How the injunction became "super"

When the Guardian’s director of editorial legal services, Gillian Phillips, spoke at an industry conference 12 months ago, there were no written judgments on privacy injunctions apart from Terry. Since then the field has developed significantly, giving Phillips plenty to draw on, for a talk about the rise of the “super injunction”, at this year’s IBC Legal Defamation & Privacy event.

They may have first entered British public consciousness when Guardian editor Alan Rusbridger drew attention to “so-called super injunctions” in 2009, but the first order Phillips found in their files that “looked super injunctiony-ish” originated in March 2007. Schillings had served a privacy injunction for Britney Spears, against two newspaper groups.

Britney Spears was probably the start of a gradual change in the way these injunctions were obtained, Phillips said. The next significant one was granted in November 2007 for Northern Rock against the Financial Times.  But there was still no “super” element, ie. a ban preventing reports of its existence.

May 2008 saw an anonymous set of initials, but as far as Phillips could tell it wasn’t a super injunction because it didn’t prevent mention of the order.  However, it was against persons unknown, which became “a bit of a trait” because it meant no one was there to argue the other side.

Phillips’ first anonymous super injunction came about in February 2009,  which included prevention of reporting the proceedings. For legal reasons, she couldn’t say much more.

Then came Trafigura, Terry and many more.  In her overview, Phillips described the basic principle of open justice.

“Every time the court anonymises or holds something in private, makes an order saying you can’t report it, all those things are derogations from that fundamental principle.

“There is no doubt that those derogations can only be made where they’re strictly necessary. For a long time, the courts seem to have forgotten that and the claimants and those representing them seemed to have forgotten that and these things were effectively going through on a rubber stamping exercise.”

Where next? Phillips flagged up Mr Justice Eady’s comments in a speech in November 2009  in which he foresaw the possible development of a general tort of reputation, where the public interest becomes the overall guiding principle and the fact that something is true does not necessarily amount to a defence [PDF link]. “Alarm bells [are] ringing for all of us,” she added.

Looking to Europe, Max Mosley still awaits the judgment on his application for prior notification. A second Von Hannover case is currently going through the European Court of Human Rights, which raises a number of issues about privacy and the relationship with defamation.

The super injunction committee, formed by the Master of the Rolls, and made up of claimant solicitors and in-house media defendants, as well as members of the judiciary and counsel, is in the process of preparing a Report, Guidance and a draft pro-forma order. The body is still meeting, but is hopeful of producing a final report before Easter.

In the meantime there are three “‘super injunction type” cases due before the court of appeal in the next few months, WER, KGM and WXY, which might provide “a bit more light coming out of the tunnel”.

Why did the Financial Times refuse Amnesty's Shell ad?

Discouraging news from Amnesty.

The Human Rights group had planned a major campaign focused on oil giant Shell’s annual general meeting at London’s Barbican Centre today (18 May). A key part of this campaign was to be a full page advert in the Financial Times, portraying a champagne flute filled with oil.

amnesty shell ad

But just as the working day came to a close yesterday, Amnesty staff received notice from the Financial Times that the ‘pink un would not be carrying the advert after all.

According to Index’s sources, the newspaper variously claimed that it was wary of libel claims and that the ad might be in poor taste, as some readers might mistake the oil in the glass for blood.

Taste issues aside, would it be legitimate for the FT to worry about libel? While Amnesty insists it “gave [the FT] written reassurances that we would take full responsibility for the comments and opinions stated in the advertisement”, the fact is that if the FT had published the ad, it could, potentially be liable in any proceedings.

But it’s extremely unlikely that Shell would sue. The company is quite keen on promoting its social credentials, and even a successful trip to court would more than likely involve an unpleasant trawl through the unfortunate effects of the oil industry.

Was it a commercial decision? Again, who knows? Big oil companies tend not to be so thin-skinned that they would pull money from a prestige publication such as the FT merely because it had carried a critical advert. Trafigura may have trampled all over free expression, but the issue there was company documents and detailed reports, not a generally critical ad.

It is genuinely quite hard to think of a good reason for the FT to pull this ad.

Libel: BBC concedes to Trafigura

royal courts
Index on Censorship and English PEN today have expressed dismay that the BBC has conceded the libel action brought by toxic waste shippers Trafigura in the High Court. We believe this is a case of such high public interest that it was incumbent upon a public sector broadcaster like the BBC to have held their ground in order to test in a Court of law the truth of the BBC’s report or determine whether a vindication of Trafigura was deserved.

Trafigura: Newsnight to apologise

BBC Press statement

The BBC has played a leading role in bringing to the public’s attention the actions of Trafigura in the illegal dumping of 500 tons of hazardous waste in Abidjan in 2006. The dumping caused a public health emergency with tens of thousands of people seeking treatment.

Last month, Trafigura agreed to pay victims of the waste around £30 million in compensation, having previously paid compensation of over £100 million to the Ivory Coast government.Trafigura brought libel proceedings against the BBC over one aspect of its reporting: claims that the waste had caused deaths, miscarriages and serious long term health effects. An official Ivory Coast Government report into the incident had stated that people had died because of the waste and a recent United Nations report also found that there was strong prima facie evidence linking the waste to a number of deaths.

Last month Trafigura agreed to pay victims of the waste around £30 million in compensation for sickness suffered. However, the experts in that case were not able to establish a link between the waste and serious long term consequences including deaths. In light of this, the BBC acknowledges that the evidence does not establish that Trafigura’s slops caused deaths, miscarriages or serious or long term injuries. Accordingly, the BBC has withdrawn those allegations and has agreed to broadcast an appropriate apology on Newsnight. The BBC will pay £25,000 to a charity of Trafigura’s choice.