Censoring Alternatives
Résumés
La liberté d’expression en Grande-Bretagne remonte à la Déclaration des droits de 1689, bien qu’elle ne s’applique qu’aux parlementaires à cette époque. Plus récemment, en 1998, c’est la Loi sur les Droits Humains (l’incorporation de la Convention européenne des droits de l’homme dans l’arsenal législatif britannique) qui entre en vigueur. Cependant, au-delà de la tradition libérale en matière d’expression, il existe une autre réalité dans le pays: celle des autorités qui entravent cette même liberté, en termes de paroles et d’actes. Au début des années 1990, un mouvement naissant d’écologie radicale et de culture alternative se trouve précisément dans cette situation, confronté à des obstacles érigés contre son discours et ses pratiques culturelles. Cet article s’intéressera à deux exemples de censure, judiciaire et politique, de ce mouvement. Le premier est celui du procès « McLibel » qui se déroula entre 1994 et 1997, et le second, la législation sur la justice criminelle (Criminal Justice and Public Order Act) en 1994, largement perçue comme une attaque sur les pratiques culturelles alternatives de la jeunesse britannique.
Entrées d’index
Index de mots-clés :
écologisme, censure, procès McLibel, loi sur la Justice Criminelle et l’Ordre Publique, Grande-BretagneIndex by keywords:
environmentalism, censorship, Mclibel trial, Criminal Justice and Public Order Act, DIY cultureIndex géographique :
Great Britain / Grande-BretagneIndex chronologique :
20th century / XXe sièclePlan
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- 1 <http:// news.bbc.co.uk/2/hi/uk_news/politics/8466297.stm>; <http://www.newstatesman. com/law-and-reform/2009/12/libel-system-british-free>, both accessed 27 April 2013.
1When a law prevents a person from speaking on matters of public interest, this could be regarded as censorship and that is how Helen Steel and David Morris saw it when they were taken to court by the international food chain, McDonald’s, in the early 1990s for distributing leaflets on the latter’s production practices. In being prosecuted under the British libel laws, seen by many observers as the most draconian of their kind in the democratic world,1 the two defendants believed they were victims of a direct form of legal censorship. When another law renders novel forms of self-expression deviant, this could also be seen as a form of cultural censorship and when the British government introduced the Criminal Justice Bill in December 1993, many young people around the country felt their lifestyles were being targeted by a new set of legal norms. In Britain, therefore, during the 1990s, we could see these two forms of censorship at work when the alternative discourse (speech) and culture (behaviour) of radical environmentalism came under judicial and political attack. In this paper, we shall attempt to demonstrate that, ultimately, these two complementary forms of censorship appear to have failed and may even have produced the opposite result to that intended.
Free Speech?
- 2 <
2Free speech in Britain goes back to the Bill of Rights of 1689, even if the term only applied to parliamentarians at the time. More recently, the most visible sign of a government’s wish to judicially extend what many would consider a basic right of citizens was the Human Rights Act (1998) which was itself designed as the incorporation of the European Convention on Human Rights (1950) into British law. In Article 10 (“Freedom of expression”)2 of this convention it is stated that:
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 the rights of others. […] (my italics)
3In Britain, this “protection of the reputation” is covered by the British libel laws which have become famous the world over for their severity and judicial imbalance.
- 3 Dave Morris, “McLibel: Do-It-Yourself Justice,” <http://www.mcspotlight.org/media/press/msc_diyjustice.html>, accessed 15 July 2010.
4Most countries have some form of defamation laws protecting people against libel or slander and we can see this in the UN’s Universal Declaration of Human Rights of 1948 which stipulates in article 12 that “No one shall be subjected […] to attacks upon his honour and reputation.” Where Britain stands out, however, is in the existence of set of ancient libel laws which are so heavily weighted in favour of the plaintiff as to put any lay definition of free speech into serious danger. These very notions of “honour and reputation” help us understand the history of these laws which, according to Dave Morris, a defendant in the 1990s McDonald’s Libel (“McLibel”) case (see below) came out of the British upper classes’ desire to find a way to stop killing each other in duels: “It seems that libel developed as a means of settling disputes between the wealthy without resorting to duelling.”3 Another interpretation is that of Geoffrey Bindman:
- 4 “Renewed calls for libel reform — Little relish in McLibel victory,” UK News, 20 June 1997. <http://www.mcspotlight.org/media/press/tel3_20jun97.html>, acces</http> (...)
[…] the law originated after the French Revolution, when it was used to suppress the propagation of democratic ideas. “Libel law is often used to suppress publication of information which the public ought to know,” he said.4
- 5 <http://www.progressonline.org.uk/articles/article.asp?a=5010>, <http://www.independent.co.uk/news/uk/home-news/britains-libel-laws-are-stifling-free-speech-says-un-894519.html>, both accessed 15 July 2010.
5Whatever the exact history, the contemporary use of libel laws is increasingly seen as a form of unacceptable censorship with national and international ramifications .5
- 6 “Freedom of speech is not for sale,” English PEN and Index on Censorship, 2009. <http://libelreform.org/our-report/download-the-report>, accessed 15 July </http> (...)
6There are many defects in this British version of defamation, be they legal, financial or political. Legally speaking, they reverse the traditional legal principle of innocence and guilt in that the burden of proof is on the defendant which is a deviation from the normal legal rule that the accused is assumed innocent until proven guilty. In British libel law we come back to the importance of the notion of “reputation” as this inversion of principles seems to suggest that “the reputation of the claimant is more important than the free speech of the defendant.”6
7There are three principal defences in the case of a libel action. The first is “justification”, the most usual defence. This entails proving that the information published is true, which is not always as easy as it may sound. The second is “fair comment” which means the information was something a reasonable person could have said. Such a defence would need to show the information was based on fact, used in good faith and published without malice as well as being on a matter of public interest. The third defence is labelled “privilege” which can be either absolute or qualified. The former is a total defence against libel action (covering, for instance, statements made in a court of law or in Parliament), the latter gives similar protection with the proviso that the statements are not made with malicious intent. So, choosing a type of defence is already a complicated matter.
- 7 <http://www.progressonline.org.uk/articles/article.asp?a=5010>, accessed 15 July 2010.
8Financially, a defendant who decides to fight a libel action is opening himself up to potentially crippling damages and/or legal fees. Jonathan Heawood, director of English PEN, estimates these costs at “140 times the European average.”7 Losing cases can cost millions, in dollars or sterling, which brings us back to D. Morris’ comment on “settling disputes between the wealthy.” Libel law is increasingly seen as a form of “cash cow” which can earn individuals or corporations huge sums of money. The figures below on defamation proceedings in the UK reveal a trend of increasing payments between 2002 and 2008.
- 8 <http:// www.guardian.co.uk/news/datablog/2010/apr/15/libel-cases-general-election>, accessed 15 July 2010.
Financial Claims in Defamation Proceedings 2002-20088
Date proceedings started |
£15,000 - £50,000 |
Over £50,000 |
Unspecified |
Total claims |
Claims over £50,000 as % of total number of claims |
2002 |
1 |
1 |
126 |
128 |
0.8 |
2003 |
22 |
15 |
153 |
190 |
7.9 |
2004 |
30 |
31 |
206 |
267 |
11.6 |
2005 |
43 |
70 |
139 |
252 |
27.8 |
2006 |
24 |
39 |
150 |
213 |
18.3 |
2007 |
43 |
45 |
145 |
233 |
19.3 |
2008 |
43 |
77 |
139 |
259 |
29.7 |
- 9 “Sweet and Maxwell says that ‘forum-shopping’, where foreign celebrities choose to sue in the UK ra (...)
- 10 <http://www.citmedialaw.org/blog/2010/british-libel-reform-finally-be-reality>, accessed 15 July 2010.
9Moreover, given the efficiency of these laws in preventing unwanted criticism, Britain has become the centre of what is termed “libel tourism” in that people or organisations with the means to do so are specifically deciding to sue in Britain instead of their own countries.9 This rise in “libel tourism” recently prompted the former Justice Minister Jack Straw to propose reform of the libel laws with the support of the Conservative party.10
- 11 This situation was modified in 1999 by the passing of the Access to Justice Act which “has a provis (...)
10Politically speaking, British libel laws are increasingly seen as a way of stifling public debate. As we have seen, the costs can be prohibitive for any but the most wealthy people or organisations, and for those of more modest means, these financial barriers are compounded by the fact that in libel cases, legal aid for people on low incomes does not exist, as it does in other legal cases. This exception to the rule that people on low incomes should receive legal aid was created in order to avoid the courts being inundated with minor claims. However, the effect of such an exception has been to create a form of social class justice between those who are able to bring or defend libel actions and those who have great difficulty doing either.11 As a result of these sizeable obstacles to fighting a libel action, most people and/or organisations (e.g. newspapers) give up before the legal battle has begun by making a formal apology to the claimant which, more often than not, is then published in the national press. Either that or a form of self-censorship comes into play on the part of potential publishers who foresee libel implications and decide to not “publish and be damned” as this may cripple their business.
The McLibel Trial
- 12 Mike Marqusee, “The Big Beef Bun Fight,” <http://www.guardian.co.uk/uk/1995/jan/17/1>; they were also labelled a “pair of eco-warriors”, <http://www. mcspotlight.org/media/press/tel5_20jun97.html>, both</http></http> (...)
- 13 A group founded in 1971, before Greenpeace (UK) was created in 1977. There is no connection between (...)
- 14 <
- 15 “McDonald’s unable to sue London Greenpeace because it is not an incorporated body,” James Erlichma (...)
- 16 In British libel law, for example, the accused must use primary sources in their defence (for insta (...)
11The McLibel case pitted the McDonald’s global fast food chain against “two unwaged radical environmental activists”12 from an obscure group called London Greenpeace13 over the publication of a “factsheet” leaflet14 denouncing McDonald’s environmental, commercial and labour practices in the making of its hamburgers along with the health consequences of eating them. The factsheet was published and distributed in 1986 but the libel writs were issued four years later to five members of the group.15 Three of the defendants decided to apologise but two (Helen Steel and David Morris) decided to defend themselves by becoming “litigants in person” although they had no knowledge of the legal system, let alone the arcane libel laws.16 The case began with a long series of pre-trial hearings lasting over three years before the trial proper began on 28 June 1994. It would end three years later with the judgement of Mr Justice Bell (19 June 1997) which seemed to satisfy both sides:
- 17 <http://www.mcspotlight.org/case/trial/story.html>, accessed 15 July 2010.
He ruled that Helen and Dave had not proved the allegations against McDonald’s on rainforest destruction, heart disease and cancer, food poisoning, starvation in the Third World and bad working conditions. But they had proved that McDonald’s “exploit children” with their advertising, falsely advertise their food as nutritious, risk the health of their most regular, long-term customers, are “culpabably responsible” for cruelty to animals, are “strongly antipathetic” to unions and pay their workers low wages.17
12This epic case of libel law, the longest in history (314 days), is revealing in that the original aim of McDonald’s to legally and publicly disprove the statements of a political leaflet was transformed into a struggle against corporate censorship aided and abetted, in the eyes of the defendants, by the British legal Establishment. At the time of the trial, Helen Steel was a thirty-three year-old bar worker and David Morris an ex-postal worker and single parent. They were up against a £30bn-a-year global corporation with a team of the most highly qualified lawyers, notably the libel barrister Richard Rampton, considered to be one of the best in the land. This was “David against Goliath” in a perfect example of the aforementioned social class justice. It was also a situation in which two paradigms were about to collide: the corporate globalism of McDonald’s and the radical environmentalism of London Greenpeace. In this context, the decision of Steel and Morris to fight the case seemed ludicrous for at least two reasons.
13Firstly, they had no money to pay for any legal fees to contest the case, let alone the potentially huge costs if they lost it. Moreover, as we have mentioned, the system of legal aid for defendants on low incomes such as Helen Steel and Dave Morris did not apply. What they did have a right to was a two hour session of legal advice which took place with the three other activists who had received writs (Paul Gravett, Andrew Clarke and Jonathan O’Farell):
- 18 John Vidal, McLibel, New York: The New Press, 1997, 74.
The advice boiled down to three words: Get Out Fast. Libel, it emerged, was one of the most complex areas of English law. Cases are not heard at magistrates, or even county court level, but go straight to the High Court. It seemed that it was almost impossible for anybody to conduct a case as complicated as libel without some form of legal assistance.18
- 19 Ibidem, 77.
14As a result of this advice, Gravett, Clarke and O’Farell decided to throw in the towel and apologised to McDonald’s while Steel and Morris — Steel especially — were in no mood to back down: “The more they learned about libel, the more they felt the law was being used to suppress free speech, especially in written and broadcast material.”19 They did, however, manage to find a lawyer sympathetic to their cause. Keir Starmer was secretary of the Haldane Society of Socialist Lawyers at the time and considered that McLibel could have ramifications way beyond the case itself and might create a breach in the libel laws:
- 20 Ibid., 76.
The case, as he read it, had great legal and censorship implications that stretched beyond the immediate questions of whether Steel, Morris et al. had or had not libelled McDonald’s. In his view it raised questions about who had access to the law, how people who have genuine criticisms of society but few resources can stand up against the powerful and whether the libel laws should be reformed.20
15Starmer agreed to help them as far as he could on a pro bono basis, that is, for free. This help, albeit intermittent, would prove to be crucial.
- 21 Name given to a Queen’s (or King’s) Counsel, taken from the silk gown (s)he wears.
16The second reason was quite simply the inequitable judicial situation between the total inexperience of the defendants and the legal skills of the top silk21 employed by the plaintiffs, as exemplified by Richard Rampton. One such example, which was to be of crucial long-term importance, was in late 1993 when Rampton made a request for a non-jury trial, preferring it to be held in front of a lone judge. This request was based on McDonald’s particular worry concerning the implications of the link made in the factsheet between their hamburgers and disease:
- 22 “Factsheet, ‘What’s wrong with McDonald’s?’” <http://www.mcspotlight.org/case/pretrial/factsheet.html>, accessed 15 July 2010.
[…] a diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals — which describes an average McDonald’s meal — is linked with cancers of the breast and bowel, and heart disease.22
- 23 James Erlichman, “McDonald’s ‘Faces Libel Kiss of Death’”. <http://www.mcspotlight.org/media/press/kissdeath.html>, accessed 15 July 2010.
- 24 J. Vidal, op. cit., 91.
17If such a statement was upheld in court, this would be what one source called the “the kiss of death” to their global business.23 Rampton’s argument in favour of a non-jury trial was that any jury of ordinary people would find the epidemiological details too complex to understand. He also believed that a non-jury trial would shorten the length of the proceedings and, therefore, make them less costly. Steel and Morris fully expected this request would be rejected outright, believing that a trial by jury was a fundamental right. However, on realising that a non-jury was a real possibility, Steel argued that if the issues in the trial were too complex for a jury to understand, the defendants probably would not understand them either, in which case, a fair trial would not be held. She also “quoted Lord Lawton saying that one of the benefits of a trial by jury was that everyone had to keep the issues few and simple.”24 In his account of the trial, John Vidal suggests that a jury trial was too much of a risk for McDonald’s, especially in the context of Britain’s love of the underdog:
- 25 Ibidem, 89.
The lottery of libel was well known. Here was one of the world’s largest corporations — and a foreign one at that — taking on two people who had evident courage but few resources. A jury is always unpredictable, and might identify with Steel and Morris and regard a stream of heavyweight executives as alien or distasteful.25
18The judge eventually ruled that there would be no jury, which, for the defendants, was evidence of the judicial inequity that ordinary people had to face in the legal world:
- 26 Ibid., 92-93.
It was a defining moment of the case. Nothing confirmed their view of the system working against the “ordinary” person so much as this. Any confidence they might have had in the legal system was swept away. Nothing, they said, gave them so much sense of being on their own and isolated by the power of money and privilege.26
- 27 <http://www.mcspotlight.org/media/press/chipsdown.html>, accessed 15 July 2010. Formerly known as the National Council for Civil Liberties, Liberty was fo</http> (...)
19The reaction to this decision, as with many issues in the McLibel trial, went well beyond the courtroom. The campaign group Liberty, for example, spoke out in defence of a jury trial, in terms of “fundamental issues of access to justice, the right to a fair trial and freedom of speech.”27
- 28 J. Vidal, op. cit., 46-47. One person who received such a letter was a Mrs Blair in Scotland. McDon (...)
20It became clear that the two parties in the trial were often talking at cross-purposes. McDonald’s wanted to maintain its reputation as a caring corporation that was beneficial to society and it had already a long history of libel cases, or threats of them, as a means of preventing criticism of this image. Between 1986 and 1990, “at least 50 national, regional, and local newspapers, student magazines and other publications in Great Britain received letters from the corporation [McDonald’s] threatening to sue them if they did not apologize or retract statements.”28 The defendants, on the other hand, had two major aims. First and foremost, they reacted against the legal censorship of the libel laws as Steel made clear at the outset of the trial:
- 29 Ibid., 100.
We feel that there is one word that can sum up what this case is about, and that word is “censorship”. McDonald’s are using the libel laws of this country to censor and silence their critics.29
- 30 <http://www.mcspotlight.org/help.html>, accessed 15 July 2010.
- 31 Idem.
21The second objective was to demonstrate the moral and environmental bankruptcy that McDonald’s represented as a global corporation. The claims made in the factsheet were based on environmental values and beliefs which Steel and Morris constantly came back to during the trial. The most striking reaction to the case was the website (McSpotlight30) which was set up to track the trial proceedings and which soon blossomed into a planetary vehicle for radical environmentalist discourse.31
- 32 “The court ruled they did not receive a fair trial as guaranteed under the Human Rights Convention, (...)
- 33 <http://news.bbc.co.uk/2/hi/uk_news/820786.stm>, accessed 15 July 2010.
- 34 David Pannick, QC, cited in The Times, 20th April 1999. <http://www.mcspotlight.org/media/press/msc_diyjustice.html>, accessed 15 July 2010.
- 35 <http://www.guardian.co.uk/uk/2010/mar/28/jack-straw-libel-reforms-writ-large>, accessed 15 July 2010.
- 36 < http://www.dailymail.co.uk/news/article-2289394/Distinguished-writers-unite-save-libel-law-reforms.html>, accessed 27 April 2013.
- 37 <
22The consequences of this trial were significant. Firstly, it did not end with the judgement as the defendants took the British government to the European Court of Human Rights over the absence of legal aid in libel cases and in 2005 they won the case, receiving £24,000 damages, plus costs.32 They did the same with the Metropolitan Police who they accused of “disclosing confidential information to investigators working for the hamburger chain.”33 They won this case too and were awarded £10,000 damages. Secondly and on a wider level, the reputation of the libel laws took a serious, if not fatal blow. In 1999, the QC David Pannick was quoted as saying, “The McLibel case has achieved what many lawyers thought impossible; to lower further the reputation of our law of defamation in the minds of all right thinking people.”34 Eleven years later, in March 2010, the lawyer and legal specialist Marcel Berlins claimed that “[Britain’s] defamation laws and definitions belong to other centuries and other societies. The very concept of loss of reputation needs to be scrutinised anew.”35 Such continuing criticism from people inside and outside the judicial system as well as from each of the three main political parties,36 may well lead to reform of the libel laws and, indeed, the current coalition government took a decisive step in this direction when it announced plans for a “Defamation Bill”in the 2012 Queen’s speech.37
Free Behaviour?
- 38 Graeme Chesters defines the radical environmentalist movement as follows: “those parts of DIY Cultu (...)
- 39 George McKay (ed.), DIY Culture. Party and Protest in the Nineties, London: Verso, 1998, 2.
23At the same time as the McLibel trial was being held in London, thousands of people — principally young — were mobilising all over the country on environmental issues. On the sensitive issue of animal welfare, for example, an issue raised in the McLibel trial, demonstrations blocked animal exports at the ports of Brightlingsea (Essex), Shoreham (West Sussex) and Dover (Kent) and at the airports of Coventry (Midlands), Humberside (North-East) and Bournemouth (Dorset) between 1993 and 1995. Even more important, in quantitative terms at least, were the mobilisations against the government’s plans to build hundreds of new roads. This anti-roads movement was the most visible sign of radical environmentalism38 but it was also part of a wider alternative culture, named “Do-It-Yourself” (DIY) culture that had rapidly spread amongst British youth in the early 1990s. Defined by George McKay as “a youth-centred and-directed cluster of interests and practices around green radicalism, direct action politics, new musical sounds and experiences, […] a kind of 1990s counterculture,”39 it covered a wide variety of disparate youth groups such as the squatters, anti-roads protesters, ravers, hunt saboteurs and new age travellers. This DIY culture is important here because the cultural censorship we will centre on was precisely directed at this alternative culture of the 1990s that so disturbed the Conservative government.
- 40 See Chris Rootes, “Environmental protest in Britain 1988-1997,” in Benjamin Seel et al. (eds.), Dir (...)
- 41 Brendan Prendiville, « Mouvements sociaux et politique routière dans la Grande Bretagne des années (...)
24A sizeable proportion of British youth was involved in or on the fringes of this “1990s counterculture”40 but, equally, not all of them were politically motivated; going to a rave party or squatting an empty house was not necessarily making a political statement whereas joining a road-camp in opposition to a governmental project41 or taking part in anti-capitalist events such as the 1999 “Carnival against capital” obviously was. The mistake of the government, aided and abetted by certain sections of the British press, was to lump all the different political and non-political DIY groups together and, in so doing, unite them in opposition to a perceived threat against their way of life and leisure. In passing what became the flagship legislation of the Major years, the Criminal Justice and Public Order Act (CJPOA) of 1994, a significant proportion of British youth in the 1990s felt their cultural practices were under attack. They responded accordingly.
The Criminal Justice and Public Order Act (CJPOA) 199442
- 42 <http://www.opsi.gov.uk/acts/acts1994/ukpga_19940033_en_1>, accessed 15 July 2010.
- 43 James Patrick Bulger was two years old when he was murdered in February 1993. Robert Thompson and J (...)
- 44 A Brief History Of the UK Rave Traveller Scene From A Spiral Perspective. <http://www.facebook.com (...)
25The CJPOA was seen as a return to the Conservatives’ traditional severity in matters of law and order. The Home Secretary responsible was Michael Howard, considered to be a right-wing figure, who first revealed its contents at the annual party conference in 1993. The context of the legislation was one in which crime figures were rising while Britain was still reeling from the Bulger case in which a two-year-old boy was killed by two ten-year-olds on Merseyside.43 It was also in the midst of widening protests against the government’s road-building policy and confrontations between police forces and travelling ravers which had been going on since the early 1980s.44
- 45 C. Rootes, op. cit., 49. The 12 sections of the CJPOA covered the following areas: Part I Young Off (...)
- 46 There were other causes for concern not directly related to the question of alternative culture, su (...)
26The CJPOA was what Chris Rootes called “a piece of portmanteau legislation”,45 amending previous law and order legislation and creating new dispositions. It also created new fears among a swathe of young people involved in alternative activities, political or cultural. In the context of censoring alternative behaviour,46 the principal controversial parts of the Act were the following:
Part III Course of Justice: Evidence, Procedure, Etc.
- 47 The Guardian, 12 July 1994, qtd. in Roy Bentley et al., British Politics in Focus, Ormskirk: Cause (...)
27The right to silence on arrest was weakened in this section. Previously, an accused person could remain silent at the time of an arrest and this could not be held against him. This legislation ended this right by allowing the court to draw “inferences from (the) accused’s silence” (sections 34-35). In a similar way to criticisms made of libel law, civil rights organisations feared that this would put “the burden on defendants to prove their innocence rather than on the prosecution to prove their guilt.”47
Part IV Police Powers
28It was the disposition which allowed the police to take non-intimate body samples with or without consent which raised objections in this section, the main one being that an official genetic database could be built up more easily:
- 48 <http://www.privacyinternational.org/article.shtml?cmd%5B347%5D=x-347-508126>,
The Criminal Justice and Public Order Act 1994 was the first serious expansion of the powers to take samples, particularly non-intimate samples — which included mouth swabs and saliva in addition to hair samples: both of which provide DNA information. Such samples could be taken without the consent of the individual if he was charged with a recordable offence, a significant advance on the earlier requirement that the individual be charged with a “serious arrestable offence”.48
Part V Public Order: Collective Trespass or Nuisance on Land
29This section was seen as a direct attack on alternative culture, building on a previous legislation already used against travellers during the 1980s, the 1986 Public Order Act. The principal criticism of this new legislation was that it was criminalising non-conformist behaviour on the part of young people, many of whom (e.g. ravers) were not politically motivated. The principal dispositions were as follows:
-
Aggravated trespass (sections 68-69): this would apply to anyone trespassing on land with the intention of disrupting, or intimidating those taking part in, lawful activity taking place on that or adjoining land. Anti-roads protesters were a particular target for this section as were anti-hunt saboteurs. It was also feared it might be used against trade union pickets.
-
Trespassory Assemblies (sections 70-71): this allowed the police to prevent assemblies of 20 or more people for up to 4 days within a 5-mile radius if they considered it would involve “serious disruption to the local community” or “significant damage” to land or buildings, monuments etc. (section 70).
-
- 49 “Part II of the [1968 c. 52.] Caravan Sites Act 1968 (duty of local authorities to provide sites fo (...)
Travellers (section 80): the new age travellers had been a thorn in the side of the government and the police since the beginning of the 1980s, in particular at the Free Festivals on the site of Stonehenge. The CJPOA made it more difficult for any type of travellers to stop on land by repealing legislation that obliged local authorities to provide places to camp.49
-
- 50 “These sections give the police the power to order people to leave the land if they are believed to (...)
Raves (sections 63-66): this part of the legislation included the most famous line of the act which defined rave music as including “sounds wholly or predominantly characterised by the emission of a succession of repetitive beats” (section 63). The sections were designed to prevent raves taking place by giving police the power to “remove persons attending or preparing for a rave” (section 63) and to “stop persons from proceeding […] in the direction of the gathering” (section 65).50 What these sections meant was that if an outdoor event was not licensed, the police could stop it and arrest anyone going towards it within a five-mile radius. Any refusal to leave such an event was a criminal offence.
-
Squatters (sections 72-76): the restrictions on using violence to evict squatters was lifted by section 72 allowing landlords to force entry into a squat. Once an eviction order had been served, it became a criminal offence for squatters to remain more than twenty-four hours.
- 51 <http://www.guardian.co.uk/commentisfree/libertycentral/2009/jul/21/criminal-justice-bill-protests?showallcomments=true>, accessed 15 July 2010.
- 52 See Annex 2 for an example of a Freedom Network flyer.
- 53 “SchNEWS was born in a squatted Courthouse in Brighton in 1994 as part of Justice? — Brighton’s cam (...)
- 54 See Annex 3.
- 55 <http://www.guardian.co.uk/commentisfree/libertycentral/2009/jul/21/criminal-justice-bill-protests>, accessed 15 July 2010.
30This legislation produced a counter reaction which surprised the government, the police and the media by its scale and organisation. During 1994 there were several major demonstrations against the CJPOA with “40,000 ravers, squatters, travellers, eco-activists and civil libertarians”51 turning out in London in July. The organisation of the national campaign was also impressive, given the perceived disorganisation of the groups involved. The importance of the “Freedom Network”52 in bringing the local groups together was crucial, as were the alternative websites and online magazines such as Urban 75 or SchNEWS,53 the latter created to oppose the CJPOA. One of the most innovative actions taken was the sending of a letter54 to Home Secretary Michael Howard, congratulating him for the “positive effect the Criminal Justice Bill” had on uniting the alternative community in Britain. Indeed, as mentioned above, in some ways this legislation backfired on the government by galvanising what was previously a mix of political and non-political groups into opposing the legislation. The government, however, took no notice and the CJPOA is now on the statute books. Recently, one of the activists (Ally Fogg) wrote an article in The Guardian newspaper pointing out that, in many respects, the warnings given at the time concerning the uses and ramifications of the CJPOA have proved to be true. He cites several examples of how the Act has gone beyond its initial alternative culture targets. One involved a birthday party to be held in Devon by 15 year-old Andrew Poole which was banned under the CJPOA because “his Facebook page had said that the party might go on all night.”55 Another is the use of DNA samples:
Back in 1994, few people seemed concerned that the CJB was introducing the legislative framework for a police DNA database, to hold the records of anyone arrested on suspicion of a crime. We warned that once it was in place, progress would only ever be in one direction, towards a national DNA database. We suggested that the database would soon develop disproportionate ethnic biases, would be quietly extended to children and young people and would inevitably be liable to security breaches.
Conclusion
31The General Election of May 2010 has shown that young people seem to be engaging more with institutional politics by voting in larger numbers than before. During the 1990s this was far from the case. The social and political disconnection of British youth in the post-Thatcher period was high and the consequences of this could, in part, be seen in the success of radical environmentalism and DIY culture during the John Major years. This context of growing frontal opposition to what was considered as an authoritarian Conservative government pursuing Thatcherite policies in Margaret Thatcher’s absence can help to explain why two radical environmentalists, against all the odds, decided to stand up to both to a global corporation (McDonald’s) and the legal censorship of British libel laws. It can also help us to understand both the severity of the Conservative government’s Criminal Justice and Public Order Act 1994 and the strength of the opposition to its perceived attempt at cultural censorship. These two forms of censorship, judicial and cultural, went beyond the initial intentions of their instigators.
32In the first instance, the outcome of the McLibel trial was widely seen as a success for the defendants in providing a high-profile platform for environmentalist discourse and in further tarnishing the image of British libel laws. Moreover, this libel action rebounded on McDonald’s. Its attempts to censor information about its production practices through the courts shone a very strong spotlight on those practices and the longer the trial continued, the greater the adverse publicity the food chain received. In the second instance, although the Criminal Justice and Public Order Act 1994 was eventually passed, the opposition to it had wider, unforeseen consequences. It united the disunited but, more important in the long term, it politicised large swathes of young people, many of whom would take their revenge on the Conservative party three years later by contributing to New Labour’s landslide victory in the 1997 General Elections. It also gave a boost to the direct action, ecologist movement which remains a major player in contemporary protest against unsustainable politics in Britain.
Annexe
Annex 1
This leaflet is asking you to think for a moment about what lies behind McDonald’s clean, bright image. It’s got a lot to hide.
"At McDonald’s we’ve got time for you" goes the jingle. Why then do they design the service so that you’re in and out as soon as possible? Why is it so difficult to relax in a McDonald’s? Why do you feel hungry again so soon after eating a Big Mac?
We’re all subject to the pressures of stupid advertising, consumerist hype and the fast pace of big city life — but it doesn’t take any special intelligence to start asking questions about McDonald’s and to realise that something is seriously wrong.
The more you find out about McDonald’s processed food, the less attractive it becomes, as this leaflet will show. The truth about hamburgers is enough to put you off them for life56.
Annex 2: Freedom 4: Hackney House, Optimist Creed, Grateful Dub, Astralasia, ambient cafe disco and chillout. 8th October 1994.
Annex 3: Letter to M. Howard 199457
Notes
1 <http:// news.bbc.co.uk/2/hi/uk_news/politics/8466297.stm>; <http://www.newstatesman. com/law-and-reform/2009/12/libel-system-british-free>, both accessed 27 April 2013.
2 <
http://www.hri.org/docs/ECHR50.html#C.Art10
>, accessed 15 July 2010.3 Dave Morris, “McLibel: Do-It-Yourself Justice,” <http://www.mcspotlight.org/media/press/msc_diyjustice.html>, accessed 15 July 2010.
4 “Renewed calls for libel reform — Little relish in McLibel victory,” UK News, 20 June 1997. <http://www.mcspotlight.org/media/press/tel3_20jun97.html>, accessed 15 July 2010. Geoffrey Bindman was visiting professor at University College London at the time of the article (June 1997).
5 <http://www.progressonline.org.uk/articles/article.asp?a=5010>, <http://www.independent.co.uk/news/uk/home-news/britains-libel-laws-are-stifling-free-speech-says-un-894519.html>, both accessed 15 July 2010.
6 “Freedom of speech is not for sale,” English PEN and Index on Censorship, 2009. <http://libelreform.org/our-report/download-the-report>, accessed 15 July 2010. English PEN today is an organisation with diverse projects, aiming to promote free expression and the use of literature as currency between nations.
7 <http://www.progressonline.org.uk/articles/article.asp?a=5010>, accessed 15 July 2010.
8 <http:// www.guardian.co.uk/news/datablog/2010/apr/15/libel-cases-general-election>, accessed 15 July 2010.
9 “Sweet and Maxwell says that ‘forum-shopping’, where foreign celebrities choose to sue in the UK rather than in their own country, could be one reason why the proportion of celebrity claimants remains high. This is because British defamation laws are more favourable to claimants than, for example, American ones.” <http://www.sweetandmaxwell.co.uk/about-us/press-releases/260707.pdf>, accessed 15 July 2010. Sweet and Maxwell is a British publisher which specialises in legal affairs.
10 <http://www.citmedialaw.org/blog/2010/british-libel-reform-finally-be-reality>, accessed 15 July 2010.
11 This situation was modified in 1999 by the passing of the Access to Justice Act which “has a provision which allows the Lord Chancellor to authorize legal aid funding in cases which are otherwise out of scope of the legal aid scheme under the exceptional funding provisions. A defendant in a position similar to the McLibel defendants could potentially have legal aid assistance if their application passed the exceptional funding criteria.” <http://uk.ask.com/wiki/Legal_aid#Legal_aid_in_England_and_Wales>, accessed 21 June 2011.
12 Mike Marqusee, “The Big Beef Bun Fight,” <http://www.guardian.co.uk/uk/1995/jan/17/1>; they were also labelled a “pair of eco-warriors”, <http://www. mcspotlight.org/media/press/tel5_20jun97.html>, both accessed 15 July 2010.
13 A group founded in 1971, before Greenpeace (UK) was created in 1977. There is no connection between the two groups.
14 <
http://www.mcspotlight.org/case/pretrial/factsheet.html
>, accessed 15 July 2010. See Annex 1.15 “McDonald’s unable to sue London Greenpeace because it is not an incorporated body,” James Erlichman, “‘McLibel 2’ Bite into Court Fight with Burger Chain.” <http://www.mcspotlight.org/media/press/biteinto.html>, accessed 15 July 2010.
16 In British libel law, for example, the accused must use primary sources in their defence (for instance, they cannot use press articles). This means finding witnesses, first-hand accounts, etc., which is bound to be long and painstaking.
17 <http://www.mcspotlight.org/case/trial/story.html>, accessed 15 July 2010.
18 John Vidal, McLibel, New York: The New Press, 1997, 74.
19 Ibidem, 77.
20 Ibid., 76.
21 Name given to a Queen’s (or King’s) Counsel, taken from the silk gown (s)he wears.
22 “Factsheet, ‘What’s wrong with McDonald’s?’” <http://www.mcspotlight.org/case/pretrial/factsheet.html>, accessed 15 July 2010.
23 James Erlichman, “McDonald’s ‘Faces Libel Kiss of Death’”. <http://www.mcspotlight.org/media/press/kissdeath.html>, accessed 15 July 2010.
24 J. Vidal, op. cit., 91.
25 Ibidem, 89.
26 Ibid., 92-93.
27 <http://www.mcspotlight.org/media/press/chipsdown.html>, accessed 15 July 2010. Formerly known as the National Council for Civil Liberties, Liberty was founded in 1934. It sees its role as protecting the “basic rights and freedoms through the courts, in Parliament and in the wider community,” <http://www.liberty-human-rights.org.uk/about/index.shtml>. It gave a certain amount of help to the defendants for two reasons: in reaction to the decision to hold a non-jury trial and because of the refusal to grant them legal aid.
28 J. Vidal, op. cit., 46-47. One person who received such a letter was a Mrs Blair in Scotland. McDonald’s objected to her use of a sign with the letters “Mc” which the company has a trade mark on.
29 Ibid., 100.
30 <http://www.mcspotlight.org/help.html>, accessed 15 July 2010.
31 Idem.
32 “The court ruled they did not receive a fair trial as guaranteed under the Human Rights Convention, because of the lack of legal aid available to libel defendants, and that their freedom of expression was violated by the 1997 judgement.” <http://news.bbc.co.uk/2/hi/uk_news/4266209.stm>, accessed 15 July 2010.
33 <http://news.bbc.co.uk/2/hi/uk_news/820786.stm>, accessed 15 July 2010.
34 David Pannick, QC, cited in The Times, 20th April 1999. <http://www.mcspotlight.org/media/press/msc_diyjustice.html>, accessed 15 July 2010.
35 <http://www.guardian.co.uk/uk/2010/mar/28/jack-straw-libel-reforms-writ-large>, accessed 15 July 2010.
36 < http://www.dailymail.co.uk/news/article-2289394/Distinguished-writers-unite-save-libel-law-reforms.html>, accessed 27 April 2013.
37 <
http://www.bbc.co.uk/news/uk-18005317
>, accessed 27 April 2013. This bill is still making its way through Parliament.38 Graeme Chesters defines the radical environmentalist movement as follows: “those parts of DIY Culture which utilise an ecological critique to foster an antagonistic orientation towards the prevailing model of production, distribution and exchange of social and material resources, and which also utilise non-violent direct action as a means of manifesting and theorising resistance and pre-figuring alternatives to the status quo.” <http://www.shiftingground.freeuk.com/ecos1.htm>, accessed 15 July 2010.
39 George McKay (ed.), DIY Culture. Party and Protest in the Nineties, London: Verso, 1998, 2.
40 See Chris Rootes, “Environmental protest in Britain 1988-1997,” in Benjamin Seel et al. (eds.), Direct Action in British Environmentalism, London: Routledge, 2000) for the increase in protest during this period.
41 Brendan Prendiville, « Mouvements sociaux et politique routière dans la Grande Bretagne des années 1990 », in Geneviève Massard Guilbaud (dir.), Le Démon Moderne, Clermont-Ferrand: Presses Universitaires Blaise Pascal, 2002, 439-456.
42 <http://www.opsi.gov.uk/acts/acts1994/ukpga_19940033_en_1>, accessed 15 July 2010.
43 James Patrick Bulger was two years old when he was murdered in February 1993. Robert Thompson and Jon Venables were convicted of the crime.
44 A Brief History Of the UK Rave Traveller Scene From A Spiral Perspective. <http://www.facebook.com/topic.php?uid=105811889370andtopic=9796>, accessed 15 July 2010.
45 C. Rootes, op. cit., 49. The 12 sections of the CJPOA covered the following areas: Part I Young Offenders/Part II Bail/Part III Course of Justice: Evidence, Procedure, Etc./Part IV Police Powers/Part V Public Order: Collective Trespass or Nuisance on Land/Part VI Prevention of Terrorism/Part VII Obscenity and Pornography and Videos/Part VIII Prison Services and the Prison Service/Part IX Miscellaneous Amendments: Scotland/Part X Cross-Border Enforcement/Part XI Sexual Offences/Part XII Miscellaneous and General.
46 There were other causes for concern not directly related to the question of alternative culture, such as the contracting out of prisons (Part VIII) and more severe sentencing for young offenders (Part I).
47 The Guardian, 12 July 1994, qtd. in Roy Bentley et al., British Politics in Focus, Ormskirk: Causeway Press Ltd, 1995, 508.
48 <http://www.privacyinternational.org/article.shtml?cmd%5B347%5D=x-347-508126>,
accessed 15 July 2010. A recordable offence is generally any offence for which a person may receive a sentence of imprisonment.
49 “Part II of the [1968 c. 52.] Caravan Sites Act 1968 (duty of local authorities to provide sites for gipsies and control of unauthorised encampments) together with the definition in section 16 of that Act of ‘gypsies’ is hereby repealed.” CJPOA, Part V, Section 80.
50 “These sections give the police the power to order people to leave the land if they are believed to be preparing to hold a rave (two or more people); waiting for a rave to start (ten or more people); actually attending a rave (ten or more people).” <http://www.urban75.org/legal/
cja.html>, accessed 15 July 2010.
51 <http://www.guardian.co.uk/commentisfree/libertycentral/2009/jul/21/criminal-justice-bill-protests?showallcomments=true>, accessed 15 July 2010.
52 See Annex 2 for an example of a Freedom Network flyer.
<http://www.urban75.org/brixton/features/cooltan3.html>, accessed 15 July 2010.
53 “SchNEWS was born in a squatted Courthouse in Brighton in 1994 as part of Justice? — Brighton’s campaign against the Criminal Justice Act.” <http://www.schnews.org.uk/pages_
menu/about.htm>, accessed 15 July 2010.
54 See Annex 3.
55 <http://www.guardian.co.uk/commentisfree/libertycentral/2009/jul/21/criminal-justice-bill-protests>, accessed 15 July 2010.
56 Source: <http://www.mcspotlight.org/case/pretrial/factsheet.html>, accessed 15 July 2010
57 <http://www.schnews.org.uk/archive/pdf/howardletter.pdf>, accessed 15 July 2010.
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Brendan Prendiville, « Censoring Alternatives », Revue LISA/LISA e-journal [En ligne], Vol. XI – n° 1 | 2013, mis en ligne le 30 mai 2013, consulté le 19 mars 2024. URL : http://journals.openedition.org/lisa/5236 ; DOI : https://doi.org/10.4000/lisa.5236
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