Posts Tagged ‘carter ruck’
UK’s dysfunctional libel system strikes again? Newsnight feature on Trafigura disappears from BBC website
UPDATE – The censored Newsnight feature on Trafigura may have disappeared from the BBC website, but it’s now all over Youtube…
The BBC lawyers may have caved, but you can still defy Trafigura – click here to find out how!
In May, the BBC ran a feature on the oil company Trafigura, alleging “dirty tricks” over the dumping of toxic waste in the ivory coast. Shortly afterwards, Trafigura announced that they were sueing the BBC for libel.
The case has received very little media attention – a sign, perhaps, of the ongoing chill that Trafigura is managing to cast over the UK media – but it was mentioned again in this Guardian piece last month.
Until very recently, the Newsnight feature was freely available on the BBC’s website – but now it seems to have disappeared. It’s currently still available via Google cache, which indicates that it was on the site as late as lunchtime yesterday. Could of course just be a technical problem but it does look somewhat odd…
UPDATE 11/12/09 – The story has now been missing from the website for more than 24 hours – it’s starting to look more and more likely that the piece has been spiked, and that the BBC – that most British of institutions – may now have become the latest victim of our country’s “rogue state” libel laws. In an ironic twist, it seems that the BBC’s lawyers chose international Human Rights Day as the moment to cave in to this attack on freedom of expression.
Democracy under attack – Carter-Ruck persuades Commons Speaker that courts *can* ban the reporting of Parliament
Can anyone Stop the Ruck?
Carter Ruck’s attempt, on behalf of Trafigura, to ban the media from reporting a question in the British Parliament, had triggered calls for the company’s Directors to be dragged to the bar of the House of Commons and formally reprimanded. Justice Minister Bridget Prentice had reiterated that the 1688/9 Bill of Rights gave the media an absolute privelege to cover the proceedings of Parliament, and that this was essential for the effective functioning of our democracy.
In seeking to explain his firm’s behaviour to the Joint Parliamentary Committee on Human Rights, Stephenson certainly appeared defensive, but he didn’t seem in the least bit sorry. He did, though, seem keen to reassure us that the injunction secured by his company on Trafigura’s behalf had been intended merely as an interim holding measure, and that the original purpose had never been to gag the reporting of Parliament.
So it seems very surprising to read in today’s Sunday Times that Stephenson appears to have gone out of his way to persuade the Commons authorities that the law does, after all, allow for the gagging of Parliamentary procedure:
In a submission to a Commons select committee, Carter-Ruck, a law firm that specialises in libel, argues that newspapers and publishers would be in contempt of court if they published parliamentary questions, answers or debates that fell under super-injunctions.
Advisers to John Bercow, the Speaker, are understood to have informed the culture, media and sport committee that Carter-Ruck’s position is correct. MPs regard the position as a serious threat to free speech and the proper functioning of democracy.
Super-injunctions — under which even reporting the existence of the injunction is banned — are increasingly being used to stop the media publishing information. MPs are now concerned that they threaten the media’s right to report what MPs can freely say in parliament, a privilege affirmed in the Parliamentary Papers Act of 1840…
At the time of the disagreement, Bridget Prentice, the justice minister, said Carter-Ruck was wrong to claim super-injunctions applied to the reporting of parliamentary proceedings.
However, in a submission to the culture committee published last week, Andrew Stephenson, a senior partner at the firm, said the minister was under a “misapprehension”.
He said that while MPs were guaranteed the right to free speech under the 1688 Bill of Rights within the House of Commons, the reporting of parliament remained subject to court orders.
The Speaker’s counsel declined to comment, but is understood to agree with Stephenson’s assessment.
Thus it appears, after all, that Parliamentary democracy is still under attack, and that Carter-Ruck may be making headway in their attempt to overturn a centuries-old democratic freedom.
What I think this demonstrates, again, is that Carter-Ruck is not just an ordinary law firm, doing what ordinary law firms do. They are actively engaged in lobbying the government to curtail our liberties in the interests of their clients. They are behaving, in other words, like a right-wing activist group.
Presumably if the goverment takes this issue seriously enough, they will table emergency legislation which makes the absolute right to report Parliament fully explicit. In the meantime, judges could ensure that any secret injuction they do grant includes a statement spelling out that the measure does not apply to the reporting of Parliament.
As I’ve argued elsewhere, there’s also a pretty clear-cut ethical case for (peaceful, legal) direct political action against Carter-Ruck. The idea that a lawyer – or indeed any other worker – should be exempted from the moral consequences of their professional choices is, in my view, a self-serving myth.
Lawyers who seek to apply an unjust law – be that the law that jailed Oscar Wilde or the laws being used today to suppress freedom of speech – don’t evade moral accountability simply by hiding behind the fact that what they’re doing is ‘legal’. I can’t help but wonder if we might have avoided some of the trouble we’re now in if more had been done to challenge unethical companies like Carter-Ruck at an earlier stage.
But lastly, there has to be a question here about practicality. However much Carter Ruck and their corporate clients might like to suppress free speech through the use of one secret injunction after another, the recent Twitter-storm around Trafigura has shown that this can sometimes be impossible in practice.
If Carter-Ruck are right and Bridget Prentice is wrong, then it seems that I may, after all, have been in contempt of court when I posted the ‘banned’ Parliamentary Question on Twitter back in October. Would I be willing to do so again? I wouldn’t rule it out. And it strikes me that now would be a good time to get a head-count of bloggers and Tweeters prepared to consider engaging in peaceful civil disobedience should Carter-Ruck – or anyone else – attempt to gag the reporting of Parliament again. You can leave a comment here or email me via richardcameronwilson AT yahoo DOT co DOT UK.
From The Guardian
Carter Ruck’s support today for some of the changes put forward in the report came amid continuing criticism of firms that launch expensive libel claims against journalists and other publishers, often using conditional fee agreements which result in higher costs for defendants.
“If we don’t get reforms, what is there to stop a law firm like Carter Ruck bombarding journalists and suppressing information that is in the public interest for three years?” said Meirion Jones, producer at BBC’s Newsnight, which is currently being sued over its reporting of oil trading firm Trafigura.
“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we now know we don’t know. But there are also unknown unknowns. These are things we do not know we don’t know.”- Donald Rumsfeld, 12 Feb 2002
On Tuesday I joined a meeting of the UK Parliament’s Joint Committee on Human Rights which focussed on “super-injunctions”. This is the name given to a legal order which not only bans a particular issue from being covered in the press, but also bans any reference to the ban.
It was one of these orders that had, notoriously, been used by controversial law-firm Carter Ruck, on behalf of oil-trader Trafigura, to suppress coverage of the now-famous “Minton report”, until the ban was circumvented by the online media. It was this that stirred the interest of the JCHR.
The meeting included journalists, editors, MPs, Lords and lawyers, including both the Guardian’s legal chief and two senior partners from Carter Ruck. The discussion was so wide-ranging that it would take more than one blog post to do it justice, but there were a couple of details that really stood out.
The first is that no-one knows how many secret super-injunctions are currently in force. While the UK state seems bent on meticulously recording every detail of its citizens’ phone, email and web-browsing habits, it is positively lackadaisical about tracking its own media gagging orders. Although each individual super-injunction is (we have to hope) being kept on file somewhere by the judiciary, no-one, anywhere, is collating information about the overall picture.
When asked about this issue in Parliament, the government’s response was simply that:
“The information requested is not available. The High Court collects figures on applications, however injunctions are not separately identifiable, and there are currently no plans to amend databases to do so.”
So there’s no way of knowing, on a global scale, how many of these gagging orders are being handed out, or for what sorts of purposes, or on whose behalf. It’s thus difficult to see how anyone could independently verify that the law is actually being applied fairly and proportionately. What we effectively have is a secret state whose bans on media coverage are almost entirely beyond public scrutiny.
Individual newspapers will obviously know how many injunctions they’ve each received (the Guardian has reportedly had 12 this year alone), but as they’re forbidden from discussing the details, it will be impossible for newspaper editors to build up a global picture by talking to each other.
This lack of scrutiny seemed to be a real concern for members of the Committee, and there was much discussion about how they could determine the size of the problem and address it. One point I tried to make was that there is at least one group of people who could in theory tell us quite a lot about the number of super-injunctions being issued – the law firms like Carter Ruck who are involved in securing them.
At the moment we seem to have a situation where the only people who have any idea of about the numbers, are the same people who are profiting so handsomely from the UK libel/censorship system.
The second thing that stood out for me in the meeting was a discussion around “libel tourism”. It seems that our taxes may be helping to subsidise the activities of Carter Ruck, Shillings and their ilk, in this area. But more on that next time…
Culture Media and Sports Committee: Further written evidence from Alan Rusbridger, the Guardian
…Along with others of the European media and the BBC, we have recently been subject to what we regard as a prolonged campaign of legal harassment by Carter-Ruck on behalf of London-based oil traders, Trafigura.
Trafigura arranged the illegal dumping of 500 tons of highly toxic oil waste in the West African country of Cote d’Ivoire. Thousands of the population of Abidjan, the capital, subsequently became ill and, after a bitterly fought law suit, Trafigura has now been forced to pay a degree of compensation to the victims.
Carter-Ruck, like such other firms as Schillings, are trying to carve out for themselves a slice of the lucrative market known as ‘reputation management’. This is not about the perfectly proper job of helping people or organisations gain legal redress when they have been mistreated by the press.
It is a pitch to work with PR firms to pressurize and intimidate journalists in advance on behalf of big business. It exploits the oppressive nature and the frightening expense of British libel laws…
After the toxic waste dumping in 2006, Trafigura embarked on what was essentially a cover story. They used Carter-Ruck and PR specialists Bell Pottinger, working in concert to enforce their version on the media.
The cover story was that Trafigura used a tanker for normal ‘floating storage’ of gasoline. They had then, they claimed, discharged the routine tank-washing ‘slops’, which were harmless, to a disposal company, and had no responsibility whatever for the subsequent disaster.
In fact, Trafigura had deliberately used a primitive chemical process to make cheap contaminated gasoline more saleable, and knew the resultant toxic waste was impossible to dispose of legally in Europe.
The Guardian experienced an intimidatory approach repeatedly in the Trafigura case. Other journalists at BBC Newsnight, the Norwegian state broadcaster NRK and the Dutch newspaper Volkskrant, told us of identical threats. The BBC eventually received a libel writ. NRK were the subject of a formal complaint – eventually rejected – to the Norwegian press ethics body.
A history of Carter-Ruck’s behaviour in respect of the Guardian is appended [APPENDIX 2]
On 27 June 2008, Bell Pottinger sent a threatening message to the Guardian. They had previously sent similar threats and complaints to AP, whose agency dispatch had been published on-line by the Guardian. The message ended:
“Please note that in view of the gravity of these matters and of the allegations which have been published, I am copying Trafigura’s solicitors, Carter-Ruck, into this email.”
The letter demanded changes to the Guardian’s website to include this information:
“The Probo Koala … left Amsterdam with the full knowledge and clear approval of the Dutch authorities.” It also stated that the disposal company in Amsterdam had asked for extra fees “without any credible justification” and that “ship’s slops are commonly produced within the oil industry. To label Trafigura’s slops as ‘toxic waste’ in no way accurately reflects their true composition.”
On 16 September 2008, Trafigura posted a statement on their website claiming:
“Trafigura is in no way responsible for the sickness suffered by people in Abidjan … The discharge of slops from cargo vessels is a routine procedure that is undertaken all over the world.”
The company knew this was a misleading and false statement.
On 22 September 2008, the Guardian’s East Africa correspondent, Xan Rice, asked Trafigura some questions, in view of the then impending trial of local Ivoirian waste contractors.
Trafigura refused to answer, a refusal coupled with another pointed referral to libel solicitors. Bell Pottinger wrote: “I am copying this email to Carter-Ruck”.
Xan Rice’s article was not published by the Guardian.
The Ivoirian trial convicted local individuals for toxic dumping, Trafigura subsequently abandoned some of their lines of defence in the English litigation they originally claimed they had no duty of care, and could not have foreseen what the local dumpers might do. Trafigura now agreed instead, to pay anyone who could prove the toxic waste had made them ill. They continued to deny publicly that such a thing was possible.
Xan Rice again asked some factual questions. On 14 November 2008, Bell Pottinger responded “Please note that I am copying this correspondence to Carter-Ruck and to the Guardian’s legal department”. They added: “Any suggestion, even implicit, that Trafigura … should have stood trial in Ivory Coast would be completely unfounded and libellous … We insist that you refer in detail to the contents of the attached summary”.
They claimed to be sueing for libel the senior partner of Leigh Day who was bringing the English lawsuit. They added that further Leigh Day statements “are the subject of a complaint in Malicious Falsehood”[sic]. In fact, the libel proceedings against Martyn Day had been stayed, and no malicious falsehood proceedings had been – or were ever – issued.
A closely-typed six-page statement was attached. In it the company claimed to have “independent expert evidence” of the non-toxicity of the waste, but refused to disclose it. Trafigura repeated the false claim that the waste was merely “a mixture of gasoline, water and caustic soda”.
No Guardian article, once again, was published.
On 3 December 2008, less than 3 weeks later, Trafigura formally admitted to the High Court the true composition of the waste in its document “Likely chemical composition of the slops”, [detailed above].
On 5 December 2008, Trafigura formally admitted their waste came from Merox-style chemical processing attempts, and not from routine tank-rinsing.
On 29 April 2009, Carter-Ruck wrote to a Dutch paper: “Trafigura has been obliged to engage my firm to bring complaints against Volkskrant … It is indeed the case that we have on Trafigura’s behalf, written to a number of other media outlets around the world in respect of their coverage of this matter”. Bell Pottinger also confirmed contact with journalists who published or broadcast stories that did not accurately reflect Trafigura’s position, but added: “We completely disagree with your description of Trafigura’s involvement in an ‘aggressive media campaign’.”
On 13 May 2009, Bell Pottinger, in concert with Carter-Ruck, issued a statement to the BBC repeating two assertions known to be false.
They said the Leigh Day statement “is currently the subject of a malicious falsehood complaint made by Trafigura”. They also claimed once more: “The Probo Koala’s slops were a mixture of gasoline, water and caustic soda”.
On 13 May 2009, Carter-Ruck wrote to the Guardian demanding the paper not “publish any reference” to witness-nobbling allegations, although they know these had already been the subject of a public statement by solicitor Martyn Day; the subject of a separate disclosure published by the legal correspondent of the Times; and the subject of a publicly-available court injunction banning further witness contact by Trafigura until trial. Carter-Ruck added that “so much as a reference to these allegations” would be “wholly improper”.
On 15 May 2009, Carter-Ruck issued a press release under its own letterhead, not Trafigura’s, claiming that High Court libel proceedings had been issued against the BBC for “wildly inaccurate and libellous”, “one-sided”, “misleading”, “sensationalist and inaccurate” publications.
On 22 May 2009, Carter Ruck told the Guardian: “It is untrue that the slops caused or could have caused the numerous deaths and serious injuries … Trafigura cannot be expected to tolerate unbalanced and inaccurate reporting of this nature. Accordingly, Trafigura requires the Guardian to … remove these articles from its website forthwith; and … publish a statement by Trafigura”.
The Guardian declined to remove its articles, but agreed to publish the statement. This said: “The fact is that according to independent analyses that Trafigura has seen of the chemical composition of the slops, it is simply not possible that this material could have led to the deaths and widespread injuries alleged. Similarly, it is not possible that hydrogen sulphide was released from the slops as alleged by the Guardian. Trafigtura will present these independent analyses in the High Court in Aututmn 2009.”
On 17 September 2009, the Guardian published documents on its front page detailing a “massive cover-up” by Trafigura.
On 29 September 2009, Trafigura announced it would pay £30m to the victims, rather than face a High Court trial.
I’ve long been a fan of Al Jazeera’s willingness to cover stories and angles that other news media won’t touch, and was pleased to have the chance to contribute to the programme above. I was even more pleased when I saw how it had turned out – definitely one of the best overviews of the story that I’ve yet seen.
UPDATE …on a free speech tangent, the techie guerilla campaign against the litigiousness of UK chiropractors continues with a sneaky pop at the General Chiropractic Council.
Evan Harris MP: My final question relates to the ongoing problems of English libel law in respect of Trafigura. My understanding is that “Newsnight” is being threatened by the lawyers for Trafigura, Carter-Ruck, if it repeats an allegation against Carter-Ruck that deaths were caused by the dumping of toxic waste in Ivory Coast, even though in 2007 Hansard reported the Transfrontier Shipment of Waste Regulations laid by the Department for Environment, Food and Rural Affairs before Parliament, and a memorandum of explanation to those regulations stated:
“The recent example of the release of toxic waste in the Ivory Coast leading to the deaths of a number of people and the hospitalisation of thousands underlines the risks involved in the movement and management of waste.”
How can it be that that can be in Hansard, yet there are still threats of legal action against “Newsnight” if it reports the very same wording that is used in there? That cannot be right. Although there are powerful interests at stake, there is a public interest in the fact that there was a settlement made—hundreds of millions of pounds paid over in that settlement—and yet the public in this country are not allowed to know some of the contents of those news reports. We have a responsible media by and large in respect of such matters, and it is about time that English libel laws and English laws in general caught up with that fact.