Day 312 - 11 Dec 96 - Page 51
1 would make a mockery of the law if they are able to argue
2 that mere involvement in London Greenpeace or attendance at
3 its meetings is sufficient to prove responsibility. What,
4 then, would be the purpose of the law preventing
5 unincorporated associations from being sued for libel and
6 requiring proof of individual acts? Effectively, if the
7 Plaintiffs are allowed to succeed in this part of their
8 claim, the Defendants are representing the association,
9 i.e. London Greenpeace.
10
11 5: The Plaintiffs' assertion that the Defendants, since
12 they were among only a dozen or so active members of
13 London Greenpeace, are both liable for publication of the
14 fact sheet does not stand up in law. The case Mercantile
15 Marine Service Association v. Toms [1915] 2 K.B. 243
16 concerned a publication of a libel in a journal owned and
17 published by the Imperial Merchant Service Guild. The
18 guild's affairs were governed by a management committee
19 with officers, including chairman, vice-chairman and
20 secretary. It was these officers against whom proceedings
21 were issued. The Plaintiffs sought an order that the
22 Defendants be appointed to represent all members of the
23 guild, and on page 246 of the judgment concerning that
24 application Lord Justice Swinfen Eady said:
25
26 "The action is for libel and the plaintiffs
27 must prove who published the libel and,
28 prima facie, only those who have published it
29 either by themselves or by their servants or
30 agents or have authorised its publication are
31 liable. The various members of this association
32 are in a wholly different position. If the
33 members of the management committee were sued
34 and if in fact they had authorised the
35 publication of the libel, they could raise such
36 defences as might be open to them. The other
37 members of the association, if sued, might say
38 that, however defamatory the words complained of
39 might be, they did not authorise their
40 publication."
41
42 The important part of that is actually the bit that is not,
43 strictly speaking, relevant to that particular part of the
44 judgment, but that if the members of the management
45 committee were sued and if, in fact, they had authorised
46 the publication for libel, and the use of the word "if"
47 indicates the court considered that just because they were
48 members of the management committee did not mean that they
49 were automatically responsible for the publication in the
50 guild's journal. There had to be proof of actual
51 authorisation or personal participation in the publication.
52
53 This is the correct approach and should be applied to this
54 trial. Even if there are "only a dozen or so active
55 members" of London Greenpeace, it does not follow that all
56 of them authorised or were involved with distribution of
57 the fact sheet, or even with the anti-McDonald's campaign.
58
59 6: This is particularly so when it is clear from the
60 evidence of all the witnesses in the trial that
