it is being directed to the public, then I would say it is a
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very reasonable thing to say...
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Mr Morris: That is actually a quote from the London Greenpeace Factsheet which
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is the subject of the libel action.
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This is an exchange between a Defendant in person and one of the Plaintiffs'
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expert witnesses in what is scheduled to be the longest libel trial in British
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history, namely McDonald's Corporation & Another v Steel & Morris. The
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so-called 'McLibel' Trial is a mammoth legal battle between two unwaged
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campaigners and the $24 billion a year fast-food multinational company. After
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26 pre-trial hearings and much controversy, the Trial started on 28th June 1994
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in the High Court, and is expected to run until at least the end of this year.
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180 witnesses from the UK and abroad are giving evidence.
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The extract above, quoted by Mr Morris from the London Greenpeace Factsheet
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(which described an average McDonald's meal as high in fat and low in fibre)
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had been characterised at pre-trial hearings as the central and most
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"defamatory" allegation, which if proven would be the "kiss of death"* for a
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fast-food company like McDonald's. On the strength of the supposed scientific
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complexities surrounding this issue, the Defendants had been denied their right
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to a jury.
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* Richard Rampton QC for McDonald's, Court of Appeal, 16th March 1994
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Background to the case
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In 1986, London Greenpeace (which pre-dates and has no connection to Greenpeace
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International) produced the Factsheet entitled "What's Wrong With McDonald's",
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drawing together criticisms of McDonald's made by concerned people and
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organisations around the world. The areas covered in the Factsheet, which have
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become the issues in the Trial, include: the responsibility of corporations
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such as McDonald's for damage to the environment, including destruction of
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forests and the effects of wasteful packaging; McDonald's promotion and sale
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of unhealthy food; the effects of advertising on children; the rearing and
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slaughter of animals to supply products for McDonald's; the low pay and poor
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conditions faced by workers in the catering industry, including McDonald's;
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McDonald's hostility towards trade unions.
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In September 1990, after sending private investigators to London Greenpeace
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meetings, McDonald's served libel writs on five individuals connected to the
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group. McDonald's appeared to think that, given the time, expense and legal
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difficulties involved in defending a libel action, the five would apologise.
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The five Defendants were advised that since there is no legal aid to fight
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libel cases, their chances of successfully fighting the case, or even getting
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as far as the trial itself, were virtually nil. Faced with this, three of the
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defendants reluctantly decided to apologise and so avoid any costs.
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Legal Aid and a Jury Denied
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Despite the lack of legal aid, Steel and Morris decided to fight the case as
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litigants in person, determined to counter, as they saw it, McDonald's attempts
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to censor their critics. They made an unsuccessful submission to the European
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Court of Human Rights regarding legal aid - without a full hearing, the court
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ruled that, as the Defendants had put up a "tenacious Defence", they could not
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say they were being denied access to justice. Representing themselves involves
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not only mastering court procedures and legal jargon, and speaking in court,
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but also organising witnesses and approximately 40,000 pages of documents, and
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mastering a welter of scientific and technical detail. Both Defendants
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complain that there are papers "all over the floor" in their respective flats.
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McDonald's are employing the solicitors Barlow Lyde & Gilbert, together with
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Richard Rampton QC and Tim Atkinson as leading and junior Counsel. As a
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result, "David vs Goliath" has become the media's favourite analogy.
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Steel and Morris do receive occasional legal advice from barristers and
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solicitors on an informal basis, and some barristers or pupils help in court as
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McKenzie friends (coordinated by Liberty). But it is the Defendants who have
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to get to grips with the evidence and present their case in court. They had
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little or no experience of the legal system before the writs were served, but
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during the 4 years of pre-trial hearings and the trial itself, the Defendants'
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advocacy skills have improved considerably and their confidence is growing.
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Since June, a procession of sober-suited McDonald's executives from both sides
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of the Atlantic have taken the stand in the High Court. "They can't walk away
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from the witness box the way they've walked away when confronted by critics in
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the past," Steel observes. "They have to come up with answers to our
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questions." So the Corporation's business practices have been put under an
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intense spotlight.
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The Trial is being heard by Mr Justice Bell without a jury. McDonald's
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successfully argued that the then controversial issue of a link between diet
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and cancer was 'too complex' to allow its assessment by a jury. The Defendants
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lost their appeal on this point in the Court of Appeal, and were refused leave
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to appeal by the House of Lords. This caused Marcel Berlins, a leading legal
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commentator, to remark "I cannot think of a case in which the legal cards have
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been so spectacularly stacked against one party." Steel and Morris are
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considering an appeal to the European Court of Human Rights on this point after
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the Trial.
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Discovery and Counterclaim
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There has been a long-running dispute in the case over discovery of documents -
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the Defendants claim that some documents have been withheld, particularly in
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the areas of hostility to trade unions and destruction of rainforests. During
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the pre-trial hearings, the Judge took the unusual step of ordering three of
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McDonald's Vice Presidents to swear affidavits (in addition to those already
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sworn by their solicitors) on the existence and possession of documents for
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which the Defendants had applied. The Defendants found the affidavits to be
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lacking in detail and obtained an order requiring the executives to swear
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further affidavits, to be served before they gave evidence. There was also a
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prolonged dispute over a document most of which had been blanked-out by the
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Plaintiffs - this forms part of the evidence concerning an advertising
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campaign, which made nutritional claims for McDonald's food, and which the
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Attorneys General of three US states told McDonald's to withdraw or face legal
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action. McDonald's finally disclosed the document in full, but not until the
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relevant witnesses had given their evidence.
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On the eve of the Trial, McDonald's issued press releases and leaflets (which
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were available nationwide in the company's stores) claiming that their critics,
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including the Defendants, were deliberately circulating lies about the company.
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As a result, Steel and Morris lodged a counterclaim against the fast food giant
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for libel.
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Witnesses and Striking Out
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In 1993, Steel and Morris were ordered to produce witness statements within 3
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weeks. They worked night and day contacting the people who had approached them
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or been recommended to them, asking each of them to make a statement. It was a
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"massive job", Morris explains, "we did not interview any witnesses and just
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asked them to put down their experiences or their knowledge in their own
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words". On the final day, much to the astonishment of McDonald's and their
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advisors, Steel and Morris served 65 witness statements.
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McDonald's then succeeded in obtaining an order striking out the parts of the
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defence which were not supported by witness statements. The Court of Appeal
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over-turned this in a "landmark decision", ruling that all the different forms
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of evidence on which a libel defendant may be entitled to rely at trial should
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be taken into account when deciding whether to strike out. The appeal court
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ruled that this includes evidence contained in documents disclosed by the
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plaintiff on discovery, answers to interrogatories, evidence on subpoena, and
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evidence elicited from the plaintiff or plaintiff's witnesses in the course of
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cross-examination.
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The Trial so far
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"The case has completely dominated our lives for over two years," says Morris.
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"It's been a long ordeal. We've had no time for anything else." Before the
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trial began, Rampton forecast it would last 3 to 4 weeks. 18 months is now a
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more likely estimate.
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Most of the evidence heard has been on packaging, nutrition and advertising.
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The Animal Welfare, Hygiene and Food Poisoning section is now underway, and
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will be continuing until April. The following are some snippets of the Trial:
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Paul Preston (McDonald's UK President) said that if one million customers each
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bought a soft drink, he would not expect more than 100 to 150 cups to end up as
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litter. Photographs were then put to Mr Preston, which showed 27 pieces of
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McDonald's litter in one stretch of pavement alone (the company has over 550
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stores in the UK and serves a million customers each day).
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Ed Oakley, Senior Vice-President, denied that the company's so called
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"Environmental Initiatives" were, in the main, a propaganda exercise. However,
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one of the company's nationally available 'McFact' cards publicised a scheme to
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recycle polystyrene waste from Nottingham stores, where customers were asked to
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put polystyrene packaging into a separate bin, "for recycling into such things
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as plant pots, coat hangers and insulation material for use in homes, even
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fillings for duvets". Mr Oakley admitted that despite the scheme continuing
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for several years, the company did not recycle any of the waste and, in fact,
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the polystyrene was "dumped".
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When asked about the company's description of its food as 'nutritious',
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McDonald's expert witness on nutrition defined the word to mean "contains
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nutrients". He then accepted that all foods have nutrients. When asked to
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define 'junk food', he said it was 'whatever a person doesn't like' (in his
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case semolina). Counsel then intervened to say that McDonald's was not
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objecting to the description of their products as 'junk food'!
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During the Defendants' opening speeches, internal company documents (which had
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been mistakenly disclosed by McDonald's solicitors) were read to the court in
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which McDonald's admitted the purchase in the UK in 1983/4 of beef imported
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from Brazil, a rainforest country - something which the company had always
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denied. David Walker, Chairman of the sole supplier of the company's UK
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hamburgers (now one million per day) admitted that he had personally organised
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the direct import of these 5 consignments. A letter from Mr Walker, quoted in
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court, revealed that McDonald's UK had given Walker permission to use the
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Brazilian beef imports shortly after Fred Turner, the Chairman of the
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McDonald's Corporation, had "issued a worldwide edict that no McDonald's plant
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was to use Brazilian beef".
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McDonald's expert witness on the rearing and slaughter of animals said the
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company's egg suppliers keep chickens in battery cages, 5 chickens to a cage
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with less than an A4 sheet of paper per bird, and with no freedom of movement
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and no access to fresh air or sunshine. Ed Oakley, Senior Vice-President, said
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McDonald's had thought about switching to free range eggs, but, not only are
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battery eggs "50% cheaper", but he claimed "hens kept in batteries are better
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cared for". He said he thinks battery cages are "pretty comfortable".
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The Employment section of the Trial, which will be the largest section, is set
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to begin in April. Forty ex-McDonald's workers will be testifying about the
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poor pay and conditions. Trade union officials and activists from around the
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world will be giving evidence about their experience of McDonald's hostility to
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trade unions.
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Moving the goalposts
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After the destruction of McDonald's case on the links between diet and cancer,
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McDonald's applied and were given permission to amend their Statement of Claim
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(issued in September 1990) in this area, despite vigorous protests by the
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Defendants. McDonald's have thus been able to move the goalposts after most of
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the evidence in this area has been heard. The Defendants may now have to prove
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the statement (not contained in the London Greenpeace Factsheet) that
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"McDonald's sell meals which cause cancer and heart disease in their
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customers". Helen and Dave may be forced to recall some witnesses to be
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cross-examined again. In addition to the issue of diet and cancer, McDonald's
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have changed their case on the Animals issue. They are no longer objecting to
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the terms 'torture' and 'murder' being used to describe the rearing and
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slaughter of animals to make McDonald's burgers, but have widened the issues in
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dispute in this area of the case.
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Who gains what?
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McDonald's are claiming damages and costs (estimated at over #3m), as are the
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Defendants in their counterclaim. Since the Defendants have no money,
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McDonald's cannot hope to receive anything from them. The Defendants are
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paying their expenses through donations received from the public. McDonald's
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are asking for an injunction to prevent Steel and Morris from repeating the
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criticisms in the Factsheet, but the publicity and protests surrounding the
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Trial, both in this country and abroad, have already ensured that the issues
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have been aired to a much wider audience than supporters of London Greenpeace
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could have hoped for in the 1980's.
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The McLibel Support Campaign, set up to generate solidarity and financial
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backing for the Defendants and to continue campaigning against McDonald's, is
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run by a group of volunteers. They are calling on people to leaflet outside
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their local store on 15th April, McDonald's 40th anniversary and an
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International Day of Action. "Thousands of people have pledged to continue to
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hand out leaflets critical of McDonald's," Morris says. "No matter what
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happens to us, these leaflets will circulate in even greater numbers than
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before. The whole McDonald's effort has been about silencing critics and
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campaigners - and they have failed."
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According to Auberon Waugh (Daily Telegraph, October 1994), in this case "the
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entire nation is, in a sense, the jury". I agree and believe that not only is
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McDonald's on trial, but also the fairness of the libel laws in this country.
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For more information or to send donations, contact McLibel Support Campaign, 5
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Caledonian Road, London N1 9DX (Tel/Fax 0171 713 1269).
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If you can help as a McKenzie friend, please contact Brendon Delaney at
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Liberty, 21 Tabard Street, London SE1 4LA (Tel 0171 403 3888).
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Dan Mills is a solicitor who is currently working as a volunteer for the
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McLibel Support Campaign.
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-----------------------------------------------------------------------
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U.S. McLibel Support Campaign Press Office
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PO Box 62 Phone/Fax 802-586-9628
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Craftsbury VT 05826-0062 Email dbriars@world.std.com
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