Two weeks ago a previously silent battle between UK newspaper The Guardian and commodity shipping company Trafigura Beheer BV exploded into the public eye.
After a combination of parliamentary action and a wave of tweeting on the subject, Carter-Ruck, the legal firm representing Trafigura decided to lift a gag order they had won against The Guardian. That injunction had prevented the paper from publishing the Minton report (available to download here), a document which shows the company knew waste they dumped in the West African country Côte d’Ivoire could cause illness and injury.
In August 2006, a ship contracted by Trafigura dumped a load of waste (byproducts from the treatment of contaminated fuel oil) in Abidjan, Côte d’Ivoire. Around “100,000 Ivorians sought medical help for breathing problems, vomiting and skin eruptions; according to a UN report, 15 people died,” writes Maria Margaronis in The Nation. Trafigura eventually paid the Côte d’Ivoire government more than $200 million related to the dumping, but without admitting liability.
The Minton report is a scientific study commissioned by Trafigura and composed by John Minton, of consultants Minton, Treharne & Davies. It described the waste dumped by Trafigura as having the potential to cause skin and lung burns; ulceration; corneal damage; vomiting, diarrhea, loss of consciousness and death. After the Guardian planned to publish the report, Carter-Ruck sought and won a gag order on behalf of Trafigura preventing the paper from reporting.
The gag against The Guardian was a special ‘super injunction,’ which ordered the newspaper not only to remain silent about the Minton report, but also to remain silent about the fact that they were being ordered to remain silent. In essence this kind of ‘super injunction’ is an injunction against reporting information that also prevents reporting about the injunction itself.
The controversy over the report has brought some important questions about press freedom and British libel and privacy law into the fore. Reporter for Journalism.co.uk, Judith Townend has been covering the evolving story, and responded to our questions over email.
“It’s appalling and really scary in terms of media freedom,” she says. Not only in light of this case, but also the innumerable other cases of injunction no one has found out about yet. The Guardian has opened up that it has been served more than 10 similar gag orders since January 2009. “But many publications are simply keeping quiet,” Townend says. “We have no idea what is being restricted from being reported. Journalists are holding information that could well be in the public interest and we – the general public – have no idea what it is, or why it’s being kept secret.”
On October 12, the issue of the Trafigura injunction was brought up in a parliamentary question session by Paul Farrelly, MP for Newcastle-under-Lyme. Even though British law protects the right of the press to report on parliamentary proceedings, Carter-Ruck warned The Guardian not to write about it. Instead, The Guardian wrote that they were seeking an urgent court appearance to challenge being banned from writing about Parliament. Bloggers and tweeters quickly put the pieces of the puzzle together, finding the Parliament records in questions, and breaking open the whole story, according to Townsend.
Even after the question was raised in Parliament and the story had spread on the web, Carter-Ruck took one last stab, arguing that even Parliament itself mustn’t talk about the Minton paper.
“The law firm Carter-Ruck has made a fresh move that could stop an MPs’ debate next week by claiming a controversial injunction it has obtained is ‘sub judice’,” reported The Guardian on October 15. If that move had passed, it would have prohibited debate on the matter, a worrying proposition, according to Townend. “The only way the issue of specific super injunctions could be raised was via Parliament, where politicians are protected by parliamentary privilege. So it was outrageous when even this was threatened,” Townend says. The following day, October 16, Carter-Ruck finally released The Guardian from the injunction.
It seems outlandish that company could successfully prevent the press from publishing a valid piece of scientific research, especially where the data regards possible harm done to innocent people. The Guardian has revealed details of the injunction itself, which show the anatomy of these secret gag orders.
Check it out here.
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“British publications have to take enormous care,” Townend says. “The UK legal risks [are] such that it’s difficult to take the Wikileaks approach, although Wikileaks editor Julian Assange would say mainstream media needs to be braver to force change. The Guardian clearly decided it still couldn’t take the risk.”
Townend hopes that result of all of this, with the involvement of the government may spur some changes in British libel law, the current state of which she calls “chilling”. “Poorer people can’t afford the risk or costs of fighting, so important material is left unreported. The trouble occurs before it even makes the page: people are afraid to voice certain criticisms – about large companies for example.”
Stinkyjournalism has written before about the libel suit of writer Simon Singh, who is being sued by the British Chiropractic Association. Simon’s case is an important example of how the stringency of British libel law risks imperiling science journalism–a field where boldly questioning unscientific claims by companies or doctors is absolutely necessary.
British libel law–in placing much of the burden of proof on the defendant and in allowing things like these double injunctions–seems to make critical journalism, especially investigative journalism a risky proposition. This isn’t good for journalists, and it isn’t good for the public who rely on journalists to uncover information of critical medical or social or legal relevance, according to Townend.
“Of course there’s some disgraceful journalism that needs to be kept in check, but that shouldn’t be at the cost of responsible and worthy reporting in the public interest.” she says.
On October 21, the British Parliament held an emergency debate on whether to limit super-injunctions, “despite an attempt to avert it by libel law firm Carter-Ruck,” according to The Guardian.
The paper reports that “the Lib Dem MP Evan Harris said: ‘There is a lot of concern in parliament and in the media over the impact of English law on freedom of expression, but the people who should be most concerned are the general public. Powerful interests are able to exploit our legal system to prevent public interest matters – such as the dumping of toxic waste, or the evidence for the benefit of chiropractice on children’s health – being discussed. The government needs to do something about this instead of letting the public continue to be blinded by secretive injunctions and draconian libel suits’.”
The Guardian’s evolving coverage is here.