THIRTY years ago, five London Greenpeace activists found themselves slapped with a libel writ. It was the beginning of what would become one of the biggest, longest and most notorious UK defamation trials of the 1990s. You’ve probably heard its name before. It came to be known as the “McLibel” case.

Since 1986, a small squad of London Greenpeace activists had been campaigning against the American fast food giant. McDonald’s established its first UK outlet in Woolwich in 1974. By the end of 1990, it ran to 380 British outlets. By the time the McLibel trial finally concluded, the multinational had ratchetting up more than 650 restaurants. Today, there are approximately 1300 franchises scattered across the UK.

London Greenpeace were distributing leaflets headlined “What’s wrong with McDonald’s? Everything they don’t want you to know.” As the judge in the subsequent libel trial summarised, this leaflet essentially accused McDonald’s of hypocrisy, dishonesty and profiteering. Behind Ronald McDonald’s plastic smile, they argued, the Iowa-based company was “responsible for starvation in the Third World, of destroying vast areas of Central American rainforest, of serving unhealthy food with a very real risk of cancer of the breast or bowel and heart disease and food poisoning, of lying when it claimed to use recycled paper, of exploiting children with its advertising and marketing, of cruelty to animals, and of treating its employees badly.”

READ MORE: Law Society of Scotland questions new proposed defamation bill

McDonald’s called in its barristers. Helen Steel and David Morris – along with their three comrades – were accused of blackening the corporation’s good name. Or, to express the same thought in more legalistic terms, of “disseminating materials which tended to lower the company’s reputation in the estimation of ordinary persons.” McDonald’s sued for substantial damages. While the other campaigners apologised and retracted, Morris and Steel weren’t for turning. The pair went all-in against the corporation in the High Court in London in 1994. They did so, hampered by several disadvantages.

Steel and Morris found themselves defending a libel action against a multinational corporation, with all the financial clout hundreds of thousands of Big Macs can command. Their application for legal aid to defend their position against the multinational was declined. Then, as now, libel suits were seen by state bean counters as vanity litigation. If you offended the vanity of the wrong man or wrong corporation – well, hell mend you.

Neither Morris nor Steel had two pennies to rub together. Neither Steel nor Morris could afford to instruct QCs to answer the murder of barristers which McDonald’s paid through the nose to send into the courtroom. There was worse to come. In most court cases, it’s for the party who brings the action to prove their case.

Prosecutors must prove beyond reasonable doubt that you committed the crime. Landlords wanting to evict their tenants must prove cause shown. Not so in defamation cases. There, the civil courts flip the ordinary rules. If you find yourself accused of defaming someone, the burden falls on you – not the plaintiff – to prove the claims you have made against them are substantially true.

As the McLibel trial unfolded over weeks, months and years, the press clichés wrote themselves. Two plucky individuals facing down the faceless corporation. Socially conscious little guys, menaced by powerful corporate interests, using legal tools to suppress legitimate criticism. The case has been described as “one of the greatest corporate PR disasters of all time” for the conglomerate. The Streisand Effect on acid, or at least on potato starch, disaccharides and sodium.

The McLibel case may have looked like David against Goliath – but unlike the Biblical version, Goliath won. In June 1997, Mr Justice Bell found in favour of McDonald’s. But the judge’s legal conclusions were two-edged. While he determined Morris and Steel had defamed the corporation, Mr Justice Bell also found that some of the pamphlet’s allegations were substantially true. His award of £60,000 damages against the pair was never recovered.

In 2005, the European Court of Human Rights subsequently ruled that the trial was unfair and that the activists’ rights to free expression had been unjustifiably infringed by the British authorities. There was, said Strasbourg, a “strong public interest” in enabling even small campaigning groups to “disseminate information” and discuss contentious ideas “on matters of general public interest.” Quite so.

Three decades on, the McLibel case still encapsulates stubborn issues with the law of defamation, north and south of the border. While protecting people’s reputations against being unfairly and inaccurately blackened seems like a good idea, how do we stop the law of defamation becoming a tool of intimidation? How do we prevent it becoming yet another weapon for rich people – or corporations – to suppress legitimate criticism of their products or practices? How do we protect legitimate challenges from the peevish, the spiteful and thin-skinned?

This week, Scotland has taken a few steps forward towards some better answers to these questions. Holyrood has now confirmed this week that its Justice Committee will be scrutinising the Scottish Government’s new Defamation Bill, building on the work of the Scottish Law Commission and campaigners to modernise Scottish defamation law.

The bill makes a number of important changes. Under the new rules, pursuers will have to show the alleged defamation has caused “serious harm” to their reputations. If they can’t? Case closed. Where the pursuer is a company rather than an individual – like in the notorious 1990s McLibel case – then they must show the statement has caused or is likely to cause them a “serious financial loss”. Tuppence ha’penny threats won’t be tolerated or indulged.

Scottish public authorities will be banned from suing the punters who use their services. And in the social media age, the bill’s proposals on secondary publishers are particularly important. If you retweet or share a potentially defamatory story on Facebook – then as the law stands, you can be sued for damages, as if you were the original author or publisher of the tale. The law gives secondary publishers have no refuge. If this bill passes, all that’s going to change. There will also be a new defence for people who publish information in the public interest, alongside defences of truth and honest opinion.

READ MORE: Scottish Government launches defamation law consultation

“To whom it may concern.” Messers Sue, Grabbit and Runne, crave your attention. I imagine most of you have never received a lawyer’s letter, indicating their client has instruct them to take you to law for defamation. I can tell you: it is an intimidating experience. As resilient as you might be, as hardy as you hope to be, the dire personal consequences of – even defending, never mind winning – a defamation action could keep any responsible writer awake a-night. You feel exposed, second guess yourself, fret about it.

Talk to any Scottish journalist doing more than polishing up PR and printing puff pieces and they’ll tell you stories about the threats they’ve received, the stories they never published, the issues and individuals they body swerved, for fear of ending up on the receiving end of the kind of life-changing litigation Steel and Morris fought in the 1990s.

The names of the responsible individuals and organisations will often never make it to the front page in this context. Many have never taken a case to a full hearing. They don’t have to. But some of Scotland’s public figures are notorious for their close connections with the nation’s defamation specialists, those pinstriped gentlemen of the law prepared to throw their weight around, with threats and promises of litigation if the story’s run, if the copy isn’t amended, if the apology isn’t forthcoming, if the paper won’t capitulate.

It’s right that Scots Law recognises that those who blacken the good name of other people should face consequences for those actions, and the wrongfully maligned should find in the law some remedy. But it isn’t the number of full-blown Court of Session or Sheriff Court cases which we should use to measure the risks of our imperfect law on defamation. It isn’t the cases you’ve heard about – but the ones you haven’t heard about which should worry you.

This is the chilling effect in action. The good news is: Holyrood’s new Defamation Bill should warm things right up.