Tuesday, October 13, 2009

Trafigura throttles the Guardian but not the guardians of the Internet

The London based oil trader Trafigura bills itself as “one of the largest independent companies trading commodities today”. Whether it will still be as large in the coming months is open to question as its scurrilous attempts to do damage control by throttling the truth are coming completely unstuck. While Trafigura has admitted to a multimillion-pound payout to settle a huge African pollution damages claim, it is trying and failing to stop the world from finding out about its grubby activities. (photo of Houses of Parliament by Derek Barry)

In an extraordinary legal event, British broadsheet the Guardian was hit overnight with an injunction that prevents it from reporting on parliament – a right that has been guaranteed in British law since 1688 (*** see legal note below). But the Internet was not around in 1688 and the newly defined wider “media” is busy making an ass of the injunction.

The Guardian injunction
sounds like it emerged from the pages of a Franz Kafka novel. The article was related to published Commons order papers containing a question to be answered by a minister later this week. But the injunction prevents the Guardian from “identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found.” 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.” All the Guardian could say was that the case involves London solicitors Carter-Ruck, who specialise in suing the media on behalf of global corporations.

But while Carter-Ruck could shut down the Guardian they could not shut down the Internet. The Twitterverse went wild on speculation about the case, bringing it to a much larger audience than would otherwise have heard of the case in a wonderful example of the Streisand Effect. Meanwhile a simple Google search of “Carter Ruck Trafigura” took me to blogger Richard Wilson’s site. Wilson simply ignored the edict and linked to the parliamentary question.

The question is from Newcastle-under-Lyme Labour MP Paul Farrelly who wanted 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.”

According to Wikileaks the Minton report was a confidential report ordered by Trafigura into its toxic dumping practices in the Ivory Coast. A week after it was published, the Independent wrote an article “Toxic shame: Thousands injured in African city”. Mysteriously that article about Trafigura’s dumping of sludge in Abidjan has been pulled from the Independent’s website but the cached version is still available here.

Trafigura’s chemical operation used a cheap and dirty process called "caustic washing" that is outlawed in many countries. The company had claimed that the toxic waste they dumped in Abidjan was “routine and harmless”. But the Minton report showed the true nature of the problem. Thousands of Ivorians flocked to local hospitals in 2006 after coming in contact with hundreds of tons of highly toxic oil waste. At least 12 people died with fatal levels of the poisonous gas hydrogen sulphide, one of the waste's by-products. 31,000 others were injured. Many of these people are now involved in one of the world’s largest class actions.

What the whole shemozzle shows is that it is much harder to hide the truth with sharing tools like Twitter, Wikileaks, Google search, and Google Cache around. The quick and dirty actions of Trafigura and Carter-Ruck are reprehensible but probably par for the course in big business. But now they are facing the just deserts of their faulty cost-benefit analysis. The short term gain of their lies has been wiped away as the shabbiness of their actions is exposed. The lesson they are learning quickly is that the worst thing you can do is stop people from talking about you - It has exactly the opposite effect.

***Legal note: The Guardian’s breached right has been identified as “absolute privilege” which I believe is not entirely correct. I’m not a trained lawyer so my understanding may be wrong. However, according to my copy of The Journalist’s Guide to Media Law (Australian but based on British precedents) “absolute privilege” is reserved for what is said inside parliament (and the courts) and what is reported in tabled documents there. But journalists can never claim absolute privilege against defamation unless they are giving evidence or it is their document. The defence that journalists are entitled to is called “fair report” which allows them to provide “balanced and accurate” coverage of parliamentary proceedings.

==UPDATE== A victory for the Internet. The injunction has been withdrawn barely two hours after I wrote about it.

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