Posts Tagged ‘trafigura’
Slaying the super-injunction dragon and dismantling the secret courts
Today I was one of four bloggers giving evidence to the Parliamentary Select Committee on Privacy and injunctions. Also on the panel were David Allen Green (Jack of Kent / New Statesman), Paul Staines (Guido Fawkes) and Jamie East (Holy Moly).
Trafigura
My main focus in the discussion was the notorious Trafigura super-injunction which I helped to unravel back in 2009, by posting a “banned” Parliamentary Question on Twitter.
A super-injunction is a gagging order that both prohibits the publication of a specific piece of information, and forbids any mention of the gagging order’s existence.
Trafigura’s super-injunction banned any reference in the UK media to a leaked company memo known as the “Minton Report”. When, in October 2009, the MP Paul Farrelly raised the issue in Parliament, Trafigura’s controversial lawyers, Carter Ruck, tried to prevent the press from reporting Farrelly’s question.
This had come at the end of a year that also saw a draconian libel ruling against the science writer Simon Singh. The year before, Ben Goldacre and the Guardian had successfully defended a vexatious libel case by the AIDS-denialist quack Matthias Rath – yet the newspaper nonetheless lost hundreds of thousands of pounds in unrecovered costs. I myself had spent time fighting off an unfounded libel claim over Don’t Get Fooled Again, and had seen up close the chilling effect that such threats could have.
To me and many others who took action the same evening, Trafigura’s super-injunction felt like the last straw after a series of attacks on freedom of speech. The bid by Carter Ruck to ban the reporting of Parliament seemed like imperial over-reach by a “reputation management” company far too used to getting its way from pliant High Court judges. It seemed extraordinary that a judge sitting in an English court – on a handsome salary funded by ordinary taxpayers – might allow such an effort.
The situation also seemed absurd. The “banned” Parliamentary Question had been published by Parliament on its own website. The Minton report itself had been available on Wikileaks for over a month. Yet anyone who repeated the same information themselves could face prosecution for Contempt of Court.
Secret courts and freedom of speech
But the fundamental problem was the very idea of a secret court hearing to ban the free exchange of information. When a court case is heard in secret, the public has no way of checking whether the judgements made in their name are decent, honest, and fair. Because we don’t even know that the case is going on, we have no way of holding the court to account if – as is inevitable from time to time, given human nature – a judge makes a decision through corruption, cronyism or incompetence rather than through the fair application of the law. Public scrutiny is an essential safety valve in any democracy, and it seems extraordinary that our political class would seek to dispense with it so lightly. This is not a new idea.
Likewise, any constraint on freedom of expression risks being abused by those seeking to cover up evidence of corruption or incompetence, as we have seen time and again with UK libel law.
We might nonetheless accept this risk in certain narrow circumstances. We might agree that some categories of information should in principle, in all or most cases, be kept confidential. Some examples might be:
– Children’s medical records
– The name and address of a person under a witness protection programme
– Information likely to be prejudicial to a criminal trial
We might accept that the courts have a role in enforcing this. But even in these cases, court decisions have to be open and public if we are to minimise the risk of abuse. And for a government official to extend such restrictions to information which merely has the potential to embarrass a large and powerful corporation seems, frankly, reckless.
“How does undermining the rule of law aid the public interest?”
Two years after Trafigura it feels as if progress has been made. There seems to be a general acceptance (other than from Carter Ruck and Trafigura, obviously) that Carter Ruck’s attempt to gag the reporting of Parliament was misguided. There is also a recognition that the current system of privacy and “confidence” injunctions is in a mess, and needs reform.
But it looks as if there’s a way to go yet. Prior to today’s meeting, the panelists were sent a list of somewhat loaded questions, including:
“Most of you have blogged about injunctions; some of you appeared to know or think you were breaching injunctions whilst you were blogging. What were your motivations for doing this? What made you think you wouldn’t be prosecuted?”
“Do you think that you are able to judge the appropriateness of an injunction when you haven’t heard the full case (compared with a judge who has)?”
“What is your definition of the public interest? How does undermining the rule of law aid the public interest?”
In one form or another, all of these questions came up during the session. I clarified to the Committee that when I chose to publish the Trafigura question I was by no means sure that I wouldn’t be prosecuted. I took the risk because I felt so strongly about the issue, and believe that many of the others who did the same thing were making a similar calculation.
The second question may seem reasonable at first glance. But the implication seems to be that when a judge passes a free speech restriction that appears completely unjust, or absurd, we simply have to nod deferentially and trust that they must have had lots of good reasons that we just don’t know about. This again, seems like a prescription for corruption and incompetence.
The last question was particularly interesting. While the Committee wanted to challenge us on our understanding of the “public interest”, it seemed to me that their definition of the “rule of law” was just as much open to question.
The United Nations defines the rule of law as:
a principle of governance in which all persons, institutions and entities… are accountable to laws that are publicly promulgated, equally enforced… and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law… avoidance of arbitrariness and procedural and legal transparency.“
The International Bar Association, meanwhile, sees the rule of law as establishing “a transparent process accessible and equal to all”. The IBA spells out that “Confidence in the system of governance in any society cannot be maintained unless the process is open and transparent.”
On this basis, it would seem that High Court judges who pass secret edicts restricting freedom of expression – and the Parliamentarians who allow them to continue – are doing far more to undermine the rule of law than the bloggers who circumvent them.
Rich man’s justice
Lord Gold and Gisela Stewart MP seemed concerned – if somewhat bemused – by my suggestion that I would quickly go bankrupt if I was ever dragged into a libel court over something that I’d written. Surely this was incredibly unfair to any potential litigants who might end up losing money by taking me to court? His Lordship noted, disdainfully, that it wasn’t worth anyone’s while suing me, was it?
It was difficult to know what to make of this point, so I thought I’d expand on it here: A typical UK libel case can end up costing upwards of £100,000 to defend. This is a figure far beyond the means of most ordinary people, including most bloggers, and that is why, for most of us, being sued for libel would entail bankruptcy.
The main reason that such cases are so expensive in this country – reportedly around 140 times the European average – is that the “reputation management” firms that bring them are willing and able to charge more for an hour’s work than many of us earn in a week.
This is, in other words, a situation that the legal profession, aided by a Parliament unprepared, so far, to reign in the activities of such firms, has actively created. So it seems odd for Parliamentarians – many of whom, like David Gold, are also lawyers themselves – to wring their hands when confronted with the consequences.
I’ve no idea what the Committee will have made of our testimony. It is, at least, encouraging that these issues are starting to be debated properly. But it is nonetheless disturbing to see such a blithe acceptance among our elected officials of this fundamentally undemocratic system. It’s difficult to see how the current mess will be sorted out, and public confidence restored, until we dismantle these secret courts.
Independent breaks UK media silence over Trafigura trial in the Dutch courts
With help from the newly-elected Green MP Caroline Lucas, The Independent newspaper has taken a clear lead in the “Trafigura challenge” – the race to see which UK media outlet will be the first to report fully on the upcoming trial in the Dutch courts of the controversial oil company.
No UK newspaper or broadcaster has yet made any mention of allegations made to Dutch prosecutors by Greenpeace – and widely featured in the Dutch media – that Trafigura and their law firm MacFarlanes sought to bribe witnesses in an earlier London court case. But the Independent has, by citing Caroline Lucas’ remarks, at least been able to reference the ongoing legal proceedings.
Under the Parliamentary Papers Act 1840, “correct copies” of any Parliamentary publication may freely be republished without fear of legal action, including, crucially, any action under the UK’s notoriously expensive and one-sided libel laws, which Trafigura has been ruthlessly exploiting.
In a message on Twitter last night, Caroline Lucas promised an “EDM [Early Day Motion] and PQs [Parliamentary Questions] to follow”, so with luck the UK press may soon have more opportunities to cover this story freely.
From The Independent
Caroline Lucas used her maiden speech to raise concerns that the British media are unable to fully report legal proceedings involving the commodities trading company Trafigura.
The Green MP pledged to use her new position in Parliament to raise the issue after legal claims were launched in the Netherlands against the company, which chartered the ship whose toxic sludge was illegally dumped in the Ivory Coast in 2006.
The Dutch-based oil trader caused outrage last year when a High Court injunction issued on its behalf had the effect of blocking coverage of parliamentary proceedings involving its activities. The “super-injunction”, obtained by the law firm Carter Ruck, was amended after it was accused of infringing the supremacy of Parliament by preventing the reporting of a question tabled by an MP. Politicians from all sides criticised the legal manoeuvre.
The law firm agreed to change the injunction and insisted there was no question that Trafigura had sought to gag the media from reporting parliamentary proceedings.
In her maiden speech to the House of Commons, Ms Lucas said she was still concerned that proceedings in foreign courts were not being reported in Britain. She said: “Last year honourable members from all sides of the House helped to shine a light on the actions of the international commodities trading group Trafigura, and the shipping of hazardous waste to the Ivory Coast.
“There was particular concern that the media in this country were being prevented from reporting the issues fully and fairly. This remains the case, for new legal actions concerning Trafigura have been launched in the Dutch courts and are being reported widely in other countries, but not here. And these are the kind of issues I would like to pursue.”
In unrelated proceedings, a court in Amsterdam is due to start hearing the trial next week of Trafigura for the alleged infringement of Dutch waste export laws relating to the Probo Koala, the chartered tanker whose waste was dumped at sites around the Ivorian city, Abidjan.
The company is accused along with the captain of the vessel, the municipal authorities in Amsterdam and a waste treatment company of breaking rules when the ship attempted to offload the waste in the Dutch city before it then departed for West Africa. The trial is expected to last five weeks.
Trafigura goes on trial next week in Amsterdam – will the UK media dare to report it?
The report they tried to ban…
The Anglo-Dutch oil company Trafigura goes on trial in the Netherlands on June 1st, over its role in the allegedly illegal exporting of toxic waste to the Ivory Coast. According to the Ivory Coast authorities, the dumping of this waste led to 15 deaths, with other reports putting the death toll at 17.
Trafigura is notorious for its willingness to use UK libel law – which is famously one-sided and prohibitively expensive for most defendants – to suppress critical coverage. As a result, while the Dutch, Norwegian and American media have reported the case freely, few UK newspapers will even cover it, let alone mention the alleged death toll (which Trafigura continues to dispute).
When Trafigura and their London-based law firm, MacFarlanes, were formally accused in the Dutch courts of bribing witnesses (a charge they deny), there was silence about it in the UK media. According to MacFarlanes themselves, such behaviour “would have been illegal and it would certainly have constituted serious professional misconduct”. Under normal circumstances, the laying of such charges against a UK law firm would have been a major news story. The fact that it has gone unreported in Britain shows how much damage our libel laws have done to freedom of speech and public interest journalism.
When the trial itself begins on June 1st, it will be interesting to see if any UK media dare to cover it. This will be a key test of how much power Trafigura now wields over the British press – and how much courage our journalists and editors have in resisting this company’s sustained attack on press freedom.
Trafigura and Macfarlanes deny bribing witnesses in toxic waste court case, threaten legal action against Dutch media
Response to Volkskrant allegations, published on Scribd.com
Macfarlanes and Trafigura deny any involvement, whether direct or indirect, in what you describe as “bribery and influencing of witnesses”.
Not only would such conduct be grossly unethical, it would have been illegal and it would certainly have constituted serious professional misconduct by Macfarlanes. The suggestion that this firm or one of its partners would involve itself in such misconduct is as absurd as it is defamatory.
Furthermore, for reasons we touch on below, even if Macfarlanes or Trafigura had been willing to misconduct ourselves in this way (which we were not), it would have been completely illogical and counter-productive for us to have done so given the circumstances of these events.
We note that you acknowledge that these allegations are extremely serious. We trust, therefore, that if you consider yourself to be a responsible journalist, rather than pursuing a pre-meditated agenda against Trafigura, you will consider your position very carefully before publishing allegations about Macfarlanes which are indeed very serious, malicious, gravely defamatory, false and completely inconsistent with the previous course of conduct between the parties.
You state in your email that these are similar to allegations made last year. For the record, those allegations were also wholly without foundation. Indeed, they were formally withdrawn by the Claimants and their solicitors, Leigh Day & Co, in the Abidjan Personal Injury Group Litigation proceedings in September 2009.
Given your misapprehension of the true position and the fact that, regrettably, certain individuals have chosen to provide you with dishonest and malicious allegations, it is important that we address your questions.
It is equally important that you carefully consider our responses and weigh up how much reliance, if any, can be placed upon these false and malicious allegations.
In the event that you still decide to publish these allegations, we require you to ensure that you include our response to each allegation at the point in which it appears in the article.
You will appreciate that, given the seriousness and falsity of what you are seeking to allege, Macfarlanes and/or Trafigura will have no alternative but to commence legal proceedings without further notice if your story does not comply fully with the basic principles of truth, balanced reporting and responsible journalism.
From Radio Netherlands Worldwide:
Greenpeace accuses Trafigura
The environmental organisation accuses the multinational of having influenced witnesses.
In the Netherlands, Greenpeace has filed a complaint with the public prosecution against the multinational Trafigura, accusing the latter of having influenced witnesses and also of forgery.
According to the environmental organisation, a group of drivers reported to be Ivoirian would have agreed with Trafigura not to report being ill as a result of transporting toxic waste for the multinational.
A spokesman for Greenpeace has confirmed that information which had been disclosed by Dutch television and the center-left daily De Volkskrant.
According to the Ivorian justice, dumping of toxic waste in Abidjan in August 2006, by the cargo Probo Koala, chartered by Trafigura from Amsterdam, had killed 17 people and poisoned thousands.
Trafigura vindicated? 115-page “Reply” which the company says rebuts the BBC’s case
Trafigura’s Reply to the BBC’s libel Defence(PDF)
A few weeks ago Wikileaks published the 40-page court document in which the BBC laid out its defence against Trafigura’s libel claim, following this Newsnight report from May last year.
Trafigura had always insisted that the available scientific evidence vindicated them of blame for any deaths or serious injuries following the August 2006 Probo Koala toxic waste incident, and in December the BBC controversially withdrew their claims and agreed to pay damages. Yet Trafigura have never published the evidence which they say vindicates them, despite repeated requests.
Following the publication of the BBC document by Wikileaks, the blogger Calum Carr again contacted Trafigura to request their side of the story, but again to no avail.
Calum and I have now obtained this document ourselves. Given today’s very promising news about the libel reform campaign, we felt that this was a good moment to put the information out into the public domain, so that people can form their own view on this contentious issue.
Obtaining an electronic copy of this document has been an interesting process in itself. To do this, I had to:
1. Go to the High Court in person
2. Make a formal request for a copy of the document (giving full personal details including my home address)
3. Wait several days
4. Phone the High Court to see if the copy was ready
5. Visit the High Court again in person
6. Pay a not-insignificant photocopying fee
7. Pick up the paper copy of the document
8. Take the copy to a specialist document scanning company to get it turned into a PDF
9. Pay another fee
10. Wait another few days, before receiving the PDF via email.
This is apparently standard procedure for getting hold of key UK court documents. One would almost have thought that the legal authorities did not actually want the British public to have ready access to documents which are, at least in theory, available to all of us by right…
We might compare the above process to the mechanism involved in, say, accessing the text of a Parliamentary Question or a Select Committee report, eg:
1. Visit the Parliament website
2. Type in a relevant search term
2. Download the information (for free).
For all the concerns we might have about the current workings of the Parliament, its processes currently seem a whole lot more open transparent than those of the judiciary. Apart from anything else, the requirement that one has to visit the High Court in person to access a public document seems inherently discriminatory to anyone living a significant distance from London.
If and when we get some real progress on libel reform, it seems to me that opening up the judiciary to at least the same levels of scrutiny we have for Parliament could be an important next step.
New statement from Amnesty: “There were 15 reported deaths”
The day after the BBC backed down in the face of legal threats from Trafigura over their claim that the company’s waste caused deaths…
In August 2006, toxic waste was brought to Abidjan on board the ship Probo Koala, which had been chartered by oil-trading company, Trafigura.
This waste was then dumped in various locations around the city, causing a human rights tragedy. More than 100,000 people sought medical attention for a range of health problems and there were 15 reported deaths.
On 23 September 2009, the High Court of England and Wales approved a $45 million settlement between nearly 30,000 victims of the toxic waste dumping and Trafigura.
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.
BBC Newsnight are still being sued for libel by Trafigura and Carter-Ruck
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.
Secret injunctions: Ruck knows how many of them are out there
“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…
Trafigura coverage still curtailed by libel abuse. UK media unable to report freely on deaths allegedly caused by dumping of Trafigura’s toxic waste
*Update* See also: Doc Richard – Trafigura suppresses scientific lecture – allegedly
*Update 2* Rebellion spreads – Caroline Lucas MEP mentions the unmentionable.
There’s renewed coverage today of the ongoing legal battles following the notorious Ivory Coast toxic waste incident, in which the oil trader Trafigura has been implicated.
The Guardian (UK), Times (UK) and New York Times (US) all report that the £30 million compensation payment by Trafigura to victims of the disaster is in danger of being misappropriated after an Ivorian court ordered that the funds be frozen.
But note also the contrast in how the UK and US media have reported the background to the story. Here’s how the New York Times covers it:
The waste was shipped by Trafigura, an international commodities trading giant. About 108,000 people sought treatment for nausea, headaches, vomiting and abdominal pains, and at least 15 died. All had apparently been poisoned by the toxic brew of gasoline and caustic soda, refining byproducts dumped by Trafigura’s contractor.
Here’s the Guardian:
Hundreds of tonnes of sulphur-contaminated toxic oil waste were cheaply dumped on landfills and in ditches around Abidjan in 2006. The cargo ship had been chartered by Trafigura. In the weeks after, the fumes caused thousands of sick people to besiege local hospitals.
…and here’s the Times:
A cargo ship chartered by Trafigura dumped hundreds of tonnes of sulphur-contaminated toxic oil waste around Abidjan in 2006. In the following weeks the fumes caused thousands of people to need hospital treatment.
The deaths of “up to 17” Ivorians has been widely reported elsewhere. In previous articles, both the Times and the Guardian have referred to a UN report citing “official estimates” of 15 dead. So it seems odd that this seemingly crucial detail should now be omitted.
The New York Times is of course free to say what it likes because freedom of speech is protected under the US constitution, and New York State has a law which specifically prohibits the enforcement of UK libel judgements in NY, due to human rights concerns.
Fortunately in the UK we do still have (despite some recent confusion) an absolute right to report the proceedings of Parliament, so I can draw your attention to this recent statement from Evan Harris MP:
My understanding is that “Newsnight” is being threatened by the lawyers for Trafigura, Carter-Ruck, if it repeats an allegation… 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.
What Dr. Harris could also have mentioned is that, astoundingly, alongside these renewed threats, Trafigura’s libel action over this damning May 2009 news report, appears still to be ongoing.
Guardian editor accuses Carter-Ruck of “prolonged campaign of legal harassment”
From www.parliament.uk
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.
Al Jazeera’s “Listening Post” on Trafigura and Carter Ruck
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.
Newsnight being threatened by Carter-Ruck for reporting Hansard proceedings
See also: “Trafigura coverage still curtailed by libel abuse”
From Theyworkforyou
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.
Trafigura have allegedly been threatening individual Greenpeace staff with legal action
From The Guardian
In the debate today Harris said it was his understanding that BBC Newsnight were also being “threatened” by Carter-Ruck if they repeated a claim, even though it was recorded in parliamentary Hansard. He said: “How can it be that that can be in Hansard, yet there are still threats of legal action against Newsnight if they report the very same wording that is used in there? That cannot be right.”
Speculation is growing over what in Hansard Evan Harris was referring to. I’m wondering if it might be this:
From Hansard
Mark Stephens…. We are seeing at the moment a real problem with a company called Trafigura who have retained lawyers to attack Green Peace International predominantly, but also media organisations who are reporting about the alleged toxic dumping in Africa of waste. They are doing this in a number of ways. Letters are being sent; they are suing the lawyers, Leigh Day, who are taking claims; I understand that Leigh Day are representing 16 people who died, 100,000 people who needed medical attention, including miscarriages, respiratory problems and organ failure, and there is a class of about 30,000 Ivorians who have suffered as a result of this toxic dump. It seems to me that it is wholly inappropriate for a very wealthy company to try and chill down discussion about toxic dumping through this kind of aggressive behaviour. For example, there are threats to individuals at Green Peace International; and there are also threats, for example, to the BBC. If the BBC want to get a balanced story and hear from Trafigura, on the one hand, and also someone from Green Peace International or a scientific expert, the threats to the BBC are being communicated back via the producers who are saying to the people from Green Peace, “But of course you can’t mention this, this, this, this and this because otherwise we might get into a defamation wrangle with Trafigura”. That seems to me just plain wrong. Let us have an open debate about it.
The banana cake of liberty…
Sometimes we all have to make sacrifices…
From The Guardian
Just 42 minutes after the Guardian story was published, the internet had revealed what the paper could not.
Bloggers and the so-called Twitterati tonight claimed a historic victory for the power of the internet over what they saw as attempts by vested interests to shut down freedom of speech.
One of the quickest to reveal the full story was a 34-year old human rights activist, Richard Wilson. He was baking a banana cake in his kitchen in London when he first found out about the gag on the Guardian from a message posted on Twitter.
A few minutes of frantic internet searching later he published the fact that the gag related to Farrelly’s questions about Trafigura. He also published the text of the questions itself and became so absorbed in cracking the puzzle, his cake burned to a crisp. He said it was a small price to pay.
“I knew Trafigura were incredibly litigious and I knew Carter Ruck were defending them,” he explained. “I had a hunch, so I went to the website of the parliamentary order papers where they publish all the questions, searched for Trafigura and a question from Farrelly popped up and I tweeted it straight away. It took several tweets and then I pasted in the link.”
At 9.13pm he signed on to his Twitter account, printed the link to the Guardian report about the gag and wrote: “Any guesses what this is about? My money is on, ahem, #TRAFIGURA!”
By 9.30pm he had published all of Farrelly’s questions. He was not alone in trying to crack the puzzle. Paul Staines, the political blogger who uses the name Guido Fawkes, posted a blog making the link between the gag and Paul Farrelly’s questions just before 10pm.
From that point a torrent of references to the questions, the gag on the Guardian and Trafigura flooded out. According to Twitter at noon today, the three most popular search terms on the site were “outrageous gagging order trafigura dumping scandal”, “ruck” and “guardian”.
As exactly the publicity Trafigura was surely trying to avoid grew and grew, the Liberal Democrat leader, Nick Clegg, weighed in on Twitter at 10.01am stating: “Very interested concerned about this #trafigura / Guardian story the LibDems are planning to take action on this.”
Mainstream media, including the Spectator website also picked up the story with the thought: “It’s hard to recall, even in the long history of appalling gagging orders, a more disgraceful injunction than this.”
Satirists, such as Ian Martin, a writer on The Thick Of It, seized the opportunity to amplify the coverage that Trafigura was getting by repeating the company’s name again and again to ensure it became a “high trending” topic on Twitter.
During the morning, Private Eye was published and ran Farrelly’s questions in full as the first item on its politics page, although the bald presentation with no reference to the gagging order had long been superseded by the reports flowing across the internet.
All the while, efforts were continuing to persuade Trafigura to alter the terms of the order to allow the Guardian to report the parliamentary business, and at 12.19pm Carter Ruck emailed the Guardian agreeing to do so. In the end, the Twitterati claimed victory, led by one of its most popular users, the comedian Stephen Fry. “Can it be true?” he wrote. “Carter-Ruck caves in! Hurrah! Trafigura will deny it had anything to do with Twitter, but we know don’t we?”
NB – One crucial clarification – I’m ashamed to say that I had actually just been put in charge of minding the cake (and taking it out of the oven before it incinerated) after my wife went to bed. She has been very understanding…
UPDATE – By popular demand, here is the recipe for “Liberty Cake”: 9 bananas, 450g flour, 150g butter, 220g sugar, 2 eggs,1 lemon, tad lime juice, 4 tsp bicarb of soda. Mix. Bake to a crisp.
The “Minton Report” – is this the detail that Carter-Ruck wanted suppressed?
At first glance, it’s difficult to see why Trafigura’s lawyers Carter-Ruck would go to such trouble to get a media gag on Paul Farrelly MP’s Parliamentary Question about the press freedom implications of the Trafigura case. For the most part, the cat’s already out of the bag, and Trafigura (and Carter-Ruck) have already been roundly exposed for the [expletive of choice here]s they undoubtedly are.
But there is one detail in the banned Parliamentary question that seems mysteriously un-reported in the UK media: Paul Farrelly’s reference to “the Minton report”. No UK news article on Trafigura makes any mention of this report, but you can find some references to it in the non-UK press.
Fortunately, by the power of wikileaks (and the sleuthing of @csdenton) you can read the report here.
The existence of the Minton report, which was given to Trafigura in 2006 but only recently disclosed, suggests that, despite their denials, the company may in fact have been aware from an early stage that the cargo of waste that ended up getting dumped in Ivory Coast was highly toxic.
Trafigura now seem so keen on suppressing this information that they (and Carter-Ruck) have attempted to gag the UK media from reporting proceedings at the heart of our democracy in order to stop the truth from getting out.
Richard Wilson's blog 