The Trafigura Case and Freedom of Speech – Super-Injunction vs Social Media

In what could prove to be one of the most historic stories in media and more specifically social media, the users of social networking site Twitter have been almost solely responsible for overturning arguably the most notorious pre-publication “gagging order” of recent years.

The overwhelming public and media backlash against the “super-injunction” obtained by Carter-Ruck  (arguably the most highly regarded libel lawyers in the UK) on behalf of commodities trader Trafigura to restrain the Guardian from reporting on “certain parliamentary proceedings” began on the evening of 12 October, mere minutes after the broadsheet announced its inability to comment on anything about the story due to an “existing High Court Order”.

This led the online community, and especially users of the phenomenally-popular microblogging site Twitter , to begin feverishly speculating over who the apparent “gagging order” referred to. It transpired that The Guardian had been restrained from publishing details of a question raised by Labour MP Paul Farrelly due to be answered by a Minister towards the end of the week dealing with a report into an allegation that Trafgiura had dumped toxic waste off the Ivory Coast.

Specifically, Farrelly wanted to know if and how Ministers had taken steps to protect “whistleblowers” as well as the freedom of the press to publish details of the story after Trafigura successfully obtained an injunction from the High Court to restrain publication of the Report’s findings.

Reporting on the details of Farrelly’s question would never normally be challenged, however in this case the terms of the “Super-Injunction” prevented the Guardian from even reporting its existence as well as any details of the parliamentary question.  What the Guardian did say, however, was that it had been “prevented from identifying the MP who has asked the question, what the question is, which. minister might answer it, or where the question is to be found”.  

The Guardian’s legal team tried to negotiate the alteration of the terms of the injunction so that the story could be published, but Carter-Ruck refused, leading to the paper’s front-page statement that they couldn’t fully report on the ministerial question. This sent the internet rumour mill into overdrive and in under an hour, it was widely reported across Twitter that the ministerial question related to Trafigura, and the full text became available after a Human Rights activist found the information on a Government Website.

Since then, condemnation of the “Super-Injunction” and Carter-Ruck has been overwhelming and the issue of whether or not such orders unduly prohibit freedom of speech has been brought firmly back into political and public debate.

This is being claimed as a historic victory for freedom of speech and cited as an example of the power of the internet (specifically Twitter) against an attempt by big business to stifle the press’ freedom of expression, and rightly so. What this story has ironically become is an object lesson in reputation management and knowing when and how to take action.

It’s a long-standing and fiercely-protected precedent which allows the press to report upon anything that MPs say or do. Add to this the relatively obscure provisions of the Parliamentary Papers Act 1840 and the “Twitterati” had all they needed to get to work on uncovering what was behind the controversy. A website publishing details of all parliamentary questions and a hunch that Trafigura may be behind the injunction was all it took to get the full details of the story out to the Twitter community, with the terms “outrageous gagging order trafigura dumping scandal”, “ruck” and “guardian” becoming the three most searched-for phrases on the site within hours. Commentators ranging from Nick Clegg to Stephen Fry lined up to condemn the injunction and after a few hours, it was rendered pretty much useless.

The “Super-Injunction” is a fairly new and very rarely-granted order. Orders effectively “gagging” the press and restraining them from reporting on a story either on the grounds of privacy or more often to stop a libellous article making its way into the public eye and damaging a reputation are nothing new and often justified. There would usually be no issue with reporting the fact that an injunction had been granted and keeping the actual details of the story under wraps. However, a “Super-Injunction” goes far further, by stopping the press even reporting the fact that an injunction exists as well as keeping the details of who has applied for it secret. The only comment which the Guardian could make was along the lines that they had a story which they couldn’t report, and couldn’t tell its readers why.

Usually, “Super-Injunctions” are granted on the basis that they will be used to protect an individual’s privacy, but this case is obviously very different and probably the reason why there’s been such a backlash. Media law draws a distinction between the publication of material which is in the public interest and material which is simply interesting to the public. Amid the scores of cases which fall in the latter category and privacy claims being deployed to protect the private lives of celebrities, real news does sometimes appear to get lost in the shuffle although it may well be of genuine public interest. If that’s the case, then the Court, when considering whether or not to grant an injunction to restrain publication on the grounds of privacy, libel or otherwise, has to weigh up two competing sets of rights – an individual’s rights (i.e. privacy and not to have their reputation ruined) and the press’ right to freedom of expression. Although recent cases may have given the impression that the freedom of the press is under attack from lawyers and most notably Judge Eady, the Court is usually loathe to stamp out a story unless it absolutely has to and Trafigura would have had to present a very strong case to get an injunction in the first place.

The issues for freedom of the press here are impossible to ignore and will be debated tomorrow in Parliament, although even this has been subject to a letter from Carter-Ruck to every MP stating that the debate should not go ahead as the case to which the original injunction refers is still ongoing. The House has, however, so far refused to comply.

Besides the obvious implications for big business being able to effectively “gag” the press from reporting on topics which they may find objectionable or sensitive, maybe the biggest lesson to be learned here is for the Lawyers. Getting an injunction to restrain publication can be absolutely the right thing to do in some cases and remains a perfectly justifiable legal remedy against an increasingly intrusive media. However, in this case what Carter-Ruck appear to have done is take a sledgehammer to crack a nut. The very fact that they represent a litigious client and that they have been able to obtain an injunction, let alone a “super-injunction” to stop the details getting out of a story with such a huge human interest factor almost dares the public to try and peer behind the curtain to see what’s really going on.

Fighting your client’s corner is always admirable, but to do so in such a manner as to severely damage the original legal and commercial objective, in this case keeping Trafigura’s reputation intact, by turning what had been a story which the Press had reported on to a limited extent into a matter of huge public interest is perhaps the ultimate lesson in knowing when to take a case too far. Libel cases are often used to maintain reputation, especially in a world where social media and online sources make the concept more fragile than ever, but in this case obtaining such a draconian injunction has not only affected Trafigura’s reputation but also Carter-Ruck’s. Writing to every member of the House of Parliament to clamp down on political debate over the issue has made it even worse.

But it’s the online world that can take credit for the resulting collapse of the “super-injunction”, rather than the press alone. Prevailing reputation management theory suggests that it’s far better to engage in public discussion with your stakeholders when a story breaks rather than simply trying to stamp out any trace of it, whilst recognising that, in some cases, you will have to sue. If Trafigura had any mitigation over the ivory coast incident, then the chances are that it will be drowned out by the tide of criticism from, at least initially, the users of Twitter alone. Recently major manufacturers have used the site strategically to deal with negative publicity to great effect, probably due to a more transparent and collaborative approach. That’s not always appropriate if the story in question has no basis in fact, is biased to a ridiculous extent or affectws your private life but the real issue here is that, no matter how hard you try to keep details of this kind of issue secret, the online community will usually always find a way to get the facts (or at least one user’s interpretation of them) out to the public.

In this particular case, the details of the parliamentary question may well have been just another news item without the attention drawn to it via the injunction. In a world which is increasingly connected and in against a background of Web 2.0 technology being used to create real “citizen journalism”, injunctions (often called the nuclear weapons of the legal profession) should be used with care. They should, however, still be used in the right circumstances, such as when a story being published could lead to the details of a private life being laid bare or a reputation being ruined beyond repair – no amount of damages could compensate for this, which the Court recognises.  

The press should remain free, but those upon whom they report should have recourse to the law when that freedom is abused. That said, what this case has tried to do is to stifle debate in the Commons on a matter of very real public interest, and that should never be encouraged.

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