The Guardian, Trafigura and superinjunctions: more thoughts

by Carl Gardner on October 15, 2009

There’s been a lot of Trafigura traffic on the internet, for obvious reasons – and a lot of legal questions have been raised. I want to try to cut through some of that and shed some legal light if I can.

I think Richard Edwards of Bristol Law School goes too far in calling the Trafigura injunction “unlawful” in his letter to the Guardian this morning. First, it’s difficult to say this, I think, without being able to refer to the precise terms of the court’s order – and since none of us know what orders the court has made against the Guardian, and the superinjunction we know about may restrict publication and/or discussion of its terms, any such reference is difficult to make.

But what I suspect has happened here is this. First, a legally privileged document has somehow been leaked; solicitors have obtained an injunction to prevent its use and further disclosure. So far, so reasonable: many of those who are outraged by Carter-Ruck’s behaviour this week would also be outraged by publication of their own private correspondence or information (remember the HMRC leak of a couple of years ago?). Everyone must have the right to consult lawyers and prepare their legal defence in private, and if we take that principle seriously it must be enforceable and, as human rights lawyers are happy to say in other contexts, it must apply to everyone, no matter how unattractive. So I have no difficulty in the idea of an injunction being granted here in respect of the report mentioned in Paul Farrelly MP’s Parliamentary question -

Paul Farrelly (Newcastle-under-Lyme): 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 on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.

Whether a “superinjunction” was really necessary, preventing discussion of the fact that such an injunction has been granted, is another matter. I’ve no problem with superinjunctions in principle – there are a range circumstances in which the publication of the fact of an injunction or the identity of the applicant might defeat the entire purpose of an injunction. An example would be, for instance, if a PLC successfully injuncted a story alleging that it was insolvent – regardless of the truth of the story, the PLC might well be brought crashing down anyway if “the markets” knew it had got such an injunction. If that PLC were a bank, say, then the financial system could be at risk if it were known even that an unidentified bank had sought such an injunction. So superinjunctions do make sense in some circumstances. I share Richard Edwards’ concern about this one, but there may – may – be justification for one in this case. The judge seemed to think so.

What’s obviously problematic is that such an order should extent to reporting Parliamentary proceedings. I doubt very much that the judge intended this order to have such a wide effect: what I suspect has happened is that the order merely prevented discussion of the privileged document, and that Carter-Ruck unwisely sought, in lawyer-to-lawyer discussions, to interpret that as extending even to a report of the Farrelly question. In my view that was far from reasonable, and Carter-Ruck should have sought to vary the terms of the order if they wanted it to extend so far.

A couple of legal factoids need to be addressed here, too. First, there is no question of Carter-Ruck’s behaviour being a contempt of Parliament: the Bill of Rights 1689 protects the MP himself from any court action – not anyone reporting his words. Only Parliament enjoys Parliamentary privilege.

Second, Geoffrey Robertson QC has been widely quoted as suggesting Parliamentary reporting can never be in contempt of court. Take this from the Guardian:

The media lawyer Geoffrey Robertson QC said Lord Denning ruled in the 1970s that “whatever comments are made in parliament” can be reported in newspapers without fear of contempt. He said: “Four rebel MPs asked questions giving the identity of ‘Colonel B’, granted anonymity by a judge on grounds of ‘national security’. The DPP threatened the press might be prosecuted for contempt, but most published.”

I don’t think this is right, if it is what Robertson was saying – and I doubt it was, since in his own textbook on media law he makes clear that although this reflects the practical reality, “it may not strictly accord with the law”. I can’t link you to Lord Denning’s judgment in Attorney General v Times Newspapers [1973] 1 All ER 815 – it’s not on BAILII – but it’s clear from reading the relevant passage (at page 823 c) that Lord Denning’s remarks were obiter. He simply assumed this was the position while discussing a slightly different legal point. It’s going too far to say he “ruled” that this was the position. Parliament, while agreeing with Geoffrey Robertson on the practical position, certainly thinks reporting its proceedings can amount to contempt in law – see para. 204 of this report.

So reports of Parliamentary proceedings probably can be contempt of court – at least in so far as they go beyond merely quoting Parliamentary papers, which is protected from legal action under section 3 of the Parliamentary Papers Act 1840 unless done with malice (I’m not clear whether the list of questions including the Farrelly question was published under authority of the House – I suppose so). It’d be difficult for a newspaper to simply quote Parliamentary papers without any kind of comment on them at all, however. And it’s just conceivable, to me, that there might, just might, be circumstances in which an order restraining the publication of Parliamentary proceedings could be lawful, even taking the article 10 freedom of expression into account and balancing any restrictions on it against the public interest – imagine, for instance, an extremist MP who insisted on reading out in the House the address of a person who’s in fear of his or her life from terrorists, or the addresses of women’s refuges throughout the country. Unlikely, but conceivable. Wouldn’t you want to limit wider reporting of this? We ought to be able to rely on MPs’ good sense in not abusing privilege -  we couldn’t rely on their probity in claiming expenses, though, could we? And there are, and may be in future, all manner of MPs.

But clarity is vital in injunctions, particularly where they have unusual effects – and restricting Parliamentary reporting certainly is unusual. It cannot be right for an injunction to be interpreted as having such effects unless it does so by clear words – and unless the applicant makes the case for the order to contain such a term, judges should now routinely insist that wide-ranging prior restraint injunctions include an exception for fair and accurate Parliamentary reporting.

{ 9 comments… read them below or add one }

1 Natasha Phillips October 15, 2009 at 13:17

I had not realised that the issues surrounding the injunction were so sophisticated and this post was a really interesting read as well as being so wonderfully explained.

If only we had this kind of considered thinking as an integral part of our government’s legislative ethos……. look before you give leave :-)

Thank you, I really enjoyed this.
.-= Natasha Phillips´s last blog ..Lady Deech: A Plague on Both our Houses =-.

2 Liadnan October 15, 2009 at 13:47

What’s obviously problematic is that such an order should extent to reporting Parliamentary proceedings. I doubt very much that the judge intended this order to have such a wide effect: what I suspect has happened is that the order merely prevented discussion of the privileged document, and that Carter-Ruck unwisely sought, in lawyer-to-lawyer discussions, to interpret that as extending even to a report of the Farrelly question.

I also rather suspected it was something like this. In time the injunction will turn up on the internet and we will know for sure, maybe it already has done and searching for something like “Minton” and “injunction” will turn it up.

3 Carl Gardner October 15, 2009 at 13:58

That may well be, Liadnan. I won’t be linking to it – yes, I would be concerned about contempt of court by even helping people access the terms of any superinjunction. But in addition, I’d be concerned about what the Bar Standards Board might think of my conduct, regardless of whether anyone might actually take action against this blog. That’s my defence to any accusations of blogging cowardice.

4 Frank J. Gunn October 15, 2009 at 14:02

What is purportedly a copy of the original injunction, made Sep 11th, had been published wholesale by… [edited]… and can be found easily from the search box on their website.

[edited]… claim the copy came directly from Trafigura’s Norwegian lawyers.

But I don’t share your eagerness for injunctions in any case other than to prevent loss of life. Both from a philosophical perspective and from examination of the European Convention of Human Rights, in particular Article 10, the long term needs of a democratic society to have both freedom of expression and accountability of all institutions through a free press should outweigh the short-term needs to protect an institution – even a bank.

The reformation of injunctions, effectively ending their use as a tool of prior restraint in Norway and in particular how this interacts with the ECHR is well documented and worth reading. The arguments apply equally to the UK and it it my opinion that they should be tested at the earliest opportunity.

The opinion you give with reference to the example of a public company I also believe is rather naive. Since markets rely on a “voting” system, each vote being a transaction, and each [human] trader as a filter, it is my view that the democratically “correct” corrective action in the case you highlight should be for the communications team of the company in question to release counter arguments rebutting the speculation, with documentary evidence as required.

There is an argument I won’t add to this blog in relation to the Trafigura case but I won’t risk posting it here. It should perhaps be obvious to you if you read the [English language] coverage on the… [edited]… website. I used the search terms “Guardian Trafigura” from the front page of the site.

Generally I subscribe to the principle that when information is freely available and can be published easily by all sides there is absolutely no philosophical reason for restraint other than as I indicated where it can be shown that human life is endangered, the right to life overriding all other rights.

5 Carl Gardner October 15, 2009 at 15:15

Apologies for editing your comment, Frank: I don’t like to do so, but as I explained above I have to be concerned not just about the legal position, but about the professional conduct implications, for me, of anything on this site that could be construed as enabling anyone to access the terms of this injunction, since I’m aware from the media coverage that it’s a superinjunction preventing publication of its terms.

I agree with you about risk to life (and presumably health?) as the only justification for an order restraining Parliamentary coverage. Fair enough. I certainly wouldn’t agree with you on any wider type of prior restraint, though – the consequences of what you’re saying would be that in a case like Max Mosley’s, for example, no invasion of privacy, no matter how outrageous, could be stopped. I bet most campaigners for free expression (among who I count myself) would want the law to be capable of stopping a newspaper from publishing their bank account details and web passwords.

I think the only way you can defend an absolute bar on prior restraint is if ex postfacto damages for breaches of privacy (for instance) are automatically set so high as to effectively bankrupt the wrongdoer. But that would have a chilling effect of course, and make the ban on prior restraint pure hypocrisy.

If you’re no prepared to go that far, I think you’re taking freedom of expression to such an absolute level as to disregard entirely any other law or rights.

6 Frank J. Gunn October 15, 2009 at 16:15

I accept and understand with your professional standing and you likely being in the jurisdiction of the court that the editing was necessary, but saddened that a mainstream media outlet can’t be mentioned in this context.

Back to the debate, it’s a big problem I agree but that’s exactly what I am advocating.

From what I read the problem is exacerbated in the UK perhaps more than other [EU countries at least] because of a culture, I hope I’m right here, of privacy-invasive journalism within red-top papers especially.

There is much said about injury to private individuals from invasive media, but shouldn’t we deal with the root cause and not the symptom? Newspaper editors know they will sell X more papers if they run a story, despite the editor in all likelihood knowing that the story would be an invasion of privacy.

There are laws to protect privacy, and if the enforcement of these laws does not deter future breaches this itself needs to be looked at.

But I see a prior-restraint class of injunction as a legal sledgehammer that should be used rarely, and only in extreme cases (e.g. witness protection with no conceivable public interest defence, etc) and not simply because the press can’t be trusted not to put profits above rights of privacy.

One problem with this debate I foresee is that the collateral damage from not allowing prior-restraint can be envisaged rather clearly. A company could be ruined by a competitor spreading malicious rumour, an individual could even be embarrassed, as a worst case scenario, into suicide through invasive reporting.

But I believe there is also a risk of collateral damage much harder to quantify by allowing prior restraint. Abuse of power and any subsequent cover-up can affect the very fabric of a democratic society. Whilst obviously we need to strive to prevent damage to individuals and unwarranted toppling of companies through overt anti-competitive greed, above all else we need to protect democracy itself.

After all many companies fold anyway, through no obvious fault of their own (no fault other than lack of foresight). A change to compliance regulations may render a company’s product non-compliant or unnecessary. A step-change in demand brought about through an unexpected technological advance.

I have no statistics to hand but I’d guess more companies fail through “natural” yet largely unforeseeable evolutions than through malicious gossip.

Even without prior restraint as a tool, as you discussed, civil or criminal penalties can act as a deterrent against such malicious actions by competitors. (Or against the greed of newspaper editors!)

And, playing a blunt advocate, any company not capable of protecting or defending their reputation against competitors arguably is deficient. Should we protect the “patient” or let the company fold so that perhaps a stronger more resilient organisation can take its place?

(And no, I don’t extend this blunt unsympathetic approach to private individuals – in law it is reasonably easy to distinguish between a private individual (or individual acting in a private capacity) and a commercial organisation. Privacy laws should protect individuals so long as there are robust safeguards to prevent privacy laws shielding any abuse of power).

This fine balance and a lot of these arguments have already been argued by historical figures such as (US) Justice Louis Brandeis amongst many others.

And it is deliberate that I am placing emphasis on corporations. It’s a well-known fundamental principle that government should represent the people. Today, private companies have perhaps more direct influence over our day-to-day lives than government. I don’t have a problem with this. I still hold the franchise. My Euro, Dollar, Krone, Pound is my vote and I’m comfortable with that.

But to balance this power I demand the right to know what’s being done with my “vote”/money, so as to make informed choices on where I chose to spend my money.

I see prior-restraint injunctions on the press being fundamentally incompatible with my view of the balance of power within our healthy democracy.

Perhaps I have an over-idealised view of the modern democracy or the balance of power between state and private corporation, but social issues such as environmental protection or aiding under-developed nations all rely on people knowing not only what their parliamentarians are doing in their name but also on what private corporations are doing with their money.

7 Carl Gardner October 15, 2009 at 16:42

Thanks for understanding, Frank.

Good debate, though. Do you see my point about “hypocrisy” (I mean no offence) if you’re prepared to fall back on severe post-publication restraint as making it safe to dispense with prior restraint? In reality, that can chill free speech just as much as prior restraint – but is less honest than accepting that prior restraint can be legitimate in some circumstances.

As for your argument that prior restraint needs to be used rarely, I agree – and I agree that it’s been used far too often in the UK to defend powerful figures from libel actions, for instance. Robert Maxwell is an example of that. I’m not defending the extent of prior restraint here, just defending the principle that it can be okay in some cases. I don’t think the answer to the Maxwell problem is to bar prior restraint in absolutely every case.

As for ordinary individuals – perhaps you agree with me! If you think prior restraint can sometimes be justified to protect their rights, then we’re at one on that. I’d go further, and say NGOs might also deserve equal protection. And not all companies are big bad ravening multinational wolves. What about the small firm that may be developing a cure for cancer, and is not yet ready to make a patent application (I’m not an IP expert, be warned), but whose work is stolen by Evil Inc., which threatens to publish it on the web? Are you saying that a breach of confidence injunction is such a wicked thing that the small firm should go to the wall and the receiver should get damages from Evil Inc.? Is that really the way to go?

Finally, you want companies to fight back against bad PR. Fair enough, but I think you may be putting too much faith in the power of rebuttal. When Andrew Wakefield published his research on MMR -

http://en.wikipedia.org/wiki/MMR_vaccine_controversy

one paper, in one journal – the medical and scientific establishment fought back, and so did government, with considerable resources. But a mad cat was out of a mad bag, and nothing they could do could persuade a minority that MMR was safe. Uptake of the vaccine is still too low:

http://www.timesonline.co.uk/tol/life_and_style/health/child_health/article5674974.ece

I’m not saying there should have been prior restraint on The Lancet – scientific publication must be a good example of a type of expression that should be highly protected. I’m just using this as a good example of where no PR response to a false accusation is capable of being adequate, and where the only way risk to life could have been avoided would have been for the Wakefield paper not to have been published in the first place.

8 Frank J. Gunn October 15, 2009 at 17:20

Well yes I agree with you, that individuals and small businesses could suffer, but no I politely disagree that prior restraint is the answer even in private cases. Of course this is just a wonderful example of democracy, that the only way this question can be resolved is for everyone to express their views as best they can and hopefully a consensus will emerge and our representatives at some unspecified point somewhere down the line will take heed!

But I have taken on board all your very valid points. I often read your blog and find it incisive.

I know the view I argued above is somewhat idealised, and I am prepared to accept prior restraint as a necessary evil if somehow its use can be reformed in the general direction I think we both have indicated.

Being closely involved with smaller companies for several years I am aware of their plight, but again here most companies have adapted to survive. I don’t know many companies with the budget to even file for an injunction, especially in the R&D arena, so here I would say the current situation does very little to protect them.

And on the subject of patent protection many smaller firms simply don’t bother. By applying they’re putting the idea in the public domain, and larger corporations do sometimes take the view that smaller companies don’t have the funds to fight. I’ve seen this at first hand. Multinational technology firms collect patents like schoolboys collect soccer cards, and trade them if and when infringement proceedings are brought by a rival. Small companies simply are not players and unfortunately many end up selling out to the big players at an early stage because of the impracticalities and cost of defending their product in the market.

The MMR case is an excellent example of unfortunate collateral damage, but I don’t think many would have argued an injunction on the Lancet, as I think you are saying, would have been either warranted in this case or productive.

There are no guarantees that information wouldn’t leak out over the internet, even in 1998, especially as the scientific community were THE first to make mass use of the www (invented by scientists, for scientists).

Yes it’s shambolic that public health has been affected in the way it has.

But I for one would not prevent my children being vaccinated, I’ve read and understand the rebuttals.

And if we imagine this scenario happening now in 2009 and not 1998, and we throw into the mix an injunction being granted, I foresee mass public panic not through access to discussion around a flawed experiment but through rumour on Facebook and Twitter.

Even in 1998, with the subject matter being so important to families there’s possibly even a chance word-of-mouth propagation would have spread panic, since the internet whilst not accessible to a large proportion of households was available to many.

Maybe even, in the absence of access to the raw facts, doctors themselves would retain doubts?

But importantly here, had the report been suppressed, it would not have been available for wider public critique. The flaws may never have come to light!

Thanks for the discussion and excellent blog.

9 Frank J. Gunn October 15, 2009 at 17:33

P.S. yes I also understand and acknowledge the valid point you made about hypocrisy, although of course the penalty would only be applied AFTER due process and trial, so maybe not as hypocritical as it may first appear.

That is the problem being reported by Rusbridger amongst others is that factually correct articles are being suppressed either through injunction or self withdrawal at the threat of a costly defence.

At least if there were no injunction and of course something could be done in the way of defence aid for the respondent then a party who absolutely stood-by his or her claims would be guaranteed a trial before their eventual ruin!

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