Still in the McSpotlight

A Web site repeating the libels against McDonald's is being read by millions. What can the company do?

While McDonald's proved in court that some of the allegations made against it were untrue, it failed spectacularly to stop future publication. Not only has it suffered from the insatiable appetite of the media for juicy morsels disclosed during the trial but also supporters of the defendants Helen Steel and Dave Morris, in a two-fingered gesture, have established a hugely successful Web site, cheekily entitled McSpotlight, which has been accessed more than 13 million times since opening in February 1996.

As well as the original leaflet, What's Wrong with McDonald's, there are 21,000 files, containing highly defamatory material. There is even a copy of McDonald's own Web site, with a commentary on alleged "omissions and inaccuracies".

It would be a brave person who repeated libels against a corporation that had just spent 12 years and pounds 10m refuting those allegations, or so it would seem. Under English law those responsible for writing or collating the material on McSpotlight will be liable to anyone it defames. But who are those individuals and why have they not also been sued?

McSpotlight is run by volunteers working from 22 countries who have established four identical, or "mirror" sites, based in Holland, Australia, New Zealand and the United States. It would be an immense task to infiltrate each of those groups and then it would be a matter of local law whether any relief was available. Anyway, judging by the level of support, if one volunteer was restrained, like a many-headed Hydra, two more would appear.

What about the internet service provider (ISP)? If it is impracticable to sue those responsible for putting the information on the Web, what about the ISPs who facilitate publication. If they are not authors, can they be liable as editors, publishers or distributors?

That was anticipated by the Defamation Act 1996 but it does not provide a complete answer. Traditionally plaintiffs sue everyone in sight, including distributors and newsagents. In an effort to stop that the Act provides a defence to those who can establish they were not the "author, editor or publisher". Helpfully the Act also provides that an ISP who is only selling the electronic medium containing the libellous material cannot be any of these. However, it does not end there.

To avoid liability, ISPs must also show that they took reasonable care and did not know, or have reason to believe, that they were contributing to the publication of a defamatory statement. The objective is to protect an innocent disseminator of information who has no effective editorial control over the publication - but this puts the ISPs in a Catch 22. On the one hand they may have a defence if they exercised no editorial control but on the other, because of the requirement to take reasonable care, the defence may fail if they recklessly failed to take editorial control. There are as yet no decided cases to help solve this conundrum but similar issues have arisen in the US and Germany.

A US court exonerated CompuServe from the consequences of facilitating access to defamatory material because it had delegated editorial control to a third party. That was despite the fact that the defamatory material was published on a bulletin board CompuServe had established and provocatively named "Rumourville". Conversely, in another US case an ISP was held liable where it had tried to exert editorial control but had failed to stop the publication of the defamatory statements.

In some circumstances ISPs can block access to sites containing child pornography, so they may have effective control once notified of a problem. An ISP notified that a site is carrying defamatory material does exercise control when deciding whether or not to block access to that site. Any subsequent publication in the UK via that user cannot be said to be an innocent dissemination and may not be protected by the Act.

McDonald's could therefore notify all ISPs that the McSpotlight site contains material Mr Justice Bell has found to be defamatory and require them to block the site.

Does this have any relevance to the World Wide Web?

In the US the Supreme Court has ruled that a law to make it a criminal offence to allow minors to access pornography was contrary to the constitutional right to freedom of speech. In Germany, by contrast, criminal proceedings have been brought against the head of an ISP alleged to have knowingly allowed images of child pornography to be made accessible to customers. The company denies the charges, arguing that it cannot be responsible for vetting the thousands of sites accessed by its customers.

Of course different laws will apply to publications beyond the jurisdiction of the English court. Although there are more than 240 service providers in the UK there are thousands more worldwide and legal action taken in England will only have a limited effect, despite the EU's attempts to avoid multiplicity of proceedings in member states.

The European Court of Justice has ruled that only the courts of the state where the publication originated can award damages for publication of the same libel in other member states. The version of McSpotlight principally accessed by browsers in Europe originates in Holland and therefore any proceedings would have to be started there to take advantage of the wider jurisdiction. Alternatively separate proceedings would have to be issued in each jurisdiction and it is no coincidence that Dutch law is not first choice for libel plaintiffs.

Immediately after judgment Steel and Morris said, "Can't pay, won't pay", but, more significantly, their supporters declared their intention to continue publishing the same allegations. The defendants' penury became a strength in their battle but different considerations will apply if McDonald's seeks to take on the ISPs. The complexity of the legal issues and the size of the Internet are such that even the most spirited litigators are likely to be deterred. Consequently the Internet may be responsible for one of the greatest advances in the history of the development of freedom of speech since the French Revolution. Certainly it has been the quietest revolution, as yet unrecognised by millions who use the Internet every dayn

Tim Hardy is head of litigation at the City law firm Cameron McKenna.

Suggested Topics
Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooksAn unforgettable anthology of contemporary reportage
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs Media

Recruitment Genius: Professional Sales Trainee - B2B

£15000 - £30000 per annum: Recruitment Genius: First things first - for the av...

Recruitment Genius: Account Executive - Graduate / Entry Level

£22000 - £27500 per annum: Recruitment Genius: This digital advertising infras...

Guru Careers: PR Account Director / SAM

£50 - 60k (DOE) + Benefits & Bonus: Guru Careers: A PR Account Director / SAM ...

Guru Careers: Research Analyst / Business Insight Analyst

£32 - £37K + extensive benefits: Guru Careers: Research Analyst / Business Ins...

Day In a Page

Syria civil war: Meet the military commander who says his soldiers will not rest until every inch of their war torn country is free of Islamist 'terrorists'

‘We won’t stop until Syria is back to normal’

Near the front lines with Islamist-controlled towns where Assad’s troops were besieged just last month, Robert Fisk meets a commander confidently preparing his soldiers for battle
The inside story of how Bill Clinton built a $2bn global foundation may undermine Hillary's chances

The inside story of how Bill Clinton built a $2bn global foundation...

... and how it may undermine Hillary's chances in 2016
12 best olive oils

Extra-virgin, cold-press, early-harvest, ultra-premium: 12 best olive oils

Choosing an olive oil is a surprising minefield. Save yourself the hassle with our handy guide
Rafa Benitez Real Madrid unveiling: New manager full of emotion at Bernabeu homecoming

Benitez full of emotion at Bernabeu homecoming

There were tears in the former Liverpool manager’s eyes as he was unveiled as Real Madrid coach. But the Spaniard knows he must make tough decisions if he is to succeed
Sepp Blatter resignation: The beginning of Fifa's long road to reform?

Does Blatter's departure mean Fifa will automatically clean up its act?

Don't bet on it, says Tom Peck
Charles Kennedy: The baby of the House who grew into a Lib Dem giant

The baby of the House who grew into a Lib Dem giant

Charles Kennedy was consistently a man of the centre-left, dedicated to social justice, but was also a champion of liberty and an opponent of the nanny-state, says Baroness Williams
Syria civil war: The harrowing testament of a five-year-old victim of this endless conflict

The harrowing testament of a five-year-old victim of Syria's endless civil war

Sahar Qanbar lost her mother and brother as civilians and government soldiers fought side by side after being surrounded by brutal Islamist fighters. Robert Fisk visited her
The future of songwriting: How streaming is changing everything we know about making music

The future of songwriting

How streaming is changing everything we know about making music
William Shemin and Henry Johnson: Jewish and black soldiers receive World War I Medal of Honor amid claims of discrimination

Recognition at long last

Jewish and black soldiers who fought in WWI finally receive medals after claims of discrimination
Beating obesity: The new pacemaker which helps over-eaters

Beating obesity

The new pacemaker which helps over-eaters
9 best women's festival waterproofs

Ready for rain: 9 best women's festival waterproofs

These are the macs to keep your denim dry and your hair frizz-free(ish)
Cycling World Hour Record: Nervous Sir Bradley Wiggins ready for pain as he prepares to go distance

Wiggins worried

Nervous Sir Bradley ready for pain as he prepares to attempt cycling's World Hour Record
Liverpool close in on Milner signing

Liverpool close in on Milner signing

Reds baulk at Christian Benteke £32.5m release clause
On your feet! Spending at least two hours a day standing reduces the risk of heart attacks, cancer and diabetes, according to new research

On your feet!

Spending half the day standing 'reduces risk of heart attacks and cancer'
With scores of surgeries closing, what hope is there for the David Cameron's promise of 5,000 more GPs and a 24/7 NHS?

The big NHS question

Why are there so few new GPs when so many want to study medicine?