Twitter can't be gagged: online outcry over Guardian/Trafigura order

Trafigura's libel lawyers, Carter-Ruck, recently demanded the Guardian deleted published articles, saying it was "gravely defamatory" and "untrue" to say Trafigura's waste had been dumped cheaply and could have caused deaths and serious injuries. The Dutch paper Volkskrant and Norwegian TV said they were yesterday also threatened with gagging actions. Trafigura also launched a libel action against the BBC's Newsnight, complaining it had been wrongly accused of causing deaths, disfigurement and miscarriages, and had "suffered serious damage to their reputation". The BBC filed a fighting defence this week, accusing Trafigura of knowing its chemicals were "highly toxic, potentially lethal and posed a serious risk to public health". The broadcaster also alleged a cover-up, saying Trafigura's denials "lack credibility and candour".

Laffin Assasin wrote:

BBC claims to have possestion of emails regarding case.

While the Guardian could be prevented from reporting, Twitter couldn't: Trafigura was the most used word on micro-blogging site this morning

Trafigura, a London-based oil trader connected with dumping toxic waste in Ivory Coast in 2006, was the most used word on micro-blogging site Twitter this morning. After the Guardian was banned from reporting the contents of a parliamentary question relating to the toxic dumping scandal yesterday evening, the topic was widely picked up and aired on Twitter. As the statistical page CrowdEye shows, tweeting increased slightly yesterday evening, and a steep rise of more than 5,500 tweets including the word "Trafigura" followed this morning.



Twitscoop's real-time video algorithm captured how #trafigura is appearing on Twitter and picking up momentum

While the Guardian was prevented from reporting the question - from MP Paul Farrelly to a minister - until law firm Carter-Ruck withdrew its opposition at lunchtime today, Twitter wasn't: instead of suppressing the story the attempt backfired. Factor in the Streisand effect, and starting here the topic spread across the internet and became the top trending topic on Twitter. The Guardian editor-in-chief, Alan Rusbridger, tweeted the gagging order with the question "Did John Wilkes live in vain?". The gagging order was lifted after Carter-Ruck dropped its claim.

But Twitter had already alarmed a variety of platforms, and the question about Trafigura got picked up by a number of prominent blogs, including Guido Fawkes, Richard Wilson's Don't Get Fooled Again, and Adam Tinworth's One Man and His Blog. Finally, mainstream media caught up, with The Spectator pushing the story.

It might be a bit too exaggerated to call it a historic moment, but surely the real-time web passed its test today.

When is a secret not a secret? When it's on Twitter.

An injunction served on the Guardian and at least one other national newspaper was meant to stop the papers reporting that the MP Paul Farrelly had tabled a Parliamentary question about the oil traders Trafigura and its solicitors Carter-Ruck. And it succeeded - up to a point.

In a front-page story, the Guardian said it was prevented from identifying the MP who had asked the question, what the question was, which minister might answer it, or where the question was to be found.

In a twist the paper described as "Kafka-esque", it was also banned from telling its readers why it had been banned from doing so.

In one sense, the injunction was effective. In most of the mainstream media this morning, you would have found no mention of who or what was involved.

Red rag

No injunction was served on the BBC, but ever since the Spycatcher case in the 1980s news organisations which knowingly breach an injunction served on others are in contempt of court, so the corporation too felt bound by the Guardian injunction.

But the lawyers in this case clearly reckoned without the "blogosphere". In the anarchic, anything-goes world of the internet, where free speech is a frequently-heard rallying cry, injunctions banning publication of anything are unpopular. This one seems to have acted like a red rag to a bull.

The social networking site Twitter was soon awash with posts deploring a threat to media freedom and the reporting of Parliament.

Stephen Fry, celebrity tweeter, called it "this barbaric assault on free speech", and the very information Trafigura and its lawyers were anxious to keep secret was being freely bandied about.

Guido Fawkes's political blog and the website of at least one mainstream publication, The Spectator, apparently chose to ignore the injunction entirely.

A Google search for Trafigura in mid-morning threw up a dozen online articles on the subject.

Favoured few

The digital marketing company Econsultancy - on its own website - observed all the activity on Twitter, saying: "This tidal wave of tweets makes for particularly bad PR, given the banning order against the newspaper.

"It's a bit like an artist achieving a Radio 1 ban, which can result in chart success. What you seek to suppress only generates further interest."

Imposing injunctions on news organisations has never been a foolproof way of stopping information from leaking out. But in the old days, when the principal means of transmission was word of mouth, only a favoured few ever got to hear of it.

The digital revolution has changed all that. Anyone with a PC or a laptop or an iPhone or a Blackberry, or any other digitally-enabled device, can now discover what all the fuss is about.

On this occasion the injunction seems to have been utterly counterproductive. The Guardian obtained a High Court hearing to challenge the injunction this afternoon. But at lunchtime Carter-Ruck bowed to the inevitable, and the Guardian's website was soon running full details.

The first news, of course, came from the Guardian's editor, Alan Rusbridger, via Twitter. "Thanks to Twitter/all tweeters for fantastic support over past 16 hours!" he wrote.

And the Liberal Democrat leader Nick Clegg tweeted: "Really pleased Guardian ban has been lifted. This is a victory for freedom of speech and online activism".

And Stephen Fry's reaction? "Can it be true? Carter-Ruck caves in! Hurrah! Trafigura will deny it had anything to do with Twitter, but we know don't we? We know! Yay!!!"

The game has changed. Whether public bodies, legal institutions and our lawmakers like it or not, the internet is poking holes in precedents and laws in a way that was unimaginable only a few years ago.

The Guardian announced today that it had been banned – for the first time in history – on reporting parliamentary proceedings. Traditionally, anything that is said in Parliament is public record and can be freely reported by the media. However, a firm of solicitors, Carter Ruck (of long renown if you ever read Private Eye) has managed to get an injunction banning the Guardian from reporting (in its own words):

Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.

I’m sure in the offices of the lawyers they were high-fiving each other at their success in getting this unprecedented injunction passed. I’m equally sure that their joy will be shortlived. Their client is a company called Trafigura – who have been implicated in a toxic-waste dumping scandal which is alleged to have injured thousands of Africans.

When the news broke, there was the usual non-committal shrug from the universe at another tale of corporate evil, but clearly the company would have been desperate to quieten down the news of the story. After all, despite all the recent hoo-ha about how amoral markets are, most people would hesitate to invest in a company that dumped toxic waste on a quiet stretch of African coastline. So, hire some bigshot legal team to gag the press and job done.

Only, if you want to read what the Guardian can’t say…

When I started writing this post a few minutes ago, there were 114 Tweets on ‘trafigura’. Right now, there are 2,354. I type pretty fast, so that gives you some idea of how quickly this is blazing through the public conscious right now. And in that small figure, allied to the link I just shared with you, lies an important lesson about how the world has changed since the creation of most of our legal laws.

Our laws were set up to muzzle big institutions like newspapers etc. By and large, those organisations still live in fear of due process and legal threats. But when knowledge passes into the hands of the many, that law becomes worthless. Is there even a way you can gag 3,271 Twitter users (latest count)? I doubt it. And since the information is spreading like wildfire, it will now gain a vast amount of attention that it probably never would have done before. Hell – if Stephen Fry tweeted about eating Spam, their sales would probably double.

The lesson here is that companies need to wise up. Fast. The days when corporate malfeasance could be hushed up by a deal cut in the smoke-lined back rooms is over.

4,487 tweets and counting….

Carter Ruck's Guardian gag prompts call for urgent Commons debate - Press Gazette · 11 hours ago

13 October 2009

By PA Mediapoint, Press Gazette

Commons Speaker John Bercow faced a call for an urgent debate on press freedom today after a newspaper was gagged from reporting a Parliamentary question.

The Liberal Democrats asked him to bring Lord Chancellor Jack Straw before MPs to answer questions about what The Guardian called a "Kafka-esque" court order.

Despite a long-established tradition that reports of parliamentary proceedings are protected from legal action, the newspaper said it was not allowed to mention a question tabled by an MP for answer by a minister later this week.

It said it had been barred from reporting who the MP was, which minister would answer the question, where it might be found or even why the gagging order was in place.

Lib Dem leader Nick Clegg wrote on scoail networing site Twitter that he was "very interested" and "concerned" about the issue and would be taking action. He also named one of the companies involved, as have a number of other Twitter users.

The party's parliamentary spokesman David Heath tabled an urgent request to the Speaker "to ask the Lord Chancellor if he will make a statement on the prevention of reporting of parliamentary proceedings by means of legal injunction".

Lib Dem chief whip Paul Burstow also requested, under Commons standing orders, an urgent debate tomorrow on "the freedom to report on Parliamentary proceedings".

Commons protest as Trafigura gag lifted

By Andy McSmith

Wednesday, 14 October 2009

Carter-Ruck's injunction, obtained in the High Court, related to an MP's question that mentioned a report into alleged toxic waste dumping by Trafigura

Carter-Ruck, the most feared firm of libel lawyers in the country, beat a retreat yesterday as information that its client had hoped to suppress was spread across the internet by bloggers and tweeters.

Had the lawyers had their way, no one would have been allowed to report that an MP had asked a question that mentioned a report into alleged dumping of toxic waste in the Ivory Coast by the multinational firm Trafigura.

The company's lawyers, Carter-Ruck, obtained an injunction preventing anyone from mentioning this report. It banned those covered by it from saying who had asked the question of Parliament, to whom it was addressed, or what it was about. Almost the only fact that they could mention was that the injunction had been obtained by Carter-Ruck.

The firm had successfully obtained what is sometimes called a "super-injunction" which meant that those served with it were not only banned from writing about its subject matter, they were also not allowed to report that they had been gagged. Unusually, the injunction was not spread around the media generally, apparently to avoid drawing attention to the story, but was served only on The Independent, The Guardian and others, who were investigating Trafigura.

In a perfect world, from a lawyer's point of view, that should have been enough. It meant that any media outlet that had shown an interest in Trafigura was silenced, while the rest were not told that anyone had been gagged. It all fell apart because the idea that commercial interests can get gagging orders that apply even to what is said in Parliament runs counter to the 1688 Bill of Rights, which protects all parliamentary proceedings from libel lawyers. The fact that Carter-Ruck had apparently silenced the House of Commons to protect a client's reputation was so unusual that even The Wall Street Journal thought it worth reporting.

Carter-Ruck's other problem was that all questions by MPs are published on Parliament's website. Once it was known that they had a gagging order that covered an MP's question, all anyone needed to do find out more was go to http://www.parliament.uk and enter "Carter-Ruck" in the search engine. Those who did were immediately directed to a question from the Labour MP Paul Farrelly, a member of the Commons Culture and Media Committee, to the Justice Secretary, Jack Straw. It asked "what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by... Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura".

The question was quickly picked up and posted on The Spectator website, and by Paul Staines, who blogs under the pseudonym Guido Fawkes, and spread rapidly through the internet, becoming one of the day's top items on Twitter. Among the first to find out yesterday there was a gagging order covering Mr Farrelly's question was Mr Farrelly himself, who rang the Speaker, John Bercow, in a fury. He later stood up in the Commons and asked the Speaker "to consider whether Carter-Ruck's behaviour constitutes potential contempt of parliament".

Yesterday afternoon a court was due to hear an application to have the terms of the injunction altered, but before the hearing began, Carter-Ruck announced that Trafigura did not want to prevent what was said in Parliament being reported, although the original injunction gave them that power.

"There has never been any question of Trafigura applying for an injunction that had as its purpose the prevention of publication of any matter arising in Parliament," they said in a statement last night.

"The issuing by the courts of so-called 'super-injunctions' is rightly controversial and a matter of growing concern," Mr Farrelly said afterwards. "That is why, using parliamentary privilege, I tabled these questions to Jack Straw at the Ministry of Justice as a matter of urgency. The practice offends the time-honoured 'rule against prior restraint', which safeguards freedom of expression in this country. The huge legal bills involved in fighting cases, too, have a chilling effect on legitimate investigative journalism."

Guardian still under secret toxic waste gag
From Wikileaks

Wednesday October 14, 2009

WIKILEAKS EDITORIAL

Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.

Twitter did not save free speech — and free speech has not been saved.

Over the last 24 hours, a lot of self-congratulating hyperbole has appeared on and off line about how the popular short message service Twitter saved free speech in the UK.

This ill-informed back-patting follows an agreement not to use an existing High Court gag order to block the Guardian's reporting of a parliamentry question by Paul Farrelly MP. Farrelly's question related to press freedoms and in particular, a leaked WikiLeaks report, the so-called "Minton report", which exposed a toxic dumping disaster inflicted on the Ivory Coast by oil trading giant Trafigura and its contractors, which hospitalized up to 100,000 people.

However, the secret gag order against the report, granted on September 11, remains in effect, and entirely prevents the reporting of the report's contents. It is not the only one. Last month, the Guardian revealed that it had been served with 10 secret gag orders—so-called "super-injunctions"— since January. In 2008, the paper was served with six. In 2007, five. Haven't heard of these? Of course not, they are secret gag orders. The UK press has given up counting regular injunctions.

To understand the crucial events in this case, we need to go back to September when commodities giant Trafigura obtained its "super injunction" preventing discussion of the leaked Minton report into the Ivory Coast disaster.

During September and the preceding months, investigative reporters from the Guardian, Norway's NRK TV, the Independent, the BBC's Newsnight, the Dutch press, Greenpeace and lawyers for the victims were collaborating to show Trafigura's culpability.

Trafigura knew the investigation teams had a copy of the Minton report, because journalists had asked the company to respond to the report's findings. Instead of providing a countering opinion, the company went to the High Court and obtained a secret injunction preventing journalists from telling the public anything at all about the document.

Although the Minton report is a merely a short engineering and legal assessment of the Ivory Coast disaster, no-doubt one among many, instead of commissioning it directly, the company "laundered" the report through its lawyers, Waterson & Hicks. This permitted Trafigura to claim legal privilege on the document should it leak; which is precisely what the company did.

An undisclosed UK High Court judge, who we can reveal to be Justice Maddison, accepted this parlour trick and on September 11 issued a broad gag order with secrecy provisions meaning the existence of the order itself could not be reported.

On September 14, WikiLeaks released the full Minton report in an attempt to subvert this wretched injunction. The UK press was then left in the Kafkaesque position where neither the Minton report, nor the injunction against it could be mentioned, despite the report appearing on the front page of WikiLeaks.

A few days later, in private correspondence with Norwegian journalists Synnøve Bakke and Kjersti Knudssøn from the Norwegian Broadcasting Corporation, another legal firm representing Trafigura shed some light on the injunction:

Your questions of today do also reveal the fact that you are in possession of a draft, preliminary expert opinion produced by Minton Treharne & Davies Ltd, and that you appear to be ready to disclose information from this report. Trafigura looks very seriously upon this, as disclosing any information from this report would be a clear breach of confidentiality and privilege. The report is clearly privileged and confidential and was obtained unlawfully by whoever is responsible for it coming into your possession. Please be aware that on Friday of last week, our clients sought and obtained an injunction in relation to this document and information contained in it against the Guardian newspaper and Persons Unknown, pending a further hearing.

A few days after the investigative stories appeared on September 17, Trafigura entered into a settlement with over 31,000 Ivorian class-action claimants—while continuing to deny any responsibility for the disaster.

Since direct reports of parliamentary proceedings are largely exempt from libel laws in the UK (most recently under the 1996 Defamation Act), it is not uncommon for MPs to mention censored facts, so that newspapers will be able to safely take the facts from their parliamentary speeches. This same approach was used by Paul Farrelly MP, to expose the Minton report gag.

Farrelly, a former Observer section editor, tabled the following question notice in the House of Commons, and in the process, exposed two secret gag orders, including the gag against the Minton report:

Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.[1]

Trafigura's lawyers, Carter Ruck, no doubt recognizing an attempt to use parliament as a venue to not only subvert the September 11 gag, but as a way to attack their suppression business, told the Guardian that they would consider reporting Farrell's question a contempt of the September 11 gag order.

That this extraordinary claim was made and accepted must have shocked Carter Ruck as much as much as anyone else.

The Guardian, decided to make the gag a national issue. David Leigh, lead author on the Trafigura story, wrote a carefully worded article designed to inflame, and the Guardian gave it substantial prominance on October 12 and 13:

The Guardian is also forbidden from telling its readers why the paper is prevented – for the first time in memory – from reporting parliament. Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.

These and other subtle clues, which included a specific mention of the law firm "Carter Ruck", were enough for a number of professional blogs, such a the parliamentary watch blog Order-Order, and WikiLeaks, to soon find the question notice on the House of Commons' website transcript (Hansard).

Twitter then promoted the visibility of the Guardian article, the WikiLeaks copy of the gagged Minton report and the articles about the Commons' question. However there are only a few players who affected this case's inevitable legal conclusion.

1. The investigative team of the traditional media, Greenpeace, the victims and their respective legal teams.
2. WikiLeaks, who released, and kept up, the report at the center of the injunction as well as the gag order.

The lesson for Carter Ruck and other lawyers: be careful what you wish for.

Had Twitter not existed, we would have seen the same legal outcome, for such an affront to the UK political classes could never have survived the attentions of a national newspaper like the Guardian. However, the September 11 gag, which threatens only the interests of the press and the people, continues, as do a vast number of other injunctions, acquired by those with unequal access to justice and something to hide.

Under pressure from legal costs, UK papers have silently removed some of the original September 17 dumping investigations. For example, the Independent's "Toxic Shame: Thousands injured in African city" no-longer "exists" except at WikiLeaks.

Now is not the time to be distracted from this reality, or to see the unravelling of a grotesque attack on parliamentary reporting as step forward; it is a return to last week. We are back at the UK censorship status quo, which may be described, without irony, as privatized feudalism.

So take your hands from each other's backs, sharpen your (s)words—and get to work. The battle isn't over, however it just may, be beginning.

(Julian Assange)