Libel threatens to stifle debate about factory farming

25 January 2011 by Rosalind English

Food production is becoming a chosen territory for some of the fiercest current battles about freedom of information in this country.  In 2009 the Channel 4 broadcast of a film about the  pork factory business was effectively shut down by the threat of libel action; in the last week the Guardian reported that libel lawyers Carter and Ruck have written to the Soil Association threatening legal action if they failed to withdraw allegations underlying their objection to a planning application for one of the country’s largest pig units.

Update (15 January 2011): Nocton Dairies Ltd has withdrawn its planning application for a 3,700-cow mega-dairy in Lincolnshire.

Pig production company Midland Pig Producers (MPP) is seeking planning approval for 30 acres of land in Foston, Derbyshire, to develop a pig unit containing 2,500 sows and up to 25,000 pigs. The Soil Association formally objected to the plans because of the ‘increased disease risk and poor welfare conditions” of intensive units.

The application to South Derbyshire district council was in fact withdrawn after it was ruled that it needed to go to the county council instead. This is because the proposed inclusion of an anaerobic digestion unit on the site brings in waste matters which concerns the jurisdiction of the county council rather than the district planners. MPP expects to reapply in the next few weeks.Peter Melchett  of the Soil Association told the Guardian that it was the first time in his knowledge that a group like theirs

has been threatened for taking part in the democratic planning process, which is meant to be where citizens and those who represent different interests have the opportunity to air their case. If [big companies] are going to use libel laws to silence opposition, it does not bode well for the future of our food and farming industry.

It is difficult to see why the submission by the association, which raises important scientific concerns based on wide ranging research, should be defamatory.  The publicity for MPP’s new project has been accompanied by a number of public claims about the welfare of the pigs that suggest that “the highest standards of animal welfare conditions” will be achieved by the enterprise (MPP’s response to a question in the FAQ document accompanying the planning consultation).  Having put that claim in to the public domain, MPP should expect that it is to be challenged. And without getting in to the specifics of the scientific data on disease and pollution (all of which is freely available on the Soil Association website), it is fair to say that these issues should be ventilated in the open air of the planning procedure, and not kept behind the closed doors of lawyers’ offices. In any event the Association’s concerns were expressed in the context of a planning application, so they would be protected by qualified privilege. This is a common law defence to libel which covers information passed under a public or private legal, social or moral duty to another individual with a duty to receive (and this would of course include planning authorities).

Such a defence would not have been so easily available to Channel 4 had they pressed ahead with the film “Pig Business”.  After the first screening of Tracy Worcester’s documentary  the broadcaster was threatened with a libel action by the main focus of the film, Smithfield Foods of America, the world’s biggest pig producer and processor. The  film was pulled before its scheduled transmission in January 2009 and a much redacted version was broadcast on (the narrower channel) More4 later in the year. Had they pressed on with the broadcast of the film in its original version the filmmakers would have had to justify its contents in court.  The burden of proof of their allegations would be on them, whether or not made in good faith. For this reason Smithfield’s lawyers threatened libel proceedings in the UK rather than in the USA where their main operations are based, since in the US courts the strong protection of the Constitutional First Amendment means that where someone alleges in good faith that a public company is causing harm, the burden is on the company to prove the falsity of the allegation. Or, to put it in the language of the US Supreme Court, a statement must be provably false (falsifiable) before it can be the subject of a libel suit.

Both these episodes reflect the profound “chilling effect” on big corporations to organisations and individuals wishing to draw attention to matters of public concern. In Tracy Worcester’s case one of the consequences was to scare the insurance companies away from covering the film unless she was willing to pay half a million dollars’ excess or,  in her words, she “lobotomised the film”.

There is no question that factory farming is at the heart of the current public debate about food production.  The scale of the proposed Foston pig unit is larger than any existing pig farms in the UK, so this marks a trend in intensive livestock farming in the UK towards the vast Concentrated Animal Feeding Centres (CAFCOs) of the USA.  The groundswell of opposition to the “mega dairy” at Nocton – a unit housing 3770 (and potentially up to 8,000) grain-fed dairy cows with no access to pasture  – led to the withdrawal of the first application, and now the Environment Agency has raised an objection about the pollution of water courses consequent on the development.  As a statutory consultee the EA’s comments will make the planning process more difficult for Nocton. The Soil Association does not enjoy such a privileged position, nevertheless their views on the escape of pathogens from Foston Slurry may well be given a boost by the EA’s concerns about the “mega-dairy”.

Whatever the outcome of Foston’s new application, this story puts into stark relief the dismal effect that current UK defamation law has not only on the press but equally as importantly on freedom of debate on matters of science, public health and a myriad of other issues involved in the farming debate. On 7 January the Deputy Prime Minister outlined the government’s commitment to libel reform. In his speech Nick Clegg promised reforms which would end the

legal farce where people and corporations with money can impose silence on others at will

A draft defamation bill will be published this spring, setting out a statutory defence of public interest.  Whether it will remove the gagging power of big corporations in cases such as these remains to be seen.

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