United Kingdom: ‘Super injunction’ lifted on Côte d'Ivoire waste dumping report

Trafigura, the world’s third largest independent oil trader, has finally released the UK's The Guardian newspaper from a secret injunction preventing it from reporting the so-called Minton Report [PDF at this link].

After a strange week of battling between Trafigura's lawyers from the firm Carter-Ruck and The Guardian, and a week of terrible publicity for the company, Trafigura finally gave in and said the preliminary report could be made public.

The draft study contains details of waste dumped in Abidjan, Côte d'Ivoire, in 2006 – and evidence of its chemical components, and their potential effect.

The injunction banned The Guardian from reproducing or reporting the Minton Report which was already available on Wikileaks.org and the Norwegian media (maybe elsewhere, too). The order was obtained by lawyers Carter-Ruck on behalf of its client Trafigura.

“No newspaper can reveal the contents of this report, but at least we can now say that it exists and has been rendered secret. The option of ‘publishing and be damned’ is not available.” [The Guardian, 14.10.09]

But until last week no-one, except those it involved, knew that the injunction existed and that The Guardian could not report the order. Why? It's one of many existing secret injunctions, which not only ban reporting a story but also the existence of the ban itself.

The only reason we know about it now, is because of one British member of parliament (MP), Paul Farrelly. As Private Eye, a UK magazine famous for its investigative journalism and its disdain for Carter-Ruck, a leading media libel litigation firm, said this week on its website, Farrelly's “intention was to test this conspiracy of silence [i.e. secret ‘super injunctions’] by asking questions about it in Parliament”.

How? Because MPs are protected under the Bill of Rights of 1689, which declares that “freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any place or court outside Parliament.”

Therefore an MP's comments can be published without fear of legal action (a fuller history at this link). But The Guardian knew that to reproduce Paul Farrelly's question (below, tabled in Parliament, see point ii.) would contravene the existing order. So it contacted Carter-Ruck to see if they could change the terms of the injunction. “We were advised by Carter-Ruck that publication would place us in contempt of court,” stated The Guardian.

Carter-Ruck meanwhile maintained that The Guardian's account was ‘misleading’. Its full statement can be found at this PDF link. The lawyers acting on behalf of Trafigura said they would take further instructions from their clients, but The Guardian published its article first.

A very comprehensive account of the extraordinary activity online can be found on the Online Journalism Blog but to sum it up:

  • After the Guardian posted an account stating that it was not able to report a Parliamentary question that was publicly available without mentioning any details at all, an online frenzy whipped up, with several bloggers working out what the question in question was. The notion that journalists could not report Parliament shocked readers of The Guardian's article – both its critics and fans.
  • Twitter users and blogs willfully ignored the injunction – if its possible to ignore a secret injunction – and passed on links and keywords connecting Trafigura and Carter-Ruck to Paul Farrelly's question, and even the Minton Report. At one point, for example, #Trafigura was the top trending topic on Twitter – globally.
  • So although the Guardian had still not reported the question or broken the terms of the Order, all the information contained in Farrelly's question was out there. The Guardian intended to go to court to fight the Order, but Carter-Ruck said it would no longer try to prevent his publication reporting MP Paul Farrelly’s parliamentary question about Trafigura. “The parties have now agreed to an amendment to the existing Order so as to reflect that,” Carter-Ruck reported in its statement.
  • The Guardian's editor, Alan Rusbridger, who tweeted sporadic updates, said the firm had “caved-in” and the paper finally reported Farrelly's question. The Guardian, and other mainstream media, praised social media for its role in applying pressure throughout the day.

Simply put – whether defiant online users were the reason Carter-Ruck agreed to vary the order or not – Paul Farrelly's question could not be suppressed online. And what's more, thousands of people who had never heard of Trafigura now knew its name and its connection to a toxic waste scandal.

Then, later in the week  Carter-Ruck suggested debate could be blocked in Parliament by claiming that the secret injunction it had obtained is “sub judice,” ie. in active legal proceedings. If proved, it would prohibit any motion, debate or question concerning the matters going ahead, under Westminster rules.

A day later the Minton Report injunction was lifted in the British press.

Before, journalists could only say it existed, nothing more. And that's what was really controversial here.

Because the report is all to do with the dumping of waste in West Africa.

For background on the waste dump in the Côte d'Ivoire in 2006 please read this commentary on Journalism.co.uk: ‘The journalist and NGO collaboration to expose Ivory Coast toxic waste dump’. For more detailed information on events themselves, visit The Guardian's section on Trafigura and the Probo Koala.

Further information on the Trafigura-Guardian story can be found in the Journalism.co.uk blog updates at this link.

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