CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mai 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 21325/93                       by H.S. and D.M.                       against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 5 May 1993, the following members being present:              MM.    E. BUSUTTIL, Acting President of the First Chamber                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    B. MARXER                  G.B. REFFI              Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 2 December 1992 by H.S. and D.M. against the United Kingdom and registered on 3 February 1993 under file No. 21325/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: THE FACTS         The applicants are British citizens, born in 1965 and 1954 respectively.   They live in London and are both unemployed.   They are represented before the Commission by John Wadham, the Legal Officer of Liberty, London.         The applicants produced a leaflet entitled "What's wrong with McDonald's?" dealing with certain of McDonald's business practices in the context of, inter alia, environmental damage, starvation and malnutrition in developing countries, advertising ethics, the slaughter of animals, staff working conditions and McDonald's attitude to trade unions.         McDonald's are in the process of suing the applicants for libel damages and a permanent injunction against the applicants to prevent them repeating the alleged libel.         The applicants are defending themselves in matters of some complexity and have sought legal aid.   It was refused on 3 June 1992 because legal aid is not available for defamation proceedings, not being in the schedule of proceedings envisaged by the Legal Aid Act 1988.   An appeal to the public has apparently been made for voluntary funding of the applicants' case, which seems to have aroused media interest.     COMPLAINTS         The applicants complain that they are being denied effective access to court under Article 6 of the Convention to defend their right to free speech.   They feel they are unable to defend themselves without legal aid, expert advice, assistance and representation against such a weighty adversary as McDonald's.         The applicants also complain that the initiation of proceedings against them by McDonald's constitutes an unjustified interference with their Article 10 freedom of expression, in particular their right to receive and impart information and ideas.   The failure of the United Kingdom to provide legal aid or simplified procedures, or to limit the amount of damages which could be awarded in such defamation proceedings also constitutes a breach of Article 10 of the Convention.         The applicants invoke Article 6 of the Convention, Article 14 of the Convention (wealth discrimination) and Article 13 of the Convention, alleging a lack of effective domestic remedies for their Convention claims.         The applicants seek to distinguish their case from the Commission's previous case-law in which the absence of legal aid in defamation cases was not found to breach Article 6 of the Convention, because in their case they did not initiate the defamation proceedings, but are the unwilling defendants in a case brought against them by a large business.   THE LAW   1.     The applicants have complained that they are denied effective access to court by virtue of an absence of legal aid or simplified procedures for defamation proceedings and the possible unlimited nature of an award of damages.         Article 6 para. 1 (Art. 6-1) of the Convention guarantees a fair hearing in the determination of civil rights and obligations and, implicitly, access to court (Eur. Court H.R., Golder judgment of 21 February 1975, Series A no. 18).   Although the Convention does not guarantee a right, as such, to legal aid in civil cases, effective access to court must be ensured.   The means by which a State does so is within its margin of appreciation (Eur. Court H.R., Airey judgment of 9 October 1979, Series A no. 32, p. 15, para. 26).         The Commission has already had occasion to consider the lack of legal aid for defamation proceedings in the English legal aid scheme and it has held as follows:         "The Commission notes that even where legal aid may be available       for certain types of civil action, it is reasonable to impose       conditions on its availability involving, inter alia, the       financial situation of the litigant or the prospects of success       of the proceedings (cf. No. 8158/78, Dec. 10.7.80, D.R. 21       p. 95).   The Commission considers, similarly, that, given the       limited financial resources of most civil legal aid schemes, it       is not unreasonable to exclude certain categories of legal       proceedings from this form of assistance.   The fact that the       English legal aid scheme excludes assistance in defamation       proceedings has not been shown to be arbitrary in the present       case.         The question remains, therefore, whether, despite the absence of       legal aid for defamation proceedings, the applicant was       effectively denied access to court, contrary to Article 6 para. 1       (Art. 6-1) of the Convention"       (No. 10871/84, Winer v. the United Kingdom, Dec. 10.7.86, D.R.       48 p. 154)         The Commission considers that this general approach to the question of access to court is not affected by the litigant's status as either plaintiff or defendant.         Turning to the facts of the present case, it has not been shown that the applicants are being denied effective access to court as litigants in person, albeit inexperienced.   They seem to be making a tenacious defence against McDonald's, despite the absence of legal aid, the complexity of the procedures and the risk of an award of damages against them if they are found to have libelled McDonald's.   The Commission finds, therefore, that the unavailability of legal aid to defend defamation proceedings in the present case has not deprived the applicants of access to court contrary to Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     2.     The applicants have next complained that the institution of libel proceedings against them by McDonald's, as well as the combined effect of a lack of legal aid, simplified procedures or restrictions on damages, constituted an unjustified interference with their freedom of expression ensured by Article 10 (Art. 10) of the Convention.         Article 10 (Art. 10) of the Convention provides as follows:         "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.   This Article shall not       prevent States from requiring the licensing of broadcasting,       television or cinema enterprises.         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 rights of       others, for preventing the disclosure of information received in       confidence, or for maintaining the authority and impartiality of       the judiciary."         The Commission notes, first, that it has no competence to deal with that aspect of the complaint directed against McDonald's, being a private company not incurring the State's responsibility under the Convention.         Secondly, it notes that the freedom conferred by Article 10 (Art. 10) of the Convention is not of an absolute, unfettered nature. It does not authorise the publication of defamatory material.   On the contrary, the second paragraph of Article 10 (Art. 10) offers specific protection for "the reputation or rights of others".   McDonald's are, therefore, entitled to seek the determination of their civil rights to a good reputation and, if successful, the protection of that reputation against an alleged libel.   Similarly the applicants are entitled to defend themselves against McDonald's writ in the determination of their civil right to free speech and fair comment in matters of public interest.         The Commission does not find that the matters which may involve the responsibility of the respondent Government under the Convention, namely a lack of legal aid, simplified procedures or restrictions on damages, essentially interfere with the applicants' freedom of expression.   They have published their views, upon which there was no prior restraint, and, if those views are subsequently found to be libellous, any ensuing sanctions would in principle be justified for the protection of the reputation and rights, within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.         The Commission considers, therefore, that the present case does not disclose any appearance of a violation of Article 10 (Art. 10) of the Convention.   It follows that this aspect of the case is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicants next complain that they have been discriminated against on grounds of wealth in the protection of their Articles 6 and 10 rights, contrary to Article 14 (Art. 6, 10, 14) of the Convention. They contend that the lack of legal aid, simplified procedures or restrictions on damages amounts to a breach of Article 14 (Art. 14) of the Convention, in that those who can afford to pay for legal and expert advice, assistance and representation are better able to secure and defend their rights under Articles 6 and 10 (Art. 6, 10) of the Convention than those without financial resources.         The Commission acknowledges that in most circumstances wealthy people are better able to defend their rights.   However the Commission has also recognised above (p.4) that it is reasonable, given the limited financial resources of most civil legal aid schemes, to establish priorities which may exclude defamation litigation, given its risky nature and the difficulty in accurately predicting its outcome (No. 10594/83, Munro v. the United Kingdom, Dec. 14.7.87, D.R. 52 p. 158, at p. 165).         For the same reasons, the Commission considers that it has not been shown to be unreasonable or arbitrary to give low priority to any reform of litigation procedures in defamation, however desirable such reform may be.   Furthermore, the Commission does not consider that the lack of restriction on any award of damages affects the applicants, who claim to be unemployed and penniless.   Should they lose the defamation case, account would be taken of their income in any attempt to enforce an overburdensome award.         In the circumstances, the Commission finds that there are reasonable and objective grounds for the State not to provide special assistance to litigants in defamation proceedings.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Finally the applicants complain of a breach of Article 13 (Art. 13) of the Convention which guarantees an effective domestic remedy for breaches of the Convention.   However, the case-law of the Commission establishes that Article 13 (Art. 13) does not require a remedy in domestic law for all claims alleging a breach of the Convention; the claim must be an arguable one (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52). In the light of the above conclusions concerning the applicants' complaints under Articles 6, 10 and 14 (Art. 6, 10, 14) of the Convention, the Commission finds that the applicants do not have an arguable claim of a breach of these provisions which warrants a remedy under Article 13 (Art. 13).   This part of the application must also, therefore, be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber     Acting President of the First Chamber         (M.F. BUQUICCHIO)                        (E. BUSUTTIL)