Freedom of expression / Freedom to receive and impart information (Article 10 of the Convention)
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Defamation 37. Under English law the object of a libel action is to vindicate the plaintiff's reputation and to make reparation for the injury done by the wrongful publication of defamatory statements concerning him or her. 38. The plaintiff carries the burden of proving “publication”. As a matter of law ( per Bell J at p. 5 of the judgment in the applicants'case), “any person who causes or procures or authorises or concurs in or approves the publication of a libel is as liable for its publication as a person who physically hands it or sends it off to another. It is not necessary to have written or printed the defamatory material. All those jointly concerned in the commission of a tort (civil wrong) are jointly and severally liable for it, and this applies to libel as it does to any other tort ”. 39. A defence of justification applies where the defamatory statement is substantially true. The burden is on the defendant to prove the truth of the statement on the balance of probabilities. It is no defence to a libel action to prove that the defendant acted in good faith, believing the statement to be true. English law does, however, recognise the defence of “fair comment”, if it can be established that the defamatory statement is comment, and not an assertion of fact, and is based on a substratum of facts, the truth of which the defendant must prove. 40. As a general principle, a trading or non-trading corporation is entitled to sue in libel to protect as much of its corporate reputation as is capable of being damaged by a defamatory statement. There are certain exceptions to this rule: local authorities, government-owned corporations and political parties, none of which can sue in defamation, because of the public interest that a democratically elected organisation, or a body controlled by such an organisation, should be open to uninhibited public criticism (see Derbyshire County Council v. Times Newspapers Ltd [1993] Appeal Cases 534; British Coal Corporation v. NUM (Yorkshire Area) and Capstick, unreported, 28 June 1996; and Goldsmith and another v. Bhoyrul [1997] 4 All England Law Reports 268). B. Legal aid for defamation proceedings 41. Throughout the relevant time, the allocation of civil legal aid in the United Kingdom was governed by the Legal Aid Act 1988. Under Schedule 2, Part II, paragraph 1 of that Act, “[p]roceedings wholly or partly in respect of defamation” were excepted from the scope of the civil legal aid scheme. 42. The Access to Justice Act 1999 (“ the AJA 1999”) came into force on 1 April 2000, after the proceedings in the present case had concluded. It sets out the current statutory framework for legal aid in England and Wales, administered by the Legal Services Commission (“the Commission” ), and made a number of reforms, for example, introducing the possibility for conditional fee agreements. Under the AJA 1999 the presumption remains that civil legal aid should not be granted in respect of claims in defamation (paragraph 1(a)(f) of Schedule). However, the Act contains a provision (section 6(8)) to enable discretionary “exceptional funding” of cases which otherwise fall outside the scope of legal aid, allowing the Lord Chancellor, inter alia, to authorise the Commission to grant legal aid to an individual defamation litigant, following a request from the Commission. The Lord Chancellor has issued guidance to the Commission as to the types of case he is likely to consider favourably, stressing that such cases are likely to be extremely unusual given that Parliament has already decided in the AJA 1999 that the types of case excepted from the legal aid scheme are of low priority. As well as financial eligibility for legal aid, the Commission must be satisfied either that “there is a significant wider public interest ... in the resolution of the case and funded representation will contribute to it”, or that the case “is of overwhelming importance to the client”, or that “there is convincing evidence that there are other exceptional circumstances such that without public funding for representation it would be practically impossible for the client to bring or defend the proceedings, or the lack of public funding would lead to obvious unfairness in the proceedings”. 43. The normal rule in civil proceedings in England and Wales, including defamation proceedings, is that the loser pays the reasonable costs of the winner. This rule applies whether either party is legally aided or not. An unsuccessful privately paying party would usually be ordered to pay the legal costs of a successful legally aided opponent. However, an unsuccessful legally aided party is usually protected from paying the costs of a successful privately paying party, because the costs order made against the loser will not usually be enforceable without further order of the court, which is likely to be granted only in the event of a major improvement in the financial circumstances of the legally aided party. C. Mode of trial 44. The Supreme Court Act 1981 provides in section 69: “(1) Where, on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue – a claim in respect of libel, slander ... the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury .” D. Damages 45. The measure of damages for defamation is the amount that would put the plaintiff in the position he or she would have been in had the wrongdoing not been committed. The plaintiff does not have to prove that he has suffered any actual pecuniary loss: it is for the jury (or judge, if sitting alone) to award a sum of damages sufficient to vindicate the plaintiff's reputation and to compensate for injury to feelings. 46. The Civil Procedure Rules (RSC, Ord. 46, rule 2(1)(a)) provide that leave of the court is required in order to enforce a judgment after a delay of six years or more. Leave to issue execution is usually refused after the expiration of six years from the date on which the judgment became enforceable (see National Westminster Bank plc v. Powney [1991] Chancery Division 339, [1990] 2 All England Law Reports 416, Court of Appeal, and W.T. Lamb & Sons v. Rider [1948] 2 King's Bench Reports 331, [1948] 2 All England Law Reports 402, Court of Appeal ). COMPLAINTS 47. The Court declared a number of the applicants'complaints inadmissible in its partial decision of 22 October 2002. The remaining complaints are, under Article 6 § 1 of the Convention, that the proceedings were unfair, principally because of the denial of legal aid, and, under Article 10, that the proceedings and their outcome constituted a disproportionate interference with the applicants'right to freedom of expression. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 48. The applicants raised a number of issues under Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The applicants'principal complaint under this provision was that they were denied a fair trial because of the lack of legal aid. They also alleged that unfairness was caused as a result of the trial judge's ruling to admit as evidence an affidavit sworn by the second applicant, his refusal to allow adjournments on a number of occasions and his granting of permission to McDonald's to amend their pleadings at a late stage in the proceedings. A. Legal Aid 1. The parties'submissions ( a ) The applicants 49. The applicants pointed out that this was the longest trial, either civil or criminal, in English legal history. The entire length of the proceedings, from the issue of the writ on 20 September 1990 to the refusal by the House of Lords of leave to appeal on 21 March 2000, was nine years and six months. Before the trial started there were 28 pre-trial hearings, some of which lasted up to five days. The hearing before the High Court lasted from 28 June 1994 until 13 December 1996, a period of two years and six months, of which 313 days were spent in court, together with additional days in the Court of Appeal to contest rulings made in the course of the trial. The High Court proceedings involved about 40,000 pages of documentary evidence and 130 oral witnesses. The appeal hearing lasted 23 days. Overall, the case included over 100 days of legal argument. The transcripts of the hearings exceeded 20,000 pages. 50. The adversarial system in the United Kingdom is based on the idea that justice can be achieved if the parties to a legal dispute are able to adduce their evidence and test their opponent's evidence in circumstances of reasonable equality. At the time of the proceedings in question, McDonald's economic power outstripped that of many small countries (they enjoyed worldwide sales amounting to approximately 30 billion United States dollars in 1995), whereas the first applicant was a part-time bar worker earning a maximum of GBP 65 a week and the second applicant was an unwaged single parent. The inequality of arms could not have been greater. McDonald's were represented throughout by Queen's Counsel and junior counsel specialising in libel law, supported by a team of solicitors and administrative staff from one of the largest firms in England. The applicants were assisted by lawyers working pro bono, who drafted their defence and represented them, during the 28 pre-trial hearings and appeals which took place over 37 court days, on eight days and in connection with five applications. During the main trial, submissions were made by lawyers on their behalf on only three occasions. It was difficult for sympathetic lawyers to volunteer help, because the case was too complicated for someone else just to “dip into”, and moreover the offers of help usually came from inexperienced, junior solicitors and barristers, without the time and resources to be effective. 51. The applicants bore the burden of proving the truth of a large number of allegations covering a wide range of difficult issues. In addition to the more obvious disadvantages of being without experienced counsel to argue points of law and to conduct the examination and cross-examination of witnesses in court, they had lacked sufficient funds for photocopying, purchasing the transcripts of each day's proceedings, tracing and proofing expert witnesses, paying the witnesses'costs and travelling expenses and note-taking in court. All they could hope to do was keep going: on several occasions during the trial they had to seek adjournments because of physical exhaustion. 52. They claimed that, had they been provided with legal aid with which to trace, prepare and pay the expenses of witnesses, they would have been able to prove the truth of one or more of the charges found to have been unjustified, for example, the allegations on diet and degenerative disease, food safety, hostility to trade unionism and/or that some of McDonald's international beef supplies came from recently deforested areas. Moreover, the applicants'inexperience and lack of legal training led them to make a number of procedural mistakes. Had they been represented, it is unlikely that they would have withdrawn all but one of their grounds on the interim appeal ( see paragraph 2 3 above) or that the Haringey affidavit would have been admitted in evidence (see paragraph 2 1 above ), and it was mainly on the basis of the mistake contained in that affidavit that the second applicant was found to have been involved in the publication of the leaflet. ( b ) The Government 53. The Government submitted that the Court should be slow to impose a duty to provide legal aid in civil cases, in view of the deliberate omission of any such obligation from the Convention. In contrast to the position in criminal proceedings (Article 6 § 3 (c)), the Convention left Contracting States with a free choice of the means of ensuring effective civil access to court (the Government relied on Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14 -16, § 26). States did not have unlimited resources to fund legal aid systems, and it was therefore legitimate to impose restrictions on eligibility for legal aid in certain types of low priority civil cases, provided such restrictions were not arbitrary ( see Winer v. the United Kingdom, no. 10871/84, Commission decision of 10 July 1986, Decisions and Reports (DR) 48, p. 154, at pp. 171 -72 ). 54. The Convention organs had considered the non-availability of legal aid in defamation cases under English law in six cases, and had never found it to be in breach of Article 6 § 1 (see Winer, cited above; Munro v. the United Kingdom, no. 10594/83, Commission decision of 14 July 1987, DR 52, p. 158; H.S. and D.M. v. the United Kingdom, no. 213 25/93, Commission decision of 5 May 1993, unreported; Stewart- Brady v. the United Kingdom, nos. 27436/95 and 28406/95, Commission decision of 2 July 1997, DR 90-A, p. 45; McVicar v. the United Kingdom, no. 46311/99, ECHR 2002 -III; and A. v. the United Kingdom, no. 35373/97, ECHR 2002 -X ). 55. The Court should not depart from this consistent jurisprudence in the present case, which, in the Government's submission, fell far short of the kind of exceptional circumstances where the provision of legal aid was “indispensable for effective access to court” ( see Airey, cited above, pp. 14 ‑ 16, § 26). 56. First, the Government argued that the law and facts in issue in the litigation were not so difficult as to make legal aid essential. The applicants'conduct of their defence and counter-claim, and their success in proving many of the allegations made in the leaflet, demonstrated that they were capable of mastering any complexities of the law of defamation as it applied to them. 57. Furthermore, the Government contended that it was relevant that the applicants received advice and representation pro bono on a number of occasions, particularly for some of their appearances in the Court of Appeal and in drafting their pleadings. It appeared that the applicants also raised at least GBP 40,000 to fund their defence and that they received help with note-taking and other administrative tasks from volunteers sympathetic to their cause. Both Bell J and the Court of Appeal took into account the applicants'lack of legal training: Bell J, for example, assisted the applicants by reformulating questions for witnesses and did not insist on the usual procedural formalities, such as limiting the case to that pleaded; the Court of Appeal took note in its judgment of the need to safeguard the applicants from their lack of legal skill, conducted its own research to supplement the submissions made by the applicants and allowed them to introduce the defence of fair comment at the appeal stage, even though it had not been raised at first instance. The applicants intended the case to achieve maximum publicity, which it did. The hearings before the High Court and Court of Appeal took so long because the applicants were afforded every possible latitude in the presentation of their case; their evidence and submissions took up the great bulk of the time. 58. In the Government's submission it could not be assumed, in any event, that had legal aid generally been available for the defence of defamation actions, the applicants would have been granted it. The then Legal Aid Board (now the Legal Services Commission) would have had to make a decision, as it does in civil cases where legal aid is available, based on factors such as the merits of the case and whether the costs of litigation would be justified by the likely benefit to the aided party. The applicants published defamatory material without prior justification, and the tax - payer should not be required to pay for the research the applicants should have carried out before publishing the leaflet, or to bear the burden of placing the applicants in a position of equality with McDonald's, which was estimated to have spent in excess of GBP 10 million on legal expenses. 2. The Court's assessment 59. The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (see Airey, cited above, pp. 12-14, § 24). It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court (ibid.) and that he or she is able to enjoy equality of arms with the opposing side (see, among many other examples, De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, p. 238, § 53). 60. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal aid scheme constitutes one of those means but there are others, such as for example simplifying the applicable procedure (see Airey, pp. 14 -16, § 26, and McVicar, § 50, both cited above ). 61. The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively ( see Airey, pp. 14 -16, § 26; McVicar, §§ 48 and 50; P., C. and S. v. the United Kingdom, no. 56547/00, § 91, ECHR 2002-VI; and also Munro, cited above ). 62. The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings (see Munro, cited above ). Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary (see De Haes and Gijsels, p. 238, § 53, and also McVicar, §§ 51 and 62, both cited above ). 63. The Court must examine the facts of the present case with reference to the above criteria. First, as regards what was at stake for the applicants, it is true that, in contrast to certain earlier cases where the Court has found legal assistance to have been necessary for a fair trial (for example, Airey and P., C. and S. v. the United Kingdom, both cited above), the proceedings in issue here were not determinative of important family rights and relationships. The Convention organs have observed in the past that the general nature of a defamation action, brought to protect an individual's reputation, is to be distinguished, for example, from an application for judicial separation, which regulates the legal relationship between two individuals and may have serious consequences for any children of the family (see McVicar, § 61, and Munro, both cited above ). However, it must be recalled that the applicants did not choose to commence defamation proceedings, but acted as defendants to protect their right to freedom of expression, a right accorded considerable importance under the Convention ( see paragraph 8 7 below ). Moreover, the financial consequences for the applicants of failing to verify each defamatory statement complained of were significant. McDonald's claimed damages up of to GBP 100,000 and the awards actually made, even after reduction by the Court of Appeal, were high when compared to the applicants'low incomes: GBP 36,000 for the first applicant, who was, at the time of the trial, a bar worker earning approximately GBP 65 a week, and GBP 40,000 for the second applicant, an unwaged single parent (see paragraphs 9, 1 4 and 3 5 above). McDonald's have not, to date, attempted to enforce payment of the awards, but this was not an outcome which the applicants could have foreseen or relied upon. 64. As for the complexity of the proceedings, the Court notes its finding in McVicar (cited above, § 5 5 ) that the English law of defamation and rules of civil procedure applicable in that case were not sufficiently complex as to necessitate the granting of legal aid. The proceedings defended by Mr McVicar required him to prove the truth of a single, principal allegation, on the basis of witness and expert evidence, some of which was excluded as a result of his failure to comply with the rules of court. He had also to scrutinise evidence submitted on behalf of the plaintiff and to cross-examine the plaintiff's witnesses and experts, in the course of a trial which lasted just over two weeks. 65. The proceedings defended by the present applicants were of a quite different scale. The trial at first instance lasted 313 court days, preceded by 28 interlocutory applications. The appeal hearing lasted 23 days. The factual case the applicants 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. Certain of the issues were held by the domestic courts to be too complicated for a jury properly to understand and assess. The detailed nature and complexity of the factual issues are further illustrated by the length of the judgments of the trial court and the Court of Appeal, which ran in total to over 1,100 pages (see, inter alia, paragraphs 1 8, 1 9, 30 and 49 above). 66. Nor was the case straightforward legally. Extensive legal and procedural issues had to be resolved before the trial judge was in a position to decide the main issue, including the meanings to be attributed to the words of the leaflet, the question whether the applicants were responsible for its publication, the distinction between fact and comment, the admissibility of evidence and the amendment of the statement of claim. Overall, some 100 days were devoted to legal argument, resulting in 38 separate written judgments (ibid.). 67. Against this background, the Court must assess the extent to which the applicants were able to bring an effective defence despite the absence of legal aid. In McVicar (cited above, §§ 53 and 60), it placed weight on the facts that Mr McVicar was a well-educated and experienced journalist, and that he was represented during the pre-trial and appeal stages by a solicitor specialising in defamation law, from whom he could have sought advice on any aspects of the law or procedure of which he was unsure. 68. The present applicants appear to have been articulate and resourceful; in the words of the Court of Appeal, they conducted their case “forcefully and with persistence” ( see paragraph 3 3 above ), and they succeeded in proving the truth of a number of the statements complained of. It is not in dispute that they could not afford to pay for legal representation themselves, and that they would have fulfilled the financial criteria for the granting of legal aid. They received some help on the legal and procedural aspects of the case from barristers and solicitors acting pro bono : their initial pleadings were drafted by lawyers, they were given some advice on an ad hoc basis, and they were represented during five of the pre-trial hearings and on three occasions during the trial, including the appeal to the Court of Appeal against the trial judge's granting of leave to McDonald's to amend the statement of claim ( see paragraph 1 6 above). In addition, they were able to raise a certain amount of money by donation, which enabled them, for example, to buy transcripts of each day's evidence 25 days later ( ibid. ). For the bulk of the proceedings, however, including all the hearings to determine the truth of the statements in the leaflet, they acted alone. 69. The Government have laid emphasis on the considerable latitude afforded to the applicants by the judges of the domestic courts, both at first instance and on appeal, in recognition of the disadvantages the applicants faced. However, the Court considers that, in an action of this complexity, neither the sporadic help given by the volunteer lawyers nor the extensive judicial assistance and latitude granted to the applicants as litigants in person was any substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel (cf. P., C. and S. v. the United Kingdom, cited above, §§ 93-95 and 99 ). The very length of the proceedings is, to a certain extent, a testament to the applicants'lack of skill and experience. It is, moreover, possible that had the applicants been represented they would have been successful in one or more of the interlocutory matters of which they specifically complain, such as the admission in evidence of the Haringey affidavit (see paragraph 2 1 above). Finally, the disparity between the respective levels of legal assistance enjoyed by the applicants and McDonald's (see paragraph 16 above ) was of such a degree that it could not have failed, in this exceptionally demanding case, to have given rise to unfairness, despite the best efforts of the judges at first instance and on appeal. 70. It is true that the Commission declared inadmissible an earlier application under, inter alia, Article 6 § 1 by these same applicants ( see H.S. and D.M. v. the United Kingdom, cited above ), observing that “they seem to be making a tenacious defence against McDonald's, despite the absence of legal aid ... ”. That decision was, however, adopted over a year before the start of the trial, at a time when the length, scale and complexity of the proceedings could not reasonably have been anticipated. 71. The Government argued that, even if legal aid had been in principle available for the defence of defamation actions, it might well not have been granted in a case of this kind, or the amount awarded might have been capped or the award made subject to other conditions. The Court is not, however, persuaded by this argument. It is, in the first place, a matter of pure speculation whether, if legal aid had been available, it would have been granted in the applicants'case. More importantly, if legal aid had been refused or made subject to stringent financial or other conditions, substantially the same Convention issue would have confronted the Court, namely whether the refusal of legal aid or the conditions attached to its granting were such as to impose an unfair restriction on the applicants'ability to present an effective defence. 72. In conclusion, therefore, the Court finds that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms with McDonald's. There has, therefore, been a violation of Article 6 § 1 of the Convention. B. Other complaints under Article 6 § 1 73. The applicants also alleged that a number of specific rulings made by the judges in the proceedings caused unfairness in breach of Article 6 § 1. Thus, they complained that the circumstances surrounding the admission in evidence of the Haringey affidavit (see paragraph 2 1 above ) had been unfairly prejudicial, as had Bell J's refusal to grant adjournments on a number of occasions and his decision to allow McDonald's to amend their statement of claim ( see paragraph 2 4 above ). 74. The Government denied that any unfairness had been caused by these rulings, which had instead struck a fair balance between the opposing litigants. 75. To the extent that these particular complaints have merit, the Court considers that they are subsumed within the principal complaint about lack of legal aid, since, even if it had not led to a different result, legal representation might have mitigated the effect on the applicants of the rulings in question. 76. In view of the above finding of a violation of Article 6 § 1 based on the lack of legal aid, the Court does not consider it necessary to examine separately these additional complaints. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 77. The applicants also complained of a breach of Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The parties'submissions 1. The applicants 78. The applicants emphasised the inter-relationship between Articles 6 and 10 of the Convention and claimed that the domestic proceedings and their outcome were disproportionate given, inter alia, that, without legal aid, they bore the burden of proving the truth of the matters set out in the leaflet. 79. This burden was contrary to Article 10. The issues raised in the leaflet were matters of public interest and it was essential in a democracy that such matters be freely and openly discussed. To require strict proof of every allegation in the leaflet was contrary to the interests of democracy and plurality because it would compel those without the means to undertake court proceedings to withdraw from public debate. The reasons under English law for permitting wider criticism of government bodies applied equally to criticism of large multinationals, particularly given that their vast economic power was coupled with a lack of accountability. In this regard, the applicants prayed in aid the principle in English law that local authorities, government-owned corporations and political parties could not sue in defamation (see paragraph 40 above). 80. Moreover, it was significant that the applicants were not the authors of the leaflet. It was almost impossible for campaigners to prove the truth of the contents of a campaigning leaflet dealing with global issues that they were merely involved in distributing. In any event, the matters contained in the leaflet were already in the public domain and had, with only minor amendments, been set out in a leaflet printed and distributed by Veggies, to which McDonald's did not object ( see paragraph 2 6 above). The applicants bore no malice against McDonald's and genuinely believed that the statements in the leaflet were true. 81. Finally, the applicants submitted that the damages awarded were excessive and quite beyond their means of paying. It was contrary to the freedom of expression for the law to presume damage without the need for McDonald's to show any loss of sales as a result of the publication. 2. The Government 82. The Government contended that the applicants in the present case were not responsible journalists, but participants in a campaign group carrying out a vigorous attack on McDonald's. There had been no attempt on their part to present a balanced picture, for example by giving McDonald's an opportunity to defend itself, and there was no suggestion that the applicants had carried out any research before publication. Domestic law was not arbitrary in allocating the burden of proving justification on the defendant. On the contrary, it reflected the ordinary principle that the party who asserts a particular fact should have to prove it. In many cases it would be unreasonable to expect a plaintiff to have to prove a negative, that a given allegation was untrue. Having taken it upon him or herself to publish a statement, it was not unreasonable to expect that the defendant should bear the limited burden of having to adduce evidence which showed, on the balance of probabilities, that the statement was true. 83. The Government rejected the applicants'argument that the ability of multinational corporations, such as McDonald's, to defend their reputations by bringing defamation claims amounted to a disproportionate restriction on the ability of individuals to exercise their right to freedom of expression. They denied that there was a parallel to be drawn with the position under domestic law whereby government bodies and political parties are unable to sue for defamation: this bar was justified for the protection of the democratic process, which required free, critical expression. The reputation of a large company might be vital for its commercial success, and the commercial success of companies of all sizes was important to society for a variety of reasons, such as fostering wealth creation, expanding the tax base and creating employment. Furthermore, the applicants'proposal that “multinational companies” should have no legal protection for their reputations was unworkably vague and it would be difficult to draft and operate legislation to that effect. Their alternative suggestion, that multinationals should have to prove loss, was also misconceived. The vindication of a plaintiff's reputation was a legitimate aim in itself and it would place enormous evidential burdens on both sides if economic loss were to become a material issue. 84. It was irrelevant that certain of the defamatory statements had already been published, for example in the Veggies leaflet. A statement did not become true simply through repetition, and, even where a statement was in wide circulation and had been published by a number of authors, the defamed party must be free to take proceedings against whomever he, she or it chose. B. The Court's assessment 85. It was not disputed between the parties that the defamation proceedings and their outcome amounted to an interference, for which the State had responsibility, with the applicants'rights to freedom of expression. 86. It is further not disputed, and the Court finds, that the interference was “prescribed by law”. The Court further finds 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”. 87. The central issue which falls to be determined is whether the interference was “necessary in a democratic society”. The fundamental principles relating to this question are well established in the case-law and have been summarised as follows (see, for example, Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, pp. 2329-30, § 46): “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to'information'or'ideas'that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no'democratic society'. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective'necessary', within the meaning of Article 10 § 2, implies the existence of a'pressing social need'. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a'restriction'is reconcilable with freedom of expression as protected by Article 10. (iii) The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was'proportionate to the legitimate aim pursued'and whether the reasons adduced by the national authorities to justify it are'relevant and sufficient'... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... ” In its practice, the Court has distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. Where a statement amounts to a value judgment the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see, for example, Feldek v. Slovakia, no. 29032/95, §§ 75-76, ECHR 2001-VIII). 88. The Court must weigh a number of factors in the balance when reviewing the proportionality of the measure complained of. First, it notes that the leaflet in question contained very serious allegations on topics of general concern, such as abusive and immoral farming and employment practices, deforestation, the exploitation of children and their parents through aggressive advertising and the sale of unhealthy food. The Court has long held that “political expression”, including expression on matters of public interest and concern, requires a high level of protection under Article 10 (see, for example, Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, and also Hertel, cited above, p. 2330, § 47 ). 89. The Government have pointed out that the applicants were not journalists, and should not therefore attract the high level of protection afforded to the press under Article 10. The Court considers, however, that in a democratic society even small and informal campaign groups, such as London Greenpeace, must be able to carry on their activities effectively and that 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 (see, mutatis mutandis, Bowman v. the United Kingdom, judgment of 19 February 1998, Reports 1998-I, and Appleby and Others v. the United Kingdom, no. 44306/98, ECHR 2003 ‑ VI ). 90. Nonetheless, the Court has held on many occasions that even the press “ must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information ... ” (see, for example, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/03, § 59, ECHR 1999-III). The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism ( Bladet Tromsø and Stensaas, § 65), and the same principle must apply to others who engage in public debate. It is true that the Court has held that journalists are allowed “recourse to a degree of exaggeration, or even provocation” ( see, for example, Bladet Tromsø and Stensaas, § 59, or Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38), and it considers that in a campaigning leaflet a certain degree of hyperbole and exaggeration is to be tolerated, and even expected. In the present case, however, the allegations were of a very serious nature and were presented as statements of fact rather than value judgments. 91. The applicants deny that either was involved in the production of the leaflet ( despite the High Court's finding to the contrary – see paragraph 2 6 above) and stress that they genuinely believed the leaflet's content to be true (see the High Court's finding in paragraph 2 8 above ). They claim that it places an intolerable burden on campaigners such as themselves, and thus stifles public debate, to require those who merely distribute a leaflet to bear the burden of establishing the truth of every statement contained in it. They also argue that large multinational companies should not be entitled to sue in defamation, at least without proof of actual financial damage. Complaint is further made of the fact that under the law McDonald's were able to bring and succeed in a claim for defamation when much of the material included in the leaflet was already in the public domain. 92. As to this last argument, the Court notes that a similar contention was examined and rejected by the Court of Appeal on the ground either that the material relied on did not support the allegations in the leaflet or that the other material was itself lacking in justification. The Court finds no reason to reach a different conclusion. 93. As to the complaint about the burden of proof, the Court notes that in McVicar ( cited above, § 87) it held that it was not in principle incompatible with Article 10 to place on a defendant in libel proceedings the onus of proving to the civil standard the truth of defamatory statements. The Court there referred to Bladet Tromsø and Stensaas, in which it commented that special grounds were required before a newspaper could be dispensed from its ordinary obligation to verify factual statements ( McVicar, § 8 4 ). 94. The Court further does 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 (see Fayed v. the United Kingdom, judgment of 21 September 1994, Series A no. 294-B, p. 53, § 75). 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 (see markt intern Verlag GmbH and Klaus Beermann v. Germany, judgment of 20 November 1989, Series A no. 165, pp. 19-21, §§ 33-38). 95. If, however, 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, that a measure of procedural fairness and equality of arms is provided for. The Court has already found that the lack of legal aid rendered the defamation proceedings unfair, in breach of Article 6 § 1. The inequality of arms and the difficulties under which the applicants laboured are also significant in assessing the proportionality of the interference under Article 10. As a result of the law as it stood in England and Wales, the applicants had the choice either to withdraw the leaflet and apologise to McDonald's, or bear the burden of proving, without legal aid, the truth of the allegations contained in it. Given the enormity and complexity of that undertaking, the Court does not consider that the correct balance was struck between the need to protect the applicants'rights to freedom of expression and the need to protect McDonald's rights and reputation. The more general interest in promoting the free circulation of information and ideas about the activities of powerful commercial entities, and the possible “chilling” effect on others are also important factors to be considered in this context, bearing in mind the legitimate and important role that campaign groups can play in stimulating public discussion (see, for example, Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 27, § 4 4; Bladet Tromsø and Stensaas, cited above, § 64; and Thorgeir Thorgeirson, cited above, p.28, § 68). The lack of procedural fairness and equality therefore gave rise to a breach of Article 10 in the present case. 96. Moreover, the Court considers that the size of the award of damages made against the two applicants may also have failed to strike the right balance. Under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (see Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 75-76, § 49). The Court notes on the one hand that the sums eventually awarded in the present case ( GBP 36,000 in the case of the first applicant and GBP 40,000 in the case of the second applicant), although relatively moderate by contemporary standards in defamation cases in England and Wales, were very substantial when compared to the modest incomes and resources of the two applicants. While accepting, on the other hand, that the statements in the leaflet which were found to be untrue contained serious allegations, the Court observes that not only were the plaintiffs large and powerful corporate entities but that, in accordance with the principles of English law, they were not required to, and did not, establish that they had in fact suffered any financial loss as a result of the publication of the “several thousand” copies of the leaflets found by the trial judge to have been distributed (see paragraph 4 5 above and compare, for example, Hertel, cited above, p. 2331, § 49 ). 97. While it is true that no steps have to date been taken to enforce the damages award against either applicant, the fact remains that the substantial sums awarded against them have remained enforceable since the decision of the Court of Appeal. In these circumstances, the Court finds that the award of damages in the present case was disproportionate to the legitimate aim served. 98. In conclusion, given the lack of procedural fairness and the disproportionate award of damages, the Court finds that there has been a violation of Article 10 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 100. The applicants claimed that, had their rights under Articles 6 and 10 of the Convention been adequately protected by the State, they would not have had to defend themselves throughout the entire defamation proceedings, which continued over nine years. They claimed payment for the legal work they had to carry out, at the rate applicable for litigants in person under the Civil Procedure Rules, namely GBP 9.25 per hour, plus reasonable travelling expenses. Using this rate, they calculated that they should each be reimbursed GBP 21,478.50 in respect of the 387 days each spent in court, together with GBP 100,233.00 each for preparation. Their total, joint claim for domestic legal costs therefore came to GBP 243,423.00, to which had to be added GBP 31,194.84 for expenses and disbursements such as photocopying, transcripts, telephone calls and travelling. 101. The applicants also asked the Court to ensure in its judgment that if McDonald's were ever successful in enforcing the GBP 40,000 award of damages against them, the respondent State should be required to reimburse the sum paid. 102. The Government commented that the amounts claimed by the applicants in respect of their court appearances and preparatory work did not reflect costs actually incurred by them or money actually lost as a result of the alleged violations of Articles 6 § 1 and 10. Had the applicants been awarded legal aid for their defence, the legal aid monies would have been paid to their legal representatives; under no circumstances would legal aid have constituted financial remuneration for the applicants themselves. As for the expenses claimed by the applicants, it was a matter of pure speculation whether and to what extent, if legal aid had been available, these expenses would have been covered by public funds. 103. As for the applicants'request for a “rider” to cover their liability should McDonald's decide to enforce the claim for damages, the Government submitted that this was not a concept known to international law and that such an order would be contrary to the parties'legitimate interest in the finality of litigation. 104. The Court notes that the applicants have not presented any evidence to suggest that the time they spent preparing and presenting their defence in the defamation proceedings caused them any actual pecuniary loss; it has not been suggested, for example, that either applicant lost earnings as a result of the lack of legal aid. They have filed an itemised claim in respect of expenses and disbursements, but they do not allege that their expenses exceeded the amount they were able to raise by voluntary donation (see paragraph 1 6 above). The Court is not, therefore, satisfied that the sums claimed represented losses or expenses actually incurred. 105. It further notes that, because of the period of time that has elapsed since the order for damages was made against the applicants, McDonald's would need the leave of the court before it could proceed to enforce the award (see paragraph 4 6 above). In these circumstances, despite its finding that the award of damages was disproportionate and in breach of Article 10, the Court does not consider it necessary to make any provision in respect of it under Article 41 at the present time. 106. In conclusion, therefore, the Court makes no award in respect of compensation for pecuniary damage. B. Non-pecuniary damage 107. The applicants claimed that, during the period of over nine years in which they were defending the defamation action against such a powerful adversary, they had suffered considerable stress and anxiety. They had felt a responsibility to defend the case to the utmost because of the importance of the issues raised and the necessity of public debate. In consequence, they had been forced to sacrifice their health and their personal and family lives. Ms Steel provided the Court with doctors'letters from March 1995 and March 1996 stating that she was suffering from a stress-related illness aggravated by the proceedings. Mr Morris, a single parent, had been unable to spend as much time as he would have wished with his young son. Ms Steel claimed GBP 15,000 under this head and Mr Morris claimed GBP 10,000. 108. The Government submitted that, in accordance with the Court's practice in the great majority of cases involving breaches of Article 10 and procedural breaches of Article 6, it was not necessary to make an award of compensation for non-pecuniary damage. There was no evidence that the applicants had suffered more stress than any individual, represented or not, involved in litigation and it was a matter of pure speculation whether and by how much the stress would have been reduced if the violations of Articles 6 and 10 had not taken place. In any event, the amounts claimed were excessive when compared with other past awards for serious violations of the Convention. 109. The Court has found violations of Articles 6 § 1 and 10 based, principally, on the fact that the applicants had to carry out themselves the bulk of the legal work in these exceptionally long and difficult proceedings to defend their rights to freedom of expression. In these circumstances the applicants must have suffered anxiety and disruption to their lives far in excess of that experienced by a represented litigant, and the Court also notes in this connection the medical evidence submitted by Ms Steel. It awards compensation for non-pecuniary damage of 20 ,000 euros (EUR) to the first applicant and EUR 1 5 ,000 to the second applicant. C. Strasbourg costs and expenses 110. The applicants were represented before the Court by leading and junior counsel and a senior and assistant solicitor. Both counsel claimed to have spent several hundred hours on the case, but, in order to keep costs within a reasonable limit, decided to halve their hourly rates (to GBP 125 and GBP 87.50 respectively) and to claim for only 115 hours'work for leading counsel and 75 hours'work for junior counsel. In addition, leading counsel claimed GBP 5,000 for preparing for and representing the applicants at the hearing on 7 September 2004, and junior counsel claimed GBP 2,500 for the hearing. The total fees for leading counsel were GBP 19,375 plus value-added tax (VAT ), and those of junior counsel were GBP 9,062.50 plus VAT. Despite having invested approximately 45 hours in the case, the senior solicitor claimed for only 25 hours and halved his hourly rate to GBP 175. He also claimed GBP 2,000 in respect of the hearing. The assistant solicitor claimed to have spent over 145 hours on the case, but claimed for 58 hours'work, at GBP 75 per hour, half her usual rate. She claimed GBP 1,500 for the hearing. The senior solicitor's total costs came to GBP 6,375 plus VAT, and those of the assistant solicitor came to GBP 5,850 plus VAT. In addition, the applicants made a claim under this head for some of the work they had carried out in connection with the proceedings before the Court, namely 150 hours each at GBP 9.25 per hour: a total of GBP 2,775. Finally, they claimed a total of GBP 3,330 travelling and accommodation expenses for the hearing in respect of the four lawyers and two applicants. The total claim for costs and expenses under this head came to GBP 4 6, 76 7.50, plus VAT. 111. The Government considered the use of four lawyers to have been unreasonable and excessive. They submitted that the costs and travelling expenses of senior counsel and one of the solicitors should be disallowed. The applicants were not entitled to claim any costs in respect of the work they had carried out, since this part of the claim did not represent pecuniary loss actually incurred. 112. The Court reiterates that only such costs and expenses as were actually and necessarily incurred in connection with the violation or violations found, and reasonable as to quantum, are recoverable under Article 41 of the Convention (see, for example, Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 -VIII ). It follows that it cannot make an award under this head in respect of the hours the applicants themselves spent working on the case, as this time does not represent costs actually incurred by them (see Dudgeon v. the United Kingdom (Article 50), judgment of 24 February 1983, Series A no. 59, p. 10, § 22, and Robins v. the United Kingdom, judgment of 23 September 1997, Reports 1997-V, pp. 1811-12, § § 42- 44). It is clear from the length and detail of the pleadings submitted by the applicants that a great deal of work was carried out on their behalf, but in view of the relatively limited number of relevant issues, it is questionable whether the entire sum claimed for costs was necessarily incurred. In the light of all the circumstances, the Court awards EUR 50,000 under this head, less the EUR 2,688.83 already paid in legal aid by the Council of Europe, together with any tax that may be chargeable. D. Default interest 113. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
Given the lack of procedural fairness and the disproportionate award of damages, the Court held that there had been a violation of Article 10 of the Convention in the applicants’ case. The central issue which fell to be determined under Article 10 was whether the interference with the applicants’ freedom of expression had been “necessary in a democratic society”. The United Kingdom Government had contended that, as the applicants were not journalists, they should not attract the high level of protection afforded to the press under Article 10. The Court considered, however, that in a democratic society even small and informal campaign groups had to be able to carry on their activities effectively. There existed 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. In this case the Court also held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention, finding that the denial of legal aid to the applicants had deprived them of the opportunity to present their case effectively before the court and had contributed to an unacceptable inequality of arms with McDonald’s.