Twitter verusus Trafigura

I was a guest on BBC World Service’s World Update this morning, discussing the Trafigura/Carter-Ruck attempt to stop reporting of Paul Farrelly’s parliamentary question.

You can hear it here (skip forward to 5:30)

Trafigura: MP Farrelly's censored questions

I. Trafigura, Carter-Ruck, Press Freedom and Privilege in Reporting Parliament

Comments from Paul Farrelly MP (13 October 2009)

‘The issuing by the courts of so-called ‘super-injunctions’ is rightly controversial and
a matter of growing concern. 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. It also fails to protect whistleblowers, acting in the public interest. The huge legal bills involved in fighting cases, too, have a chilling effect on legitimate investigative journalism.’

‘So often the beneficiaries are big corporations. The fact that the press is also barred from reporting the existence of these gagging orders is doubly pernicious. It is a subject the Select Committee will be addressing in our current enquiry into the press and the way the law works in Britain today.

‘Following The Guardian’s front page story today, I telephoned the newspaper to ask whether the MP they referred to – and felt constrained in reporting – was me.

‘The chain of events, I understand, was that The Guardian wrote to Trafigura’s solicitors Carter-Ruck yesterday alerting them to its intention to report my questions.

‘Carter-Ruck then responded in writing warning of further legal action, if they did so.

‘Absolute privilege in reporting parliament has been established since the Bill of Rights in 1688. It is a fundamental freedom for the press and it is vital that neither lawyers nor the courts seek to attack this time-honoured right.

That is why I immediately contacted the Speaker’s office today and raised the issue as a point of order in the House this afternoon.

Text of point of order (reporting of which is also naturally covered by privilege)

‘Mr Speaker, I want to raise a point of order regarding a chain of events which may be of concern to the House.

Today, The Guardian reported that it had been prevented from reporting a written question tabled by a Member of Parliament.

This morning, I telephoned the Guardian to ask whether the MP was myself.

The question was printed on the order paper yesterday and relates to the activities of Trafigura, an international oil trader at the centre of a controversy regarding toxic waste dumping in the Ivory Coast – and to the role of its solicitors Carter-Ruck.

Yesterday, I understand, Carter-Ruck quite astonishingly warned of legal action if The Guardian reported my question.

Mr Speaker, in view of the seriousness of this, will you accept representations from me over this matter and consider whether Carter-Ruck’s behaviour constitutes a potential contempt of parliament?’

* * *

II. Select Committee Enquiry – Progress of reviews, issue of ‘super-injunctions

The following parliamentary questions appear on the House of Commons order paper today, 12th October, 2009 and attract privilege.

They are to Jack Straw, Secretary of State for Justice, and concern the progress of various reviews relevant to the current Select Committee enquiry into Privacy, Libel and Press Standards and also the issue of so-called ‘super-injunctions’, which have been the subject of growing recent controversy.

For answer on Wednesday, 14th October:

60 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the Court of Appeal judgment in May 2009 in the case of Michael Napier and Irwin Mitchell v Pressdram Limited in respect of press freedom to report proceedings in court.

61 N – 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.

62 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, if he will (a) collect and (b) publish statistics on the number of non-reportable injunctions issued by the High Court in each of the last five years.

63 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what mechanisms HM Court Service uses to draw up rosters of duty judges for the purpose of considering time of the essence applications for the issuing of injunctions by the High Court.

For answer on Monday, 12th October:

1827 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, when he expects to announce the conclusions of his review into the operation of conditional fee agreements following the end of the consultation contained in paper CP4/09, Controlling costs in defamation proceedings.

1828 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, when he expects to publish the responses received to the consultation paper CP4/09, Controlling costs in defamation proceedings.

1829 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what guidance the Court Service has issued on the practice of file-sealing in cases involving alleged breaches of (a) privacy and (b) duty of confidentiality.

1830 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what reports he has received of the outcome of the second stage of the review by Sir Rupert Jackson of the (a) costs of litigation and (b) operation of conditional fee agreements in England and Wales; and when he expects the (i) first draft and (ii) final draft of Sir Rupert’s report to be available.

1831 N – Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what progress his Department has made in its review of the effects of the internet on the operation of libel laws.

A gag too far

Carter-Ruck, the aggressive media law firm helping the Trafigura oil-trading company in relation to reports of its 2006 waste dumping disaster in Côte d’Ivoire, scored a spectacular own goal yesterday when it tried to keep the Guardian from reporting a parliamentary question due to be asked today.

The Guardian asked for an urgent hearing to overturn the gag, which goes against free-speech privileges enshrined in the Bill of Rights of 1688 as well as long-established legal precedent; Carter-Ruck withdrew before the matter came to court. It was the work of a few tedious minutes to skim through the Commons Order Book online and find the relevant question. In no time the news had been spread by flocks of twitterati.

The question refers to a previously secret High Court injunction banning the Guardian from mentioning the Minton report, commissioned by Trafigura in September 2006, which related to toxicity levels of the caustic tank washings dumped that August on the coast around Abidjan. Whatever the consultants said, Trafigura continued for three years to claim that they were harmless.

The company finally announced a weak compensation deal for some of the victims — with no admission of liability — on 17 September, the day after the Guardian published internal emails between Trafigura executives considering how to dispose of the toxic “crap” in order to profit from a cheap consignment of petrol from Mexico. The Minton report itself is available on the internet from the anti-corruption group Wikileaks.

Trafigura and Carter-Ruck have mounted a desperate campaign to stop the media from reporting on the illegal dumping, which is said to have caused vomiting, choking and skin eruptions in some 100,000 people and killed at least 12 Ivorians. As well as the injunction against the Guardian, the firm issued a libel writ against BBC2’s Newsnight, which also reported on the dumping, and threatened journalists from Norway, the Netherlands, Estonia and The Times. The Dutch Greenpeace campaigner Marietta Harjono has said she was told not to mention Trafigura on a British radio interview for fear of libel claims.

Carter-Ruck (known to readers of Private Eye by a slightly different name) specialises in protecting clients from “adverse or intrusive” media coverage, and boasts involvement in more than half the libel and privacy claims issued in the High Court in any given year. It offers a 24-hour “media alert” service, threatening media outlets in order to change or block unwanted stories before publication, and often works alongside PR agencies on behalf of clients facing “sustained and hostile media interest.” Obviously, the firm has found that its approach works — or why would it be so clumsy as to block a campaigning newspaper from reporting on Parliament?

Maria Margaronis is London correspondent for The Nation.