An Unlikely Couple

October 12, 2009 3:42 PM

In 1771, John Wilkes succeeded in defending the freedom of the press to report the then secret debates of Parliament. In 2009, the well-known libel law firm Carter-Ruck, possibly acting on behalf of their clients Trafigura, succeeded in gagging The Guardian newspaper from reporting a question to be asked in Parliament (see #61).

The possible identification of the question - and thus the company - was "tentatively" made by Guido Fawkes shortly after the existence of the gagging order was made public. However, it is not surprising given Trafigura's history of vigorously defending against claims that it knowingly dumped toxic waste in Ivory Coast.

posted by Sova (53 comments total)

My hat is off to you Sir. (See #85777.) Although I should add that questions #62 and #63 are also relevant.
posted by WPW at 4:20 PM on October 12, 2009

Of course, the question's now all over the Internets, including I see The Spectator who you wouldn't have down as the first to leap to the Guardian's defence. Bit of a Carter-Fuck-up.
posted by Abiezer at 4:23 PM on October 12, 2009

Ah, were #62 and #63 relevant? I'm sorry for missing them out. I started writing the post after I read it Guido Fawkes' blog, and he only mentions #61. Of course, he also posted seven later than Tory Politico, who maybe should be given the accolade of having identifying the question. Tonight has been rather exciting, especially as we find out that gags only last, ooooh, about 90 minutes in the internet age.
posted by Sova at 4:26 PM on October 12, 2009

Just to salvage another link from my doomed FPP, here's some background on the other company named alongside Trafigura: Barclay's.
posted by WPW at 4:33 PM on October 12, 2009

Why did Trafigura knowingly dump toxic waste in the Ivory Coast?
posted by mullingitover at 4:37 PM on October 12, 2009 [3 favorites]

I remember when one UK paper (possibly the Guardian, but it might have been the Independent) had an injunction against naming names in a story about Paddy Ashdown (then leader of the Lib Dems) having an extra-marital affair. They ran the story about "a senior member of a political party" on the front page. Right next to it they ran a huge photo of Paddy Ashdown. The photo was titled something banal like "Paddy Ashdown addresses the Lib Dems" with no corresponding story. Subtle.

Ashdown's lawyers forgot to get interim interdicts from a Scottish Court to match their injunctions from the English court, so the Scotsman and the Herald just ran with the stories anyway. Though their versions of the story were about the attempt to stifle the original story rather than being about the affairs.

The moral of that story? Nobody really cares about extra-marital affairs, but they do care about free speech. This has now gone from a question that could have slipped by mostly unnoticed to one that every media outlet in the UK is waiting for with bated breath.

Great work, famous libel lawyers.
posted by GeckoDundee at 4:40 PM on October 12, 2009 [2 favorites]

Sova, 62 and 63 are being asked by the same MP and, my recollection of Westminster protocol is rusty so this might not be quite right, they usually get to ask up to three questions on the same topic. (I can't remember how written questions differ from questions without notice, maybe they get to ask one written and then up to two follow up questions without notice).

Anyway, look at the other questions and you'll see that the ones asked by the same MPs are on the same topic.

In this case, 62 is asking if the Minister will release stats on how many secret gagging orders are issued. 63 is about how the courts system selects which judge gets to decide on last minute gagging orders.
posted by GeckoDundee at 4:46 PM on October 12, 2009

The Spectator has now picked up the story.
posted by WPW at 4:49 PM on October 12, 2009

Streisand effect

I'm convinced that the only reason America seems to have more corruption and scandal than Britain is that America has greater transparency, so it is more visible. Secrecy is the natural state of the British system from the Queen downwards. These waste-dumping fucks and their political and judicial allies are going to get a come-uppance they could so easily have avoided if they had accepted some negative press of niche interest, instead of forcing it onto the front pages.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 4:56 PM on October 12, 2009 [1 favorite]

Would the question and answer not be recorded in the Hansard?
posted by Jimbob at 4:56 PM on October 12, 2009

Strike two, WPW (Abiezer already linked to the Spectator above). Not your day, really.

To answer your question from the other thread, I believe once something has been said in Parliament under privilege, it can be reported on. If the person making the claim repeats it outside Parliament, that's another matter.

This case is interesting because what is being hushed up is something that hasn't been said yet. I wonder what the Guardian's story was going to be? Surely it wasn't just that the question was going to be asked?
posted by GeckoDundee at 4:58 PM on October 12, 2009

JimBob, the question is indeed a matter of public record, and is believed to be #61 on the order paper Sova links to above. Here's a direct link with highlighting. The answer will be delivered later this week, and will also be a matter of public record.
posted by WPW at 5:01 PM on October 12, 2009

Would the question and answer not be recorded in the Hansard?

Yes. The question(s) still appeared in the question book, and I assume the answer would have been recorded in Hansard. But that only shows how stupid the whole affair is. Anybody could find about the questions from the official record, it was only a matter of looking.

GeckoDundee's question is thus pertinent: were the Guardian going to add something more to the story?
posted by Sova at 5:02 PM on October 12, 2009

Not your day, really.

Tell me about it. It's late and I'm tired, so I'm going to bed.
posted by WPW at 5:03 PM on October 12, 2009 [1 favorite]

Trafigura would probably have knowingly dumped toxic waste for the same reason as the Mafia: it's profitable.
posted by anthill at 5:04 PM on October 12, 2009 [1 favorite]

I'm curious how BBC Parliament is going to deal with this question when it is asked. Will they bleep out the appropriate words? Comedy sound effects? Will they just cut to ambient noise with images of the Big Brother garden?
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 5:07 PM on October 12, 2009

BBC Parliament will show the question being asked as normal. Hansard will, as Jimbob points out, print it as normal. We'll even get to hear, see, and read the answer to the question. The only real difference is that a lot of people will be interested in the answer who wouldn't have otherwise. This is what makes it interesting.
posted by GeckoDundee at 5:13 PM on October 12, 2009 [1 favorite]

Why won't Trafigura address the rumours that they knowingly dumped toxic waste in Ivory Coast?
posted by qvantamon at 5:15 PM on October 12, 2009 [1 favorite]

Why did Trafigura knowingly dump toxic waste in the Ivory Coast?
Internal documents give blow-by-blow account of how oil trading firm dumped toxic waste off west Africa - from the links mullingitover. The PDFs spell it out pretty plainly. The correspondence contain this exchange after a report was prepared by David Foster on La Skhirra:

Naeem Ahmed
"I would prefer to leave this out:-
Due to the manufacturing process of the unleaded gasoline blendstock, a proportion of Di-enes are present. These chemicals are known for causing stability problems in oil products, and are likely the cause of the noxious odours being produced in the sump tank".
David Foster
Have removed the offending paragraph and will try to blag* the Olefin side of the issue".

*my link.
This is a damning and shameful state of affairs.
posted by tellurian at 5:15 PM on October 12, 2009

I'm curious how BBC Parliament is going to deal with this question when it is asked. Will they bleep out the appropriate words? Comedy sound effects? Will they just cut to ambient noise with images of the Big Brother garden?

It will probably look a little something like this.
posted by Sova at 5:15 PM on October 12, 2009

Or this
posted by qvantamon at 5:18 PM on October 12, 2009

So will October 12 come to be known as Guido Fawkes day, then? That'll cause a bit of confusion.
posted by Guy_Inamonkeysuit at 5:21 PM on October 12, 2009

Can someone explain what's going on in small words for the Americans in the audience?
posted by empath at 6:35 PM on October 12, 2009

Are Trafigura connected to the New Labour government in any way (i.e., does Cherie Blair sit on their board or something), or can anybody in Britain gag the press if it has the ability to embarrass them for the price of the lawyer's fee? I.e., are we looking at rank corruption or a massive DoS vulnerability in the Westminster system?
posted by acb at 6:36 PM on October 12, 2009

It is much harder to suppress information with the internets and easy access to sites out of country.
posted by caddis at 6:51 PM on October 12, 2009

OTOH, not like you read news stories about the successful suppression of info.
posted by smackfu at 7:33 PM on October 12, 2009 [2 favorites]

Can someone explain what's going on in small words for the Americans in the audience?

The Guardian newspaper was going to run a story, but a law firm has been able to get a court order preventing them from doing so.

This sort of thing happens in the UK all the time, as there are strict libel laws preventing defamation even, in some cases, where the allegations are true and (I believe, but I'm no expert) in the public interest.

The (largely, but not completely, unwritten) constitution of the UK doesn't guarantee free speech in the clear cut way in which the First Amendment does. It does however create one important "Free Speech Zone", namely Parliament. Any elected member can say anything in the course of parliamentary debate and it is protected speech. The media can then publish what is said and it remains protected.

Under the terms of this court order however, the Guardian is prohibited from publishing a story which identifies something which an MP (a bit like a member of Congress) is going to ask sometime this week.

Furthermore, the newspaper is not allowed to say anything about what it is they have been gagged about.

Why the fuss?
This isn't actually censoring Parliament. As Jimbob and Sova have pointed out, this will be a matter of public record some time this week anyway. But it is censoring something which will later become part of the Parliamentary record. This means it comes very close to censoring Parliament.

When your rights to free speech are as crappy as they are in the UK (and by extension other states with a common parliamentary history) you need to protect them.

When the law is poking around at the boundaries of free speech, you want any pushing of the envelope to be outward and not inward. At least, if you're a citizen / subject. If you're a corporation you probably want to get your lawyers to crush whatever rights there are.

Is it a real concern? I'd guess (and I can only guess, because we will no doubt never know the details of the grounds for the court order, and that's part of the whole story) that this order was granted not / not just on the basis of libel / defamation, but on the grounds that it would be prejudicial. That's assuming that the story would have been about the corporation everyone seems to think it is about. They are having a court hearing "in October". So maybe it isn't quite as bad as it sounds, but it sounds pretty bad.

The bizarre meta nature of this?
It seems the question that the Guardian can't tell us about relates to what the government is going to do about press freedom in light of some recent corporate activity that the press can't tell us about.

Well, that's probably way too long and tinged with editorial, but I hope it helps a little.
posted by GeckoDundee at 7:56 PM on October 12, 2009 [13 favorites]

The question from MP Paul Farrelly, due to be answered in writing on Wednesday, with some links added that will hopefully be helpful:

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 [see info starting on p.6] on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.

It seems that Greenpeace in the Netherlands has a copy of this report, which they filed with the Dutch court in the Hague. Anybody know how to get a copy?
posted by Dasein at 9:35 PM on October 12, 2009 [4 favorites]

http://www.TrafiguraKnowinglyDumpedToxicWasteInCoteDIvoireIn1990.com
posted by ...possums at 10:51 PM on October 12, 2009 [2 favorites]

Wow... Reading back through recent Trafigura articles on the Guardian takes you right down the rabbit hole; what an ugly story.

Here's an article that speaks about the cover-up attempts that (I assume) spurred the question, and thus the gagging of the question, and thus all this nice new publicity for these monsters.

Also here.

Here is the article that links to a PDF of the internal emails from Trafigura.

Who are the Trafigura players?

Much, much more from the Guardian. What a great job this newspaper has done dogging this story; it reminds me of back when newspapers were relevant and journalism was serious.
posted by taz at 11:00 PM on October 12, 2009 [3 favorites]

These waste-dumping fucks and their political and judicial allies are going to get a come-uppance they could so easily have avoided if they had accepted some negative press of niche interest, instead of forcing it onto the front pages.


The weird thing is that this has already been on the front pages (literally). It was all over the Independent for a couple of days last month - covering the class action and Traffiga's settlement with the claimants (they claimed that a subcontractor had dumped the waste without their knowledge). The Guardian covered it too, as we've seen from the links above. With any luck now there will be even greater coverage.

I agree that the UK could definitely learn something from the US on the libel/free speech issue. [Though I'm not sure the "political allies" comes into play; as far as I can tell, we're talking about a judicial injunction that shouldn't have anything to do with Parliament]
posted by Infinite Jest at 11:19 PM on October 12, 2009

And... The Twitterverse Tweets Trafigura. Every single post currently showing up on my twitter home page is Trafigura/Guardian. Heh. Good Gagging Work, Guys!
posted by taz at 11:30 PM on October 12, 2009

Thanks for the explanation, GeckoDundee.
posted by annsunny at 11:32 PM on October 12, 2009

Hang on.

The question hasn't been asked yet.

When it has, the Guardian will be able to report on it, just like normal. Until it has been asked it can't be reported on.

This is the same way it's always been, right? Order papers are all very well, but they're written (do correct me) by a House of Commons clerk/the party whips. It's not up to them to use Parliamentary convention to make a statement that would otherwise be subject to libel law. It's up to an actual Member of Parliament standing up in the chamber. And no member of Parliament has done this yet.

When one does, it can be reported freely.

This seems to me to be all about the news cycle and the media not seeing why silly old Parliament should get in the way of its story TODAY RIGHT NOW HERE not, um, Thursday.
posted by alasdair at 11:48 PM on October 12, 2009

This is the same way it's always been, right? Order papers are all very well, but they're written (do correct me) by a House of Commons clerk/the party whips. It's not up to them to use Parliamentary convention to make a statement that would otherwise be subject to libel law.

The order papers are an official publication of Parliament. As such they have absolute privilege under the Parliamentary Papers Act 1840, which grants immunity from prosecution to any 'report, paper, votes or proceedings' published by order of Parliament. The position was reaffirmed by the Joint Committee on Parliamentary Privilege in 1999.

The legal position seems so clear that I can't see how the gagging order can possibly prevent the Guardian from reporting the details of the PQ. Either the Guardian is grandstanding on this, or else there's more going on that we don't yet know about.
posted by verstegan at 12:34 AM on October 13, 2009 [1 favorite]

To me it appears that the people behind this gag order aren't so much Trafigura (who are aware that their reputation is anyway as toxic as the stuff they dumped all over Abidjan, and, being obscenely wealthy, care about as much), but Barclays, who are accused of having helped Trafigura evade huge quantities of taxes.

Since the current public mood is about as friendly to bankers as it is to child rapists, it is quite understandable that Barclays are a bit anxious that taxpayers learn that the same banks they're been asked to bail out with their tax money are helping insanely rich, amoral corporations like Trafigura to avoid paying any taxes.

Call me a jaded cynic, but I'm personally not very surprised about that.
posted by Skeptic at 12:36 AM on October 13, 2009

I too have a doomed fpp about this but I will try and add some background.

Trafigura ( worlds 3rd largest independent oil trader)
agreed to a payout. But the settlement will mean that claims of more serious injuries caused by the waste – including miscarriages, still births and birth defects – will now not be tested in the £100m court claim.
Here is what happenned: - Odyssey of the Probo Koala - The story as reported in 2007
Profits for Europe, Industrial Slop for Africa
Part II: The Ivorian Chernobyl

Hats off to David Leigh at the Guardian and his collaboraters.
posted by adamvasco at 12:54 AM on October 13, 2009 [1 favorite]

caddis - It is much harder to suppress information with the internets and easy access to sites out of country.

smackfu - OTOH, not like you read news stories about the successful suppression of info.

The editorial in a recent issue of Private Eye (Specifically, No 1246 2nd October) was on this subject and, in retrospect, I'm pretty sure they were actually talking about this specific case. They don't have an online archive, so I'll reproduce some of it here:

***************************
Last month, a certain institution obtained a high court injunction to prevent a certain newspaper from publishing a certain document. More on this we cannot say: to do so is fraught with danger. ... If a lawyer gets a whiff that one of their clients is about to be embarrassed, late in the evening they contact a duty judge - often one who has no experience of libel of media law. ... The newspaper may not ... have a chance to argue its case.
...
The new breed of super-injunction is far more oppressive than the international court order under which a newspaper of TV channel is prevented from publishing a particular allegation. It usually includes an order that "the publication of all information relating to these proceedings or of information describing them or the intended claim is expressly prohibited". Nobody can report that the order has been granted, or who applied for it. Even the identities of the judge and he newspaper remain secret, and anyone who hints at them "may be held to be in contempt of court and may be imprisoned, fined or have their assets seized".
...
The Guardian's legal correspondent noted that "it is impossible to say how many of these cases there are" since no-one can report or discuss them - though the Eye learns that one MP hopes to break through the conspiracy of silence under parliamentary privilege ... later this month. ... But it's clear that they are breeding and sprouting like giant bogweed: "The Guardian, for instance, has been served with at least 12 notices of injunctions that could not be reported so far this year..."
...
Eye readers will need no reminding of the super-injunction obtained by Messrs Carter-Fuck [NB: Private Eye's slang name for a large firm of solicitors], on behalf of former Law Society president Micheal Napier, to stop us reporting that he'd been officially censured for breaching conflict of interest rules.
...
**********************************

The editorial has more discussion of the pros and cons of these types of order. They can have a proper use: otherwise people who successfully prevented papers from publishing lies about them could instead be publicly accused of gagging the press. But a system which can be used to suppress stories and to suppress any record of that suppression seems wide open to abuse, and a potential flaw in a supposedly open society.
posted by metaBugs at 2:56 AM on October 13, 2009 [4 favorites]

Wow, thanks everybody for adding so much more to this post. To me, it feels that this might be important in showing just how illiberal our libel laws are, and helping to spur their reform.
posted by Sova at 3:20 AM on October 13, 2009

While the libel aspect is really important, it's sad that the fact people died didn't get any coverage outside BBC Newsnight, the Independent, the Guardian and Private Eye.

I'd never heard of Trafigura before today. You might say I wasn't paying attention, but this scandal is far from in the public consiousness while nonsense like the expenses scandal refuses to die. I think that's terrible.
posted by Summer at 3:31 AM on October 13, 2009 [1 favorite]

Oooh, the Telegraph is being cute about this.
posted by Skeptic at 3:50 AM on October 13, 2009 [1 favorite]

Heh.
posted by taz at 4:06 AM on October 13, 2009

Also relevant: an article by the editor of the Guardian, Alan Rusbridger, published in the NYRB earlier this year, A Chill on 'The Guardian', showing how difficult it is for newspapers to investigate the tax affairs of large companies without falling foul of the British libel laws. This passage is particularly revealing of the way that law firms like Carter-Ruck do business:

A full-scale defamation case develops an awesome momentum of its own. Letters rain in day after day, week after week -- drafted by counsel, amended by junior partners, redrafted by senior partners, few of them earning less than $500 an hour. Their tone is alternately sneering, bullying, threatening and demanding. Within seven weeks of receiving the initial writ of libel, The Guardian's costs alone of responding to the bombardment of Carter-Ruck demands and drafting a defence had mounted to more than $500,000. Within nine weeks Carter-Ruck submitted an estimate of their own costs to date of $808,607. The firm's lead partner claimed $78,200 for the 93 hours and six minutes he had toiled over the case (at $850 per hour). Another partner had clocked up $67,269 for 131 hours and 54 minutes (at $510 per hour), much of which appears to have been spent composing needling letters .. The total cost for both sides of fighting the action to the bitter end could have been in the region of $7.6 million.

And the result, as Rusbridger points out, is that most British newspapers don't even try to follow these stories up. 'The complexity of the strategies [for tax avoidance], combined with the threat of a multimillion-pound legal bill in the event of getting it wrong, meant that no editor in his right mind would go near such a story.'

This is why we need newspapers with the resources, the expertise and the editorial courage to carry out serious investigative journalism. Remember that, next time you see self-satisfied, 'good riddance!' comments on the Internet celebrating the decline of old-fashioned print media.
posted by verstegan at 4:40 AM on October 13, 2009 [11 favorites]

Maybe it should be mentioned that Trafigura's mentor was Marc Rich indicted tax evader (only $48,000,000) (It's a lovely can of worms)
posted by adamvasco at 4:42 AM on October 13, 2009

The gag order has now been lifted and the Guardian has confirmed everything.
posted by WPW at 5:03 AM on October 13, 2009 [2 favorites]

Someone has added this to the Wikipedia article about the "Streisand Effect".
posted by Chocolate Pickle at 9:58 AM on October 13, 2009

Blocked from here in China and can't be bothered to fire up the VPN, but apparently the Minton report has appeared on Wikileaks, as have the Barclays memos.
posted by Abiezer at 11:58 AM on October 13, 2009

The Carter-Ruck school of viral marketing... "Marketing experts were stunned today at the success of media law firm Carter-Ruck's high profile 'gagging order' campaign, designed to generate buzz around their client Trafigura's latest toxic waste product."
posted by handee at 12:59 PM on October 13, 2009

That's all right. When newspapers go broke and are replaced by the brave new world of citizen bloggers working for free, surely they will be better placed to do this sort of investigation. Hurrah for the end of newspapers!
posted by rodgerd at 6:39 PM on October 13, 2009

Thanks, verstegan, I stand corrected.
posted by alasdair at 6:42 AM on October 14, 2009

This was linked via wikileak just a few comments up by Abiezer, but for the sake of redundancy, here's a link from the Greenpeace Netherlands website to the Minton Report for Trafigura.
posted by Dasein at 7:40 AM on October 15, 2009

Guardian still under secret toxic waste gag.
Under pressure from legal costs, UK papers have silently removed some of the original September 17 dumping investigations. For example, the Independent's "Toxic Shame: Thousands injured in African city" no-longer "exists" except at WikiLeaks
posted by adamvasco at 2:55 AM on October 19, 2009

A story in Norway also targeted by Trafigura lawyers. But there press freedom is more robust. In 2007 there was an explosion at Vest Tank, since which a number of people in the adjacent village of Sløvåg fell ill.
posted by adamvasco at 12:48 AM on October 27, 2009