Day 313 - 13 Dec 96 - Page 36


     
     1        (2): it should be noted in any event that the expression of
     2        a desire to get rid of multi-nationals such as McDonald's
     3        is, in fact, consistent with genuine concern for the effect
     4        of the activities of such multi-nationals, i.e. damage to
     5        the planet and exploitation of people and animals.  And if
     6        you read Horrocks v Low, 1975 Appeal Cases 135 page 150 H
     7        to 151 B, that case is actually in the legal submissions
     8        volume 1 of the Plaintiffs.
     9
    10   MR. JUSTICE BELL: Yes.
    11
    12   MS. STEEL:   And although this case refers to malice being used
    13        to defeat privilege, we would submit that it a relevant
    14        test for whether express malice has been proved for the
    15        purpose of defeating a pleading of fair comment.  It also
    16        appears that the Plaintiffs accept this.  If you look at
    17        Mr. Rampton's submission on malice, paragraphs 8 to 10.
    18
    19   MR. JUSTICE BELL: I do not think there is any doubt about that.
    20
    21   MS. STEEL:   Right.  Anyway, at that particular reference Lord
    22        Diplock said that "judges and jury should, however, be very
    23        slow to draw the inference that a defendant was so far
    24        actuated by improper motives as to deprive him of the
    25        protection of the privilege unless they are satisfied that
    26        he did not believe that what he said or wrote was true, or
    27        that he was indifferent to its truth or falsity", and we
    28        say that must be even more so for mere distribution of
    29        material which has been written by somebody else.
    30
    31        Continuing with Lord Diplock: "The motives with which human
    32        beings act are mixed.  They find it difficult to hate the
    33        sin but love the sinner.  Qualified privilege" -- and we
    34        would argue fair comment as well -- "would be illusionary
    35        and the public interest that it is meant to serve defeated
    36        if the protection which it affords were lost merely because
    37        a person, although acting in compliance with a duty or in
    38        protection of a legitimate interest, i.e. expressing an
    39        opinion on a matter of public interest, disliked the
    40        person" -- and we would say or a corporation -- "who he
    41        defamed or was indignant at what he believed to be that
    42        person's" -- or corporation's -- "conduct, and welcomed the
    43        opportunity of exposing it.  It is only where his desire to
    44        comply with the relevant duty or to protect the relevant
    45        interest plays no significant part in his motives from
    46        publishing what he believes to be true that 'express
    47        malice' can be properly found."  I have added the
    48        underlining in the copy that I have handed up.
    49
    50   MR. JUSTICE BELL: Yes.
    51
    52   MS. STEEL:   We say that on the face of all the evidence heard
    53        in court it cannot be said, by any stretch of the
    54        imagination, that a desire to express an opinion on a
    55        matter of public interest has played "no significant part"
    56        in the motivation for any of the anti-McDonald's campaign
    57        and/or distribution of any of the anti-McDonald's
    58        leaflets.
    59
    60        I mean, this is about the campaign in general but obviously

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