The ultimate assault on free speech
Law firm Carter-Ruck's super-injunction to attempt to stop the reporting of a question on the Trafigura affair in Parliament has galvanised MPs and other bodies to take up the fight for freedom of expression. John Kampfner reports
19 Oct 09

Law firm Carter-Ruck’s super-injunction to attempt to stop the reporting of a question on the Trafigura affair in Parliament has galvanised MPs and other bodies to take up the fight for freedom of expression. John Kampfner reports

The unremitting assault on free speech in the UK finally hit the heart of the establishment last week. The story of the Guardian, the oil trader Trafigura, the law firm Carter-Ruck and its super-injunction threatened to override centuries of parliamentary sovereignty.

The story could be seen as an aberration, an example of hubristic lawyers tying themselves in knots. At an emergency meeting on Thursday, a cross-party group of MPs, journalists and campaigners debated whether Carter-Ruck had simply made a mistake — parliament’s rights are supreme and nobody would have the temerity to challenge that in a court. If only it were that simple.

Possibly because their interests are at stake, MPs have woken from their slumber. That meeting is due to be followed by one today with Carter-Ruck, and by a debate on Wednesday. The Conservative MP, Peter Bottomley, has promised to report Carter-Ruck to the Law Society. The new speaker, John Bercow, declared that “there is no question of our own proceedings being in any way inhibited”.

However, a closer look suggests a more complicated picture. Paul Farrelly, the Labour MP and former Observer journalist, ensured that his question was tabled only by carefully not drawing the attention of the Commons authorities to the actual case in question. The irony is that Carter-Ruck’s insistence on secrecy through the super-injunction worked to his advantage. The Commons authorities apparently had no idea what case Farrelly was referring to when they let his question through.

Jack Straw, the justice secretary, is now being lobbied to clarify the situation and to restate the right of the media to report whatever is said or written in the Commons or Lords, no matter what the circumstances.

Even though the super-injunction was lifted late on Friday, the episode should galvanise MPs to see the bigger picture – the seemingly inexorable march towards greater censorship and self-censorship in the UK. A combination of zealous law firms, pliant and sometimes ignorant judges, cash-strapped news organisations and a public that is encouraged to think the worst of the media has produced a situation where strong, investigative journalism is in jeopardy.

The list of infringements is long. The most egregious example is so-called “libel tourism”. Britain is seen as a pariah by the US Congress, which has followed several states in indemnifying Americans from the excesses of English courts.

The chilling effect is hard to quantify, because beyond the prosecutions and the injunctions lie stories that are never written for fear of an angry legal fax.

Many well-intentioned legal changes introduced in recent years have been manipulated, resulting in the opposite effect of the one envisaged. Conditional Fee Agreements —“no win, no fee” — were designed to help the impecunious to mount a claim when wronged. Instead they allow lawyers representing the wealthy to string cases along for as much as possible, knowing the other side cannot afford the fight. One editor told me recently he had been advised by his bosses to “lay off the oligarchs” for purely financial reasons.

The so-called Reynolds Defence, in which a journalist can claim to have acted professionally even where errors are made in publication, is used to stop publication. As soon as the other side is contacted for a comment, the threats begin, and publication can be inhibited.

The biggest challenge is the rise of super-injunctions and the misinterpretation by judges of the right to privacy as enshrined in the Human Rights Act. This part of the legislation was supposed to allow people to protect themselves and their families from unwarranted intrusion. Now “reputation” is being opened to corporations, who, through their lawyers, have been able to persuade judges to agree pre-emptive injunctions to protect their brands. The use of gagging orders appears widespread.

The current libel case that is attracting most attention is that of the science writer Simon Singh. In one of the few positive developments of recent days, he was given leave to appeal against the action brought by the British Chiropractic Association.

Set against this atmosphere of fear is a mood of defiance on the blogosphere and social networking sites. Carter-Ruck’s actions were undone in large part by the extraordinary response on Twitter to the Guardian’s predicament. Many stories that cannot be commented on in a UK domain can be read on foreign-hosted websites. This has produced the crazy situation of people in other countries being better informed about our country than we are.

Index on Censorship and English PEN have jointly conducted an inquiry into libel and curbs on free expression. A number of round-table discussions with editors, broadcasters and senior lawyers produced a heartening show of unity and a determination to lobby for change. Our recommendations will be published on 10 November.

A few weeks later, the culture, media and sports select committee will publish the long-awaited results of its own inquiry into libel, privacy and press standards. There are signs that recent developments may have put some steel into its spine.

The battle is not about allowing journalists to pry with long-lens cameras; it is not about abolishing libel or the right to redress when maliciously wronged. It is about redressing the balance, about removing the stigma from a judicial process that has rendered English law the laughing stock of the western world and the enemy of free expression.

John Kampfner is chief executive of Index on Censorship and author of Freedom For Sale

This article was originally published at Media Guardian