Day 300 - 14 Nov 96 - Page 09


     
     1        I am trying a libel action, and if the words are
     2        defamatory, let us suppose they are treated as statements
     3        of fact, whether they are actually true or not.  That is it
     4        at the end of the day.
     5
     6        It is not for me to decide whether it would be reasonable
     7        to ban children's advertising.  If I decide there is an
     8        allegation of unconscionable exploitation here, just
     9        putting it as shortly as I can, I have to decide whether
    10        that is justified.  I may decide that it is justified.  But
    11        what is no part of my job is to start saying whether there
    12        should be this kind of advertisement or that kind of
    13        advertisement.  I would have stood as a member of
    14        Parliament if -----
    15
    16   MS. STEEL:   That is what I am saying.  I am saying you should
    17        not make a decision on that.  But I am saying that you
    18        should -----
    19
    20   MR. JUSTICE BELL:  I will not be deterred from saying that the
    21        allegation of exploitation is justified if I think so on
    22        the evidence, just because the ITC or the ASA found this
    23        acceptable or that acceptable.
    24
    25   MS. STEEL:   The point I am making is that if, for example.... I
    26        mean, we would argue this whether or not other countries
    27        had banned advertising to children.  If, for example,
    28        Sweden and Canada have banned advertising to children, then
    29        it has got to be a reasonable opinion to hold, and that is
    30        what this is about.  The deliberate exploitation of
    31        children is a comment based on the facts.
    32
    33   MR. JUSTICE BELL:  Well, let me make a note of that, because I
    34        want you to tell me then which facts stated in the leaflet
    35        or referred to in the leaflet the comment is based on.
    36        Just let me make a note.  (Pause)  Do you want to just run
    37        through them?
    38
    39   MS. STEEL:   What - the facts that we rely on?
    40
    41   MR. JUSTICE BELL:  Yes, the facts which you say -- not the
    42        evidence which makes you say that that fact has been
    43        proved, but -----
    44
    45   MS. STEEL:   It is proved beyond a doubt, so far as I am
    46        concerned but....
    47
    48   MR. JUSTICE BELL:  That does not help me very much.  What I want
    49        you to do is identify the facts which you say now we have
    50        proved those, so if you are prepared to treat the
    51        allegation of exploitation as a comment rather than a
    52        statement of fact, it is a fair comment.
    53
    54   MS. STEEL:   Right.  The other complication in this is actually
    55        McDonald's have not pleaded exploitation as a defamatory
    56        meaning, so I am not sure to what extent you are entitled
    57        to find that as the meaning.
    58
    59   MR. JUSTICE BELL:   Do not deter me from that.  I thought you
    60        would like me to find it means exploitation and that it is

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